Woodall v. Clark

• Decision Date: 16 October 1918
• Docket Number: 1643-1645.
• Citation: 254 F. 526
• Parties: WOODALL v. CLARK et al. (two cases). MILLS v. HUNTINGTON DEVELOPMENT & GAS CO.
• Court: U.S. Court of Appeals — Fourth Circuit

254 F. 526

WOODALL v. CLARK et al. (two cases).

MILLS v. HUNTINGTON DEVELOPMENT & GAS CO.

Nos. 1643-1645.

United States Court of Appeals, Fourth Circuit.

October 16, 1918

D. E Wilkinson, of Hamlin, W. Va., for appellants.

Cary N Davis and W. C. W. Renshaw, both of Huntington, W.Va. (Henry A. McCarthy, of Philadelphia, Pa., and Meek & Renshaw and Campbell, Brown & Davis, all of Huntington, W. Va., on the brief), for appellees.

Before PRITCHARD and WOODS, Circuit Judges, and CONNOR, District judge.

PRITCHARD Circuit Judge.

In disposing of the three abovestated causes, the learned judge who heard the same, in referring to the nature of the suits said:

'The above suits were instituted, in equity, in the circuit court of Lincoln county, W. Va., and later duly removed to this court. The matter is now before me upon motion to dismiss the bills of complaint, all three suits involve the same question, and the bills of complaint in each case are practically identical. Each seeks to have canceled, set aside, and held for naught, as a cloud upon their title, a certain paper writing, commonly called a 'disclaimer,' purporting to have been executed by one W. C. Wiley on the 3d day of June, 1887.

'The substantial and material allegations of the bills are as follows:

'That the plaintiffs are the owners in fee of the land involved in these proceedings, having obtained title thereto through mesne conveyances, tracing title to the commonwealth of Virginia; that the plaintiffs and their various predecessors in title have had open and notorious possession of said property and paramount title thereto, and have paid taxes thereon since the formation of Lincoln county and the grant from the commonwealth of Virginia; that the records of such title were destroyed by the fire which burned the Lincoln county courthouse in November, 1909, but that subsequently, by evidence taken before the commission of destroyed instruments, such instruments of title were readmitted to record; that some time after such fire there was also readmitted to record in a deed book of said county a paper writing, purporting to be a disclaimer, signed and sealed by one W. C. Wiley, a prior owner of said property, which said paper appears to have been recorded in said clerk's office in a certain release docket, some time prior to the recordation of plaintiffs' muniments of title, disclaiming all right, title, and interest in and to the property here in dispute, which said writing is in the words and figures following:

''Whereas, certain actions of ejectment are now pending in the District Court of the United States for the District of West Virginia, in favor of 'Henry McFarlan and others against Louis Adkins and others,' 'John P. Yelverton and others against Louis Adkins and others,' 'John P. Yelverton and others against Jeremiah Witcher and others,' 'Gustavus A. Sacchi against James A. Holley and others,' 'Gustavus A. Sacchi against John M. Reese and others,' and 'Gustavus A. Sacchi against A. J. Barrett and others,' for the recovery of a tract of land heretofore conveyed by Henry McFarlan and others, trustees of the Guyandotte Land Company, to Gustavus A. Sacchi, by deed bearing date on the 27th day of June, 1865, and recorded in the office of the recorder of Cabell county, in Book A (New Series), page 104; and,

"Whereas, William C. Wiley is in possession of and claiming title to a portion of said land, so sought to be recovered, and is desirous of settling any and all conflicting claims to lands so occupied and claimed by him:

"Now, therefore, the said Wiley in consideration of the premises, and being released from all litigation in relation to the land hereinafter described, and from liability for costs in relation to the lands sought to be recovered, as aforesaid, doth hereby disclaim all right, title, claim, demand, or interest in and to all and any land set out and described in said declaration in said action of ejectment, except, all that certain piece or parcel of land, situate, lying, and being in the county of Lincoln and state of West Virginia, on Sugar Camp branch of Middle fork, and being part of a survey made for B.E. & Harvey Barrett and St. C. Ballard on the 3rd day of November, 1849, for 1,400 acres; the tract herein excepted being 130 acres out of said survey, and more particularly described in a deed from F. V. Sweetland to the said Wiley, dated March 15, 1884, recorded in Deed Book F, page 318.

"But the said W. C. Wiley hereby disclaims all title or interest in all coal (except so much as shall be required for domestic purposes) and iron ore, hydro-carbon oils, salt brine, natural gas and all other minerals in, upon or under the said tract of land herein excepted, with the exclusive right to the said plaintiffs, and those claiming under them, for rights of way for tram, rail, and wagon roads through said land so excepted, and to dig for and mine coal, iron ore, bore for oil or natural gas, and the necessary conveniences on said land for storing oil and coal, and the transmission of the same by the best and most convenient means to market.

"And the said William C. Wiley further agrees that the plaintiffs' in either of said actions may take judgment against him in ejectment, for the interest by him herein disclaimed, and to that end he empowers any attorney of said court to appear for him in either of said actions, and consent that such judgment be entered, and that this disclaimer be filed as part of the record in such cause.

''Given under my hand and seal this 23d day of June, 1887.

"W. C. Wiley. (Seal.)'

''State of West Virginia, Lincoln County-- to wit:

"I, H. Hager, a Clerk Co. Ct. in and for said county, do hereby certify that . . ., whose name is signed to the foregoing writing, bearing date the 22d day of June, 1887, this day acknowledged the same before me in my said county.

"Given under my hand this 22d day of June, 1887.

"H. Hager, Clerk. "Clerk's Office County Court, Lincoln County, W. Va.

"This disclaimer was this day presented to me in my said office for record; thereupon the same, together with the certificate of acknowledgment thereon indorsed, is duly admitted to record in my said office this 12th July, 1887.

"H. Hager, Clerk.'

'Note-- The following indorsement was on the back of the above instrument: 'W. C. Wiley. Disclaimer. 130 A. Release Docket, page 168, 169, Ex. No. 38.'

'Note.-- The following indorsement also appears:

"Clerk's Office of the County Court of Lincoln County, 14th day of March, 1911, to wit:

"The deed book containing the record of the foregoing deed and certificate of acknowledgment, and certificate of recordation thereof, having been lost by fire, consuming the records of said clerk's office, occurring on the 19th day of November, 1909, the foregoing deed or disclaimer was this day presented to me, the clerk of the said court, in the clerk's office aforesaid, for record anew. And thereupon, the said deed together with the certificate of acknowledgment, and certificate of recordation have, by me, been duly admitted to record anew in said clerk's office.

"Given under my hand this 14th day of March, 1911.

"W. C. Holstein, "Clerk County Court of Lincoln County.

"Recorded in Deed Book No. 62, page 91.

"A true copy. Attest:

'Albert F. Black, Clerk, "By . . ., Deputy.' 'The certificate to this paper, it will be noted, omits the name of the maker thereof.

'It appears from the pleading before me that while this disclaimer was executed in connection with certain ejectment cases then pending, involving this property, it was never filed in such cases, but recorded in the county clerk's office of Lincoln county in a record book, commonly called a 'release docket'; that after the destruction of the courthouse of said county by fire, it was re-recorded and now is of record in a deed book of said county. It is this record which plaintiffs claim constitutes a 'cloud upon their title,' and which they seek to have set aside. In one of the above-styled suits, coercion is charged in connection with the signing of said so-called disclaimer, although this allegation is not substantiated by any supporting facts or allegations, and was not relied on in argument. The plaintiffs likewise embrace in their bill of complaint a naked allegation to the effect that the said paper was originally recorded in the release docket at the instance and by the direction of defendants.

'Defendants take the position that this paper is in reality and effect a quitclaim deed and divested W. C. Wiley of title to said property and vested title thereto in defendants, or their predecessors in title; furthermore, that this instrument duly signed, sealed and later recorded, estops Wiley or his successors in title from asserting title thereto.'

In cases Nos. 1643 and 1644 there was a motion to remand, which motion was overruled, and the defendants filed written motions to dismiss the bills of complaint in each of the causes. A decree was entered dismissing them at the cost of plaintiffs, respectively, from which decree an appeal was taken to this court.

We will first dispose of what we conceive to be the first question involved in causes Nos. 1643 and 1644.

It is contended by counsel for the appellant that they should have been remanded to the state court upon the ground that it appears from an inspection of the bills filed therein that the matter in dispute in each was of less value than $3,000. Among other things it is alleged in the defendants' petition that the value of the matter in dispute in this action 'exceeds the sum or value of $3,000 exclusive of interest and cost. ' It has been repeatedly held that the removal of a case from a state court is based upon the ...