Young v. Garrett

• Decision Date: 08 August 1945
• Docket Number: 12837.,No. 12836,12836
• Citation: 149 F.2d 223
• Parties: YOUNG v. GARRETT et al. GILBERT et al. v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

149 F.2d 223 (1945)

YOUNG v. GARRETT et al. GILBERT et al. v. SAME.

Nos. 12836, 12837.

Circuit Court of Appeals, Eighth Circuit.

May 9, 1945.

Rehearing Denied August 8, 1945.

COPYRIGHT MATERIAL OMITTED

Charles E. Wright and J. R. Wilson, both of El Dorado, Ark., for appellant Young.

DuVal L. Purkins, of Warren, Ark. (James H. Nobles, Jr., of El Dorado, Ark., and A. A. Thomason, of Magnolia, Ark., on the brief), for appellants Gilbert and others.

J. P. Greve, of Tulsa, Okl. (R. H. Wills, of Tulsa, Okl., and C. W. McKay and W. D. McKay, both of Magnolia, Ark., on the brief), for appellees in both appeals other than Carter Oil Co.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

These are separate but companion cases in each of which an alternative motion to dismiss or for summary judgment for defendants was filed. The grounds stated for dismissal were (1) failure to join indispensable parties plaintiff and defendant which would defeat diversity of citizenship and (2) no cause of action set forth. The ground stated for summary judgment was that the petition disclosed the action barred by limitation. Affidavits were filed by both parties in each suit.¹ The court consolidated the cases for hearing on the motions and delivered one opinion covering both cases. Judgments of dismissal for lack of indispensable parties were entered from which these appeals.

The two appeals will be covered by one opinion as they have most matters in common. Where necessary they will be examined separately herein. Each suit is in ejectment and for rents, profits and injury to the freehold and for injury to the freehold prior to title in plaintiffs. The land involved is 308 acres in Columbia County, Arkansas. In the Young case, plaintiff alleges title and right of possession to 5/54 undivided interest in the land. In the Gilbert case, plaintiffs allege common ownership of a 1/54 undivided interest in the land. Defendants are the same in each case (Levi Garrett, Asa C. Garrett, Frank Garrett, R. S. Foster, Mid-Continent Petroleum Corporation and The Carter Oil Company). In both cases, the charges against the defendants and the relief sought are substantially identical. As to the individual defendants, the charge is they (the Garretts as to part of the land and Foster as to the balance) "are now attempting to claim said lands and have occupied and used the same to the exclusion of the plaintiffs and have cut and caused to be cut and have converted to their own use the timber therefrom and have sold and attempted to sell interests in the oil and gas therein and have converted the same to their own use and have executed oil and gas leases thereon and caused wells to be drilled thereon and oil and gas removed therefrom and have converted the same to their own use, without accounting to the plaintiffs for their interest therein." As to the corporate defendants the charge is they have entered upon portions of the acreage "and drilled upon said tract two wells and have removed therefrom oil and gas and converted the same to their use without accounting to the plaintiffs for their interest therein." The relief sought is possession, an accounting to determine the rents, profits and damages, and judgment for amounts found due with interest thereon.

Indispensable Parties.

The citizenship of the plaintiffs is: As to Young (No. 12,836), Illinois; and as to the Gilberts, Dismukes and Roberts (No. 12,837), Louisiana. The citizenship of defendants is: As to the Garretts and Foster, Arkansas; as to Mid-Continent, Delaware; and as to Carter, West Virginia.

Since the defect in parties has largely to do with persons related to the titles of plaintiffs in the two suits, it will be helpful in understanding the motions to dismiss to state the allegations in the petitions and in the attached exhibits as to such titles. These statements are identical up to the immediate acquirements by plaintiffs, at which point, Young acquires by deeds and the plaintiffs in No. 12,837 by descent. The petitions set forth a chain of title from the patent down to plaintiffs. Our interest begins with a deed from Wesley Arnold to Sarah E. Pace on April 15, 1867. Mrs. Pace died intestate in 1898, leaving nine living children as her only heirs.

Of these nine heirs, two (James M. Pace and Alex B. Pace) are living. The seven other children died intestate with or without issue as next set forth.

Martha Flewellyn Pace Hudgens died in 1899 leaving five children of whom two died intestate and three (Ethel Hudgens Watkins, John P. Hudgens and Isaac Hudgens) are living.

Casper Howell Pace died in 1914 leaving a daughter Hattie Elizabeth Pace Satterwhite now living.

William Solomon Pace died in 1934 without issue.

Amelia A. Pace Dismukes died in 1936 leaving a son (Corbin Dismukes) and two daughters (Geraldine Dismukes Roberts and Ellen Dismukes Gilbert) — Mrs. Gilbert has since died leaving two then minor daughters (Betty Jean Gilbert and Patsy Marie Gilbert).

Mary Christine Pace died unmarried December 27, 1939 — being of unsound mind during her lifetime.

Bob Winfield Pace died in October, 1942, without issue.

Sarah Elizabeth Pace Young died in November, 1942, leaving two daughters (Christine Hart and Dana Walthall) and two sons (Howell Young and Charlie Young).

Plaintiff (Horace A. Young) in No. 12,836 derives his title from three warranty deeds executed in December, 1942. Each deed conveyed the grantor's "entire undivided interest in and to" this tract of 308 acres and "all claims" for trespass on and injury to the land and for severance of timber, oil and gas therefrom.

The grantors in one of these deeds were Hattie Satterwhite, Ethel Watkins, J. P. Hudgens (and wife), I. T. Hudgens (and wife), James M. Pace, Alex Pace (and wife), Christine Hart and Charlie Young (and wife) — being the only living child (Hattie Elizabeth Pace Satterwhite) of Casper Howell Pace, the three living children (Ethel Watkins, J. P. Hudgens and I. T. Hudgens) of Martha Flewellyn Pace Hudgens, two of the nine children (James M. Pace and Alex Pace) of Sarah E. Pace and two of the four children (Christine Hart and Charlie Young) of Sarah Elizabeth Pace Young. The grantor in another deed was Dana Walthall the other daughter of Sarah Elizabeth Pace Young. Grantor in the third deed was Howell Young, the other son of Sarah Elizabeth Pace Young. Apparently, these deeds conveyed the entire 1/9 interest each of Casper Howell Pace, of Martha Flewellyn Pace Hudgens, of Sarah Elizabeth Pace Young, of James M. Pace, and of Alex Pace — being five of the nine children of Sarah E. Pace — with such additional interests as these grantors may have acquired, by inheritance, from William Solomon Pace, Mary Christine Pace and Bob Winfield Pace (children of Sarah E. Pace) who died intestate without issue. These grantors included all of the interests in this land except such as lay in Amelia A. Pace Dismukes and her descendants because of her one-ninth interest inherited from her mother Sarah Elizabeth Pace and such as came to her or her descendants by inheritance from William Solomon Pace, Mary Christine Pace and Bob Winfield Pace, who died intestate without issue. The plaintiffs in No. 12,837 are all of these heirs of Amelia. Although the allegations in the petitions and attached exhibits seem to cover the entire title to this tract of 308 acres, yet the Young petition states specifically that "The interest which the plaintiff claims in and to the property above described the 308 acre tract is the five-sixths of the one-ninth (5/6th of 1/9th) interest of Mary Christine Pace, deceased, which descended to his said grantors, and which was conveyed by them to him;" and the Gilbert petition is identical except it claims the remaining one-sixth of this one-ninth interest, which "descended to them."

While differing in expression, the motions to dismiss amount to the same in substance. They charge that the indispensable parties plaintiff and defendant are the same in both cases — such plaintiffs being the present plaintiff in both cases, the grantors of Young, and the respective administrators of the estates of William Solomon Pace, Mary Christine Pace and Bob Winfield Pace, deceased; and such defendants being the present defendants and certain "residents and citizens of the State of Louisiana, including the Standard Oil Company of Louisiana, a Louisiana corporation." This alignment of parties would result in citizens of Arkansas being both plaintiff (the grantors of Young and the before stated administrators) and defendant (the present defendants — the Garretts and Foster); and in citizens of Louisiana being both plaintiff (the Gilberts, Corbin Dismukes and Geraldine Dismukes Roberts) and defendant (the "residents and citizens," including the Standard Oil Company of Louisiana) — thus destroying diversity.

The Court stated, in his opinion, as follows: As to No. 12,836, that the record before him "does not disclose conclusively" that the grantors of plaintiff Young had not conveyed all title, right and interest to the lands and oil and gas therein before these deeds to plaintiff "but the plaintiff is seeking to recover the rents, issues and profits derived from the land prior to the date of the deeds;" that "In such action the assignors are indispensable parties plaintiff." As to No. 12,837, that the grantors or assignors of Young (plaintiff in No. 12,836) were tenants in common with plaintiffs and indispensable parties plaintiff. As to both suits, that the administrators of the estates of Mary Christine Pace, of Bob Winfield Pace and of Sarah Elizabeth Pace Young were indispensable parties plaintiff as to recovery of any rents, issues and profits from their interests accruing prior to their deaths. As to both suits, that adding the above indispensable parties plaintiff would destroy diversity since some of such parties and some of defendants were citizens of Arkansas. The Court gave no...