Davie v. Briggs
97 U.S. 628

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U.S. Supreme Court

Davie v. Briggs, 97 U.S. 628 (1878)

Davie v. Briggs

97 U.S. 628

Syllabus

1. A person who for seven years has not been heard of by those who, had he been alive, would naturally have heard of him is presumed to be dead, but the law raises no presumption as to the precise time of his death.

2. The triers of the facts may infer that he died before the expiration of the seven years if it appears that within that period he encountered some specific peril or came within the range of some impending or imminent danger which might reasonably be expected to destroy life.

3. This Court adopts the construction of the Supreme Court of North Carolina that the term "beyond the seas," where it occurs in the statute of limitations of that state, means "without the United States."

The history of this litigation is substantially as follows:

The land, containing about two hundred acres, the proceeds of which are involved in this suit was conveyed in the year 1829 for the consideration of $6,000 by John Teague, its then

Page 97 U. S. 629

owner, to F. W. Davie, of South Carolina, a brother of Allen Jones Davie. In the succeeding year, F. W. Davie leased it upon certain terms and conditions to one McCulloch for the term of twenty years, and in 1831, for the consideration of $5,000, he conveyed to the latter an undivided one-third of the whole tract, with the exclusive right to direct and manage the working of the mines thereon and to receive one-third of the profits arising therefrom, and a few months thereafter he, for the consideration of $3,000, conveyed an undivided third of the same tract, with all the emoluments and profits arising therefrom, to his brother, Hyder A. Davie.

The complainants claim that subsequently, on the 15th of January, 1833, F. W. Davie, in accordance with an agreement, which at the time of his purchase from Teague he made with Allen Jones Davie, conveyed the remaining undivided third of the tract to Cadwalader Jones, Sen., with all the rights and privileges thereunto belonging, in trust to permit said Allen, his wife, and their children then living or thereafter resulting from their marriage, to have and receive the rents, profits, and issues of the said premises and of all mines thereon found for the joint use of said Allen, his wife and children during the lifetime of the said Allen, and after his death to permit his wife and children to receive the said rents, profits, and issues, and after the death of the wife to convey the premises, &c., to such children and their issue, free and discharged from all trusts whatsoever, the conveyance, however, being upon the condition that the land and mines should be liable for one-third of such amount as upon settlement should be found to have been expended by F. W. Davie in working the mines. Upon that conveyance, which was never registered and is alleged to have been lost, the complainants, heirs-at-law of said Allen, rest as the foundation of their right to the relief asked. The defendants deny that any such conveyance was ever executed and delivered by F. W. Davie as his act and deed. Said Allen, at the time of its alleged execution and delivery, was residing upon the land with his family, and had some connection with the working or management of the mines, the precise nature of which does not appear. Difficulties occurred between him and McCulloch which gave rise to a suit in 1833 in the Equity

Page 97 U. S. 630

Court of Guilford County in the name of "Allen Jones Davie and others" against McCulloch. The papers in that suit had all disappeared when this was commenced, and nothing remained to indicate the nature of the issues but a few scattered minutes upon the trial docket. From them it appears that an injunction of some kind was granted against McCulloch which interfered with his mining operations. By an order made in 1836, the master was directed to ascertain the damages which McCulloch sustained by reason of the injunction. The final order in that case seems to have been made in 1840 in the supreme court, to which it was transferred for trial. That order is in these words:

"The deeds mentioned in the rules made at the last term in this cause not having been exhibited and filed in the office of this court by the time therein directed, it is ordered that the plaintiffs' bill be dismissed out of this court, with costs to be taxed by the proper officers, but without prejudice to the plaintiffs' right to file another bill."

No other bill appears to have been filed. These minutes do not show who were complainants in that suit with Allen Jones Davie, or to what deeds the order of 1840 referred. Not long after that litigation, Allen Jones Davie removed from the vicinity of the mines to Hillsboro', N.C., and subsequently to South Carolina.

In 1848, McCulloch, for the consideration of $2,000, made a quitclaim deed to John Gluyas for the undivided third of the land conveyed to him by F. W. Davie in the year 1831. In the same year, Hyder A. Davie died, having by his last will devised and bequeathed to F. W. Davie, L. A. Beckham, and W. F. Desarre his whole estate, real and personal, in trust for the sole and separate use of his daughter, Mrs. Bedon. On the 2d of March, 1850, F. W. Davie made two deeds (which were duly recorded on the same day) to Beckham, one to him individually, for an undivided third of the land for the expressed consideration of $2,000, and the other to him for an undivided third of the same land, in trust for Mrs. Bedon, the consideration therefor, as recited, being $3,000, previously paid to the grantor by Hyder A. Davie. Within a few weeks after the making of these two last deeds, F. W. Davie died at his home in South Carolina. On 9th April, 1850 (whether F. W. Davie was then alive

Page 97 U. S. 631

does not appear), Beckham leased an undivided two-thirds of the tract to Briggs for the term of five years, and the latter, on June 12, 1850, assigned that lease to John Peters and M. L. Holmes. During the succeeding year, Allen Jones Davie started for California by the overland route, and was never heard from after he had reached in his journey the hostile Indian Territory. In 1852, John Gluyas conveyed, by quitclaim deed, to John Peters and M. L. Holmes the undivided one-third which he had previously acquired from McCulloch; and in 1853 M. L. Holmes conveyed to R. J. Holmes one-eighteenth of the part purchased from Gluyas and a one-sixth interest in the lease taken by Holmes and Peters from Briggs. Under the foregoing deeds and leases, Peters, Sloan, & Co., for a time, worked the mines; and in June, 1853, they joined with Beckham in selling and conveying the property by separate deeds to the Belmont Mining Company, at the price of $125,000, which was paid to Peters, Sloan, & Co. Of that sum, it was agreed between the parties selling that Peters, Sloan, & Co. were entitled to $81,666.66, while Beckham, in his individual right and as trustee for Mrs. Bedon, was entitled to receive $43,333.33. Before this transaction, however, was consummated by a division of the funds among the respective parties, a written notice, dated July 23, 1853, signed by the attorney of "Cadwalader Jones and the heirs of Allen Jones Davie, deceased," was served upon Peters, Sloan, & Co. to the effect that

"one-third of the purchase money for which the McCulloch mine in the County of Guilford has lately been sold is claimed by Colonel Cadwalader Jones, as trustee, for the use and benefit of the children and heirs-at-law of Allen J. Davie, by a deed from F. W. Davie, bearing date the 15th January, 1833."

They were, by that notice, "requested and notified to retain one-third of said money" in their hands "for the use of said heirs, and not to pay out said third to any person or persons without the consent of Col. C. Jones." This notice induced Peters, Sloan, & Co. to suspend any final settlement and division with Beckham. In the fall of 1853, it seems that Cadwalader Jones, Jr., a son of the trustee named in the deed of Jan. 15, 1833, was employed by the latter and by William R. Davie to establish the claim of the heirs of Allen Jones Davie to said land and mines. After his

Page 97 U. S. 632

employment, Cadwalader Jones, Jr., appears to have had some negotiations with Beckham, which resulted in the latter's executing, in the presence of Sloan, of Peters, Sloan, & Co., and Cadwalader Jones, Jr., a paper, of which the following is a copy:

"STATE OF NORTH CAROLINA, Guilford County:"

"Whereas Peters, Sloan, & Co. held one-third of the McCulloch gold mine in Guilford County, under John Gluyas, Charles McCulloch, and William F. Davie, and whereas they had a lease from Lewis A. Beckham in his own right, and as trustee of Mrs. Julia Bedon, for two-thirds of said mine for a period the lease will show;"

"Whereas said Peters, Sloan, & Co. worked the said mine for some year or two, and paid one-seventh of the two-thirds of all the gold extracted whilst they worked the mine to said Lewis A. Beckham for himself, and as trustee aforesaid;"

"Whereas Peters, Sloan, & Co. sold their interest in said mine for $82,333.33;"

"Whereas Lewis A. Beckham sold his interest in said mine for $21,333.33, and his interest as trustee aforesaid for the same sum;"

"Whereas Col. Cad. Jones, of Hillsboro', as trustee, claiming the one-third of said mine as trustee for Allen J. Davie, wife and children, as he alleges under a deed from William F. Davie;"

"Whereas James Sloan, one of the firm of Peters, Sloan, & Co., collected for Lewis A. Beckham his part and the part of Julia Bedon, to-wit, $41,666.66;"

"Whereas it is the wish of all the parties for the said several parties to receive the said several purchases without prejudice to the legal or equitable claim of Col. Cad. Jones;"

"It is agreed that whatever claim the said Cad. Jones had in said gold mine he shall have against the several parties who have sold and received the purchase money instead of the land itself. And the said Lewis A. Beckham hereby agrees to acknowledge service of any bill in equity which the said Cad. Jones and his cestui que trust may in equity file against himself or against himself and others in Guilford County, North Carolina, waiving all questions as to jurisdiction, to settle any and all questions of title and right the said Cad. Jones, trustee, or his cestui que trust, have or may have for the said purchase money, or the rents and profits received whilst he had any thing to do with the said mines."

"(Signed) L. A. BECKHAM"

"APRIL 28, 1854"

Page 97 U. S. 633

Beckham died in 1860 or 1861. His estate was insolvent. In July, 1874, this suit was instituted for the purpose of either obtaining a partition of the land or a portion of the proceeds of the sale. In the progress of the suit, the complainants elected to claim an interest in the proceeds of the sale. Among the defendants are the Belmont Mining Company, James Sloan, M. L. Holmes, and R. J. Holmes, whom the complainants seek to hold liable for their alleged interest in the proceeds of sale. Upon final hearing, the bill was dismissed, and the complainants appealed.

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