This being a suit to establish a deed alleged to have been
executed, and not recorded, but lost, the Court holds the evidence
to be entirely sufficient to establish the existence and loss of
that deed.
It being also a suit to correct an alleged mistake in
boundaries, the Court holds, on the authority of
Ayers v.
Watson, 137 U. S. 584,
that it is well settled that in running the line of a survey of
public lands in one direction, if a difficulty is met with, and all
the known calls of the survey are met by running them in the
reverse direction, this may be properly done, and it applies this
principle to the lines established by the court below, and holds
that the evidence is clear and convincing in establishing the facts
which sustain its action in that respect.
The jurisdiction of equity to reform written instruments where
there is a mutual mistake or mistake on one side and fraud or
inequitable conduct on the other is undoubted; but to justify such
reformation, the evidence mast be sufficiently cogent to thoroughly
satisfy the mind of the court. When each and all of the individuals
who organize a corporation under a state law had knowledge or
actual notice of a defect in the title to lands acquired by the
corporation through them, their knowledge or actual notice was
knowledge or notice to the company, and if constructive notice
bound them, it bound the company.
None of the original deeds in appellant's chain of title having
been produced -- though certified copies were attached to the
pleadings -- and no independent evidence having been offered of
payments of purchase money by defendants,
held that as
against complainant, the recitals in the deeds could not be relied
on as proof of such payment.
The rule of
caveat emptor applies exclusively to a
purchaser, who must take care and make due inquiries, and is bound
by constructive as well as by actual notice -- the latter being
equivalent in effect to the former; but, in applying the rule, each
case mast be governed in these respects by its own peculiar
circumstances.
Actual and unequivocal adverse possession of land is notice to a
purchaser; it is incumbent upon him to ascertain by whom and in
what right it is held, and the unexplained neglect of this duty is
equivalent to notice.
In this case, the defendants had such notice as to put them on
inquiry and to charge them with knowledge of the facts.
The commission of a trespass on real estate and the commission
of acts of waste upon it do not constitute a possession which, in
itself, would drive
Page 142 U. S. 418
the owner to an action of ejectment and prevent him from filing
a bill
quia timet.
The jurisdiction of a court of equity is maintained in a suit to
determine title when a part of the remedy sought is to supply what
was by mistake omitted from one of the title deeds or to establish
a lost deed, even though in the latter case, proof of the fact
might have been allowed to be made in an action at law.
The Court stated the case as follows:
This was a bill in equity filed by Joseph I. Doran, August 1,
1885, in the District Court of the United States for the District
of West Virginia, against the Simmons Creek Coal Company, Robert D.
Belcher, George W. Belcher, Chrispianos Belcher, P. H. Rorer, N. L.
Reynolds, and R. B. McNutt, Commissioner of School Lands for Mercer
County, to establish a deed alleged to have been executed by
Chrispianos Belcher to Robert D. Belcher, and not recorded, but
lost, for two hundred acres of land, more or less, with its proper
metes and bounds; to obtain the construction of a deed of the same
land from Robert D. Belcher to William H. Witten, and the
correction of an alleged mistake as to its boundaries; to set aside
certain deeds executed by George W. Belcher and others, so far as
embracing the land in controversy, as clouds upon complainant's
title thereto, and to restore complainant to and quiet him in the
possession thereof; to enjoin and restrain the commission of waste
by the defendants, and for general relief.
The bill prayed that the defendant coal company and the
defendant Robert D. Belcher answer under oath all and singular the
allegations of the bill as if specially thereunto interrogated.
Chrispianos Belcher was not served, and the defendants Robert D.
Belcher and McNutt, commissioner, did not answer.
The coal company answered by counsel and under its corporate
seal, but the answer was not verified by affidavit. The answers of
George W. Belcher, N. L. Reynolds, and P. H. Rorer were sworn to
though they had not been required to answer under oath. Evidence
was adduced on behalf of complainant and a final hearing had, which
resulted in the following decree:
Page 142 U. S. 419
"This cause came on this 17th day of February, 1888, for a final
hearing, and was argued by counsel, and, upon mature consideration,
the court is of opinion that the plaintiff is entitled to the
relief prayed for in his bill, and it appearing to the court that
at and before the date of the deed from the defendant Robert D.
Belcher to William H. Witten, bearing date the 23d day of December,
1852, for two hundred acres of land, more or less, the said Robert
D. Belcher was the owner, by purchase from Chrispianos Belcher, of
800 acres of land, of which the said 200 acres, more or less, was
and is a part, which said 800 acres was bounded east by Simmons
Creek, commencing at the two birches mentioned in the said deed,
and running thence up said creek, with its meanders, to the mouth
of the middle fork thereof, and thence up the left-hand fork of
said creek, with its meanders, to two spruce pines and a white oak,
corner to William Miller's survey of 100 acres, and also a tract of
150 acres conveyed by Chrispianos Belcher and wife to William
Payne, and which tract of 800 acres is shown on the map filed with
the deposition of the said William Miller in this cause."
"And it further appearing to the court that by reason of a
dispute in reference to the true west line of the said 800 acres of
land, the said Chrispianos Belcher conveyed to the said Robert D.
Belcher by deed the said two hundred acres of land, more or less,
the same being part of said 800 acres, bounded or intended to be
bounded east by Simmons Creek, as above stated, which deed was
never recorded and is lost, and cannot be found, and it further
appearing to the court that by the contract and agreement between
the said Robert D. Belcher and the said William H. Witten, under
which said deed of the 23d of December, 1852, was executed, the
boundary line of the said deed from the two birches to the six
chestnuts was to be inserted in said deed as follows:"
"Beginning at the two birches on Simmons Creek, corner to
Chrispianos Belcher's land; thence up and with said creek and with
William Miller's line to the mouth of the middle fork of said
creek, as is now shown on the map of Surveyor Sinnett, made and
filed in this cause, marked 'Decree Map, Feb. 17th, 1888,'
Page 142 U. S. 420
and made part of this decree; thence up and with the left-hand
fork of said creek, as is shown on said map, to the point shown on
said map by the letter 'E,' which is a corner of a survey of 100
acres then owned by the said William Miller, and also of the tract
of 150 acres adjoining said Miller's survey, then owned by the said
William H. Witten and R. C. Graham, both of which said tracts are
laid down on said map, and thence, with the line of the said Miller
survey of 100 acres, to six chestnuts at the point shown on said
map by the words 'six chestnuts' and the letter 'D.'"
"And it further appearing to the court that by the mistake and
inadvertence of the drawer of said deed the calls thereof from the
said two birches to the six chestnuts do not conform to and carry
out the contract and intentions of the parties to said deed, or to
the boundary lines thereof from the two birches to the six
chestnuts, it is therefore adjudged, ordered, and decreed that the
said lost deed of the said Chrispianos Belcher to the said Robert
D. Belcher for the said 200 acres of land, more or less, be, and
the same is hereby, set up as a muniment of the title of the
plaintiff in this cause to the said 200 acres of land, more or
less, a part of which said tract is in controversy in this suit,
and it is to have the same force and effect as such muniment of
title as if said deed were now in existence and of record, with the
boundary lines of said tract of land from the two birches to the
six chestnuts as hereinabove stated, and it is further adjudged,
ordered, and decreed that the said mistake in the calls of the said
deed of the said Robert D. Belcher to the said William H. Witten,
bearing date the 23d day of December, 1852, from the said two
birches to the said six chestnuts, be, and the same is hereby,
corrected, and the said calls made to correspond with the contract
and intent of the parties to said deed as follows:"
" Beginning at two birches on Simmons Creek, corner to
Chrispianos Belcher's land, and running thence up and with said
creek with William Miller's line to the mouth of the middle fork of
said creek; thence up and with the left-hand fork of said creek to
two spruce pines and a white oak, corner to said William Miller's
survey of 100 acres, and thence with the
Page 142 U. S. 421
line of said survey to six chestnuts, also a corner
thereof,"
"and that the said plaintiff be, and he is hereby, forever
quieted in his title, possession, control, and enjoyment of the
said two hundred acres of land, more or less, within the boundary
lines of the said deed of Robert D. Belcher to said William H.
Witten therefor as it is hereby corrected."
"And it further appearing to the court that the said William H.
Witten and those claiming under him took and held the possession of
the said 200 acres of land, more or less, under his said deed from
R. D. Belcher from the date thereof to the year 1884, claiming the
same up to the line of Simmons Creek, as herein stated, without
question or objections by the said Chrispianos Belcher, R. D.
Belcher, or any other person, and it further appearing to the court
that the defendant, 'Simmons Creek Coal Company,' was at the
commencement of this suit, and still is, claiming a portion of the
said tract of land of 200 acres, more or less, in defiance of the
rights of the plaintiff, who is the true owner thereof, under the
following-named deeds of record in the County of Mercer, in this
district, where said land is situate, to-wit: a deed from George W.
Belcher & wife to Newton L. Reynolds, dated the 4th day of
December, 1884; also a deed from George W. Belcher & wife to P.
H. Rorer, dated February 25, 1885; also a deed from N. L. Reynolds
to L. A. Welch, dated January 13, 1885; also a deed from I. A.
Welch & wife to A. W. Reynolds, dated January, 13, 1885; also a
deed from I. A. Welch & wife to Simmons Creek Coal Company,
dated February 28, 1885; also a deed from A. W. Reynolds to Simmons
Creek Coal Company, dated February 28, 1885; also a deed from P. H.
Rorer & wife to Simmons Creek Coal Company, dated February 28,
1885; also a deed from N. L. Reynolds to Simmons Creek Coal
Company, dated February 28, 1885, and that the said claim of said
defendant and the said deeds and each of them constitute a serious
and damaging cloud upon the title of the said plaintiff to so much
of his said land as is covered by the said claim of the said
defendant, 'Simmons Creek Coal Company,' under said deeds and each
of them. It is therefore further adjudged, ordered, and decreed
Page 142 U. S. 422
that the said deeds and each of them be, and they are hereby,
set aside, vacated, and annulled, and the claim of the said
defendant to the said lands so set up as aforesaid, under said
deeds, be held for naught, and it is further adjudged, ordered, and
decreed that the said defendant, 'Simmons Creek Coal Company,' do
pay to the plaintiff his costs by him expended and incurred in the
prosecution of this suit, to be taxed, and that, if necessary, he
may have execution therefor."
The map made part of the decree is given opposite [map too large
for display -- see version in vol. 142, U.S. Reports]. The coal
company prosecuted an appeal to this Court.
Page 142 U. S. 425
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Appellant assigns as errors that the court erred in establishing
the alleged lost deed from Chrispianos Belcher to Robert D. Belcher
and in correcting the alleged mistake therein, in setting aside the
deeds under which appellant claims as clouds on complainant's
title, and in correcting the alleged mistake in the deed from
Robert D. Belcher to William H. Witten dated December 23, 1852.
Complainant Doran deraigns title through the lost deed from
Chrispianos Belcher to Robert D. Belcher, and deeds of Robert D.
Belcher to W. H. Witten, December 23, 1852; of W. H. Witten, W.
Scott Witten, and Graham to Doran, November 5, 1881; of Doran to
the Southwest Virginia Improvement Company, January 1, 1883, and of
said company to Doran December 13, 1883, and it also appears that
Chrispianos Belcher gave a deed to Doran, dated April 2, 1885, of
the 200 acres, describing the boundaries of the tract in accordance
with Doran's contention.
The defendant claims title through a deed of Chrispianos to
George W. Belcher, dated October 18, 1884, and various mesne
conveyances set forth in the decree, and hereinafter referred to.
Both parties claim therefore under Chrispianos Belcher.
The description of the tract of land in the deed from Robert D.
Belcher to William H. Witten is as follows:
"All that
Page 142 U. S. 426
tract of land, containing by estimation two hundred acres, be
the same more or less, lying in Mercer County, on Simmons Creek,
waters of Bluestone, and [bounded] as follows, to-wit: beginning at
two birches on Simmons Creek, corner to Chrispianos Belcher's land;
thence up said creek with Miller's line S., 55� W., 120 poles, to
six chestnuts, corner to Miller's survey, and with the same S., 35�
E., 310 poles, to a double and single poplar, corner to said
Belcher, and with the same N., 40� E., 250 poles, to the
beginning."
By the decree, the boundary line from the two birches to the six
chestnuts was made to read:
"Beginning at two birches on Simmons Creek, corner to
Chrispianos Belcher's land, and running thence up and with said
creek with William Miller's line to the mouth of the middle fork of
said creek; thence up and with the left-hand fork of said creek to
two spruce pines and a white oak, corner to said William Miller's
survey of 100 acres, and thence with the line of said survey, to
six chestnuts, also a corner thereof."
Upon the hearing, the testimony of Robert D. Belcher, to whom,
as alleged, Chrispianos conveyed, and who conveyed to W. H. Witten;
of William Miller, referred to in the deed of Robert D. to Witten;
of W. S. Witten, son of W. H. Witten; of Henry Sadler and others,
was introduced on behalf of complainant, together with divers deeds
and maps. The deposition of Chrispianos Belcher, who was living in
the State of Missouri, was not taken, nor was that of W. H. Witten,
in respect of whom it was shown that his mind and memory had been
declining for some years, and that his mental and physical
condition was such as to render him unable to recall business
transactions with certainty and accuracy.
It appeared from the evidence that in 1842, Robert D. Belcher
and his brother Obediah purchased of James Hector 4,000 acres of
land situated on the waters of the Bluestone, in the County of
Mercer, Virginia, now West Virginia; that they agreed upon a
division line, Obediah taking about twenty-five hundred and Robert
D. about fifteen hundred acres, and the land was surveyed and
conveyed according to the agreed division; that the land was a part
of a five hundred thousand-acre
Page 142 U. S. 427
survey granted by the commonwealth to Wilson Cary Nicholas, from
whom Hector had purchased it; that Obediah sold fifteen hundred
acres, part of his twenty-five hundred acres, to Chrispianos
Belcher, and that in the year 1844, Robert D. purchased of
Chrispianos about eight hundred acres of this fifteen hundred acres
in consideration of one horse; that said eight hundred acres was
bounded on the east by Simmons Creek, a tributary of the Bluestone,
on the north by the lands of Obediah Belcher and others, on the
west by the Wilson Cary Nicholas survey, and on the south by the
fifteen hundred-acre tract conveyed to Robert D. by Hector.
It further appeared that after Robert D. purchased the eight
hundred acres, Chrispianos and he were informed that there was a
controversy or dispute about the west line of the Nicholas survey
as not running as far west as Hector claimed; that one Lybrook, a
surveyor of Giles County, had some time before run said line and so
located it as to leave out about six hundred of the eight hundred
acres, and about five hundred acres of Robert D.'s fifteen
hundred-acre tract, and that when Chrispianos heard of this dispute
he declined to make Robert D. a general warranty deed to that part
of the eight hundred acres so brought into question, and, not
having his title bond for the land, Robert agreed to accept such
deed for the portion not in dispute, and as to the balance both
were to a wait the final establishment of said line. That thereupon
Chrispianos made and delivered to Robert a deed with covenants of
general warranty for the undisputed part, which was supposed to
contain two hundred acres, more or less, the metes and bounds of
which were, Robert testified, as follows:
"Beginning at two birches on Simmons Creek; thence up said creek
with the same, and leaving said creek upon the course south, 55
west, 120 poles, to six chestnuts mentioned, and thence with the
said Lybrook line to a single and double poplar on the said
division line between Obediah Belcher & myself, and thence with
same to the beginning."
In 1852, Robert sold the two hundred acres, and also the land
the title to which had been called in question, supposed to be
about eleven hundred acres, to W. H. Witten, and, as
Page 142 U. S. 428
Chrispianos had not conveyed the six hundred acres (part of the
eleven hundred) to Robert, he joined Robert in the conveyance of
the eleven hundred to Witten.
This deed from Robert and Chrispianos was put in evidence, and
bears date December 23, 1852, and thereby, in consideration of $35,
the grantors conveyed eleven hundred acres, more or less,
"lying in Mercer County, Virginia, on the waters of Bluestone
and Elkhorn, and bounded as follows, to-wit,
viz.,
beginning at the north of Laurel, a branch of Bluestone; thence
north, 27 W., in the line of the Wilson Cary Nicholas five hundred
thousand-acre survey, and with the same about E. 640 poles to two
birches; thence continue on the said line 280 poles to a double
birch on said line; thence, leaving said line, north, 55 E., 294
poles, to six chestnuts; thence south, 35 east, 940 poles, to the
beginning,"
making the triangular tract lying between the west line of the
Nicholas survey and the Lybrook line, as delineated on the decree
map.
On the same day, Robert made the deed to Witten, the description
in which is in controversy, intending, as he says, to convey the
two hundred acres which Chrispianos had conveyed to him, and Robert
testified further that some time after this conveyance, he and
Witten were looking over some old land papers at Obediah's house
and came across the deed from Chrispianos to Robert for the said
two hundred acres of land, and Robert then gave the deed, and money
to have the same recorded, to Witten, and had not since seen it. It
was stipulated that if Chrispianos conveyed the two hundred-acre
tract to Robert, the deed was never recorded, and that diligent
search had been made, and no such deed could be found.
It also appeared that at the time of Robert's conveyance, Miller
owned or claimed to be the owner of a tract of six hundred acres
lying east of and adjoining the two hundred acres; that the line of
this Miller tract ran up Simmons Creek from the two birches called
for in the deed of Robert to Witten; that Miller got this land from
Obediah Belcher, and the west three hundred acres of it was
subsequently purchased by Henry Sadler. Miller was a brother-in-law
of Chrispianos and George W. Belcher, Obediah Belcher being his
wife's
Page 142 U. S. 429
father, and Robert D. her uncle, and, according to his
testimony, he not only purchased from Obediah this six hundred
acres, which lay between Flipping Creek and the main Simmons Creek,
and included what afterwards became the Henry Sadler land, but also
owned one hundred acres, which he purchased from Obediah and
Chrispianos, lying at the head of the west fork of Simmons Creek
and north of the Witten land, which was afterwards conveyed by
Chrispianos to George W.'s wife, Mary E., and by George W. and Mary
E. to A.G. Belcher. The west line of this six hundred acres
purchased by Miller from Obediah commenced at the two birches on
the main Simmons Creek, and ran up to the latter's home place of
four hundred acres on the middle fork of the creek; the north line
being the marked line between the six hundred-acre tract and
Obediah's home tract, and the south line of Miller's one
hundred-acre survey ran from the six chestnuts to Payne's line or
Payne's corner on the left-hand fork of the creek.
By the testimony of W. Scott Witten it was shown that in 1852,
his father, William H. Witten, was living on a tract of four
hundred acres of land, the title to which was in the latter, and on
which he had resided, as he claimed, for fifty years, and witness
had resided there with him ever since he was born, in 1848; that
the tract of eleven hundred acres conveyed by Robert D. Belcher and
Chrispianos Belcher to William H. Witten, December 23, 1852,
touched at its southern point the tract on which William H. Witten
then lived; that the two hundred acres joined and was bounded in
part by the eleven hundred acres; that William H. Witten took
actual possession of the eleven hundred-acre tract by placing
tenants on it, and paid taxes on that and on the two hundred acres,
and used the latter as a range for his cattle; that in February,
1877, W. Scott purchased the two hundred acres at a judicial sale,
which was confirmed, but he took no deed to the land, and he and
his father thereafter claimed and exercised ownership over it
together; that witness paid the taxes on the two hundred acres for
the last fifteen years, during which it was owned by his father and
himself; that he offered the land for sale to Powell and Sadler
before he sold it to Doran, and sold it to
Page 142 U. S. 430
the latter by the line from the two birches of Simmons Creek, up
said creek to its forks, and thence up the west or left-hand fork
to a white oak and pine on the south-west corner to a tract owned
by his father and Payne, and thence either S. 50 or S. 55 west to
the six chestnuts; that shortly after he purchased the two hundred
acres, he bought an adjoining tract and put a tenant on it who
ranged cattle for him on both places; that the two hundred acres
was in the woods as late as March, 1886, when his deposition was
taken, "except what improvement has been put on by defendant, and
not enclosed;" and that he never knew that Chrispianos Belcher or
anybody else ever disputed the title of Witten to the two hundred
acres as claimed by him up to the line of Simmons Creek, until the
25th of December, 1884.
And Robert Belcher testified that from 1844 to 1852, when he
conveyed the tract to Witten, he claimed that the east line ran
from the two birches up Simmons Creek, with the meanders thereof,
and that the north line left said creek with the course south, 55
west, 120 poles, to the six chestnuts; the chestnuts being a noted
corner, as well as the two birches, and that he had never heard the
line called in question until quite recently, when the railroad ran
there and the land became valuable.
The evidence is entirely sufficient to establish the existence
and loss of the deed of the two hundred acres from Chrispianos to
Robert D. Belcher, and the inference is a natural one that because
of this deed, the two hundred acres were not included in the
conveyance by Chrispianos and Robert to Witten of the eleven
hundred acres. The reason for Chrispianos joining in that deed was
that the eleven hundred acres included six hundred of the eight
hundred sold by him to Robert, and, as Robert had sold not only the
eleven hundred but the two hundred acres to Witten, it seems
reasonable to suppose that Witten would have required a conveyance
from Chrispianos to Robert if none such then existed.
The deeds to Witten of the eleven hundred and the two hundred
acres bore the same date -- December 23, 1852 -- and were both
drawn up by Witten in the presence of Chrispianos. The one was
acknowledged by Chrispianos and his wife and
Page 142 U. S. 431
Robert and his wife, and the other by Robert and his wife,
before the same justices, on the same day -- May 7, 1853 -- and
both were ordered to be recorded at the June term, 1853, of the
county court. All this is irreconcilable with the view that the
title to the two hundred acres was left outstanding in Chrispianos,
and confirms complainant's contention to the contrary. In
connection with the description in Robert's deed to Witten of the
two hundred acres, the description in the deed of the eleven
hundred acres must be considered. It will be remembered that the
north line of the latter tract ran from the double birch in the
line of the Nicholas survey, "north, 55 E., 294 poles to six
chestnuts," and that line, if projected east of the six chestnuts,
would strike the left-hand fork of Simmons Creek at a corner of
Miller's one hundred-acre survey. In the description of the two
hundred-acre tract conveyed by Robert to Witten the line beginning
at the two birches on Simmons Creek ran up said creek with Miller's
line. Miller's line ran up that creek to its forks, and thence up
what is styled the "middle fork" to the line of Obediah Belcher's
home place, and thence east to Flipping Creek; but the calls in the
Witten deed are also for the line S., 55 W., and the six chestnuts,
and these must be considered in determining how far Miller's line
should be pursued. If it be followed to Obediah's line, and the six
chestnuts are reached by a straight line west, this would disregard
the S., 55 W., and embrace the land between the two forks, never
claimed by Witten, or in his possession. This parcel contains,
according to the proofs, thirty-six acres, and passed by
Chrispianos' deed to George W., and was presumably the tract he
intended to convey when he gave that deed. Inasmuch, however, as
the course of the north line in the deed from Chrispianos and
Robert to Witten of the eleven hundred acres, given simultaneously
with the deed by Robert to Witten, is from the double birch in the
west line of the Nicholas survey to the six chestnuts N., 55 E.,
294 poles, and that is the same as the course reversed given in the
deed from Belcher to Witten, if we reverse the calls in the latter
deed, and run from the two birches to the double and single poplar,
thence to the six chestnuts, and thence N., 55 E., 120 poles, to
Simmons Creek, and down
Page 142 U. S. 432
said creek to the beginning, all ambiguity disappears, and all
the calls are satisfied.
It is well settled that in running the line of a survey of
public lands in one direction, if a difficulty is met with, and all
the known calls of the survey are met by running them in the
reverse direction, this may be properly done.
Ayers v.
Watson, 137 U. S. 584.
We conclude, therefore, that the court was justified in passing
up the left-hand fork to Miller's survey.
The description of the tract in the deed of Chrispianos Belcher
to George W. Belcher, October 18, 1884, is as follows:
"A certain tract or boundary of land, supposed to contain
seventy-five acres, be the same more or less, lying and being in
the County of Mercer, State of W.Va. on the waters of Simmons
Creek, a branch of Bluestone River, and being a part of a survey
purchased by Obediah Belcher of Jas. Hector in the year 1842, and a
portion of the tract deeded by Obediah Belcher to Chrispianos
Belcher, and bounded as follows, to-wit: beginning at two birches
on the west bank of Simmons Creek, corner to William H. Witten;
thence with said Witten's line to six chestnuts, corner to A.G.
Belcher, on a ridge; thence north, 50 E., 112 poles, to a white oak
and two pines on a branch of Simmons Creek, corner to Witten and
Graham-Payne tract; north, 85 E., 134 poles, with the Payne line,
to two pines and a white oak on another branch of Simmons Creek,
corner to four hundred acres deeded by said Chrispianos Belcher to
Obediah Belcher; thence down Simmons Creek, with the meanders
thereof, to the beginning."
As we have seen, Witten's line was the same as Miller's line at
least to the forks of the creek, but it is contended on appellant's
behalf that the true line was a straight line from the two birches
to the six chestnuts. The difficulty with this contention is that
it entirely ignores Simmons Creek, Miller's line, and the course
S., 55 W., and the distance of 120 poles, called for in the deed to
Witten. Nor is it consistent with the evidence and the reason of
the thing to assume that Chrispianos, in selling the eight hundred
acres to Robert, undertook to make such a line its eastern
boundary, rather than Simmons Creek, a natural
Page 142 U. S. 433
boundary in itself. The land was worth so little in 1844 that
precision of that sort is hardly supposable, and there is nothing
to indicate that Chrispianos, Robert, or Witten ever entertained
the idea that the tract stopped short of Simmons Creek. In fact,
Robert and Witten, and those claiming under them, always claimed up
to the creek, down to and after October, 1884. The circuit court
was not compelled to adopt the straight line, and to have done so
would have violated the rule, which prefers natural and ascertained
objects, and disregarded the other calls.
The argument is made in the answer of the coal company that
because, in the deed of Robert to Witten, the two hundred acres is
described as beginning at two birches on Simmons Creek, "corner to
Chrispianos Belcher's land," this recognized "that Chrispianos
Belcher owned at that time the land down to the two birches, and
which is now the land of this respondent." But the proofs show that
in 1848, Robert D. Belcher conveyed to Chrispianos six hundred
forty, parcel of the fifteen hundred acres conveyed to him by
Hector, and this six hundred forty cornered on the two birches in
question, and was subsequently, in 1856, conveyed by Chrispianos to
Henry Walker. The two birches were at the southeast corner of the
two hundred acres, and the north-west corner of the six hundred
forty-acre tract, and this disposes of the inference suggested.
It is also urged that the description in the deed of W. H. and
W. S. Witten and Graham to Doran of November 5, 1881, treated the
two hundred acres as if it were part of the eleven hundred acres,
and that Doran's title is thus shown not to be under the lost deed,
and in fact not to extend to the two hundred acres at all. We do
not so understand that description. By that conveyance, a moiety of
the Payne tract was conveyed, as well as the two hundred acres, and
the description, ran:
"All that certain tract, piece, or parcel of land situate on the
south side of the dividing ridge and on Simmons Creek, in Mercer
County aforesaid, and containing two hundred acres, more or less,
bounded on the north by the tract of land next hereinafter
described, on the east by the lands of Henry Sadler and lands of
the heirs of Henry Walker, on the south by lands of G. W. Perdue,
and on the west by other lands of the said W. H. and W. S. Witten,
the balance of a
Page 142 U. S. 434
larger tract of eleven hundred acres, hereinafter more
particularly described, being the eastern part of the said large
tract of eleven hundred acres which Robert D. Belcher
et ux. et
al., by deed dated December 23, 1852, and recorded in Mercer
County, in Deed Book No. 3, page 523 &c., granted and conveyed
unto the said W. H. Witten in fee; and, a portion of the lands of
the said W. H. Witten having been seized, taken in execution, and
sold under a certain proceeding instituted against him in the
Circuit Court of Mercer County aforesaid at the suit of the Bank of
Princeton, the said W. H. Witten purchased the same, and is about
to receive a deed therefor."
And then follows the description of the Payne tract as bounded
on the south by lands of Sadler and the tract of land above
described. The land lying on the west belonged to the Wittens as
stated, and might well enough be described as the eastern part of
the eleven hundred-acre tract, but it would be an inadmissible
construction to make the two hundred part of the eleven hundred
acres, particularly in view of the fact, as elsewhere shown, that
the two hundred acres had been sold by proceedings against W. H.
Witten, and is thus identified.
Allusion is also made to the fact that the two hundred-acre
tract as described in the deed to Witten turned out on actual
survey to contain three hundred fifty-seven acres, but the
conveyance was of two hundred acres "by estimation," and, moreover,
the western boundary in that deed was the line from the six
chestnuts S., 35 E., 310 poles, to a double and single poplar,
corner to Robert Belcher, instead of the Lybrook line, thus
throwing into this conveyance the land between these two lines as
shown upon the map. This was not material as between the parties,
as, although Chrispianos had not up to December 23, 1852, conveyed
the six hundred acres to Robert, yet he did then, with Robert,
convey them to Witten so that the latter, by the two deeds, got the
whole eight hundred acres, though that part in the eleven hundred
acre tract may have fallen short of six hundred, while the two
hundred-acre tract ran over. If the eleven hundred-acre tract
contained, as testified, seven hundred seventy-eight or eight
hundred twenty-five acres, and the two hundred-acre tract three
hundred fifty-seven acres, that would be between eleven hundred and
twelve hundred in all, instead of the thirteen hundred, more or
less, which the Wittens undertook to convey.
Page 142 U. S. 435
The differences in quantity resulting from taking the areas as
estimated and supposed, rather than accurately platted and
calculated, could hardly excite remark, while the growth of the
seventy-five acres in the deed of Chrispianos to George W. into one
hundred seventy-six acres might, perhaps, as the record stands,
invite some explanation.
We regard the evidence as clear and convincing in establishing
the lost deed, and the facts which sustain the action of the
district court in correcting the line.
The jurisdiction of equity to reform written instruments where
there is a mutual mistake or mistake on one side and fraud or
inequitable conduct on the other is undoubted, but to justify such
reformation, the evidence must be sufficiently cogent to thoroughly
satisfy the mind of the court.
Fishack v. Ball, 34 W.Va.
644;
Shenandoah Valley Railroad v. Dunlop, 86 Va. 346.
The general doctrine is not denied, but it is contended that the
effect of the correction of the deeds (if the lost conveyance
contained an identical description) is to enlarge them so as to
include more land than they originally embraced, and that this
renders the action of the court obnoxious to the statute of
frauds.
Glass v. Hulbert, 102 Mass. 24, is cited to the
proposition that although the principle maintained by Chancellor
Kent in
Gillespie v. Moon, 2 Johns.Ch. 585, that relief in
equity against the operation of a written instrument on the ground
that by fraud or mistake it did not express the true contract of
the parties might be afforded to a plaintiff seeking a modification
of the contract as well as to a defendant resisting its enforcement
is well settled, it cannot be extended to enlarge the subject
matter of a contract or to add a new term to a writing, by
parol.
We need not enter upon a discussion in this regard here, as the
deeds themselves furnished the means of making the correction, and
the statute of frauds was not pleaded.
The coal company insists, however, that it occupies the position
of a
bona fide purchaser for value without notice, and as
such is entitled to the protection of the court. No evidence
whatever was adduced on behalf of the defendants, and although
Page 142 U. S. 436
George W. Belcher, N. L. Reynolds, and P. H. Rorer answered
under oath, they were not required to do so, and their answers were
not evidence in their favor under the amendment to the forty-first
rule in equity.
Reference to the appendix to the acts of the Legislature of West
Virginia of 1885 (pp. 446, 447) shows the certificate of
incorporation of the company, from which it appears that the
agreement required under the statute in order to form a corporation
was delivered to the Secretary of State of West Virginia on the
16th of January, 1885, on which day the company, as the secretary
certifies, became a corporation. The subscribers to the agreement
were P. H. Rorer, I. A. Welch, N. L. Reynolds, A. W. Reynolds, and
George W. Belcher, and the agreement states that these five
corporators had subscribed the sum of $250, being one $50 share
each, and had paid on the subscriptions the sum of $25. It is
through these corporators that the company claims title, and the
record discloses that Welch was its president. Associated together
to carry forward a common enterprise, the knowledge or actual
notice of all these corporators and the president was the knowledge
or notice of the company, and, if constructive notice bound them,
it bound the company.
The conveyances were as follows: December 4, 1884, George W.
Belcher conveyed to Newton L. Reynolds the undivided five-eighths
of the tract of land claimed by the company, and on the 23d of
February, 1885, George W. Belcher conveyed to Rorer the undivided
three-eighths of the tract. January 13, 1885, N. L. Reynolds
conveyed two-eighths of his five-eighths to I. A. Welch, and on
February 28, 1885, he conveyed the remaining three-eighths to the
company. January 13, 1885, Welch conveyed to A. W. Reynolds an
undivided one-eighteenth of the tract, and the remaining portion of
the two-eighths conveyed by N. L. Reynolds to Welch the latter
conveyed to the company on February 28th, while on the same day A.
W. Reynolds conveyed the one-eighteenth aforesaid, and Rorer and
wife the three-eighths.
The deeds of N. L. Reynolds to Welch; Welch to A. W. Reynolds;
Rorer, N. L., and A. W. Reynolds and Welch to
Page 142 U. S. 437
the company; all name the nominal consideration of one dollar.
The deed of George W. Belcher to N. L. Reynolds purports to have
been executed in consideration of $66.10, and of George W. Belcher
to Rorer in consideration of $6,393.75, $500 in cash and $5,893.75
in deferred payments.
The deed from Chrispianos to George W. recites a consideration
of $75 "and other valuable considerations." This was a general
warranty deed, and so was that to Rorer. The others were special
warranties only.
None of the original deeds in appellant's chain appear to have
been produced on the hearing, though certified copies were attached
to the pleadings, but no independent evidence was adduced of the
payment by any of the defendants of any money whatever. As against
complainant, the recitals in these deeds cannot be relied on as
proof of the payment of the purchase money.
Boone v.
Chiles, 10 Pet. 177;
Flagg v. Mann, 2
Sumner 487;
Kyles v. Tait, 6 Gratt. 44;
Warren v.
Syme, 7 W.Va. 474;
Brown v. Welch, 18 Ill. 343;
Lloyd v. Lynch, 28 Penn.St. 419.
Apart from this, we hold appellant chargeable with notice. The
rule is thus stated by the Virginia Court of Appeals in
Burwell's Adm'rs v. Fauber, 21 Gratt. 446, 463:
"Purchasers are bound to use a due degree of caution in making
their purchases, or they will not be entitled to protection.
Caveat emptor is one of the best-settled maxims of the
law, and applies exclusively to a purchaser. He must take care and
make due inquiries, or he may not be a
bona fide
purchaser. He is bound not only by
actual, but also by
constructive notice, which is the same in its effect as
actual notice. He must look to the title papers under which he
buys, and is charged with notice of all the facts appearing upon
their face, or to the knowledge of which anything there appearing
will conduct him. He has no right to shut his eyes or his ears to
the inlet of information and then say he is a
bona fide
purchaser without notice."
Jones v. Smith, 1 Hare, 43, 55;
Le Neve v. Le
Neve, 3 Ark. 646, 1 Ves.Sen. 64, 2 Leading Cas.Eq. 109, and
Brush v. Ware,
15 Pet. 93,
40 U. S. 114,
are cited.
Page 142 U. S. 438
In
Mundy v. Vawter, 3 Gratt. 518, relied on by
appellant, the registry of a deed of "all the estate, both real and
personal, to which the said James was in any manner entitled in law
or in equity" was held not to be notice in point of law to a
subsequent purchaser of the existence of the deed, nor would notice
in point of fact of such existence and contents affect such
purchaser, unless he had further notice that the land purchased by
him was embraced by the provision of the deed,
"and the proof of such notice, whether direct or positive or
circumstantial and presumptive, must be such as to affect the
conscience of the purchaser, and is not sufficient if it merely
puts him upon inquiry, but must be so strong and clear as to fix on
him the imputation of
mala fides."
But the latter branch of this ruling was disapproved of in
Warren v. Syme, 7 W.Va. Va. 474, and in
Fidelity
Company v. Railroad Company, 32 W.Va. 244, 259, it is said
that
"whatever is sufficient to put a person on inquiry is considered
as conveying notice, for the law imputes a personal knowledge of a
fact of which the exercise of common prudence might have apprised
him. When a subsequent purchaser has actual notice that the
property in question is encumbered or affected, he is charged
constructively with notice of all the facts and instruments to the
knowledge of which he would have been led by an inquiry into the
encumbrance or other circumstance affecting the property of which
he had notice."
Lord Hardwicke observed in
Le Neve v. Le Neve, Amb.
436, 3 Atk. 646, 1 Ves.Sr. 64, "that the taking of a legal estate,
after notice of a prior right, makes a person a
mala fide
purchaser," and the notes to that case in 2 Leading Cas. in Eq.
109, discuss at length the doctrine of knowledge, actual notice,
express or implied, and constructive notice, with abundant citation
of authority. The conclusion of the American editor is that actual
notice embraces all degrees and grades of evidence, from the most
direct and positive proof to the slightest circumstances from which
a jury would be warranted in inferring notice, while constructive
notice is a legal inference from established facts, and, like other
legal presumptions, does not admit of dispute.
Page 142 U. S. 439
Mr. Justice Story, in his work on Equity Jurisprudence, § 399,
adopts the language of Chief Baron Eyre in
Plumb v.
Fluitt, 2 Anstr. 432, 438, that constructive notice is in its
nature no more than evidence of notice, the presumption of which is
so violent that the court will not allow even of its being
controverted.
In later editions of that work, Judge Redfield (11th ed. §
410
a) says that the term "constructive notice"
"is applied indiscriminately to such notice as is not
susceptible of being explained or rebutted, and to that which may
be. It seems more appropriate to the former kind of notices. It
will then include notice by the registry and notice by
lis
pendens. But such notice as depends upon possession, upon
knowledge of an agent, upon facts to put one upon inquiry, and some
other similar matters, although often called constructive notice,
is rather implied notice, or presumptive notice, subject to be
rebutted or explained. Constructive notice is thus a conclusive
presumption or a presumption of law, while implied notice is a mere
presumption of fact."
Vice-Chancellor Wigram, in
Jones v. Smith, supra, laid
it down that cases in which constructive notice had been
established resolved themselves into two classes: first, those in
which the party charged had actual notice that the property in
dispute was in some way affected, and the court has thereupon bound
him with constructive notice of facts to a knowledge of which he
would have been led by an inquiry into the matters affecting the
property, of which he had actual notice, and secondly those where
the court has been satisfied that the party charged had designedly
abstained from inquiry for the purpose of avoiding notice. If there
is not actual notice that the property is in some way affected, so
that the case does not fall within the first class, and no
fraudulent turning away from a knowledge of facts which the
res
gestae would suggest to a prudent mind, or gross and culpable
negligence, so as to bring it within the second, then the doctrine
of constructive notice would not apply.
Each case must be governed by its own peculiar circumstances,
and in that in hand we think appellant either had
Page 142 U. S. 440
actual knowledge or actual notice of such facts and
circumstances as by the exercise of due diligence would have led it
to knowledge of complainant's rights, and that if this were not so,
then its ignorance was the result of such gross and culpable
negligence that it would be equally bound.
The deed of George W. Belcher to N. L. Reynolds conveyed the
undivided five-eighths of seventy-five acres, by a description
reading as follows:
"Beginning at two birches on the bank of Simmons Creek in a line
of a survey of twenty-five hundred acres conveyed by James Hector
to Obediah Belcher, and a corner to the William H. Witten land, and
with a line of the said Witten land N., 50� 40' W., 85.40 chains,
up Simmons Creek, topping a ridge at 23 chains, and crossing
hollows and points of said ridge, to six dead chestnuts on said
ridge, a corner to A.G. Belcher's land."
The deed of George W. Belcher to P. H. Rorer purported to
convey
"three-eights (3/8) undivided of a certain tract or parcel of
land lying on Simmons Creek, a branch of Bluestone River, in the
County of Mercer, and State of West Virginia, it being the same
tract, five-eighths (5/8) undivided of which has heretofore been
conveyed by the said parties of the first part to N. L. Reynolds,
and containing, by recent survey, by horizontal measurement, one
hundred and seventy and 5/10 acres, and bounded as follows:
beginning at two birches on the bank of Simmons Creek, N., 50�26'
W., 80.33 chains, up Simmons Creek, crossing ridges and spurs, to
six dead chestnuts on ridge, corner to A.G. Belcher."
The other conveyances refer to these descriptions.
When Obediah and Robert D. Belcher bought the four thousand
acres of James Hector, they agreed to a division whereby Robert D.
Belcher took fifteen hundred and Obediah twenty-five hundred acres.
The deed of Hector to Robert D. Belcher for the fifteen hundred
acres is in the record. The north line of this tract ran from the
Wilson Cary Nicholas line N., 60 E., to the mouth of the Spruce
Pine branch on Flipping Creek, and Obediah Belcher's twenty-five
hundred acres lay immediately north of that line and extended
across from the Nicholas line to Flipping Creek. The two birches
spoken of in George W. Belcher's deed to Reynolds as being
Page 142 U. S. 441
in a line of a survey of twenty-five hundred acres conveyed by
Hector to Belcher were not corner trees in that line, but were
corner trees to the Witten tract of two hundred acres. As the
description in the deed to Reynolds puts the two birches as a
corner to the William H. Witten land, it is plain that resort must
have been actually had to R. D. Belcher's deed to Witten of the two
hundred acres, and that deed described Witten's line as running
from the two birches up Simmons Creek "with Miller's line." That
deed could not be read without discovering that something had been
omitted therefrom, and this is the more apparent since it is shown
by the evidence that the distance by a straight line from the two
birches to the six chestnuts was running S., 55 W., from the two
birches running S., 55 W., from the two birches would not reach the
six chestnuts, but would run away from them, so that both by
distance and by course it was evident that an error had been
committed, and what that error was seems to us to be obvious to any
candid mind. Having actual notice to this extent, appellant was put
upon inquiry, and inquiry would have conducted at once to the
unrecorded deed.
So far as the defendant George W. Belcher is concerned, the
evidence is quite convincing of knowledge on his part. Belcher had
resided near the land apparently all his life. In October, 1882,
when the Barcroft tract of land, which we understand to be the same
as Obediah Belcher's home place, was surveyed for the Southwest
Virginia Improvement Company, one Crockett was assisting in the
survey, and George W. Belcher and others were present, and Crockett
testified without objection that at that time, when they got down
to the corner of the creek, he asked Belcher whose land that was
adjoining, and he said Mr. Witten's, and the witness further said
that since George W. Belcher set up a claim to the land in
controversy, Belcher told him "that he never knew he had any land
there until Mr. Welch and Mr. Reynolds found it out, as I remember
he said, by running the lines and plotting." He also stated upon
cross-examination: "He told me, I think, that Capt. Welch got him
to write what he would take for his claim in there,
i.e.,
to Chrispianos Belcher, his brother."
Page 142 U. S. 442
Henry Sadler testified that in 1866, when a part of his purchase
from Obediah Belcher was surveyed, George W. Belcher was along and
marked the lines, and "there was something said that if we got too
far from the creek, we would get on Witten's land." The witness
added that Simmons Creek was recognized by himself as the line
between his land and that of William H. Witten.
W. S. Witten testified that on December 25, 1884, he met George
W. Belcher, and
"asked him what land it was he had sold (as Mr. Burkholder told
me there was trouble about the matter.) He told me it was the land
I sold Joseph I. Doran. I told Mr. Belcher he ought to be careful
about trading on that land, and he remarked to me that when I sold
it, that I did not get much for it, and that if I would not kick in
the thing that they would make me whole."
George W. Belcher was present during the taking of these
depositions, but he was not called as a witness.
Again, actual and unequivocal possession is notice, because it
is incumbent on one who is about to purchase real estate to
ascertain by whom and in what right it is held or occupied, and the
neglect of this duty is one of the defaults which, unexplained, is
equivalent to notice. 2 Lead.Cas.Eq. 180;
Landes v.
Brant, 10 How. 348;
McLean v. Clapp,
141 U. S. 429,
141 U. S. 436;
French v. Loyal Company, 5 Leigh 641;
Western Mining
Company v. Peytona Coal Company, 8 W.Va. 406, 441;
Core v.
Faupel, 24 W.Va. 238;
Morrison v. Kelly, 22 Ill. 610.
Possession, said Walker, J., in the case last cited,
"may be actual or constructive -- actual when there is an
occupancy, such as the property is capable of, according to its
adaptation to use; constructive as when a person has the paramount
title which, in contemplation of law, draws to and connects it with
the possession. But to be adverse, it must be a
pedis
possessio, or an actual possession."
In
Ewing v.
Burnet, 11 Pet. 53, it was held that neither actual
occupancy nor cultivation nor residence was necessary to constitute
actual possession; that where the property is so situated as not to
admit of any permanent useful improvements, and the continued claim
of the party has been evidenced by public
Page 142 U. S. 443
acts of ownership, such as he would exercise over property which
he claimed in his own right, and would not exercise over property
he did not claim, such possession will create a bar under the
statute of limitations; that what acts may or may not constitute a
possession are necessarily varied, and depend to some extent upon
the nature, locality, and use to which the property may be applied,
the situation of the parties, and a variety of circumstances which
have necessarily to be taken into consideration in determining the
question. And so possession of an improved portion of a tract of
land, under a conveyance in fee of the whole, is construed to be
coextensive with the grant. And where a party purchases land
adjoining a tract of which he is already in the occupancy, he will
be considered as at once, in point of law, in the possession of the
newly acquired tract, when the latter is vacant, or at least not
held under an adverse possession.
Now W. H. Witten resided on four hundred acres of land which
adjoined the eleven hundred-acre tract, while the two hundred acres
bounded on the eleven hundred acres, and neither of the latter
tracts was in adverse possession when purchased by Witten, and the
evidence of W. Scott Witten shows that W. H. Witten used the two
hundred-acre tract as a range for his cattle, and paid the taxes on
it, and that, after W. Scott Witten purchased it at the judicial
sale he also used it in the same way. In other words, such
possession as the land was susceptible of was taken and maintained,
and, in addition to that, it connected with the home tract on which
W. H. Witten had lived for fifty years. The possession, such as it
was, was notorious, and contributes its weight to the other proofs
of notice.
We repeat that we regard it as satisfactorily established that
the defendants had such notice as put them on inquiry, and charged
them with knowledge of the facts, and, under the circumstances,
their silence is most significant.
Certain proceedings resulting in an alleged deed of the land in
controversy from the commissioner of school lands for Mercer County
to George W. Belcher, under date of December 3, 1884, are attacked
by the bill as fraudulent and void, and part of a scheme to deprive
complainant of his property.
Page 142 U. S. 444
These proceedings are attached to the bill, and show the filing
of a petition by George W. Belcher against the school land
commissioner in the Circuit Court of Mercer County, and its
reference to a master in chancery November 21, 1884; the report of
the master on November 27th, and a decree on November 29th. The
only party defendant was the commissioner, who appeared and waived
process.
The decree describes the land in accordance with the description
in the deed from Chrispianos to George W., and directs the school
commissioner to convey the same to Belcher, which was done
accordingly. The petition stated that George W. Belcher was the
owner of a tract of land lying on Simmons Creek in the County of
Mercer, adjoining the lands of Witten, Sadler, and others, and
containing about seventy-five acres, and that said tract was
conveyed to him by Chrispianos Belcher by deed bearing date October
18, 1884, and that
"a short time prior to the formation of the State of West
Virginia, his vendor, Chrispianos Belcher, removed from the State
of Virginia and County of Mercer to the State of Missouri, and that
by mistake and accident, the said land was omitted from the land
books, and he is advised that said land is forfeited, and the title
thereto vested in the State of West Virginia for nonentry thereof
on the land books of Mercer County."
The petitioner further averred
"that at the time the title vested in the state, his said
vendor, Chrispianos Belcher, had good, valid title thereto,
superior to any other claimant thereof, and that your petitioner
now has good, valid title thereto, superior to any other claimant
thereof, and he is advised and now avers that he is entitled to
redeem the same by paying all taxes and interest due on said land
by reason of the forfeiture thereof, from the year 1863 to the
present time, and all costs."
The decree recites the conveyance of Chrispianos to George W.
Belcher, and that at the time of the forfeiture, Chrispianos had a
good and valid fee simple title thereto, superior to that of any
other claimant, and that George W. Belcher, having appeared in open
court and offered to pay the sum of $30.71, being the amount of all
taxes, interest, damages, and costs due
Page 142 U. S. 445
against said tract of land by reason of the forfeiture -- the
taxes in question covering the years from 1863 to 1884, inclusive
-- is entitled to be treated in the nature of a purchaser thereof,
it appearing to the court that the said George W. Belcher would be
entitled to the surplus of purchase money over and above the said
sum of $30.71 had said tract of land been subjected to sale as
school lands, etc.
We cannot resist the impression that, taking all the facts and
circumstances of the case together, these proceedings in the
Circuit Court of Mercer County were, as charged by complainant, a
mere device to bolster up the alleged claim of George W. Belcher,
under the deed from Chrispianos, to property belonging to the
complainant. So far from strengthening appellant's position, the
inferences to be drawn from the transaction are inconsistent with
good faith in dealing with the land. The proofs in this record show
the charge of a two hundred-acre tract of land on Simmons Creek
fork, or Upper Simmons fork, or Simmons fork, on the land books of
Mercer County, in the name of William H. Witten, for the years
1854, '56, '57, '58, '60, '61, '62, '63, '65, '66, '67, '68, '69,
'70, '71, '72, '73, '74, '75, '76, '77, '78, '79, '80, and its
transfer for 1882-83 to Joseph I. Doran, and for 1884-85 to the
Southwest Virginia Improvement Company. The location is stated to
be for the last four years on the "dividing ridge and Simmons
Creek." It also appears that the land books for the years 1855 and
1859 were destroyed, and for 1864 that the land book was "gone,"
and that the land does not appear on the book for 1881. The same
books also show Chrispianos Belcher charged in 1854 and 1856 with
six hundred fifty acres and two hundred acres, located on
"Bluestone an Flipping ridge and Crane creek;" that in 1855, the
books were destroyed, and that for the year 1857, ten acres, part
of the six hundred fifty acres on Bluestone, was charged to
Chrispianos, and for many years thereafter, exclusive of the two
years when the minute is that the books were destroyed. As has
heretofore been stated, Chrispianos had a tract of six hundred
forty acres south of the dividing line between Obediah's
twenty-five hundred and Robert D.'s fifteen hundred acres, derived
from Hector, and part of the fifteen hundred acres which had been
conveyed to him by Robert in
Page 142 U. S. 446
1848, and which Chrispianos conveyed to Henry Walker in 1856,
and both as to that and the two hundred acres mentioned their
location was on Flipping Creek and Crane Creek, waters of
Bluestone, and they have no connection whatever with the two
hundred acres in controversy. The latter two hundred acres appears
in the tax receipts of W. H. Witten for 1854, '55, '59, '66, '67,
'69, '70, '71, '72, '74, '75, '76, '77, '78, '79, '80, and evidence
is given explanatory of the loss of the tax receipts for the
missing years, the payment of the taxes for all the years being
otherwise proven. The land in controversy here was evidently not
forfeited to the state in 1863 for the reason given in the petition
or any other.
Under the Constitution of West Virginia, art. 13 (Code 1884, p.
36), it is provided that all lands in the state, waste and
unappropriated, or heretofore or hereafter for any cause forfeited
or treated as forfeited, or escheated to the State of Virginia or
this state, or purchased by either and become irredeemable, not
redeemed, released, transferred, or otherwise disposed of, the
title whereto shall remain in this state until such sale as is
hereinafter mentioned be made, shall, by proceedings in the circuit
court of the county in which the lands or a part thereof are
situated, be sold to the highest bidder, and that the former owner
of any such land shall be entitled to receive the excess of the sum
for which the land may be sold over the taxes charged and
chargeable thereon, or which, if the land had not been forfeited,
would have been charged or chargeable thereon, since the formation
of this state, with interest at the rate of twelve percent per
annum and the costs of the proceedings, if his claim be filed in
the circuit court that decrees the sale within two years
thereafter. No such sale had ever taken place in this instance.
By chapter 105 of the Code of West Virginia (Warth's ed. 1884,
p. 639), provision was made for the certifying to the clerk of the
circuit court by the auditor of a list of all waste and
unappropriated lands theretofore vested in the State of West
Virginia by forfeiture or purchase at the sheriff's or collector's
sale for delinquent taxes, and not released, etc., and of lands
theretofore or thereafter purchased at a
Page 142 U. S. 447
sale for taxes and not redeemed, and all lands forfeited to the
state for failure to have the same entered upon the land books,
etc., in order that they might be sold for the benefit of the
school fund, and it was made the duty of the surveyor of each
county to report to the circuit court all waste and unappropriated
lands in his county subject to sale under the provisions of the
chapter. Further, the appointment and qualification of a
commissioner of school lands by the circuit court of each county
was provided for, whose duty it should be once in each year to
ascertain, from the reports and such other information as he might
be able to obtain, what lands were liable to sale under the
provisions of the chapter, as to which no proceedings had been
commenced for the sale thereof, and to file his petition praying
that the same might be sold, and stating the claimant or claimants,
and their residence, if known, against whom process should be
issued that they might show cause why the lands should not be sold.
Publication of notice to unknown parties was also required, and it
was further provided that the former owner of any such land should
be entitled to recover the excess of the sum for which the lands
might be sold over what was due to the state if he filed his claim
within two years thereafter, and further that any owner might
within the time aforesaid file his petition in the circuit court,
stating his title to the land, etc., whereupon said court should
order the excess mentioned to be paid to him, and at any time
during the pendency of the proceedings in the sale of such land
such former owner, or any creditor of such former owner, might file
his petition in the circuit court and ask to be allowed to redeem
such part or parts of any tract of land so forfeited, or the whole
thereof, as he might desire. The privilege of redemption given by
the statute was a privilege personal to the former owner or his
creditors having liens on the land, and the way, time, mode, and
manner in which the privilege should be exercised were prescribed
by the statute.
At the time George W. Belcher filed his petition to redeem the
land from the alleged forfeiture, there were no proceedings pending
in the Mercer County Circuit Court for its sale for
Page 142 U. S. 448
the benefit of the school fund. The petitioner did not pretend
that he was the former owner or a creditor of the former owner, but
said that the land was forfeited, and the title vested in the State
of West Virginia for the failure of Chrispianos to have it entered
on the land books of Mercer County a short time prior to the
admission of the state, and the report upon the reference is to the
effect that the tract was forfeited about 1863 by reason of such
omission, and that at the time of the forfeiture, the legal title
was in Chrispianos. But the legal title to the land in dispute was
not in Chrispianos from before 1852, and the land was entered on
the land books in 1863 and prior years, and taxes paid thereon.
Moreover, the proceeding was an independent proceeding, to which
the owners were not made parties, and by which they were not bound.
As to the suggestion of forfeiture prior to 1848, no question
thereon was raised on the petition or in this case.
We are of opinion that the circuit court was right in ignoring
the claim of title under this deed and in setting aside the other
deeds as clouds upon complainant's title without regard to these
proceedings in the Circuit Court of Mercer County.
But it is said that complainant's claim is stale, and that he
and those under whom he claims have slept upon their rights for
forty years. There is no doubt that William H. Witten believed
himself to be the owner of all the land up to Simmons Creek and
Miller's line on the east side of that creek, from the two birches
to the corner of Payne and Graham's tract and to Miller's survey,
and thence to the six chestnuts. It is true, the deed to Robert
Belcher had not been recorded, and was lost, but, as Witten was in
possession, mere delay, unless by reason thereof an equitable
estoppel was created in favor of appellant, would not operate to
defeat relief; but appellant, and none of the parties under whom it
claims, can assert upon this record that complainant stood by while
they were undertaking to possess themselves of his land and allowed
them to do so to their injury when they would have abstained from
it if he had proceeded earlier to the restoration of the lost deed
and the rectification of the boundary in the Witten deed.
The deed of Chrispianos to George W. was dated October 18,
Page 142 U. S. 449
1884, and apparently at some time between that date and
February, 1885, these defendants, or some of them, entered upon the
tract, prospected for coal, and put on improvements amounting to
the value of some $200. On February 24, Doran served notice on the
persons then on the land of his ownership, etc., and on the 15th of
May, 1885, served another notice, and demanded possession. He also,
February 14, put his own tenant in a frame house on the premises,
which was part of the improvements above mentioned, who appears to
have been subsequently forcibly ejected.
The bill was filed August 1, 1885. There was no delay,
therefore, in the assertion of his rights after they were
invaded.
It is argued at length that a court of equity had no
jurisdiction in this case. The bill alleged that complainant was
"seised in fee of the said tract of two hundred acres, more or
less," and that this is a sufficient allegation of possession of
the land has been determined by this Court.
Gage v.
Kaufman, 133 U. S. 471.
As heretofore stated, such possession as the land was
susceptible of had been taken by Witten and maintained by himself
and his grantees down to the time, after October, 1884, when
appellant entered upon a part of complainant's land in the
commission of a trespass, and commenced committing acts of waste
upon the property. It cannot be held that this trespass on
appellant's part constituted a possession which in itself would
drive complainant to an action of ejectment.
The jurisdiction of courts of equity to remove clouds from title
is well settled, the relief being granted on the principle
quia
timet, and in the case at bar, appellant's own contention
makes it clear that the remedy of complainant at law would have
been inadequate, since the aid of a court of equity was required to
supply what was by mistake omitted from the deed of Robert to
Witten, so that the line could be made to run up the left-hand fork
of Simmons Creek to the corner of Miller's survey on that creek,
and thence to the six chestnuts.
We think also that the court had jurisdiction to establish the
lost deed, and that this is so even though in an action at law,
Page 142 U. S. 450
proof of the fact might have been allowed to be made.
Hickman v. Painter, 11 W.Va. 386; 1 Story, Eq.Jur. §
81.
Upon the whole, we see no reason for a reversal of the decree,
and it is therefore
Affirmed.