KING v. BUSKIRK et al., 196 F. 299

PRITCHARD, Circuit Judge (after stating the facts as above). Among other things, it is insisted by the defendant that it appears upon the face of the bill that the matters herein alleged have been finally adjudicated and determined between the plaintiff and the defendant by the decree of the circuit court of Marion county, W. Va., in the case of State v. King et al., 64 W. Va. 620, 63 S. E. 495. This decree is referred to in the bill.

The bill states that a decree was rendered in the circuit court of Wyoming county on the 30th day of September, 1897, and an appeal taken from that decree by the state, and the reversal of the decree and the remanding of the cause to the circuit court, also further states that, after the case had been remanded to the circuit court of Wyoming county, it was finally taken to the circuit court of Marion county, and that an amended petition had in the meantime been filed by King. It appears from the bill that the circuit court of Wyoming county had jurisdiction of the parties and of the subject-matter.

Among other things are to be found the following allegations in sections 14 and 15: “That after the filing of said amended petition, the said Stoddard and Hall filed a petition in said cause, setting up said deed from said Wilkinson, special commissioner, for part of said -ISO,000-acre grant, and claiming that it included part of said 500,000-acre grant, and said cause having been referred to a, commissioner in chancery, and having been heard before him, said commissioner found and reported that whatever land said Stoddard and Hall had claim to under said deed lay within said 480,000-a ere grant and not within said 500,000-acre grant, that said two grants were adjacent tracts with no interlock or conflict of lines of area, and that said deed did not include any of the land claimed hy your orator, or any part of said 500,000-acre grant. “That afterwards said Stoddard and Hall by virtue of their claim under said deed from Wilkinson, commissioner, made a deed to one M.

B.

Mullins for a boundary of land lying- partly within said 500,000-acre grant, and, said Mullins afterwards dying, his father and heirs at law made a deed to defendant Buskirk, trustee, purporting to convey the said land to him, whereupon said Buskirk, trustee, filed a petition in said cause, excepted to tile said report of the chancery commissioner, and laid claim to a large quantity of your orator’s land and denied the right of your orator to redeem the same, and the right of the state or the court to permit your orator to redeem the same, upon the ground that said land had been sold to said Stoddard and Hall by said slate through Hinchman, in said suit of State v.

Irwin et al., and conveyed by said deed from Wilkinson, special commissioner.” It is also alleged in paragraph 15 that: “ * * * On the 11th day of January, 1008, the circuit eourt of' Marion county, to which said cause of State of West Virginia against Henry C. King et al., has been removed, sustained said claim and contention and the exceptions to said commissioner’s report.” Thus it appears that the defendant Buskirk, trustee, filed a petition in the case of State v.

King, supra, in which the right of King to redeem the land was denied, and also alleging that he was the owner of the land by virtue of the sale made by the state to Stod-dard and Hall, and also it appears that in that proceeding the right of King to redeem the land now in controversy was denied.

Section 6 of

chapter 105 of the Code of West Virginia of 1899, provides that the state may sell lands forfeited under the Constitution of that state, and also contains the following provision authorizing any party in interest to file a petition in any suit wherein such party may claim an interest in the lands involved herein. That portion of the

section is in the following language: “Any person claiming an interest in such land or proceeding thereof not so made the defendant may file his petition in such suit, stating what interest he claims therein, either in open court or before a commissioner in chancery while the suit is pending before him, or at rules if the cause is pending at rules, and shall thereupon become a defendant therein, and may defend and protect his interest, if he has any therein, to the same extent as if he had originally been made party defendant therein.

And if at any time during the pendency of any such suit it shall appear to the court that any part of any tract of land in question therein has been sold by the state in a proceeding for the sale of school land, and the taxes regularly paid thereon since such sale, or is held by any person under

section 3 of

article 13 of the Constitution of this state, the bill as to such part shall be dismissed and the suit proceeded with to a final decree as to the remainder.” As already stated, it is alleged in the bill filed herein that the defendant filed his petition, and thereby raised an issue upon the question which is involved in this suit, to wit, the right of the plaintiff to redeem the land which he now claims.

Section 18 of the

chapter of the Code of West Virginia from which we have just quoted contains the following provision: “In every such suit brought under the provisions of this chapter, the court shall have full jurisdiction, power and authority to hear, try and determine all questions of title, possession and boundary which may arise therein, as well as any and all conflicting claims whatever to the real estate in question arising therein.” By virtue of this

section of the Code of that state, the circuit court of Marion county had jurisdiction to hear and determine the questions raised by the pleadings in that case; and it appears that the defendant in this action, Buskirk, trustee, filed his petition in that case, except to the report of the chancery commissioner, and denied the right of the state to permit the plaintiff to redeem the land upon the ground that the same had been sold to Stoddard and Hall by the state through Hinchman in the suit of Irwin v. State et al. by a deed from Wilkinson, special commissioner.

And it further appears that on the 11th day of January, 1908, the court in that case sustained the claim and the exceptions to the said commissioner’s report. Thus it will be seen that the contention of Buskirk, trustee, that the plaintiff did not have the right to redeem the land in controversy, was sustained by a court of competent jurisdiction. Thus it appears to us that the very questions sought to be litigated in this suit were passed upon and finally decided in favor of the defendant. The Supreme Court of West Virginia in the case of State v.

King, supra, among other things, said: “Now that King asks to redeem the 20,000 aeres as a part of the' 500,000-acro grant, we must, inquire as to whether or not the state has sold those 20,000 acres. If it. has, as alleged, and there is not a new forfeiture of the title so sold, that is a completo denial of the extension of the privilege of redemption to him, and we need to consider no other question arising in the (tase. As we have stated, dear and certain is it that the 20,000 acres forfeited to the state in the name of Mrs.

Pomeroy and in the names of some of her predecessors in title Mere sold to Stoddard and Hall by a proceeding instituted and carried on in the name of the state through Hinchman, commissioner of school lands. There can he no question as to this. That proceeding was a suit under

chapter 105 of the Code. The court directed Hinchman to make sale of this identical land which it ascertained to belong to Uie state. He did sell to Stoddard and Hall: and through them Buskirk now owns the land. But; it is said that Mrs. Pomeroy had no title. That may he. It matters not. The Legislature has not made former absolute title in the one as to whom it is sold as forfeited requisite to such sale’s being the only one that can be made. Mrs. Pomeroy had color and claim of title which became forfeited. At any rate, the state had title by the King forfeiture in 188,S.

And by this King forfeiture it: had title to sell if it had none by the Pomeroy forfeiture. What matters the denomination of an erroneous source of title in one’s contract of sale if he in fact has title from some proper sourceV Under whatever name the state sells, it passes title to the land if the state has title from any source. But it is said that the Wilkinson deed is irregular, or that it conveys other land.

Be that as it may, our law does not say that only lands regularly deeded by the state or on behalf of the state are barred from the privilege of redemption, hut it does distinctly provide that redemption shall not apply to lands held ‘by purchase from Ihe state.'

Chapter 105, §§ 17 and 20.

So we say it is clear to us that rhe state made sale of the 20.000 acres in question to Stoddard and Hall at a time when it had title by the King forfeiture at least, that by that sale the state is estopped, and that it cannot extend to King the privilege of redeeming these 20,000 acres or such part as inay lie within the bounds of his grant, if there has been no subsequent forfeiture. “King insists that since the Wyoming suit was pending when the Hinchman suit was instituted, and since he was not a party to the latter, the purchase by Stoddard and Hall cannot affect: his rights to redeem.

But he has no vested right to redeem. So we have held. Judge Branuon elucidates this subject iu the opinion filed by him. Under the law, as stated hereinbefore, he shall not be granted the privilege of redemption after the state has held out the land and invited a purchaser therefor, which purchaser has fully complied with the state’s offer. To permit redemption under such circumstances would tend to unsettle and not to settle such titles. It would tend to discourage ra - ther than to encourage the payment of taxes and the support of the government.

In view of our statutory law we cannot believe that the state was wholly forbidden to institute the Hinchman suit while the Wyoming suit was pending and to sell the land thereby, since that suit was based upon the forfeited I’omeroy and Irwin title, even though we must say, that the sale therein carried to the purchaser the title the state had acquired by the King forfeiture. Nor need we determine whether it was absolutely necessary to make King a formal and direct party to that proceeding.

However this may be, it clearly appears that King had knowledge of that suit and could have intervened by a prayer to redeem in ample time before the sale to Stoddard and Hall. The time he should have spent in preparing and filing a petition to redeem and depositing with it the money for such redemption he spent in undertaking to enjoin the sale by process from the federal court. He did not ask to redeem, as the law permitted him to do.

He seems to have been bent upon obstruction of the state in producing a revenue from forfeited titles, and not in the payment of money for redempl ion of his forfeited title. “But granted that there was irregularity in the sale to Stoddard and Hail, father by reason of the Wilkinson deed, the lack of deed if there is none, or the absence of King as a party from the Hinchman suit the sale to Stoddard and Hall was validated by

section 19, c. 105, of the Code, its very self a legislative grant The language of that enactment that legislative grant of this land to Stoddard and Hall or their successors is: ‘Whatever right, title, interest, and estate the state of West Virginia had to any lands at the date of Hie sale or conveyance thereof, or instrument purporting to convey the same heretofore made by said state through and by the commissioner of school' lands of any county, under an order or decree of the circuit court in any suit or proceeding under said

chapter one hundred and five of the Code, however-derived or claimed, shall be deemed and held to have passed to and vested in the grantee thereof, whether the land so sold was proceeded against as forfeited, escheated, or as waste and unappropriated land, notwithstanding any irregularity or error in such proceeding or informality in such sale.’ The Legislature has full power to dispose of the state’s property.

In pursuance of a well meant policy, it saw fit by the enactment aforesaid to validate the. sale to Stoddard and Hall if it was not before valid, and to vest ‘whatever right, title, interest and estate the state of West Virginia had’ to the 20,000 acres at the date of the sale thereof. If it was only King’s forfeited title that the state had at the date of this sale, that act vested it- in Stoddard and Hall, or their successors. We can do nothing but to give effect to this plain legislative grant.

It is not unlike the old legislative grant to Dumas, trustee of the Swan lands, which is the very saving of King’s title to the Morris grant. Not content with the words aforesaid, the Legislature is more emphatic in these words: ‘And all such sales and conveyances are hereby confirmed and made good and .valid.’ Thereby has been confirmed and validated the Stod-dard and Hall title, now owned by Buskirk. The state had the power to give them- the land, and deny King the grace of redemption.

It did so, by this act, if Stoddard and Hall did not have good title by their purchase aforesaid. “But has-the title of Stoddard and Hall or their successors become forfeited to or vested in the state since the purchase aforesaid? If it has, and the state again owns the land, shall King be permitted to redeem, regardless of the new title created by that sale to Stoddard and Hall? The taxes on the Stoddard and Hall title have .been paid.

However it appears from a certificate of the Auditor that, for a certain delinquency this title was sold to the state, and then not redeemed at the Auditor’s office until two days after the expiration of one year. King insists that, by reason of the failure to pay these delinquent taxes within the year after the said sale to the state, the title became completely vested in the state, and that it is still there. Thus, he says, the state, having title, should allow him to redeem. It seems that it did so vest. The title could not be redeemed by a mere payment on the date certified as aforesaid.

But we cannot say that the title is still in the state. We hold that Buskirk, having acquired King’s forfeited title, by purchase from the state, and legislative validation and confirmation of the title so purchased, had right superior to that of King to redeem. The state created a new title which it will'honor first in the matter of redemption. Buskirk, therefore, was entitled to redeem in perferenee to King. And, in effect, his motion to dismiss the land from the suit was sufficient in this particular.

The redemption money having long ago been paid, and there being only a technical failure to redeem, the state did not resist his motion. It had its taxes and was content. The decree of dismissal of the land operates as a substantial and complete redemption of Buskirk. King cannot complain, because -his right was inferior. The court recognized the proper party.” This question' has also been passed upon by the Supreme Court of the United States in the case of King v. State of West Virginia, 216 U. S. 99, 30 Sup. Ct 229, 54 U. Ed. 396. Mr.

Justice Holmes in speaking, for the court, in that case, among other things, said: “The defendants in error move to dismiss, and we are of opinion that the motion should be granted. The only serious question in the case, if we assume that King saved it, is whether the West Virginia Constitution and statute are consistent -with the fourteenth amendment. But that' question was answered in King v. Mullins, 171 U. S. 404, 18 Sup. Ct. 925, 43 L. Ed. 214.

The construction of the state Constitution by the state court as not confined in its operation to title vested and remaining in the stale when the Constitution went into effect (which of course is final) is the only natural construction and was to be expected; then, as now, it was obvious that the right to redeem under the statute would not exist in case part of the land had been sold to a junior purchaser, so that in that case there would not be a ‘reVestiture commensurate with the divestiture,’ as it is argued that there should be; and, to say the least, it. is not suri trising that it is held that the right may be lost by transfer pending the proceedings.

The whole discussion upon this point is little more than an attempt in respectful form to reargue by unreal distinctions what was decided in the former case. The ease is not open, and we shall discuss it no more.” In view of these decisions, we are clearly of the opinion that the plaintiff, according to his own showing,, does not possess the title to the land in controversy, and also that he has not the right to redeem any portion of the same.

Without undertaking to discuss the question as to whether the plaintiff, on the hare right to redeem this tract would be entitled to maintain a bill to remove a cloud from the title to the same (which is very questionable), it clearly appears that the rights of the plaintiff and defendant have been passed upon by a court of competent jurisdiction, and that there has been a final adjudication in favor of the defendant and against the plaintiff. Therefore it necessarily follows that the judgment of the lower court should be affirmed. Affirmed.