WALLACE et ux. v. McCLUNG et al., 74 F. 376

HUGHES,- District Judge (after stating tbe facts). It is first objected by the plaintiffs, as a ground of error in the court below, that the case was improperly removed from the state to the federal court, for the alleged reason that the petition for removal was made too late. The petition was filed in the federal court on the 4th of November, 1898. The notice of suit had been filed in the state court on the 17th of October, 1891, and the declaration on the 5th of November next following. The defendants pleaded on the 20th of April, 1892.

Therefore the motion for removal on the ground of diversity of citizenship had been lost at that date. But the defendants had still time to rely on local prejudice and influence, if they existed, as good grounds for removal; the case not having yet proceeded to tidal. They distinctly state, in their petition, that there had never been a trial of the action of ejectment. The record shows that there had not been. We must, therefore, pass upon the question of local prejudice, and we concur with the circuit court in its ruling on that subject. The affidavits filed seem to us to leave no doubt on this question.

The matter of local prejudice necessarily rests largely in the discretion of the trial judge. We think the case was properly removed, and we affirm the judgment of the court below denying the motion to remand. We come, therefore, to consider whether it was competent for the judge of the circuit court to direct a verdict for the defendants without a trial of the facts in issue respecting the validity of one or the other line between the Welch and Bowen tracts, — the plaintiffs’ line, Z to N, or the defendants' line, S to M, laid down on the verdict map.

The judge of the circuit court took this question of fact from the jury on a technicality. ITis ruling in that respect was based upon the idea that, technically, the plaintiffs were es-topped from recovering in this action — First, by a recital in their deed conveying the 162 acres of land to Gideon Brown; and second, by the proceedings in the suit against them in the circuit court of Greenbrier county by William and Joseph Brown, in which their title to the 1,000 acres of land devised to Mrs. Wallace by James H.

Bowen was adjudged defective, except as to 162 acres of the tract lying below the line, S to M, and conveyed, as just stated, to Gideon Brown by deed.' This grants 162 acres, more or less, and adds: “Being all the land, ascertained by the surveys, and plats filed in the chancery cause of William and Joseph Brown v. Washington Wallace and others, lately pending in the circuit court of said county of Greenbrier, and devised to said Miriam Wallace by her father, James II.

Bowen, of the 1.000 acres conveyed by said Washington and Miriam Wallace to said William and Joseph Brown, by deed dated on the 17th day of May, 1881, and recorded, etc., after deducting from said 3.000 acres the lands covered by the Welch title, which was owned by said Gideon Brown.” The intention of every deed must be obvious, and the language expressing that intention must be precise, clear, and unambiguous. There can be no estoppel if these qualities are wanting in the instrument claimed to effect it. The language of the deed of the Wallaces to Gideon Brown is wanting in both respects.

The sentence “being all the land ascertained by the surveys and plats filed in the chancery cause,” etc., “and devised to Miriam Wallace,” etc., omits to define what was ascertained by the surveys, and is followed by references to exhibits filed in court proceedings, to deeds, to surveys and maps, all requiring close and intelligent examination, study, and research.

To hold a married woman, unskilled in land titles, and unversed in legal phrases, to be estopped by such language as that above quoted from the deed conveying the 162 acres to Gideon Brown would often work the utmost hardship, would invite to fraud, and be contrary to public policy. In the instance under consideration, Gideon Brown, claiming to own the adjoining Welch tract, and anxious to possess himself of Mrs.

Wallace’s 1,000 acres, purchases from her the 162 acres, which he cannot possibly obtain otherwise, and takes a deed from her for the 162 acres, which is found to contain a confused recital relating to the 838 acres. This recital those who claim from him now set up as operating an estoppel against Mrs. Wallace as to the larger number of acres. Such a contention by the beneficiaries of Mrs. Wallace’s deed is obviously inadmissible.

The Wallaces, in granting the 162 acres, which are theirs beyond question, were under the necessity, in the language distinguishing, and in the deed separating, the smaller part of the tract from the larger, to recite the fact that the larger part of the tract had not been decreed to them. Is the mere recital of the fact of such a decree by a party aggrieved by it, conclusive against him, — so conclusive as to work a conveyance, without deed, and, in the case of a married woman, without privy examination, of land not conveyed, but only alluded to in the deed mentioning the decree? We think not.

It is plain to us that the Wallaces were not estopped or concluded, by their .deed granting the 162 acres, against asserting any rights which they may have in the 838 acres. The case is the same as to the suit in the state court. The decree in that suit had not been fully obeyed by the complainants who brought it. They had, indeed, executed a deed of reconveyance to Mrs. Wallace, but certain persons holding from them still held possession. The suit here is brought by the Wallaces against those persons to recover the possession decreed them by the state court.

Whatever may-be the ultimate rights of parties, wherever may lie the final title to the land, yet certainly, as to the purposes of this suit of the Wallaces for possession under a decree in another suit directing these defendants to restore possession to them, the proceedings in the other suit, which decreed such possession, cannot be held to estop them from suing for the possession which itself decreed. As to this matter of possession, under the decree in the other suit, if there be estoppel at all, it is against the defendants.

If the decree of the state court had been obeyed in full, the Wal-laces would have entered into possession of the land in suit, and the defendants here would have been put to their suit to recover possession on the strength of their own right. The complicated question of title would have been examined by a jury, and would have been settled by its verdict. The proceedings in the case at bal-are quite unsatisfactory in respect to the title of the land in controversy. The trial of a contention over rival and conflicting boundary lines has not been by a jury. The very right of this case should have been so tried.

We are of opinion that the court below erred in holding that the recital in the deed of the '.Wallaces to Gideon Brown, conveying 162 acres of tbe tract of 1,000 acres mentioned in the proceedings, operated as an estoppel against them in this suit, and in holding that the record in the suit in the state court operated to the same effect, and that the said deed and record, taken together, estopped the plaintiffs from recovery. We think the court below' erred in directing a verdict for the defendants on the ground of these alleged estoppels.

The judgment of the court below, rendered on this verdict, must therefore be reversed and the cause remanded to the circuit court of the district of West Virginia, to be proceeded in in accordance with the views expressed in this opinion.