(Circuit Court, S. D. Ohio, W. D. April 26,1800.)
An answer to a bill fOr partition, admitting the interest of one under whom the complainants .claim by descent, but denying that they are the raises an issue ofidentity, rather than of title; and a suspension of proceedings .mtil'their right to possession is established at law is neither necessary nor proper. In a suit for partition, removed to a federal court, it will follow the state decisions holding that a right of entry in the plainti:t!, without actual seisin, is sufficient.
'- BAME-REMOVAL OF CAUSES.
In Equity. Bill for partition. On motion to stay proceedings until complainants establish their title at law" This is a bill for the partition of 161.4 acres of land situate on Price hill, within the corporate limits of the city of Cincinnati. There are between two and three hundred defendants, but, the contested questions being COIl.mon to all. they are to be heard upon the answers of William Henry Elder. archbishop of Cincinnati and trustee of Mt. St. Marys' Seminary, and of John Keeshan. The cause is now before the court upon the defendants' motion to suspend further proceedings until the complainants shall establish their title at law. The bill and its amendments contain the following averments of fact: On the - - - day of May, 1816, William Barr, Sr., died, testate. and seised oithe real estate above referred to, which he devised to his executors for the use of his son John M. Barr during his natural life. and after his death for the use of his wife, Maria Barr, (in the event of her survival,) during her natural life, with remainder in fee to his child or children and their heirs forever. John Y. Barr died in August, 1820, leaving his wife. Maria, and one child, Mary Jane Barr, surviving him. In November, 1821, the daughter, Mary Jane Barr, died, leaving her mother, Maria Barr, (who afterwards intermarried with v.42F.no.12-39
John Bigelow,) surviving her. Subject to the life-estate of Maria Bigelow. said real estate desce!1d,ed, upon the ,"-eath ,pfMary Jane Barr, by virtue of the laws of descent then in force in the state of Ohio, to the brothers and sisters of William 13I\1'f, then living, or the l,ineal descendants of those then deceased, and their descendants and heirs. The complainants are the descendants and heirs at law of Mary Grafton, deceased. who was a sister of William' Barr;'Sr;On the ·26th day of July, 1838, Maria Rigelowconveyed by quit()Iahn,deed t'be entire. tract of land described in tile bill, and all her right, title"ana interest in law, arid in eqUity, to Ephriam Morgan and Lot Pugh, their heirs and assigns, fotever,with full covenants of seisin against and of 'special , On the 13th of September, 1839, Lot Pugh quitclaimed his interestIn said tract to his co-tenant, Ephriam Morgan, who on or about the 20tb of September, 1839, entered into possession by virtueot said deeds, holding no other title whatever to said premises. Between thel!!t()f October, 1838, and the 16th of December, 1839, through the agency of .hisson-in-Iaw Woods, Morgan procured from children of John Barr, one of the brothers of William Barr, deceased, to whom a portion of said tract defor theirlnterest therein, Without specifying what that interThe bill sets out the different deeds, some 19 in Dumber, all milde to Woods, Morgan's agent, and his deed olthe same on the 16th of December, 1839, to Morgan. , . i of M()rgan conveyed 74 acres Of said tract to one Patrick. Consadiile. This was six days Lefore he acquired title from the children of John Barr. By sundry deeds, between the ltith of May, 1843, and the 5th of May, 1858, he conveyed to Adam Moore andotbers about 69 acres of· ·. ,The resid.l1e,'beintt about 21 acres; Morgan held until his death, which bceu'ned some tilnei", l8Z3. ,On the 29th day of June, 1858, before the death of the life-tenant, Maria Bigelow, the said Morgan ,and Woods, and Morgan?s grantees. whociwere at that time the tenants iii possession of all of petition in theeourt of common pleas of Hamilsa,idtract of,laDd, filed ton county, being the is situate, against John B. Ennis and others, setting fOrth, among other things, that Qn the 26th day ofJuly, 1838, Maria Bigelow conveyed to Ephriam Morgan and Lot Pugh all her right. title, and interest, being a life-estate, in said 161.4 acres; and that it was necessary to take her deposition to establish and prove the namesof the btothers aDll siatel'll of WilUam Barr,deceased, and their neiis andlegal,representatives. A copy of the proceed'ings in said cause; togetber with the depo-, sWon of Maria Bigelow:, was taken. therein, and filed with the papers insaid proceedings, is attached to an amendment tothe bill, and made part thereof. The bill further charges that. after said Woods had con veyed to said Morgan the titles so acqUired by him, he purchased the interests of sundry otber hain lof said brothers and sisters of William Barr, deceased, whose names are fully set forth in said bill. It is further averred that Woods died testate, sE>jsed of the interest so acquired, and that on the 15th day of ::Ieptember.lS57, widow conv,eyed the same by special warranty deed to said Morgan'. ", ' . " "", , " ' , The bill further alleges that Said Morgan, and those claiming under him, contin ued in possession of said tract of land after the death of the life-tenant, as tenants in cOmmOn with the complainants, and with the heirs of the brothers and sisters of William. Barr, '::11'; , The' bilI further alleges that, shortly after,the death of Maria Bigelow, life-tenant, Margaret R. Poor, claiming as heir of Mary. Jane Barr, thetmct of land ,aforesaid, filed in the circuit court of tbe, United States for the southern district of Ohio her declaration in ejectment against Patrick Considl'ne, EphriamMorgan, and others in possession, inclndingArcbbishop John B. Purcell, (who was made a party subsequent to the filing of the declaration,and to w,hose office and title-the defendant Arch-
y'CLASKEY 'V. BARR.
bishop Elder succeeded,) seeking to recover possession of the whole of said tract of land. Judgment was rendered in favor of the defendants in said case by the circuit court, and affirmed by. ,the supreme court, of the, United States. The complainants further allege that, when said case.waS taken on .error to the su:preme court, a bill of exceptions was filed, embodying an agreed statement of facts wherein appears, among other things, a full statement of the facts relative to the filing of the petition aforesaid, on the 29th of June, 1858, in the coun of common pleas of Hamilton county, by said Morgan and others, and a copy of the proceedings and order of the court thereinj also the names of the brothers and sisters and some of their cbildren, the heirs of /laid William Barr, Sr. The bill/lcts forth other particulars relating to said bi\l ceptions, but it is not necessary to refer to thpm more particularly. On the 4th day of December, l868.-(which was after the decision by the suvreme court of the United States of the case of Poor v. Considine, 6 Wall. 458,) Morgan, Consadine, Archbishop Purcell, and others, being all the parties in possession, entered into a written agreempnt, authorizing and empowering T. D. Lincoln and Fayette Smith, as trustees, to buy in fOl' their use the o!ltstanding title of the several heirs of William Barr, John T. Barr, Margaret Barr Keys, who the complainants allege were children of Samuel BalT, was a brother of William Barr, Sr. Complainants further allege that said trustees purchased and received deeds for titles of said parties in December, 1868, January and February, 1869, and also from sundry other persons, and afterwards conveyed the interests so acquired to the several parties to the said written agreement. The complainants further say that on the 1st of April.187l, Samuel Barrand wife conveyed by deed to said Lincoln in trust, for the benefit of sundry parties, all their interest in said lands, in which deed it was recited, among other things, that Mary Jane Barr, the daughter of John M. Barr, was the owner in fee of said lands, SUbject to the life-estate of her mother, the said Maria Bigelow, and that on the death of said Mary Jane Barr an undivided fifth part of said pl'operty paRsed by descent to Andrew Barr, and upon his death to his children; and it was further recited in said deed that the interest so con veyed was the interest of said parties in said tract of land. The bill further avers that said Lincoln afterwards purchased the interests of several other parties, heirs in said lands, for the benefit of the parties to said written agreement, and conveyed to them all of the interests so acquired. The separate answers of Archbishop Elder and of John Keeshan deny the heirship of the complainants, and set up, among other things, that Ephriam Morgan entered upon the sole, open, notorious, and exclusive possession of said premises on the 13th day of September, 1839, claiming the sole title and ownership thereof in fee-simple, adversely to the complainants and each of them, and all the world. The answer of Archbishop Elder then sets up the conveyance aforesaid, in fee, by said Morgan to Patrick Considine, of 71 acres of said tract, and that Collsidine made sundry improvements of a permanent character upon the' same, and collected and received all the issues, rents, and profits thereof, and appropriated them to his own exclusive use; that in May, 1847, by deed in fee-simple, he conveyed five acres of said tract to Archbishop Purcell, and said deed was on the 5th day of April, 1848, recorded in the public records of Hamilton county. It further avers that said Purcell immediately entered into the open, notorious, and exclusive possession of said premises, claiming the entire title thereto, adversely to the complainauts and all the World, and shortly thereafter commenced the erection
thereon of a stone Sf!minllry and theological college building, which was completed at a cost of about $30,000; that he proceeded to make other improvementfl for the purposes of said seminary, the cost thereof, upto 1871, being about $50,000; that in May, 1858, said Morgan cohveyed, by deed in fee-simple, tosaid Purcell, about 10 acres more of said tract; that sUDsequently said Purcell became the grantee, in fee-simple, of all the residue of said 71 acres, to-wit,56 acres, of which Patrick Considine died seised, having devised the same to his brothers and sisters for life, with remainder in fee to said Purcell. The answer further sets forth an open,ndtorious, and adverse possession of this tract, and the making of . costly arid permanent improvements thereon. Exceptions having been sustained to this answer, the defendant filed a further answer, in which he admits that William Barr, Sr., died seised of the real estate described in the bill. He admits the admission of his will to probate, and that the supreme court of the United States in the case of Poor v. Considine, 6 Wall. 458, decided that, upon the death of Mary Jane Barr, said real estate descended to the brothers and sisters of William Barr, Sr., or their heirs, as heirs at law of the said Mary Jane Barr; averring that he has no personal knowledge who the brothers and sisters were, and is therefore unable to answer whether they were the persons named in the second amendment. He denies, upon information and belief, that Mary Jane Grafton, under whom the complainants claim to derive title, was one of the sisters. He admits the conveyances from Maria Bigelow, from Ephrianl Morgan, and Lot Pugh, as set forth in the amended bill, and the conveyances from Lot Pugh to Ephriam Morgan, and avers, on information and belief, that they entered into possession of thepl'emises conveyed to them under said deeds, claiming adversely to the complainants and each of them and all the world. He denies that Morgan had no other title than that derived from Bigelow. He admits that Morgan, having entered into possession as aforesaid, was advised that the remainder in fee had descended, upon the death of ::\iary Jane Barr, to thevrothers and sisters of William Barr, Sr., and their heirs, and that thereupon he purchased all the outstanding interest of all the heirs of said brothers and sisters in said remainder, as he then believed. He further admits the purchase from the different parties set forth in said amended bill, and that the conveyances were all in fee-sim pIe, purporting to convey the entire interest of the grantors in said tract of land, but avers that he has no knuwledge or sufficient information upon which tofound a belief as to the relationship of the grantors to the said Mary Jane Barr. He admits the execution of the deeds from William Wood 'and wife to Ephriam Morgan, which are set forth in the amended bill; also the filing of the petition in the court of common pleas of Hamilton county, by Ephriam Morgan and others,. for the purpose of taking the deposition of Maria Bigelow, as set forth in the amended bill; also the briDging of theS].1it of Poor v. Considine, and the agreed statement of facts as set forth in ths bill, and the taking of the said case to the supreme court, and the decision of that court .ther:ejn, . HeJurther admits the Ii vermentsof the bill relating to the agr\3eUlent betWlilell; the parties therein
M'CLASKEY fl. BARR.
named and Uncoln and Smith, asset forth, but avers, upon inlormation and belief, that when said agreement was made the parties thereto, who were then in possession of said premises, claimed to hold advelsely to the Barr heirs, and that the purchl1ses by Lincoln and Smith were made by way of compromise and of buying peace. He admits the other purchases by Lincoln and Smith set forth in the bill, and the deed by the heirs of Andrew Barr, but avers that they, too, were made to avoid litigation and by way of compromise. The answer further sets up that eaah one of the grantees under whom the defendant claims entered into tim open, notorious, continuous, exclusive, and adverse possession of the premises occupied by him, and described in the bill, under recorded deeds in fee-simple, with covenants against incumbrances and of general warranty, paying full value, and relying upon other deeds as convey· ances to them of the entire title to said premises; that they have, as has defendant, so exclusively occupied, and so claimed in good faith, and "without notice of the claim of these complainants, or their alleged ancestors in title, or either of them, and that said open, notorious, exclusive, and adverse possession has continued unbroken down to the present time." It is not necessary to set forth the details of the answer of John Keeshan. In every essential particular it raises the same questions and presents the same defenses as the answer of Archbishop Elder, and is subject to the same ruling. For former reports, see 38 Fed. Rep. 165; 40 Fed. Rep. 559. Cowan &; Ferris and Henry T. Fay, for complainants. Lincoln, Stephens & Lincoln, Bateman & Harper, and F. J. Moorman, for respondents. Before JACKSON and SAGE, JJ. SAGE, J., (aJter stating theJactB as above.) The contention of counsel for the defendants in support of their motion, that a suit in equity for partition is not an appropriate proceeding to try title to property, and, when the complainant's title is legal and is disputed, the bill will be dismissed, 01' proceedings stayed until he establish his title at law, was recognized by this court in McClaskey v. Barr, 40 Fed. Rep. '563. That adverse possession ripens into title, and that in all cases the title vests as soon as the remedy against the adverse holder is barred by the statute of limitations, is so well established by decisions of the supreme court of Ohio, (KY8er v. Cannon, 29 Ohio St. 359; Rhode8 v. Gann, 35 Ohio St. 387,) and by the supreme court of the United States, (Leffingwell v. Warren, 2 Black, 605; Croxallv. Shererd, 5 Wall. 289; Bicknell v. Com,stock, 113 U. S. 152, 5 Sup. Ct. Rep. 399; Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. Rep. 209,) that it is not open to be disputed. The question to be decided is whether the answers present a good plea of the statute of limitations, or that the title is legal, and is disputed. The will of William Barr, Sr., which it is admitted was duly probated in the records of Hamilton county, devised the real estate described in the bill to his executors for the use of his son, John M. Barr, during his life, and after his death in trust for his wife,
, Mana Bart, afterwards Maria Bigelow, d nring her naturallit'e; "'·jth temain· . to the children ofJohn M. Barr, and their heirs, forever. The anoo by Maria Bigelow to Ephriam Morgan and Lot Pugh was the conveyance, not of a legal, but of an equitable, estate, of which the grantees by reason of the probate of the will were bound to take notioe. McArthur v. Scott, 113 U. S. 405,5 Sup. Ct. Rep. 652. 1'hedefendahtsadmitthat upon the death of Mary. Jane Barr said real estate descended, subject to the life-estate of Maria Bigelow, to the brothers and sistersof William Barr, Sr., or their heirs, as heirs at Iawofthe said Mary Jane Barr, but they deny that,Mary Grafton was ,one of the sisters of said William Barr, Sr. It is i,JJsisted as the deeds to Morgan and Pugh, and the subsequent deeds by them to grantees under whom the defendants claim, purported to convey the fee-simple, that they gave at least color of title' upon which an adverse possession could be founded. That a deed purporting to conveya fee, made by one not having title, is sufficient to give color of title, is truej but that conveyances made during the life of Maria Bigelow, the life-tenant, could be the foundation of a claim to adverse possession during her life-tenancy, is not true. By her deed she transferred all her interest in the property and her exclusive right to possession. So long as she lived there couJdbe no possession adverse to the heirs of Mary Jane Barr, for the reason that their right of possession, as tenants in common, did not accrue until the death of Mary Bigelow. For that reason the deeds purporting to convey the fee, made during her life-time, could not operate as an ouster of those entitled in remainder. There was no co-tenancy then in existence. The estate in remainder was vested, it is true, but the right of possession, and therefore the co-tenancy, was postponed until her death. But it is claimed that the character of the improvements made under the deeds above referred to during her life-time may be referred to as indicating the intention of the parties in possession to exercise the rights of complete ownership of property, and as reflecting upon the character of their possession from and after her death. This proposition, properly guarded, as will be hereinafter indicated, is recognized as sound. The right of complainants to possession and partition sprang into existence upon the termination of the lifeestate by the death of Maria Bigelow. It is averred by the complainants, and admitted by the defendants, tbat, in 1838 and 1839, Morgan procured some 19 deeds from children of John Barr, Samuel Barr, and Jane McWhirter, conveying their interest in the entire tract of land described in bill. Upon the death of Maria Bigelow, which occurred, according to the averments of the bill, in August, 1860, Morgan's grantees, by virtue of these conveyances and subsequent conveyances to them, became co-tenants with complainants, and .with the heirs of Mary Jane Barr, in the property. Now, what l1re the averments upon which the claim of adverse possession, subsequent to .that' time, is based? There are averments, already noticed, of continuous and exclusive possession, of receiving and retaining all the rents and profits, of paying taxes, and of making permauent and costly impro.v.ements,.all claimed as indicating a holding adversely, and the as-
M'CLASKEY 'Z:. BARR
section of absolute ownership. But there is nowhere any a\'erment of notice to the co-tenants not in possession, excepting as it is to be inferred from the acts above stated. On the contrary, the answer filed January' 18, 1890, contains the averments that the open, notorious, continuous, and exclusive possession of said premises by the defendants and all their grantors was "in good faith, and without notice of the claims of these complainants or their alleged ancestors in title, or either of them." Zeller'8 Lessee v. Eckert, 4 How. 289, is in point. There was in that case a devise of land to the son of the trstator, with a provision that the widow should continue in possession and occupation of the premises until the son arrived at the age of 15 years. The supreme court held that her possession w.as not adverse to the heirs of the child during that peri" od. So here the possession of .Morgan and of his grantees, during the life-time of Maria Bigelow, was not adverse to the heirs of Mary Jane Barr. The supreme court further held that, as the possession "was originally taken and held in subserviency to the title of the real owner, a clear, positive, and continued disclaimer and disavowal of the title,) and assertion of an adverse right, and to be brought home to the party, are indispensable, before any foundation can be-laid for the operation of the statute." The court further said that"Otherwise the grossest injustice might be practiced; for without such tice he might well rely upon the fiduciary relations under which the possession was originally taken and held. and upon the subordinate character of the possession as the legal result of those relations." And still further: "The statute, therefore, does not begin to operate until the possession, fore consistent with the title of the real owner, becomes tortious and wrongful by the disloyal acts of the tenant, which must be open, continued. and notorious. so as to preclude all doubt as to the character of the holding. and the want of knowledge on the part of the owner." It is urged that the purchase and procurement of the conveyances by Morgan. above referred to, and the purchases by Lincoln and Smith as trustees on behalf of the defendants, subsequent to the death of Maria Bigelow, ought not to be treated as recognitions of the complainants' title, but rather as purchases of the outstanding interests, for the protection of the defendants' title, made to avoid litigation, and by way of compromise and buying peace. All the conveyances since the case of Poor v. Considine are averred in the answer to have been so made, and it is urged that they did not, therefore, interrupt the continuity of the adverse possession claimed on behalf of the defendants. All this may for the sake of the argument, but without helping the defendbe ants. The question is not whether those acts interrupted the continuity of possession, but how do they bear upon the question of notice to the co-tenants who were out of possession? Counsel say that the defendants did not claim title under any of these deeds, and that their possession and title are referred entirely to the deeds from Morgan to his grantees, and the derivations of title subsequently by defendants under those deeds. It is easy to see that if Morgan had made no purchases from the heirs
FEDERAL REPORTER I
of Mary Jane Barr, and taken n() deeds from them, the position of the defendants would be much stronger than it is. In that case, having no rtllation of co-tenancy with the complainants, their holding from the death of Maria Bigelow might well have been regarded as adverse. But one result of Morgan's taking those deeds was to put him in the relation of co-tenant with the complainants instantly upon the death of Maria Bigelow, and the question now is, has the subsequent holding by the dt!·fendants been accompanied by acts which amount to notice to the cotenants of an adverse holding? How are we to reconcile with any such theory the agreed and recorded statement of facts which was embodied in the hill of exceptions in the Poor and Considine Case, or the written agreement authorizing and empowering T. D. Lincoln and Fayette Smith, as trustees, to buy in, for the use of·the defendants or their grantors, the outstanding title oftheseveral heirs of William Barr, John T. Barr, and Margaret Barr Keys, all grandchildren of Samuel Barr, who is alleged to have been a brother of William Barr, Sr.? Can any of these acts or transactions be construed as notice to the co-tenants of an adverse hold. ing? Everyone of them indicates, as far as the question of notice is concerned, as does the ,proceeding of record in which the deposition of Maria Bigelow was taken and filed, a holding in subserviency, rather than in opposition )to the title and interests of the co-tenants; and we are of opinion that it is impossible to reconcile those acts, taken in connection with the other admitted facts, with the claim Man adverse holding. We are considering them solely and exclusively with reference to their bearing upon the question of notice to the co-tenants. It is not pretended that an actual notice was given. On the other hand, as has already been shown, the answer denies any knowledge even of the existence of the the proposition that if no such complainants. Weare not notice had been given, the defendants might, without prejudice, have taken deeds for outstanding interests of co-tenants, by way of compromise .and to avoid litigation; but it has been held that where the possession was adverse, so as to amount to a disseisin, the disseisin would be purged by the purchase of shares of several of the heirs soon after, and the subsequent posseseion must be considered as the posliession also of the other heirs, from whom title had not been obtained. Parker v. Proprietors, 3 Mete. 99. Now, regarding the fact that costly and permanent improvements were made by Archbishop Purcell in the time of the life-estate of Maria Bigelow, and the fact, also, thnt improvements of like character were made by him after her death, as indicating a claim to the entire estate, and intention to hold adversely, we must, in considering the question whether notice to the complainants can be J."easonably inferred, take into account that the recorded deeds to the defendants by co-te11l\nt8 of complainants amounted, in the absence of actual notice to the contrary i to notice that the defendants recognized the co-tenancy. rrhese suggestions apply, with perhaps even greater force, to the subsequent deeds from co-tenants prooured through Lincoln and Smith, trustees, and containing recitals recognizing in express terms the co-tenanOy. The admitted facts, as they appear from the pleadings, cannot be reconciled