United States v. Hiawassee Lumber Company

This was an action of ejectment brought by the United States against the Hiawassee Lumber Company in the circuit court of the United States for the western district of North Carolina to recover a tract of land situate in Clay county, in that district and state, described as follows: 'Grant No. three thousand, one hundred and ten, containing five thousand acres, and beginning at a chestnut on the top of Tusquita Ball [Tusquita Bald] on the Macon County Line, and runs east three hundred and twenty poles to a chestnut on a mountain side, thence south seven hundred poles to a pine, thence west twelve hundred and forty poles to a stake, thence north seven hundred poles to a stake and hickory, thence east nine hundred and twenty poles to the beginning.' Defendant's answer denied generally the allegations of the complaint, set up possession and title in itself to a part of the tract, and demanded judgment that it was the owner and entitled to the possession of said land. The trial court directed a verdict in favor of defendant, and the resulting judgment was affirmed by the circuit court of appeals (120 C. C. A. 289, 202 Fed. 35).

From the bill of exceptions it appears that both parties claim under one Edwin B. Olmsted, who derived title to the lands from the state of North Carolina by certain grants dated November 10, 1867. One of these is grant No. 3110, for 5,000 acres, described as in plaintiff's declaration. There are 16 other grants, each for 640 acres, the tracts adjoining each other in such manner as to form a quadrangle that admittedly includes the land claimed by plaintiff as well as much land besides. Plaintiff claims through deeds purporting to convey the 5,000-acre tract as described in grant No. 3110. Defendant claims under a series of conveyances purporting to convey the 16 tracts of 640 acres each. So far as the bill of exceptions shows, there was no evidence of possession on either side, and the question turns upon the paper titles.

Plaintiff's chain of title is made up of the 17 grants to Olmsted and two deeds of conveyance. The first deed is dated February 7, 1868, made by Edwin B. Olmsted and wife, of the city of Washington, District of Columbia, to Levi Stevens, of the same city and District, purporting to convey the 5,000-acre tract in question. It was acknowledged in due form on the day of its date in the District of Columbia by Olmsted and wife (she being privately examined), before John S. Hollingshead, a commissioner for the state of North Carolina in and for the District of Columbia. Besides the certificate of acknowledgment, it bears the following indorsements: (a) One showing that it was recorded December 14, 1868, in the land records for Cherokee county; but this may be disregarded, since it is not questioned that the lands described in the deed lie in Clay county, which was formed out of a portion of Cherokee in the year 1861. (b) Next is a certificate by the register of Clay county that the deed was 'duly registered in the register's office of Clay county' on February 23, 1869, mentioning the book and page. (c) Next is a certificate dated May 20, 1896, made by the clerk of the superior court of Clay county, stating that the certificate of Hollingshead, commissioner, 'having been exhibited before me with the seal of his office attached, the same is adjudged to be in due form and according to law. Therefore let the foregoing instrument with all the certificates be registered.' And, finally, there is a certificate of the registration of the deed on May 20, 1896, in Clay county.

The second deed is dated March 15, 1869, made by Stevens and wife, of Washington, District of Columbia, to the United States, purporting to convey certain tracts granted by the state of North Carolina to E. B. Olmsted November 10, 1867, and describing 45 different tracts, one of which is the 5,000-acre tract in question. This was duly acknowledged by Stevens and wife before a commissioner for the state of North Carolina in and for the state of Pennsylvania on March 15, 1869. It was registered in Cherokee county August 4, 1871; but this is immaterial so far as its effect upon the lands in Clay county is concerned. It was not registered in the latter county until May 20, 1896, and it was then registered after compliance with all the requirements of law.

Testimony was introduced on both sides upon the question of location; a map was introduced purporting to show the location of the 5,000-acre tract, and of the sixteen 64o-acre tracts; it was testified that the former was located by an actual survey beginning at a chestnut on the Tusquita Bald, in the Macon county line, as indicated by the description and the map; and it was admitted that there was evidence sufficient to go to the jury as to location.

Defendant claimed to derive title from Olmsted through, first, a decree of the superior court of Macon county, North Carolina, in an equity action brought by one Swepson against Olmsted in the year 1882, resulting in a deed of conveyance, made pursuant to the decree and order of the court, by Kope Elias, commissioner, to A. Rosenthal, dated October 28, 1882, and duly registered in Clay county October 17, 1890; secondly, a quitclaim deed from Olmsted and wife to Rosenthal, dated October 31, 1882, registered in Clay county November 12, 1906, quitclaiming all interest of the grantors in the lands described in the Kope Elias deed; and, thirdly, certain special proceedings in the superior court of Alamance county, North Carolina, taken by the executrix of Swepson in the year 1884 for the sale of Swepson's 'equitable and legal real estate,' which resulted in a deed made by order of the court from Swepson's executrix to Rufus Y. McAden, dated May 11, 1888, duly registered in Clay county June 28, in the same year. Both the Kope Elias deed and the deed from Swepson's executrix to McAden purport to convey some interest in the 16 grants of 640 acres cach. Other deeds were introduced to show that whatever estate or interest was conveyed by the deeds specified had become vested in defendant.

Assistant Attorney General Knaebel and Mr. S. W. Williams for plaintiff in error.

Messrs. James H. Merrimon and Marshall W. Bell for defendant in error.

Statement by Mr. Justice Pitney:

Mr. Justice Pitney, after making the foregoing statement, delivered the opinion of the court: