NOT ESPECIALLY CONTENTIOUS. Considering our ancestry and former isolation, we are not more contentious or litigious than others of our kind; but it must be admitted that we sometimes indulge in a lot of unnecessary litigation. Some of us are accused even of taking delight therein. Mr. J. H. Martin tells of an old Covenanter who announced with glee that all his children were married off, all his own debts paid, and that he had nothing else to do now but "to spend the balance of his life a-lawin'." Owing to the legislation regarding land grants and the registration of deeds, etc., much litigation has arisen, notably the large case of Gilbert V. Hopkins, involving many thousands of acres of land in Graham and Cherokee counties. That case was tried before Judge Connor in the U. S. Court at Asheville in 1910, but the jury disagreed. It was tried again before Judge Boyd at the same place, and he decided it in favor of defendants, plaintiffs appealing. A new trial was granted. But as no final decision has been reached in it, no results can be stated here. In it are involved almost every point of real estate law possible to arise. Pains have been taken to refer in this work only to the most notable cases that have been heard and decided. Each was of interest at the time it was tried.
LITIGATION AND LEGISLATION. James McConnell Smith was the first white child born west of the Blue Ridge, in Buncombe county, but he will be remembered longer than many because of his will. He died December 11, 1853, leaving a will by devised to his daughter, Elizabeth A., wife of J. H. Gudger certain real estate in Asheville, "to her sole and separate use and benefit for and during her natural life, with remainder to such children as she may leave surviving her, and those representing the interest of any that may die leaving children."<a href="#1" class="toolTip" title="Footnote: 1
Mrs. Elizabeth Smith died in October, 1912"> A petition was filed in the Superior court asking for an order to sell this property, and such an order was made and several lots were sold with partial payments made of the purchase money, when a question was raised as to the power of the court to order the sale of the property so devised. In Miller, ex parte (90 N. C. Reports, p.625), the Supreme court held that land so devised could "not be sold for partition during the continuance of the estate of the life tenant; for, until the death of the life tenant, those in remainder cannot be ascertained." The sales so made, were, therefore, void.
But years passed and some of the property became quite valuable, while another part of it, being unimproved, was nonproductive, and a charge upon the productive portion. But there seemed to be no remedy till the city of Asheville condemned a portion of the productive part for the widening of College Street. The question then arose as to how the money paid by the city for the land so appropriated to public use should be applied. On this question the Supreme court decided in Miller V. Asheville (112 N. C. Reports, 759), that the money so paid by way of damages should be substituted for the realty, and upon the happening of the contingency-the because death of the life tenant-be divided among the parties entitled in the same manner as the realty would have been if left intact.
Upon this hint, on the petition of the life tenant and the remaindermen, a special act was passed by the legislature (Private Laws of N. C., 1897, Ch. 152, p.286) appointing C. H. Miller a commissioner of the General Assembly to sell the land, the proceeds to become a trust fund to be applied as the will directs.
This was done; but the Supreme court (Miller V. Alexander, 122 N. C., 718) held this was in effect an attempted judicial act and therefore unconstitutional. The legislature afterwards passed a general act, which is embodied in section 1590 of the Revisal, for the sale of estates similarly situated, and under this authority some of the land was sold and the proceeds were applied to the construction of a hotel on another part. The proceeds, however, proved insufficient to complete the hotel, and in an action brought to sell still more of this land for the purpose of completing the hotel, the Supreme court held in Smith V. Miller (151 N. C., p.620), that, while the purchasers of the land already sold had received valid title to the same, still as the hotel, when completed, would not be a desirable investment, the decree for the sale of the other land, in order to provide funds for its completion, was void because it did not meet the statutory requirements that the interests involved be properly safeguarded.
A LONG LEGAL BATTLE. In July, 1897, the First National Bank of Asheville failed, and indictments were found in Greensboro against W. E. Breese, president, W. H. Penland, cashier, and J. E. Dickerson, a director, for violating the United States banking laws.<a href="#2" class="toolTip" title="Footnote: 2
W. H. Penland, having agreed to furnish valuable information to the government, was not tried."> In 1909 Breese and Dickerson were tried on a new indictment at Asheville before Judge Purnell, Judge of the United States District court of the Eastern District of North Carolina, assigned to hold the court for this trial. The defendants were convicted, but took an appeal and a new trial was granted. In 1902 Breese alone was tried at Asheville before Judge Jackson of Virginia, and there was a mistrial. In the same year the case was sent to Charlotte and there was another mistrial. He was tried there again and convicted, and sentenced to seven years in the penitentiary; but the court of appeals quashed the indictment because two members of the grand jury who found the true bill had not paid their poll taxes. This apparently ended these cases, as the offences by this time had been barred by the statute of limitations. But District Attorney Holton resurrected the indictment fonnd first at Greensboro in 1907, and Breese and Dickerson were tried at Asheville upon that before Judge Newman of Atlanta, in the summer of 1909, and convicted. They were sentenced to two years and to a fine of $2,500 each, but appealed. The court of appeals were unable to agree and, in November, 1911, certified the case to the Supreme court of the United States. In the spring of 1912 a motion was made before that court to advance the case upon the docket. It was granted and the appeal decided adversely to the defendants in October, 1912.
THE SOLICITORSHIP. In the controversies over the Solicitorship in this section, between Ewart and Jones,<a href="#3" class="toolTip" title="Footnote: 3
116 N. C., 570"> McCall and Webb,<a href="#4" class="toolTip" title="Footnote: 4
126 N. C., 700"> McCall and Zachery,<a href="#5" class="toolTip" title="Footnote: 5
4 Dev., p.1"> and McCall and Gardner, the impression has gone out that, in one or the other of these cases, the Supreme court reversed its holding in Hole v. Henderson<a href="#6" class="toolTip" title="Footnote: 6
Dev., p.1"> to the effect that an office to which a salary was attached was property, and that the legislature could not deprive one elected to such an office of his rights by abolishing the position. This, however, is wrong, as that ease was not overruled until August, 1903, in Mile v. Ellington (134 N. C. Reports, 131).
MANY LEGAL POINTS SETTLED. The Western Carolina Bank was chartered in 1887 (Ch. 48) and began business in January, 1889. It failed, however, October 12, 1897, and its officers executed a deed of assignment to Lewis Maddux, its president, and L. P. McCloud, its cashier; but the Battery Park Bank and other creditors commenced an action against the bank for the purpose of setting this deed of assignment aside; in consequence of which Judge H. G. Ewart, judge of the Circuit Criminal court, undertook to appoint receivers of the property. A few days later Judge W. L. Norwood, holding Superior court in Clay county, appointed the same parties receivers, there being doubt as to Judge Ewart's jurisdiction.<a href="#8" class="toolTip" title="Footnote: 8
Bank v. Bank, 127 N.C. Rep., 432."> George H. Smathers alone, however, acted as receiver, the others having declined or resigned. There was a class of creditors which filed a general creditors' bill between the date of the appointment of receivers by Judge Ewart and the date of the appointment by Judge Norwood, who thus sought to secure priority over the assets not affected by the lien of creditors who had obtained judgments before justices of the peace, as many had done; but the Supreme court refused priority to those thus seeking to secure it.<a href="#7" class="toolTip" title="Footnote: 7
Fisher v. Bank, 132 N. C., 769">
There were many other questions settled in the ensuing litigation, for Receiver Smathers was removed and W. W. Jones, Esq., appointed in his place in May, 1902; and he immediately began to collect the assets of the bank, and to compel Madison county to pay certain of its bonds which he held among the assets of the defunct bank. The Supreme court decided that each stockholder was liable to the extent of double the amount of his stock.<a href="#9" class="toolTip" title="Footnote: 9
Smathers v. Bank, 135 N. C., 410"> It at first denied the mandamus asked for to compel the commissioners of Madison county to levy a tax to pay its bonds<a href="#10" class="toolTip" title="Footnote: 10
Jones v. Com., 135 N. C. Rep., p. 215"> but on a rehearing granted the mandamus. (137 N. C., 579.)
The question as to whether a married woman could escape her liability as a stockholder was also settled adversely to such claim.<a href="#11" class="toolTip" title="Footnote: 11
Bank, v. Maddux, 156 N.C."> In pursuit of the stockholders it became necessary for the receiver to get the legislature to pass an act authorizing him to sue outside the State.<a href="#12" class="toolTip" title="Footnote: 12
Pub. Laws 1903, Ch. 283">
LINVILLE LITIGATION. S. T. Kelsey and C. C. Hutchinson had started Highlands; but Mr. Hutchinson, who was to have provided the money, found himself unable to do so, and Mr. Henry Stewart, editor of the agricultural department of a New York newspaper, bought, through Kelsey, all the land Hutchinson was to have paid for. Then Stewart broke with Kelsey and the latter turned his attention to the development of the Linville country. Mr. S. P. Ravenal, Sr., advanced $500 for preliminary investigations, which resulted in the formation, about 1890, of the Linville Improvement Company with Messrs. Ravenal and Kelsey and the late Mr. Donald MacRae of Wilmington, N. C., as the principal stockholders. Neither Ravenal nor MacRae held a majority of the stock, thus giving Kelsey the balance of power.
There were three distinct lines of policy advocated by each of these gentlemen. Mr. MacRae wanted to bond the property for the construction of a railroad from Cranberry; Mr. Kelsey wished to establish an industrial center at Linville City; and Mr. Ravenal opposed both, but wanted to establish a health and pleasure resort at Linville City, sell lots hold the 15,000 acres of timber land the company had acquired for future development. After a while Mr. Thomas F. Parker succeeded Mr. Ravenal and Mr. Hugh MacRae succeeded his father, Mr. Donald MacRae. These two could not agree and Mr. Kelsey, siding with the MacRaes, a receiver was applied for and appointed between September 1, 1893, and September 1, 1894.
These disagreements among the stockholders of the Linville Improvement Company in relation to the general policy to be pursued by the officers in control, and especially in respect to the method of liquidating the outstanding indebtedness and encumbering the property of the company, were involved in an action brought against that company by T. B. Lenoir, executor of W. W. Lenoir, and decided by the Supreme court. (See 117 N. C. Reports, p.471.) Thomas F. Parker had been president from September 1, 1893, to September 1, 1894, and Harlan P. Kelsey secretary for the same time. A special master had rejected the claims of these two officers for pay for services during this time, and the court held that they should have been a1lowed to prove that they had a contract for employment with the company for the entire year and not only up to the time of the appointment of a receiver.
After a while Mr. MacRae offered to sell his interest or buy that of Mr. Ravenal at a certain price. Mr. Ravenal sold.
A railroad was finally built to Pinola and Montezuma, two miles from Linville City. But the golden opportunity had passed. For, while the company was constructing the Yonahlossie turnpike from Linville City around the base of the Grandfather mountain to Blowing Rock, erecting a fine hotel and constructing a large dam for a lake at Linville City, the press was ringing with praises of the beauty of the scenery, the healthfulness of the surroundings and the general attractiveness of the place. Visitors came in numbers from various parts of the country and wished to invest in lots and build cottages. But, as the property was in litigation, titles could not be made to the lots, and the boom subsided. Blowing Rock, however, which before had been a mere hamlet, suddenly developed rapidly and substantially, and is today one of the finest and most attractive health and pleasure resorts in the mountains.
COLOR OF TITLE. In all countries one who enters upon land and holds possession under any paper writing of record that proclaims to the world that he is there by some real or pretended authority will secure title by adverse occupancy than will he who "squats" upon land without any pretence that he has any right to be there other than his bare possession. In the early days of North Carolina the State granted large tracts of land to William Cochran and William Tate in July, 1795; and in July, 1796, just one year later, William Cathcart secured grants which were found to lap on those lands already granted to Tate and Cochran. It was impossible for Tate and Cochran to put settlers on their lands at that time, and having the senior grant they rested on their rights. But Cathcart was unwilling to lose any portion of the land he had paid the State ten cents an acre for, even though part of it was already the property of Tate and Cochran. So, in September, 1838, he leased all this disputed land to Abram Johnson, put him in possession of a part of it, and told him to exercise rights of ownership over as much as he did not actually occupy as he could. In order to do this Johnson built a forge near the Old Fields of Toe, and cut timber and burnt charcoal at many other places on the land. More than one hundred years after all these grants had been taken out the Supreme court decided that Cathcart's lease to Johnson was color of title to the lands described therein, and that his title had ripened in seven years after the date of the lease and Johnson's entry and Occupancy, the lease having been duly recorded in Morganton. Thus a junior grant had held over its senior, because of this color of title. (Cochran V. Improvement Co., 127 N. C., 387.)
ADAMS V. WESTFELDT. As early as 1850 or 1851, the late Stephen Munday entered land on Little Fork ridge, the Foster ridge, south and southeast of Haw Gap, and south of Thunderhead mountain, because he believed that copper was in the land; but positive indications of its existence were not found until about 1858. The war coming on and interest dying out, nothing further was done about investigating the indications until about 1899.
In 1869 George Westfeldt of New Orleans bought, at the bankrupt sale of E. H. Cunningham, four tracts of land on the waters of Hazel creek which had been granted to the latter. In 1877 Westfeldt, through his agent, Tennent, tried to locate these tracts, but had to call in Wm. R. McDowell, who lived near Franklin, to assist. He located them several miles from where Tennent thought they lay. About 1888 copper was discovered on one of these tracts and men named Cook, Hall, Mark Bryson and others attempted to find what grant covered the copper deposit. They discovered that Epp. Everett of Bryson City had several grants which he had not succeeded in locating satisfactorily, but which he appeared to think were several miles from the Westfeldt lands. It was charged that, in attempting to locate one of these grants on the copper vein, Adam Wilson had hacked a tree and then smoked the hacks with pine splinters in order to give the marks the appearance of age. On the other hand, Adams' side claimed that persons in the interest of Westfeldt had chopped the marks entirely out of a corner tree and had carried the marks off in the block of wood which had been removed. From this smoked tree it was claimed the he been run in 1890; but it was not satisfactory, and was abandoned, until in 1899, when W. S. Adams, of Massachusetts, bought up the Everett grants and took possession of the copper lands. An old man living in Tennessee by the name of Proctor, who had carried the chain when the Everett grants were originally located, was brought to the land to help establish Adams' contention as to the location. Westfeldt had warned Adams not to trespass on this land and, in 1901, he sued Adams in Swain county and won the suit. But a new trial was granted by the Supreme court on the ground of the admission of incompetent evidence. The case was, by consent, removed to Haywood county, where the North Carolina Mining Company was made an additional defendant, and it set up a claim to the land in dispute, under the act of 1893, for determining adverse claims to real estate. Westfeldt won again, but the Supreme court granted still another new trial, because the trial judge had failed to call proper attention to the difference between substantive evidence and evidence that went merely to the credibility of a witness. Then the North Carolina Mining Company brought its bill in equity in the United States court for the Western District of North Carolina, to clear the title of the cloud placed upon it by Westfeldt's claim to the land. Judge Pritchard decided that he had jurisdiction, notwithstanding the pendency of the action between substantially the same parties in the State court. He heard the testimony, sitting as a chancellor, and without a jury to enlighten the court upon the disputed facts; and a short time before the case was to have been tried in Haywood, he filed his decree holding against Westfeldt.
After several years of effort the Supreme court of the United States decided that Judge Pritchard had not had jurisdiction when he took the case from the Superior court of Haywood county, and in 1910 the cause was tried at Waynesville, the plaintiff winning. The Supreme court of North Carolina in 1912 set the verdict aside, however, and the case will have to be tried again.<a href="#13" class="toolTip" title="Footnote: 13
In this decision it was held that lands in the vacant and surveyed class as shown on the maps required to be made by the act of 1836 and deposited in register of deeds office at Franklin were subject to entry, Justice Walker discussing the matter fully."> Both Westfeldt and Adams have since died.
AN ERRONEOUS IMPRESSION. It is sometimes said that the Supreme court of North Carolina has decided that a municipality may legally freeze a prisoner to death. This is wrong, the decision in Moffit v. Asheville having held quite to the contrary (103 N. C., p.237). It was decided that when towns are "exercising the judicial, discretionary or legislative authority conferred by their directors, or are discharging a duty imposed solely for the public benefit, they are not liable for the negligence of their officers, unless some statute subjects them to liability for such negligence." Consequently, they held that the city was not liable for a severe old and illness caused to Moffit by confinement, January 5, 1887, in a cell in a room from which window lights had been broken, the city having provided fuel and a stove and police officers to keep the room comfortable.
CRANBERRY MAGNETIC IRON MINES. From Hon. A. C. Avery of Morganton it has been learned that about 1780 Reuben White took out a grant for the 100 acres supposed to cover the iron deposit at these mines, and that Hon. Waightstill Avery took out four small grants surrounding the Reuben White grant.<a href="#14" class="toolTip" title="Footnote: 14
Cochrans v. Improvement Co., 127 N. C., 387, and Dugger v. Robbins, 100 N. C., 1."> In addition, he took out hundreds of 640-acre grants, covering almost all of the North Toe valley from its source to Toecane, except that here and there along the valley some older grants intervened. He also took grants to lands along Squirrel, Roaring, Henson and Three - Mile creeks, and the lower valley of South Toe and Linville rivers. In 1795 William Cathcart took out two large grants, one known as the "99,000-Acre Tract" and the other as the "59,000-Acre Tract," which two grants covered practically all of what is now Mitchell and Avery counties, except some tracts along the Blue Ridge, and embrace all the tracts along the streams theretofore granted to Waightstill Avery. He devised all these lands to his son, Isaac T. Avery. A controversy arose between the father of John Evans Brown, agent for the claimants under the Cathcart grants, which resulted in the execution of compromise deeds in 1852, by which I. T. Avery got a quit claim to about 50,000 acres of land, so as to include most of the land described, including the Cranberry Mines. The Reuben White tract had in the meantime passed by a succession of conveyances to William Dugger, who sold his interest to Hoke, Hutchinson and Sumner; Dugger, Avery and Brown having entered into a written agreement under which Avery and Brown were to hold one-half of one-fourth each of the several interest in all the Dugger land outside of the Reuben White tract…. But, before Dugger conveyed to Hoke, Hutchinson and Sumner, he had contracted to sell to John Harding, Miller and another, and had put Rarding in possession, so that the Hoke purchase was from Harding and associates, taking the legal title from Dugger. Judge A. C. Avery, as executor of his father's (I. T. Avery) estate, gave notice to Hoke and company of the equitable claim of Brown and Avery in three thousand acres, embracing the Cranberry ore bank, before they bought from Dugger, and in the ensuing litigation compelled Hoke and Company to pay between fifteen and twenty thousand dollars for the Brown and Avery interests in the Cranberry ore bank.
BEFORE THE LITIGATION BEGAN. Exactly when the Cranberry Iron mine was first operated cannot be determined now. Joshua Perkins and a man named Asher built what was afterwards known as the Dugger mine, on the right bank of the Watauga in what is now Johnson county, Tenn., and four miles above Butler. Remains of the old forge are still visible there, just above the present iron bridge, the forge itself having been washed away in the freshet of 1886 or 1887. Tradition says that Perkins and Asher sold this forge to William, Abe and John Dugger, and then went to Cranberry and built the forge there. These Dugger brothers were the sons of Julius Dugger who owned a farm on the right bank of the Watauga, opposite Fish Springs; and soon took charge of the forge Perkins had built at Cranberry. But when either forge was built "no man knoweth." Only one fact could be secured, and that was that in November, 1886, Joshua Perkins bought a bill of goods at Curtis and Farthing's store at Butler. All agree that he was then over eighty years of age, and that he died soon afterwards. Assuming, then, that he was eighty-six years of age in 1886, and that he was at least twenty-one when he built the Dugger forge four miles above Butler, the Cranberry forge most probably was built not earlier than 1821 to 1825. Benjamin Dugger was also concerned in this Cranberry forge, but afterwards went to Ducktown, Tenn. Upon his death John Hardin went into possession of the mine, either by his own right or as guardian of Able's heirs. It was sold by John Hardin or his son Councill Hardin, to Gen. R. F. Hoke for $10,000 and he sold to the company now owning it. Shep. M. Dugger, in his "Balsam Groves of the Grandfather Mountain" (p.15), says: "In the year 1850 the now famous Cranberry Iron mines were in their infantile state of development. The Dugger family had been the first to build forges and hammer iron in Tennessee, and the writer's grandfather and great uncle had now crossed the line, and purchased the mines and tilt-hammer forge at Cranberry."
THE CARTER AND HOKE LITIGATION. Thomas D. Carter had an equitable contract for the sale of a part of the interest held under bond for title by John Hardin, Miller and another, and this led to the litigation which culminated in the case of Thomas D. Carter V. Robert F. Hoke and others (64 N. C. Rep., p.348). It appears that, in May, 1867, the plaintiff agreed to convey his interest in the Cranberry Iron mines to Gen. Hoke and others for $44,000, and when he tendered a deed there-for he was given a sight draft on a New York bank for the amount of the purchase money, which draft was protested and never paid; but that the reason it had not been paid was because it had been well understood by the parties to the transaction that, although it was a sight draft, the funds to meet it were to have been provided by the proceeds of a sale of the same property by Hoke and associates to another purchaser, which contemplated sale Carter had defeated. Upon this state of facts a receiver was appointed and the sale of the property was enjoined. At the Spring term, 1869, of the Superior court of Madison county, Hoke moved to dissolve the injunction and end the receivership. Upon the hearing of that motion it appeared that Hoke and associates had effected another sale of the property to the Russells and associates, for $50,000, and they claimed to have been innocent purchasers without notice. Judge Henry granted the motion; but on appeal the Supreme court continued the injunction against a sale of the property till Carter had been paid and the question as to whether the Russells were innocent purchasers had been tried. Hoke and company soon afterwards compromised with Carter and the title to the property was thus settled so far as Carter was concerned.
A FURTHER STORY OF THE LITIGATION. The interests of the original purchasers of the White and Avery Ore Bank tracts, as well as the interests of the claimants of adjacent lands under a forge bounty grant (junior to the 59,000 acre grant of 1796), were sold for partition under a decree of the Supreme court at its session at Morganton before the Civil War, and was bought by William Dugger. He subsequently paid the purchase money and got a decree that James R. Dodge, clerk of the Supreme court at Morganton, should make title to him. Before getting his title, however, but after he had paid the purchase money, William Dugger entered into an agreement with Isaac T. Avery and J. Evans Brown that the three should hold an equal one-third interest in all the mineral outside of the original White Ore-Bank tract. But this agreement seems not to have been registered; and, the Civil War coming on, the sessions of the Supreme court at Morganton were abolished. Then Col. Dodge, the clerk, died without having made title to William Dugger. Meantime, Judge A. C. Avery secured through Hon. B. F. Moore an ordinance of the Convention of 1866 authorizing Mr. Freeman, who was then clerk of the Supreme court at Raleigh, to make the title to William Dugger which Col. Dodge should have made. Clerk Freeman made this title to Dugger, but failed to include in it any reference to the equitable agreement which had been made between William Dugger, Isaac T. Avery and J. Evans Brown to the effect that each should have a one-third interest in the property outside of the original White Ore Bank tract. William Dugger, too, had sold his interest in the property without excepting the two-thirds interest equitably owned by Avery and Brown, and executed a deed therefor. These purchasers were proposing to sell under their deed from Dugger without notice to Avery and Brown; whereupon Judge A. C. Avery, as executor of Isaac T. Avery, who had died, and J. Evans Brown gave notice of their equity to the proposed purchasers, and thereby compelled the purchasers from Dugger to buy their interest in the property. This covered all interests in the property.<a href="#15" class="toolTip" title="Footnote: 15
Letter of Hon. A. C. Avery to J. P. A., February 7, 1913.">
THE NANTAHALA TALC CASE. About 1895 or 1896 there was considerable litigation over the rich and valuable talc and marble mine or quarry at Hewitts in Swain county. Thomas and others had bought from the late Alexander P. Munday, as executor of the late Nimrod S. Jarrett. The Nantahala Marble and Talc Company of Atlanta had also bought land adjoining from the same party. On a question of the location of a boundary line between these properties the case was tried at Asheville before the late Judge Paul, United States district judge of Virginia, who had been transferred to this jurisdiction for the purpose of hearing this case. He decided it in favor of Thomas and his co-plaintiffs; and it was appealed to the circuit court of appeals, where in February, 1901, this decision was sustained. (106 Fed. Rep., p.379, and 76 Fed. Rep., p.59.)