Petition for Writ of Certiorari — Norman Lumber Co. v. United States

GIG A PORN HIER RE AP <8 ONAL FS COTA WE PCA oe E TN: OCT “S TAPe

Y AJ.

HAROLD 8. WLLEY, Clerk

SUPHEME COURT OF THE UNITEU STATES

OCTOBER TERM, 1955

No. 443

NORMAN LUMBER COMPANY,

Petitioner

UNITED STATES OF AMERICA,

Respondent

i PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR TRE

FOURTH CIRCUIT.

Wa rer R. Jones, Jk, and

Water R. Jones,

Counsel for Petitioner.

INDEX

Sussect Inpex

Petition for a writ of certiorari

Citations to opinions below

Jurisdiction . __.

Questicn presented .

Statutes involved

II crnstre ee ttre SIPk oe. ag'eg'a N00 AS

Reasons for granting the writ |

Conclusion

Appendix A |

Appendix B

Appendix C .

TaBLe or Cases CITED

A. W. Duckett € Co., Inc. v. United States, 266 U.S.

149,151 .....

Chappell v. United States, 160 U.S. 499, 513.

Dewey v. Sugg, 109 N.C. 328, 13 S.E. 923, 14 L.R.A.

393 ....

Dupasseur v. Rochereau, 21 Wall. 130, 135-136

Fricdly v. Giddings, 119 F. 488, 441, aff. 2 Cir. 128

= . See

Holman v. Miller, 103 N.C. 118, 9S.E. 429, 430

Jones v. Currie, 190 N.C. 260, 19 S.E. 605 Ses

Southern Dairies v. Banks, 4 Cir. 92 F. 2d 282, cert.

& gc reer re ee

United States v. Certain Lands, etc., 39 F. Supp. 91,

IR PRS oer he ede tara GPT eA fe Pye

United States v. Dunnington, 146 U.S. 338, 350.

United States v. Winn, 83 F. Supp. 172..........

Wilkes v. Miller, 156 N.C. 428, 72 S.E. 482

—4423-0

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ii INDEX

Sratutes CITep

Page

Act of August 1, 1888, 25 Stat. 357, 40 U. S. C.

Ne a ta i a ak Ska E ales ks 6 acl vb ais 2,9

Conformity Act of 1872, 28 U.S.C. 724............. 8,9

General Condemnation Act of — 1, 1888, 25 Stat.

357, 40 U.S.C. 258 ....... ie he eae sss . 2s

G. S. 1-118 Ee ae, GOK 2

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1955

No.

NORMAN LUMBER COMPANY,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT.

Norman Lumber Company prays that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Fourth Cireuit entered in the above

entitled case on June 13th, 1955.

Citations to Opinions Below

The opinion of the District Court (R. page 22) is re-

ported in 127 Federal Supplement, page 518. The opinion

of the Cireuit Court of Appeals is printed in Appendix A,

hereto, infra, page 1, and is unreported.

Jurisdiction

The judgment of the Cireuit Court of Appeals was

entered on June 13th, 1955, and the petitioner was granted

2

an extension of time to file petition for a writ of certiorari

until and including October 11th, 1955. Jurisdiction of this

court to review the judgment of the Cireuit Court of Ap-

peals by certiorari is conferred by Section 1254 (1) Title

28 U. S. Code Annotated and by Rule 19 of the Revised

Rules of this court.

Question Presented

Must a Federal Judgment of Condemnation of land be

indexed and cross-indexed in the county where the land

lies in order to give notice to a purchaser for value with-

out notice of the proceeding?

Note: All record references are to Brief and Appendix

for Appellant filed in Cireuit Court of Appeals.

Statutes Involved

United States Statutes:

1. The General Condemnation Act of August 1, 1888, 25

Stat. 357, 40 U. S. C. 258, printed in Appendix B hereto,

infra. P. 12.

2. The General Conformity Act of August 1, 1888, 25

Stat. 357, 28 U. S. C. 1962. R. P. 18.

North Carolina Statutes:

1. G. S. 47-18, The Connor Act requiring recording of

instruments affecting title to land. R. P. 12.

2. G. S. 1-228, Requiring recording and indexing judg-

ments passing title to land. Printed in Appendix C hereto,

infra. P. 12.

3. G. S. 1-237, The North Carolina Conformity Act.

BP. 17.

4. G. §. 1-233, Statutes governing the docketing of judg-

ments. R. P. 14.

3

5. G. S. 1-234, Where and how docketed; lien. R. P. 14.

6. G. S. 8-19, Common Survey of contiguous tracts evi-

dence. R. P. 18.

Statement

This case involves the right of the Norman Lumber Com-

pany, petitioner, to cut the timber on a certain tract of land

in Montgomery County, North Carolina.

The Norman Lumber Company in good faith and for

value purchased the timber on said land from the E. J.

Bruton heirs in 1951, took deeds for the timber and duly

recorded the same in the county where the land lies. The

publie records of Montgomery Count disclose that the E. J.

Bruton heirs owned title to said lands and the timber thereon

and that the title to the timber passed from them to the

Normaa Lumber Company.

The United States of America claimed title to the lands

under a condemnation proceeding instituted and conducted

in the District Court for the Middle District of North Caro-

lina in Guilford County at Greensboro. The United States

of America did not have its title recorded and indexed in

Montgomery County, North Carolina, as required by the

registration laws of said state in order to protect its title

as against innocent purchasers for value.

It was conceded by the United States of America that

the Norman Lumber Company was a purchaser for value

without notice of the condemnation proceeding, therefore,

it was stipulated that the rights of the parties should be

determined as a matter of law upon the answer to thie single

issue above set forth.

Reasons for Granting the Writ

The question involved in this case has never been decided

by the Supreme Court of the United States. It has never

been previously presented to, or decided by any of the in-

viel CAS

4

ferior courts. It presents a new and important question

for determination.

The judgment appealed from casts a cloud of illegitimacy

on the title to each piece of privately owned property in

the United States and is in our opinion contrary to law and

is not supported by authority. The decision appealed from

clashed with generally accepted land law as _ practiced

throughout the nation and should be reversed.

Attorneys examining and passing upon land titles

throughout the several states have in their practice almost

universally relied upon the records in the county where

the land lies. Certificates of title by attorneys have been

based on the county records. Insurance companies, bank-

ing institutions and all other lending agencies have granted

loans on the faith of such records and the certificates based

thereon.

The very nature of the case presents a question of almost

universal public interest. The decision as rendered by the

lower court is in conflict with the State Statutes and, in

effect, without so declaring, renders the registration laws

of North Carolina and all of the other forty-seven states

ineffective so far as the United States of America is con-

cerned. It should be clearly determined by the highest court

in the land whether or not the United States of America in

acquiring title to lands, either by deed, or by condemna-

tion proceedings, is required to follow out the State pro-

cedure and record and index the instrument by which it

acquired title, in the county where the land lies, in order to

give notice to innocent purchasers for value. Attorneys

throughout the United States examining and passing upon

titles, are entitled to know the ultimate answer to the above

question so that it ean he determined whether or not they

will be required in passing upon land titles, not only to

examine the county records, but also to visit and examine

the records of the several District Courts of the United

States. Also all lending agencies and institutions as well

as individuals holding securities based upon land titles are

entitled to know the ultimate answer to the question in-

volved in this case. The reasons therefor are too obvious

for further elaboration.

Conclusion

It is respectfully submitted that the petition for a writ

of certiorari in this case should be granted.

Watter R. Jones, Jr., and

Watter R. Jones,

Counsel for Petitioner.

ea ONE

APPENDIX A

Judgment of the Circuit Court of Appeals for the Fourth

Circuit entered June 13th, 1955.

Parker, Chief Judge:

This is an appeal in action instituted by the United

States to protect its right in the timber on a certain tract

of land which it had condemned. The timber was that on

an 89.6 acre tract in Montgomery County, North Carolina,

condemned along with another tract in a condemnation pro-

ceeding in the United States District Court for the Middle

District of North Carolina in the year 1936. That proceed-

ing was entitled ‘‘United States of America v. 1053.2 acres

of land’’, and all persons supposed to have any interest in

the land were duly made parties thereto. The 89.6 acre

tract was condemned as the property of Mary Ann Wat-

kins, who was claiming tinder a deed from one Batton to

W. E. Watkins. She was made a party individually and

as executrix of W. E. Watkins. E. W. Bruton and other

heirs at law of E. J. Bruton were also made parties to

the proceeding on the ground that they owned adjoining

property. The judgment was docketed and indexed in the

office of the Clerk of the United States District Court where

it was rendered and was docketed, indexed and cross in-

dexed in the office of the Clerk of the Superior Court of

Montgomery County, North Carolina, but the names of

the Bruton heirs did not appear there in the indexing and

cross indexing. The judgment was not registered in the

office of the Register of Deeds of Montgomery County, al-

though the judgment in terms required that this be done.

The timber is claimed by the Norman Lumber Company

under a timber deed from the Bruton heirs executed in the

year 1951, fifteen years after the condemnation. The com-

pany contends that the 89.6 acre tract was part of a 356

rth

; of

and

the

al-

one.

any

the

om-

356

7

acre tract belonging to the Bruton heirs and that, while the

judgment in the condemnation proceeding is binding upon

these heirs since they were parties to the proceeding, it is

not binding on the lumber company because, while the jud®-

ment was recorded in the office of the Clerk of the Superior

Court of Montgomery County, it was not there indexed

and cross indexed as to the heirs. It was agreed between

the parties that judgment should be entered upon the plead-

ings and stipulations upon the answer given by the court to

two questions, viz. :

‘*(1) Must a federal judgment of condemnation of

land be indexed and cross indexed in the county where

the land lies in order to give notice to a purchaser for

value without notice of the proceeding?

‘*(2) Were the paper writings offered in evidence

by plaintiff sufficient as matter of law to put the de-

fendant Bruton heirs on notice that a portion of the

lands within the boundaries of the 356 acre tract

claimed by them was being condemned by the United

States Government ?’’

The trial judge gave a negative answer to the first of

these questions and an affirmative answer to the second,

and entered judgment for the United States from which

the lumber company has appealed. No question is raised

on the appeal as to the answer to the second question, nor

does the lumber company contend here, as it did in the

lower court, that the judgment should have been recorded

in the office of the Register of Deeds of Montgomery

County. The sole question before us is whether the rights

of the government under the condemnation proceeding are

defeated as to the lumber company, which obtained a con-

veyance of the timber 15 vears later, by reason of the

fact that the judgment of condemnation was not indexed

and cross indexed as to the Bruton heirs. We think as did

+ ere

. =

%:

the judge below that this question must be answered in the

negative.

There can be no question but that the condemnation pro-

ceeding, which was a proceeding in rem, gave title to the

United States good against the world, as well as against

the Bruton heirs who were parties to the proceeding.

‘*Such an exercise of eminent domain founds a new title

and extinguishes all previous rights’’. A. W. Duckett €

Co., Inc. v. United States, 266 U.S. 149, 151; United States

v. Dunnington, 146 U.S. 338, 350; Dupasseur v. Rochereau,

21 Wall. 130, 135-136; United States v. Winn, 83 F. Supp.

172. Upon the entry of the judgment and the payment into

court of the compensation awarded for the taking of the

land, the United States unquestionably acquired good title

thereto. This title could not be divested or impaired ex-

cept by law of the United States, and we find nothing in

any federal statute which could be given that effect. The

North Carolina statutes as to the recording and cross index-

ing of judgments, have no application to federal judgments

of condemnation unless an act of Congress so provides,

and we find no such provision. Certainly there is nothing

to that effect in the Act of August 1, 1888, 40 USC 258, the

act which prescribed condemnation procedure at the time

of the condemnation here. That section provided:

‘*The practice, pleadings, forms and modes of pro-

ceedings in causes arising under the provisions of sec-

tion 257 of this title shall conform, as near as may be,

to the practice, pleadings, forms and proceedings

existing at the time in like causes in the courts of

record of the State within which such district court

is held, any rule of the court to the contrary notwith-

standing.”’

This was merely extending the provisions of the old

Conformity Act of June 1, 1872, 17 Stat. 196, 197, 28 USC

OO Mae RP lO

os PEALE.

Re a

ORE NES OF

724, to condemnation proceedings. It related to court

procedure, not to registration of muniments of title. Any

provision, even of a state condemnation law, ‘‘relating to

any subject other than practice, pleadings, forms and pro-

ceedings is * * * not applicable in a federal condemnation

proceeding’’. United States v. Certain Lands, etc., 39 F.

Supp. 91, 92; Chappell v. United States, 160 U.S. 499, 513.

Under the old Conformity Act of 1872, 28 USC 724, the

rule was that, even as to practice, pleadings and forms and

modes of procedure, the statute applied only to proceedings

for procuring the judgment, not to those subsequent thereto.

Friedly v. Giddings, 119 F. 438, 441, aff. 2 Cir. 128 F. 355.

That docketing and cross indexing of the judgment of con-

demnation in accordance with state law for the protection

of possible purchasers from the condemnee was not re-

garded as a part of the procedure provided for by the old

condemnation statute is properly inferable from the fact

that no provision therefor is contained in Rule 71A which

took the place of the statutory procedure.

Appellant relies upon the Lien of Judgments Act of

August 1, 1888, 25 Stat. 357 codified in 28 USC 1962, which

provides that judgments rendered in United States Dis-

trict Courts shall be a lien on property located in the state

‘to the same extent and under the same conditions’’ as

state court judgments, upon provision being made by the

law of the state for the docketing of such District Court

judgments.* North Carolina has made statutory provision

*28 USC 1962 is as follows: “Every judgment rendered by a district

court within a State shall be a lien on the property located in such State

in the same manner, to the same extent and under the same conditions

as a judgment of a court of general jurisdiction in such State, and shall

cease to be a lien in the same manner and time. Whenever the law

of any State requires a judgment of a State court to be registered,

recorded, docketed or indexed, or any other act to be done, in a par-

ticular manner, or in a certain office or county or parish before such

Meta.

10

for the docketing of such judgments. General Statutes of

North Carolina chapter 1, sec. 237. State court judgments

become liens on real estate only when docketed in the office

of the Clerk of the Superior Court in the county where the

real estate is situate (G.S. 1-234) and then only if properly

indexed and cross indexed showing the name of the judg-

ment debtor. Southern Dairies v. Banks, 4 Cir. 92 F. 2d

282, cert. den. 302 U.S. 761; Jones v. Currie, 190 N.C. 260,

129 S.E. 605; Wilkes v. Miller, 156 N.C. 428, 72 S.E. 482;

Dewey v. Sugg, 109 N.C. 328, 13 S.E. 923, 14 L.R.A. 393;

Holman v. Miller, 103 N.C. 118, 9 S.E. 429, 430. The

Lien of Judgments Act, however, has no application to a

judgment for the condemnation of land under whieh title

is acquired by the condemnor. It relates to the acquisition

of liens upon the lends of those against whom judgments

are rendered, not to the transfer of the lands as a result of

condemnation. It is worth noting that Congress recognized

the distinction in that it passed on the same day two sepa-

rate and distinct statutes with respect to these matters.

Chapter 728 of the Statutes at Large of 1888 was the Con-

demnation Act, section 2 of which provided for conformity

to state practice in condemnation proceeding; chapter 729

was the Lien of Judgments Act. If it had been the inten-

tion that the provisions of the Lien of Judgments Act apply

to proceedings under the Condemnation Act it would have

been easy enough to so provide; and the fact that no such

provision was made indicates that nothing of the sort was

intended. The language of the Lien of Judgments Act is

that ‘‘ Judgments and decrees rendered in a cireuit or dis-

trict court of the United States within any state shall be

liens on property ete.’’ There is nothing in this to sug-

lien attaches, such requirements shall apply only if the law of sueh State

authorizes the judgment of a court of the United States to be registered,

recorded, docketed, indexed or otherwise conformed to rules and require-

ments relating to judgments of the courts of the State.”

i

2

AY

a

§

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4

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es ee eR EP SY EE EAE EE a? AT eet

11

gest that the validity of judgments of condemnation shall

be dependent upon their being docketed in accordance with

state law or otherwise.

Whether docketing and cross indexing of federal judg-

ments of condemnation with state court records should be

required as a condition of validity as against subsequent

purchasers from the condemnee is a matter for Congress,

and, so far, Congress has not seen fit to take action with

regard to the matter. As was well said by the learned judge

below:

“Tt is true that it imposes a severe hardsvip on

attorneys undertaking to examine titles, to have to in-

quire at the office of the Clerk of the United States

District Court before he can be sure that there is no

condemnation judgment entered there which is not

recorded and cross indexed in the county where the

land lies, but this inconvenience cannot outweigh the

public interest in safeguarding and protecting the prop-

erty of the United States in accordance with the laws

of the United States. The United States cannot always

have watchers present to observe trespassers who may

go upon public lands and commit waste, while the pri-

vate owner does have an oppertunity to keep an eye

on his property. The enormous amount of land owned

by the United States for various Governmental pur-

poses is such that its disposition cannot be effected in

any manner except under a clear mandate of the law

duly enacted by Congress.”’

There was no error and the judgment of the District

Court will be affirmed.

Affirmed.

APPENDIX B

The General Condemnation Act of August 1, 1888, 25

Stat. 357, 40 U.S.C. 258: The practice, pleadings, forms and

modes of proceedings in causes arising under the pro-

visions of section 257 of this title shall conform, as near as

may be, to the practice, pleadings, forms and proceedings

existing at the time in like causes in the courts of record of

the state within which such district court is held, any rule

of the court to the contrary not withstanding.

APPENDIX C

North Carolina Statute, G. S. 1-228: Regarded as a deed

and registered.—Every judgment in which the transfer of

title is so declared, shall be regarded as a deed of convey-

ance, executed in due form and by capable persons, not-

withstanding the want of capacity in any person ordered to

convey, and shall be registered in the proper county, under

the rules and regulations prescribed for conveyances of

similar property executed by the party. The party desiring

registration of such judgment must produce to the register

a copy thereof, certified by the clerk of the court in which it

is enrolled, under the seal of the court, and the register shall

record both the judgment and certificate. All laws which

are passed for extending the time for registration of deeds

include such judgments, provided the conveyance, if ac-

tually executed, would be so included. (1850, ¢. 107, ss. 2, 4;

R. C. ¢. 32, ss. 25, 27; 1874-5, ce. 17, ss. 2, 4; Code, ss. 427, 429;

Rev., ss. 567, 568; C. S., s. 608.)

(4423-0)

INDEX

Page

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CITATIONS

Cases:

Camfield v. United States, 167 U.S. 518... ........ 4

Duckett & Co. v. United States, 266 US. 149... ... 4

Meadows v. United States, 144 F.2d 751. ......... 4

United States v. Dunnington, 146 U.S. 338. ....... 4

Utah Power & Light Co. v. United States, 243 US.

DRS UA cab eel en ah knead dade teiukeed A4008 4

(1)