65 Tenn. 46 | Tenn. | 1873
Lead Opinion
delivered the opinion of the court.
Hale sued Baker in 1872 in ejectment for a tract of land in Greene county, and recovered judgment, from which Baker has appealed.
It is not denied that the legal title to the land is in Hale, but it is insisted for Baker that he has a
Hale’s theory of the case, which he sustained by his own evidence, is, that being the owner of the land about 1846 he negotiated with one Turnbill for a sale of the land, and that they agreed on the terms, but that Turnbill declining to carry it into execution, agreed to rent the premises, and took possession as his tenant, and so held until 1864, when he learned for the first time that Turnbill was claiming to hold it for himself; and that in 1865 Turnbill sold and delivered possession to Balter.
' The defendant was also examined, and stated that he purchased the land in controversy from Hale in 1846, but never got any written title; that he took possession under the parol purchase, and that he held and claimed it as his own until he sold and conveyed it to Baker in 1865. He denied that he ever rented the land from Hale, or ever held it as his tenant.
The Circuit Judge, among other things, charged the jury as follows: “If you enter as a tenant you cannot controvert the title of your landlord until you disclaim the tenancy, and after such disclaimer if you hold for seven years you can’t be disturbed. A parol contract for- the sale of land is void, and does not convey title — the' party who goes into possession under a parol sale, under the act of 1819, would not, by holding for seven years, get a title. The holding for seven years under - a parol contract may possibly give a defensive right, but does not give him a right transferable by deed. When he vacates the premises,
Under this charge the jury found for the plaintiff, and defendant has appealed.
The error assigned for defendant is, that the judge instructed the jury that if Turnbill held the land by parol, purchased from Hale, and conveyed it by deed to Baker, the possession of Turnbill could not be united with that of Baker to complete the bar of the statute of limitations of seven years. The proof was that Turnbill conveyed the land to Baker in 1865, and as the suit was commenced in 1872, and as the statute did not commence running until January 1, 1867, seven years of possession by Baker had not elapsed when the suit commenced. It is obvious, therefore, that the charge was fatal to the defense relied on by Baker.
It is settled by repeated adjudications in this State that the successive possessions of trespassers cannot be so connected as to make up the bar of seven years under the second section of the act of 1819, (Code, sec. 2765,) and for the reason that there can be no privity between wrongdoers. Vance v. Fisher, 10 Hum., 211; Moffit v. McDonald, 11 Hum., 457; Hobbs v. Ballard, 5 Sneed, 395; Wells v. Ragland, 1 Swan, 501.
But it is equally well settled that the possession of land by a purchaser by parol is not that of a trespasser or wrongdoer. It has been sometimes maintained that such a purchaser occupies the relation of
This doctrine was recognized as correct in the case of Gudger v. Barnes, 4 Heis., 570. It follows that if Turnbill had continued in possession, and had been sued, he could have defended successfully under his possession as a purchaser by parol.
But the Circuit Judge charged that as Turnbill got no title by his parol purchase, when he conveyed the land and transferred the possession to Baker, that the right of possession reverted to Hale who had the legal title.
That would have been true if Turnbill had been in possession as a trespasser or wrongdoer. But upon the hypothesis that Turnbill held and claimed the land under a parol purchase he was not a trespasser, but held adversely under his invalid parol purchase. Ray v. Goodman, 1 Sneed, 588.
The question then arises, was TurnbilPs possessory
It is observed that Judge Wright recognizes the general doctrine that the successive possessions of trespassers or wrongdoers cannot be tacked together, and concludes that only those possessions can be so tacked in which the successive possessors hold the land as their own, and where there is a privity of estate between the several possessions?' In support of this position Judge Wright quotes Angelí on Limitations, 446; 1 Greenleaf’s Cruise on Real Property, 53-4, note 4; 5 Peters, 402; 11 Peters, 41. In the last named ease the court say, “if the ‘ entry was made under claim or color of right, it is an ouster, otherwise it is a mere trespass. ' In legal language, the intention guides the entry and fixes its character.” Also, 1 Chan. Law Rep., 200; 10 John Rep., 338; 7 Long & Rowl., 177; in which last case Judge Tilghman held, that one who enters upon land as a trespasser and continues to reside upon it, acquires something which he may transfer by deed as well as by descent, and such possessions may be tacked to constitute a bar. By trespasser, Judge Tilghman meant a disseisor, or one entering under a claim.
The principle established by the case of Marr v. Gilliam, is, that if several disseisors are in privity of estate, possessing and claiming title to the land, although their claims are invalid and void as against the true owner, the last disseisor may defend by connecting the several disseisins, and thus make up the necessary time to bar the action of the owner under the- second section of the act of 1819. But in the
It, is clear that if these facts be true Turnbill ■had such a possessory right as was transferable to Baker, and that therefore Baker could defend by connecting' his own possession with ‘ that- of Turnbill. It was therefore erroneous in the Circuit- Judge to withdraw from the jury the view of the case upon which Baker relied for his defense. The jury ought to have been left, under proper, instructions, to determine whether Turnbill held the land as Hale’s tenant by contract, or whether he held it under contract of purchase.
For the error indicated the judgment is reversed and a new trial awarded.
Dissenting Opinion
dissenting.
In this case- I dissent from the opinion of a majority of the court for the following reasons, among others.
By the first section of the act of 1819, carried into the Code, sec. 2763, any one having had, by himself or those through whom he claims, seven years adverse possession of lands, granted by this. State, the State of
By the second section, which is peculiar to our State, we believe, at any rate, had no existence in English jurisprudence which is transferred to the Code in secs. 2764, 2755. It is. provided, first — “and on the other hand — that is, as contradistinguished from the effect given to the holding under the first section— any person, and those claiming under him, neglecting for the said term of seven years to avail themselves of the benefit . of any title, legal or equitable, by action at law or in equity, effectually prosecuted against the person in possession, as in the foregoing section, are forever barred, and then the next provision is, no person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action accrued.”
On the very face of these enactments it is seen that the first section gives a right to the possessor, and vests a title; but the other sections only bars the suit or right of action of t,he party holding the better title who fails to sue within seven years. It does not pretend to vest any .right or title whatever in the possessor.
The error, as I think, in the opinion of the majority, and of Judge Wright, in the case of Marr v. Gilliam et ats., 1 Cold., 489, is in making a distinction not made or contemplated by the statute, as between a person in possession of land under a contract not purporting to convey a fee simple, and a mere trespasser. In the one case it is claimed and held the party acquires a right or title which he may sell or dispose of, and which descends to his heirs, while in the latter case no such title is acquired. We take it this distinction is not warranted either by the language of the statute nor by any decission, except the opinion of Judge Wright, and I do not think it is supported by sound reason or policy. The statute makes no distinction as to the right acquired by a party claiming as disseisor and one under a contract, verbal or written, which does not purport to convey a fee simple, and we can see no reason why any should be made.
The effect of the holding of the majority of the court is to do away practically with the difference between the first and second sections of the act. A party in possession of land, but having no assurance purporting to convey a fee simple, has only to hold seven years, and die, or sell to another party, and then his heirs or vendee may protect themselves from suit by the real owner by virtue of the possession of
In addition, to show the total inapplicability of the provisions of the last sections in a case where, as in the case before us, the party in possession holds by verbal contract, is shown by this: To what extent shall he be held to acquire his transmissible title? To the whole tract contained or included in the verbal contract, or only to the extent of his actual inclosure. Certainly, by all our decisions, having no writing to define his boundaries, he only holds to the extent of actual possession. Yet he gets the benefit, under this bolding, of a contract to vest him with a right which he can sell, but which must be dropped at once when you come to define the possession, and he must abandon it — can take no benefit under it whatever, but must stand on his actual possession, and that alone.
I think, with all respect for the opinion of a majority of my brethren, that to carry out this doctrine and apply it will involve the necessity of overturning the whole body of our law on this question, and. bring our cases into such confusion that we will find it impossible ever to reconcile them. I therefore insist on holding to what I deem the well recognized doctrine — before the case in 1st Coldwell — that the possessor who holds without a conveyance or other assurance of title purporting to convey a fee simple, only has a right to maintain his possession against the party who holds the true title, but that he cannot sell or convey, either by contract or descent, any right or title to any one else.
Such, I think, is the plain meaning of the statute, and such the current of our decisions, as will be seen by the cases cited in notes to Code on the sections referred to. I think the doctrine and effect of a disseisin, and distinction between a disseisin and naked trespasser, while well founded in the common law, have no application whatever to the cases under our statute of 1819, and that to apply these distinctions to the statute is not warranted by the statute, nor by the sound analogies of the law.