89 Tenn. 166 | Tenn. | 1890
Lead Opinion
This is a bill of ejectment. The lands involved embrace some fifteen thousand acres, lying on the Cumberland Mountains, in Morgan County.
Complainants claim title under the will of Louis Bleidorn. This will was executed in April, 1852. Under it this body of wild mountain land was devised to Mrs. Bleidorn for life, with remainder, at her death, to complainants. Mrs. Bleidorn died November 7, 1882, and this bill was filed within three years thereafter. Much of the land is adversely held, and as to this the plea of the statute of limitations is relied upon. If this will was effective to create a life estate in Mrs. Bleidorn, then no possession which began during the existence of this life estate will operate to bar the suit of complainants, their suit having been filed within three years after the termination of the life estate. The testator, Louis Bleidorn, resided, at the time of • his death, in the city of New York. Its execution and attestation occun-ed in the State of New York, and in all these respects it was executed in strict aecox-dance with the statutes' of this State concerning wills of realty. It was duly proven and admitted to probate in New York, and this probate was in accord with our statute. The objection urged by defendants is that it was never admitted to probate in this State until 1887, some years after the institution of this action. Defendants strenuously insist that a will conveying lands in this State is a nullity as a
This conclusion was reached as the proper construction of our statute of wills, and has been adhered to in more than one un reported case. The question is one which affects the titles to large bodies of land in this State; and a doubtful statute having been construed, after full argument and laborious consideration, the result then announced will be adhered to, however we might be disposed to regard it if an original question.
But upon another ground this defense would prove unavailing. Pending this litigation this will was duly proven and recorded in this' State, and a copy of* the record admitted as evidence without objection. The effect of this registration was to confirm and perfect the title of complainants, and this confirmation relates to the date of the execution of the will. It was not the acquirement of a new title after suit brought, but the confirmation of a defective title. The effect of the recording of the will was not to confer a title as of the date of the registration or probate; but to
In Crockett v. Campbell, 2 Hum., 411, it was held that a deed executed after commencement of suit, confirming one defectively made before suit, was admissible, and operated to confirm the defective execution of a power of attorney.
So a tax-deed made after suit brought w\as held admissible in evidence in an ejectment suit, it being operative to confirm a deed theretofore made, but defective in its recitals. Brien v. O’Shaughnessy, 3 Lea, 725; see also Ward v. Daniel, 10 Hum., 607.
It follows that the will of Louis Bleidorn operated to create a life estate in his widow, and, as a result, no adverse possession which began after the death of the testator in April, 1852, will operate to bar complainants as remainder-men suing within the period allowed by the statute for such suit after the falling in of the life estate.
The title of complainants originated in three entries for about 5,000 acres each. These entries were made February 17, 1836. Grants issued upon all these entries to Thos. B. Eastland in June, 1838. These entries were numbered respectively, 1942, 1949, and 1950.
The contest over entry 1949 is chiefly with the Pilot Mountain Coal and Mining Company, who claim title under various grants to the larger part of the land covered by it. The entries' and grants under which this corporation claims, or which are
First. — Entry Ro. 1727, grant Ro. 22339, to Julian E. Scott, for 5,000 acres.
Second. — Entry Ro. 1925, grant 22329, to H. M. Byrd, for, 5,000 acres.
Third. — Entry 2683, grant 27076, to David Mc-Peters, for 600 acres.
Fourth. — Entry 2244, grant 23171, to J. E. and R. Scott, for 500 acres.
Fifth. — Entry 1495, grant 22166, to Samuel Scott, for 5,000 acres.
Rone of these entries or grants cover the whole of complainants’ entry 1949, and some of them lap upon each other.
First. — As to the conflict between entry 1727 and entry 1949. Entry 1727, as indicated by its number, is an older entry' than 1949, hut the grant upon the latter issued first, and unless 1727 was a special entry, then the older grant upon a younger entry is the better title. Entry Ro. 1727 is not in evidence. It is copied into the transcript, but counsel have signed an agreement that it was not read in evidence below. Eor this reason we cannot now look to it. It therefore not appearing that the senior entry was a special entry, the senior grant, though founded upon a junior, entry, must be held the superior title.
To avoid this result, the defendant, the Pilot Mountain Coal and Mining Company, plead and rely upon a decree of the Chancery Court of Morgan
To understand the effect of this plea, it is necessary that the facts concerning it be stated. The title of the Pilot Mountain Co. to much of the land claimed by it within the bounds of entry 1949, is by deed from one G-. A. Eudickar. Eud-ickar, by a chain of conveyances, became the owner of entry 1727, which, as before stated, laps upon 1949, and covers perhaps one-half off the land within the younger entry.
While thus the owner of this title, Eudickar, on March 7, 1877, filed an original bill in the Chancery Court of Morgan County, charging that he was the owner in fee of a tract of 5,000 acres, same having been entered by entry 1727; that this entry conflicted with certain entries subsequently made, and that upon these junior entries grants had been issued to Thos. B. Eastland. He charged entry 1727 to have been a special entry, and that he had been in possession, under his title, for more than twenty years, and that the persons claiming title under the Eastland grants had never been in possession. He prayed that his title be decreed the superior title to the extent that it conflicted with the Eastland grants, and that the interfering titles be canceled as clouds upon his own superior title
By this decree entry 1727 and the grant thereon was adjudicated superior to any title claimed by defendants, and their -titles canceled as clouds,' and all of defendants were enjoined 'from setting up or asserting any which conflicted with that set out as owned by Eudiekar. L. Bleidorn was dead at the date of this suit, and complainants were his heirs at law, though they take this land as devi-sees and not as heirs. If they were parties to this bill of Eudickar’s, it may be assumed that in the Courts of this State they would be concluded by the decree therein rendered, although such a decree against non-residents — parties only by publication, and who entered no appearance — would be treated by the Courts of the United States and of other States as a nullity. Hart v. Samson, 110 U. S., 151, and cases cited.
When such a proceeding is expressly authorized by statute, a decree against a non-resident — a
By § 4352, subsection 5, personal service is dispensed with and publication authorized “when the name of the defendant is unknown, and cannot be ascertained upon diligent inquiry.”
By §4353 it is provided that “to dispense with process in either of the above cases the facts shall be stated under oath in the bill, or by separate affidavit, or appear by return.” This bill was sworn to, and contained the statement that all of the defendants were non-residents. This was enough to authorize publication for named non-resident defendants. The bill, however, contained no statement that the heirs of L. Bleidorn were unknown, “and cannot be ascertained by diligent inquiry.” Neither was this fact stated in any separate affidavit, nor did it appear in the
The plainest instincts of natural justice require that parties proceeded against 'in Courts of Equity or Law shall have an opportunity to be heard. Personal service of process can be dispensed with only in the few cases embraced by the statute, and when a decree is relied upon as concluding the rights of litigants who were not personally served, and who made no appearance, it must clearly appear that the' statute has been complied with. Ferriss v. Lewis, 2 Tenn. Ch., 291-295.
The fact that the name of a defendant is unknown, and the further fact that the name could not be ascertained, are essential jurisdictional facts. These facts not appearing either in the bill or separate affidavit, nor being recited as facts in any decree authorizing publication, or otherwise in the record, the decree relied upon as res' adjudicóla was a nullity as to complainants. The second assignment of error is therefore sustained.
First, the possession of Levi Scarborough will be considered. In considering questions of boundary and possession, the map made by J. W. Scott, and filed as an exhibit to his deposition, will be the one referred to in this opinion. This map shows three separate possessions, designated as Scarborough possessions Hos. 1, 2, and 8.
The possession marked Ho. 1 is clearly south of entry 1727, though inside entry 1949. In considering’ defendants possession of 1727 this possession Ho. 1 will not be considered.
The possession designated Ho. 3, though inside 1727, is a late possession. Scott fixes it at not more than twelve or thii’teen years old. This is not contradicted by any material or direct evidence in the record. This possession, having begun daring the existence of the life estate, does not affect the suit of complainants as remainder-men.
Possession Ho. 2 was begun by the weight of proof in 1846 or 1847, and by the preponderance of the evidence was continued for something more than seven years. This possession was under Julian F. Scott, the grantee under entry 1727. Scott sold the land within his entry, January 8, 1853, to one J. S. Duncan. It has been much pressed in argument that Scarborough had abandoned his possession before this sale to Duncan. The evidence relied upon to show this is that of the witness E. K. Duncan. This witness' states
A more serious question arises upon the contention of complainants . that this possession No. 2 was not inside the lines of 1727 when properly surveyed, and that therefore it was not held under color of title, and is now inoperative to defeat a recovery by complainants of the lands covered by 1727. Whether inside or outside depends upon the correct survey of defendants’ title-papers. The
“Beginning at a white oak, the fork of the Carpenter road and R.. Davis’ path; thence east 894 poles to a stake; thence south 1,000 poles to a stake; thence 894 poles to a stake and pointers; thence a direct line to beginning.”
The complainants’ witness, J. W. Scott, who seems a most intelligent and candid witness, and a thoroughly competent surveyor, says that “in running according to grant I found no marked line at point where poles give out at end of first call of 894 poles east from beginning.” “ I found a marked line, apparently about twelve years old, running north and south at. a distance of about 10 poles east of the line I run.” ■ Again he says: “The east line of 1727 runs west of the Scarborough possession No. 2 thirty-four poles, if the entry be run by the grant.” If it be run by the deeds under which defendants hold, then he says the eastern line runs through possession No. 2, throwing' about one acre inside the deeds under which the Pilot Mountain Company holds.
While the chain of deeds under J. E. Scott are not in ’ the transcript, yet it does appear that the first line in some one of them is 940 poles long instead of 894, as fixed in the grant. The first deed after the land was granted to Scott was his conveyance, in 1853, to J.- S. Duncan. Whether
Unless there was on the ground an old marked line, evidently old enough to raise the presumption of a line marked at the time of the survey for the grant, the line should stop where the poles give out. The only proof of a mai-ked line is that of Scott, 'who says it was a very recent line, and only 10 poles east of where the poles gave out. This marked line, however, would not avail defendants, for if it is only 10 poles east of the line as run by Scott, it would throw the disputed possession 24 poles east of this recent line.
If this first line was extended after Scarborough abandoned possession, then his possession would not avail defendants, for, if his possession was without the grant to Scott, then it would be under no color of title, and would be limited to the actual adverse possession.
So, if befoi’e Scarborough 'abandoned possession, a deed was made by Scott, under whom he held, conveying his. grant by metes and bounds so as to include land not within his grant, the former holding of his tenant without his title-papers would not be of any advantage to his vendee beyond the limits of the actual possession, unless thereafter continued under his deed long enough to
That Scott placed Scarborough where he did for the express purpose of perfecting his title to the lands within his grant, is clearly made out. Did he make a mistake, and locate him outside his title-papers?
This line of 1727 has been surveyed by three different surveyors. Scott, as we have already seen, found that if the first line be stopped . at 894 poles, that this possession would be 34 poles east of the eastern line of the grant. He, however, found that if the first line be extended to 940 poles, that a small part of the possession would be included.
The country over which the first line runs was very rough and hilly. He says he ran a level line, and yet 894 poles did not include this inclosure.
S. H. Staples and E. R. Duncan both testify to having surveyed this line, and they each testify that this field of Scarborough’s was, by their survey, west of the eastern line.
The survey by Staples was a surface survey. It does not appear whether that of Duncan was a
The law construes a call for distance as a call for a point ascertained by horizontal survey. The method adopted, by Scott was the right one. The method adopted by Staples was the wrong one, but disadvantageous to defendants. "We have, then, Staples and Duncan, both competent surveyors, against Scott, equally as competent. The character of the gentlemen thus differing as to result of the survey, is unassailed. They seem to have no interest in the litigation. In view of the fact that this possession was taken by .Scott, an old resident of the neighborhood, and an old surveyor, for the express purpose of perfecting his title against the Eastland grants, under which complainants hold, and of the further fact that two disinterested surveyors ' included this possession within the eastern line of defendants’ grant, one of these surveys being as far back as 1854, and therefore long before this controversy arose, we
Third. — The fifth assignment of error by complainants is to so much of the decree by the Chancellor as held that entry 1925, by Hannah M. Byrd, was a special entry, and that the grant thereon, which issued December 28, 1838, related to the entry, and was therefore a superior title to that of complainants, under an older grant but younger entry. This grant conflicts alone with complainants’ entry 1949. The greater part of it lies upon 1727, already adjudged the better title. But as part of 1949 is covered by this entry and grant, not protected by defendants’ entry 1727, it is plead as a superior outstanding title. This entry was made February 7, 1836. Complainants’ entry was February 17, 1836. It is in the following words and figures: “ II. M. Byrd enters 5,000 acres of land in said county, beginning on a, stake at or near the east corner of J. F. Scott’s 200-acre entry on the Carpenter road, thence running south 1,200 poles; thence east 1,500 poles; thence for complement to • the beginning, so as to include the head-waters of Scutcheon.”
This- entry contains three locative calls: (1) The 200-aere entry of J. F. Scott, (2) the Carpenter
The 200-acre entry of J. E. Scott which is called for, is shown to have been an entry made in 1834, and was as follows: “J. E. Scott enters 200 acres of land in said county on the waters of Rock Creek, beginning on the line of Russell Scott’s land, on the south side of said land, and then running an oblong with the Carpenter road so as to include said road.” Russell Scott’s land was an old settlement, and well known in the community. The Carpenter road was an old and well-known road. The J. E. Scott entry, though un surveyed when the Byrd entry was made, was capable of location by orre acquainted in the neighborhood. The entry would be bounded on the north by Russell Scott, and by laying it off in an oblong, with the Carpenter road inside, its probable location could easily be ascertained. The call in the Byrd entry that it should be so run as to include the head-waters of Scutcheon, is, under the facts of this record, a very precise locative call. The call to begin at or near the east corner of J. E. Scott’s entry, it is said de-* stroys the special character of the call, inasmuch as the Scott entry must have two east corners, a north-east and a south-east corner, and it is said that it cannot be determined Avhich corner is called for. This might be so but for the fact that the survey must be so made as to include the headwaters of Scutcheon. Scutcheon was a small stream
That this Byrd grant has not been specially plead and relied upon as an outstanding title is immaterial. The complainants must not only have a title superior to that of defendants, but a title superior to any other. The weakness of the plaintiffs’ title may be shown by proof without special plea, lie must come prepared to show that he has the‘title to the land he sues for, and if it appear that the title is not in him, but in another, he must fail, although the defendant does not connect himself with such outstanding title. It is argued that this Byrd title is not a subsisting title, but one abandoned. This does not appear. It appears to be no more an abandoned
Fourth. — The sixth assignment relates to entry Ho. 2683, known as the Peaky Knob entry. The Chancellor held the entry special, and that there had been an adverse possession of seven years, beginning before death of Louis Bleidorn. A very small part of this entry lies within complainants5 title.' There have been two possessions on the entry, one without complainants’ title and one within. Scott says that about one-half of the improvement at the south end of the Peaky Knob entry is inside entry 1949. This possession is known as the one in the gap, and as the possession of McPeters and Stringfield. It was taken as far back as 1849, and has been kept up for a time sufficient to bar complainants. The String-field possession referred to, by an agreement of parties entered as a decree as only nineteen years old, 'has no reference to this Peaky Knob entry. The Stringfield possession referred to by that
Fifth. — The seventh assignment is to an entry known as No. 2244, or the old Hall place. But a small part of this entry is inside 1949, and all of the entry is covered by entry 1727, already held to be a title superior to that of complainants’. As the defendant, the Pilot Mountain Coal Company, owns both titles, it is unnecessary to say any thing further as to this assignment.
Sixth. — Eor convenience, the twelfth assignment of error will be disposed of before considering those that are intermediate. The Chancellor held that the south-east corner of complainants’ entry No. 1950 was the two white oaks and two poplars, being the corner likewise of entries Nos. 1951, 1958, and 1959 in the Eastland and Lane system of entries and grants. The grant upon entry 1950 calls to “begin at a black gum and pointers, the northeast corner of entry No. 1949, in the name of II. 'Wilson; thence south 894 poles to a pine; thence east • 1,000 poles to two large poplars and two large white oaks; thence north 894 poles to a stake and pointers; thence 1,000 poles to the beginning.”
The grant upon entry No. 1951, which was subsequently surveyed,' calls to begin “ at 'a stake,
The grant upon entry 1958 calls to begin at a pine, “ the north-east corner of entry 1957; * * * running thence south 894 poles to a poplar; thence east 1,000 poles to a stake; thence north 894 poles to two large poplars and two large white oaks; thence west 1,000 poles to the beginning.”
The grant upon entry 1959 calls to begin at “ two large poplars and two large white oaks, the north-east corner of entry Ro. 1958 * * * thence south 894 poles to a chestnut, etc.; thence east 1,000 poles to a chestnut, etc.; thence north 894 poles to a sugar-tree; thence west 1,000 poles to the beginning.”
It will be observed that these four grants are of the same size. They were all issued to Thos. B. Eastland. Each calls for a corner described as “two large poplars and two large white oaks,” and these four grants should corner on each other and on these two poplars and oaks. It is true that these grants do not call for each other, except in the case of grant on entry 1959, which calls for these poplars and oaks as . the north-east corner of 1958.
The Eastland grants were all issued about the
That these poplars and white' oaks are a living and well-marked corner of three of the Eastland entries is too clear for dispute. Entry Ho. 1949, which adjoins 1950 on the west, has no living corner. Entry 1950 has likewise no living corner, unless the call for two large poplars and two large white oaks be a call for these existing trees marked as a corner, and which would be the true south-east corner, as testified to by complainants’ own surveyor, if the Eastland system he plotted according to the calls of the several grants. Somewhere the harmony of the system of these surveys has to be disturbed. Somewhere an error has been made. Starting from the very remote corners of 1927 and 1933, probably twenty miles away, and then running by course and distance, locates 1950 as placed upon the plot. But this ignores a very notorious living corner of four of the grants. We are of opinion that the true south-east corner of 1950 is the living corner fixed by the Chancellor. The effect of this is not to drop 1942, which lies north of 1950, down to 1950. It has no known
The twelfth assignment is overruled.
Seventh. — The third and eighth assignments will be considered together. Complainants’ title is traced back tq one Henry Wells, who, in 1849, conveyed the lands embraced in 1949 and 1950 by deed to Louis Bleidorn. The learned Chancellor found that at the date of this conveyance Julian F. Scott, then the owner of the lands embraced in entries 1727 and 1495, was in the actual adverse possession of each of these entries, and the deed of Wells was therefore champertous as to the lands embraced within said two entries. As heretofore stated, entry 1727 laps only on entry 1949, while entry 1495 laps both on 1949 and 1950, the larger part of the conflict being with the latter entry.
We have- in the former part of this opinion decided that the Scarborough possession No. 2 on the plot was a possession under J. F. Scott, and within the interlap of 1727 and 1949. The Scarborough possession No. 1 is not within 1727, but
The first of these possessions was within the interlap of 1950 and 1495, as we have located 1950. The “Jo” field is likewise inside 1950, and within the lap of that grant upon 1495, as same is surveyed by defendants. "Without now considering the question as to the proper survey of 1495, it is enough to say that the effect of the adverse holding of Scott by Scarborough at possession Ro. 2, at time of the conveyance of the lands embraced in entry 1949, was to make that deed champertous and void in so far as entry 1727 conflicts with- the conveyance. The effect of the adverse holding of the “long” field at date of the conveyance of entry 1950 to Bleidorn was to make that deed champertous and void so far as it- conflicts with entry 1495. It has been urged that, inasmuch as Wells was a non-resident of the State at the date of his deed to Bleidorn, his deed was not champertous, because the lands conveyed were not at the time held by one adversely under “ deed, devise, or inheritance.” Code, § 1779, provides that a conveyance by a non-resident shall not be void where, at the time of such - sale, the lauds were not held adversely by one holding uu-
It is now contended that the sale by Wells to Bleidorn was in good faith, and is therefore good. This provision just quoted was made in view of the exceptions in the previous sections of the Act. The provision is part of the original Champerty Act of 1821, and was construed in Gass v. Maloney, 1 Hum., 452, as applying not to the bona fides of the parties to the sale, 'but with reference to the provisions and policy of the Act.
Ninth. — The defendant, Win. Lewallen, is the owner of entry Ho. 1800, upon which he obtained grant Ho. 22704. ’This was an entry for 2,500 acres. It laps upon complainants’ two entries, 1950 and 1942. Plotting 1950 as having its south-eastern corner upon the two poplars and oaks, a very large part of this entry lies between 1942 and 1950, reducing the lap inside of 1950 to a very few acres. ' Lewallen has had a very ancient possession within the lap of his entry upon 1942, This possession antedates the death of Louis Blei-dorn, and was continued more than seven years. Complainants concede that this possession has barred any recovery of so much of entry Ho. 1800 as lies within their entry Ho. 1942.
The ninth assignment assigns as error in the Chancellor the decree adjudging that the true boundary of ' 1800 is to be determined by the marked lines found upon the ground which extend the entry beyond the calls of the grant. If the grant to Lewallen be surveyed according to its courses and distances, it will contain 500 acres less than are found within the marked lines contended for by defendant. This grant is laid down on the
The defendant, Lewallen, says the entry was not surveyed all around before issuance ,of grant; that the original survey, was made by one Staples, who surveyed only the eastern boundary of the entry and a part of the north line, marking a Spanish oak as the beginning corner. Afterward, the lines were all surveyed and marked by one Vaughn, a deputy county surveyor. He says he always claimed to these marked lines, and that his neighbors recognized them as his lines.
The grant calls for marked trees at the two eastern corners; the other calls _ are for distance and stakes. The proof is, that the lines running east and west, as marked by Vaughn after issuance of grant, are 130 poles longer than the distance called for in the grant, and that the eastern line, which is the only one claimed to have been marked at date of grant, shows much more ancient marks than the other lines. From Lewallen’s own proof, 'it is clear that when he had his lines marked, he extended the length of his grant 130 poles beyond its true calls. His possession is not within this extension.
Entry 1800 is older than complainants’ entry by a few months, but the grant is something over a year younger than complainants’ grant. Lew-allen does not state the date of his extension.
It would hardly seem necessary to argue the proposition that a subsequent enterer’s rights cannot be affected by a resurvey and remarking of an older entry, unless the formalities' of the processioning Act' are shown to have been complied with, or unless, after knowledge, he acquiesces under such circumstances as amount to an estoppel. There is no element of estoppel here. The ac
The question we regard as settled by - the cases of Chouning v. Simmons, 5 Hum., 299; Woodfolk v. Cornwall, 1 Head, 273; Nolen v. Wilson, 5 Sneed, 333; and Fly v. E. T. College, 2 Sneed, 689. The case of Williamson v. Buchanan, 2 Over-ton, ' 278, is not in point. The remarking and extension was done before the rights of younger enterers accrued. So in the case of Caruthers v. Crockett, 7 Lea, 91.
Entry ' 1800 is the superior title only to the calls and courses contained in the grant, and the second line must stop at the point where the poles give out. It is not a case where course and distance yield to natural objects or to an old marked line presumably run before the grant issued. This grant calls for courses and distances only; and it not being shown that the lines as mai'ked- on the ground were so run and marked at the time the grant issued, the lines must terminate, as against the conflicting rights of a younger enterer, where the distance .gives out.
The ninth assignment is therefore sustained.
Tenth. — The tenth assignment relates to the character of entry 1495, as to whether it is general or special. The enti-y is in these words:
“ Samuel Scott, Sr., enters 5,000 acres of land*201 in said Morgan County, on both sides of Emory River, beginning on the east corner of Thomas Scott’s 150-acre entry, on the east side of Emory, and then running up, Emory on both sides for complement, to include the complement after plotting out all prior legal rights.” Entered September 15, 1832.
"We. held, in the case of Scott v. Lewallen, at the September Term, 1888, that this entry was not special on its face. It is now insisted that under the proof in the record the entry is special. The only evidence relied upon to show it a special entry is an entry for 150 acres in favor of Thos. Scott, and presumably the one called for in entry 1495. This Thos. Scott entry is in these words:
“Thos. Scott enters 150 acres of land in said county on the waters of Emory, adjoining the survey made in the name of Jacob Laymence, under the foot of the mountain, and running around under the foot of. the mountain, joining the new ground.”
There is no proof as to the location of this entry, none as to a survey in the name of Jacob Laymence, and none as to what is meant by the call for the foot of the mountain. In other words, there is no proof that the natural objects called for ever existed or were notorious. Neither is there proof as to the notoriety of the place on which Samuel Scott then lived. The Thomas Scott entry was one capable of being shown a special entry by proof of the existence of either the
The entry belongs to that class of entries which may be aided by proof and thus shown to-be a special entry.
The tenth assignment is sustained.
The thirteenth and fourteenth assignments relate to the finding hy the Chancellor that 'there was an adverse possession within entries 1495 and 2661, both of which conflict with 1950, and that this possession began before death of Bleidorn, and was continued for seven' years. It is sufficient to say that neither of these assignments is well taken. The weight of proof is with the finding of the Chancellor.
The fifteenth assignment, relating to a 100-acre claim in favor of Defendant Sexton, is likewise overruled.
A question has been made as to the . supposed
There is no proof of this. Complainants’ witness, Scott, when asked as to the age of the marked lines, says: “ It is a very old line, but I think I noticed marks on the first line of the grant which appeared to be older.” The presumption is that this very old marked line was the line of the original survey, and this, proof is altogether insufficient to overcome this presumption.
This entry had been surveyed before complainants’ entiles were made, and it would require very clear proof — such as was made in the case of entry No. 1800 — of a remarking and extension subsequent to the vesting of- complainants’ rights to overcome the presumption in favor of an old marked line.
The conclusion we reach upon the whole case is that the defendants have maintained their defenses to the lands embraced in their special pleas, and are entitled to an affirmance of the decree of the Chancellor, save as to the Defendant Lewallen, against whom complainants are entitled to a modification of the decree in so far as to allow them to recover so much of the lands embraced in entry 1942 as is not within the lines of entry 1800 when surveyed by the grant, the second line being terminated at the point where the distance gives
(Knoxville.
Rehearing
OPINION ON PETITION TO REHEAR.
Two petitions to rehear have been filed; one by the defendant, the Pilot Mountain Coal and Mining. Company, and ohe by the complainants. By the first we are asked to reconsider our determination to adhere to the ruling made in the case of Smith v. Neilson, 13 Lea, 461, that a foreign will proved .and recorded in the State of the testator’s domicile according to the requirements of the laws of this State will pass lands in this State without record or registration here. The only reason now advanced for a reconsideration is the suggestion that the holding upon the effect of such an unregistered will was unnecessary
The point decided in Smith v. Neilson was that at common law a will of realty duly executed was a muniment of ¿ title without regard to probate, and that our statute concerning foreign wills of realty, duly executed according to our law, did not operate to destroy the. effect of such a will as a muniment of title by the requirement of registration in this State. The Pilot Mountain Coal Company are purchasers of a title inferior to that acquired by Louis Bleidorn. They do not claim under him, or under his heirs, but claim under ' an independent title utterly worthless unless perfected by adverse possession. Whether their vendor had had such adverse possession as operated to extinguish the paramount title vested by recorded grants and deeds in Louis Bleidorn, depended upon when it was begun, its duration and continuity. The outstanding life estate in Mrs. Bleidorn had been extinguished by adverse possession, but the remainder estate in complainants was asserted by suit before the statute had operated to destroy it. To say that a purchaser of a title wholly dependent upon adverse possession is a bona fide purchaser in such a sense that he cannot be affected by an unregistered will or deed which had* operated to put the title in such a situation as to prevent the opera
The complainants in their petition ask a rehearing as to the legal effect of the possession within entry 1727, and known as the Scarborough possession No. 2. This possession we held to be within the interlap of complainants’ entry 1949 and defendants’ entry 1727, and that it had continued for more than seven years, and, having been begun before the death of Louis Bleidorn, had operated to defeat complainants’ title, so far as the entries- or grants thereon conflicted.
Complainants now call attention to the fact that this possession is within • entry 1925, known as the Hannah Byrd entry, and that this being a special entry, is excluded from the grant under which they claim, and that it therefore follows that this possession, not being within the grant and deeds under which they claim, is inoperative as an adverse .possession within the interlap of 1727 and 1949. This question was not decided, and attention was. not called to it either in the oral or printed arguments. It is therefore a question properly raised by petition for rehearing.
The grant to Eastland upon entry 1949 describes
A calculation will show that the calls include about 5,590 acres, of which only 2,500 were granted; for the calls include, as stated in the grant, 3,088 acres of prior legal claims.
The effect of such a grant is to confer upon the grantee a legal title to all the lands within the calls of the grant not, shown to have .been held at the time by a superior title. When, however, it is shown that within the calls there was a superior legal claim by older special entry or by an older grant, then the effect of such proof is to exclude such older superior claim from the operation of the grant, and the' grant, as to such excluded older claim, is not operative as color of title to the land so included and excluded. Bowman v. Bowman, 3 Head, 47; Fowler v. Nixon, 7 Heis., 719.
The defendant, the Pilot Mountain Coal and Mining Company, introduced the entry and grant to Hannah Byrd, and relied upon it as an outstanding, paramount title, operating to defeat complainants in so far as it conflicted with complainants’ grant. We decided that it was a subsisting, par
This, result yvonld not follow if the deeds under which complainants hold had embraced all the lands within the grant lines; but these deeds all described the lands as the lands covered by the grant, and none other. It follows that complainants had no paper-title which covered the possession of Scarborough, and his possession was not adverse to their title, being without their grant and deeds.
The defendants, the Pilot Mountain Company, make two answers to this petition to rehear upon this point. The first is that complainants, having in their bill claimed and sued for all the lands embraced within the calls of the grant under which they cla,im, are therefore estopped to now say that any lands thus included were in fact excluded from their title-papers.
The defendants’ next answer is, that under the assignment of errors no such . question is raised. The first assignment of error insists that it was error in the Chancellor to hold and decree that “the Pilot Mountain Coal and Mining Company has the superior title to complainants’ entry 1949, and that it and those under whom it holds and
In view of the fact that there has been no adverse possession within the interlap of 1727 and 1949, it becomes now necessary to rule upon complainants’ seventh assignment, no opinion having been expressed in the original opinion. This assignment relates to the character of entry 2244, known as the old Hall place. This entry conflicts with entry 1727 and entry 1949. It is a younger entry than complainants’ entry 1949, and the grant thereon is an older grant than complainants’ grant. But we are of opinion that, under the proof, this entry is a special entry, and that defendants’ grant thereon therefore relates to the entry. The legal effect of this is to make defendants’ grant the older and better title, it not being shown that
In plotting out the lands recovered, the map of Surveyor Scott will be adopted, except in so far as we have in this opiniqn decided it to he erroneous.
The decree as to costs will be so modified as to tax one-fifth of the entire costs to the Pilot Mountain Coal and Mining Company.