94 Tenn. 263 | Tenn. | 1895
This is an ejectment bill to recover a tract of land situated in White County, and containing eleven hundred and seventy ñve acres.
Complainant shows that it acquired this land in 1886, by warranty deed from Dibrell, and deraigns its title through connected conveyances from the State of Tennessee. Complainant’s entry was made January 8, 1835, and his grant was issued August 6, 1836. The grant of defendant, Welch, is dated February 9, 1889, and is based upon an entry made February 7, 1882.
The defendant avers that he has been in open, continuous, and adverse possession of said land for more than seven years next preceding the filing of this bill, and he relies upon the statute of limitations of seven years. It appears . that complainant’s' entry and grant were older than defendant’s, and, constituting the better title, must prevail unless there has been an actual adverse possession of the land by the defendant.
The proof shows that the defendant, in August, 1874, without color of title, and as a mere naked trespasser, went.. into possession, inclosing forty or fifty acres of this land, and building double log houses thereon. 1 He has been in open, continuous, and adverse possession of this forty acres ever since,
The Chancellor decreed that the defendant, by reason of his adverse possession of the land under his entry and grant, was vested Avith the title in fee to the lands described therein, and dismissed complainant’s bill.
It' will be observed that, between the commence
The only question, then, to be determined is, To what extent can the defendant avail himself of an adverse possession under the entry, as a defense to the complainant’s claim by the provisions of the second section of the Act of 1819 ?
It is insisted on behalf of complainants that defendant’s possession, under his entry, was simply a continuation of the possession of the forty-acre inclosure acquired in 18'74, and that there' was no extension of the original possession after the entry was made in 1882. Complainant’s contention is that, in order to make the statute of limitation available, it must be shown that defendant, for some years before suit brought, held adversely, not merely the - inclosure to' which his right of possession had become perfected before his entry, but, by an enlargement of his original boundaries, had taken pos
In the case in 1 Cold., the plaintiff ‘ ‘ claimed under a grant for 277 acres, dated December 17, 1838. For several years preceding the date of the plaintiff’s entry and grant, the defendant was residing upon, had inclosed and in cultivation, part of the land included in the entry and grant of the plaintiff, and continued to remain in possession. Subsequently to the issuance of plaintiff’s grant, the defendant obtained a grant for 135 acres, which not only covered his previous improvement, but extended beyond and covered a considerable portion of unimproved land within the bounds of the prior grant to the plaintiff. The two grants covered in part the same land. The defendant, having remained in possession of his previous improvement upon the land (without enlarging or extending his possession)
It was in this view that Judge McKinney used the language “that, to have brought himself within the operation of the principle contended for, the
Counsel also rely upon the case of Coal Creek, Mining Co. v. Ross, 12 Lea, 9. In that case it appeared that two of the parties, when they made their entry, as well as when they took out their grants, were in possession of portions of the land under older grants. It will be observed, in this connection, that when .Welch took out his entry in 1882, he had been in possession of the land prior to that time as a mere naked trespasser, and had no deed, grant, or color of title.
The Court held in the 12 Lea case that a- continuance of possession shown in that case would not be a possession under the new grant. The reason, we observe, was that the law still referred that possession to the limits of the old grant. The Court continues: “In order to get a perfect title to the
We think this case comes within the principle laid down by Judge McKinney in Ramsey v. Monroe, 3 Sneed, 330. In that case it appeared that, on May 22, 1837, a grant was issued to the plaintiff for a tract of land lying in Grundy County, containing 1,000 acres. Afterwards, to wit, on the fourth 'of March, 1845, one Lazarus Adams made an entry for 300 acres of land, lying entirely within the bounds of the foregoing grant to the plaintiff, Monroe. The defendant, Adams, took possession under said entry and continued to hold, by himself and vendors, for more than seven years prior to the commencement of the suit. It appeared that two fields were inclosed within the bounds of the defendant’s entry which had been used and occupied more than seven years before the institution of the suit. On the other hand, there had been' no ^possession on the part of the plaintiff Monroe of any part of the land within the boundaries of his grant. The Court held that the defendant, by virtue of his entry and seven years adverse possession, acquired no _ title to the land, under the first section of the Act of 1819, for the reason that a mere entry is no color or assurance of title purporting to convey an estate in fee. It was held, however, that defendant had acquired a possessory right,- under the second section of the Act of 1819,- not
To the same effect is the case of Rutherford v. Franklin, Lessee, 1 Swan, 320. In that case the Court held that “if a party take possession and hold it adversely by virtue of a title bond, or other instrument vesting the possessor with an equitable interest only, the possession so taken extends to the metes and bounds described in the instrument under which it is taken, so that, although a title .is not vested in him, yet, if it be so held for ' several years, he is protected to the entire extent of such possession.” So also in Sims v. Eastland, 3 Head, 367, the Court said, viz.: “The entry of Gibson was a special one, and would extend the title by possession under the second section (Act of 1819) to the extent of its calls and boundaries.” We think these authorities are conclusive of this case.
The decree of the Chancellor is modified and affirmed.