131 Tenn. 542 | Tenn. | 1914
delivered the opinion of the Court.
This was an action of ejectment brought in the chancery court of Fentress county - to recover a tract of land known in the record as the “Chism tract,” lying in an interlap of grant No. 6418 with grant No. 6199. Both parties claim title from a common source, A. L. Crawford. He acquired a deed for a boundary of land lying within grant No. 6199', including the in-terlap just mentioned, from one R. H. Chism, on the 6th of October, 1882, and a deed for grant No. 6418 from one W. S. Snyder and others, on the 22d of December, 1883. On the 21st of August,' 1885', A. L. Crawford conveyed to his son John L. Crawford the tract he acquired from Chism, and subsequently died, prior to 1890, leaving a will in which he devised all of his property in Tennessee to his son-in-law L. S. Hoyt and his four sons, one of whom was John L.
“We, John L. Crawford and Mattie C. Crawford, his wife, of Lawrence county, Pa., for and in consideration of the sum of one dollar to us in hand paid, the receipt whereof is hereby acknowledged, have this day bargained and sold and do hereby convey to the Crawford Coal & Iron Company, a corporation char*546 tered and organized under the laws of Tennessee, the following described tracts of land and other properties situate in the county of Fentress and State of Tennessee, to wit: (describing the lands) . . .
“To have and to hold the three tracts of land (stating acreage, etc.) ... to the said Crawford Coal & Iron Company, its successors and assigns. It being the true intent, purpose and understanding of the parties to this deed that the bargainors, the said John L. Crawford and Mattie C. Crawford, hereby convey ■and assure all their right, title, claim and interest in and to the properties hereinabove set out as fully as the same is in them vested and not otherwise.
“Witness whereof we have hereto set our hands and seals this the 14th day of April, 1892.
“ JOHU L. CRAWFORD.
Mattie C. Cbaweobd.”
The defendant contends that the last clause in this instrument, when taken in to consideration with the previous deed made by John L. Crawford and others to defendant, Gernt, operates to exclude the interlap of 'grant No. 6190' with grant No. 6418 (the Chism tract), and that therefore this deed is'not a color of title to the interlap.
This contention is sound. All parts of the deed must be construed together without regard to its mere formal divisons. Iron & Coal Co. v. Schwoon, 124 Tenn., 176-209, 135 S. W., 785- 793, and cases cited. Thus construed, the language which we have italicized explains, qualifies, and limits the previous conveying
‘¿The point made on the expressions, 'all the right, title and claim,’ presents more difficulty. However, when this is taken in connection with the will of W. C. Hill, and the tax deeds made to Hill, the difficulty vanishes. Each of these deeds purports to convey an estate in fee. That these deeds must be taken in connection with the will and Moffett’s deed is manifest, since the executor expressly referred to the will, and, in purporting to convey the interest of his testator, necessarily referred to his title papers, both of which were duly registered in the county at the time his deed was made. Such reference was sufficient to describe the property and the interest conveyed.”
Again, the court said on the same subject:
*548 “It may be that a deéd made by A. B., purporting to convey all of bis right, title, and interest to a specified boundary of land, nothing else appearing, would not be an assurance of title; but, if accompanied by proof of deeds purporting to convey an estate in fee to Mm, the two taken together would constitute an assurance of title sufficient under our act of 1819, when supported by seven years’ adverse possession, to effect the transfer of title. It is true that such a deed would not in and of itself convey title if A. B. had no title; but, united with proof of a deed purporting to convey title, it would amount to color of title. In this same connection should be considered our Act of 1851-52, c. 33, section 1, the contents of which appear in Shannon’s Code, section 3672. This act provides that ‘every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or devisor, unless the intent to pass a less estate, or interest, shall appear by express terms, or be necessarily implied in the terms of the instrument.’ Under this statute, when one makes a deed to ‘all my right, title, estate, and interest’ in certain lands, or uses equivalent words, he necessarily refers to his title papers, and the deed conveys whatever interest those title papers show that he has; or in case his title papers do not really convey a title to him in fact and law, but only purport to convey such title, the effect would be the same; that is, the deed would carry whatever force or effect such assurance has under our stat*549 ute of limitations, that is, section 1 of our Acts of 1819, ch. 28.”
That is to say:
A deed purporting to convey all my right, title, and interest refers to my title papers, and, if it appears there is a deed purporting to convey an estate in fee to me, the reference incorporates that deed, and appropriates that assurance; if that deed contains words sufficient to make it a color of title to me, that color is passed to my vendee by the reference mentioned. If I have the real title, it is conveyed by such reference. If I have it not, but only deeds giving color of title, that color only is passed. If subsequent to a deed made to me I convey the same land to another, I have left in me neither title nor color to transfer by an instrument thereafter made in the form of a deed or other assurance purporting to convey all my right, title, claim, and interest. In the Schwoon Case it did not appear that Hill had .made any conveyance after obtaining the deeds which gave him title, or color of title. In' the case before us it appears that Crawford and wife had made such subsequent deed.
For complainants it is insisted that the deed to G-ernt should not be held operative because it was made through inadvertence, in ignorance of the fact that the Chism tract was included within the bounds of grant No. 6418, and in the face of a prior written agreement between the parties that the Chism tract was to be retained, and not conveyed. We are unable to see how we can consider such a point in the present case, inas
But.complainant insists that, while the Chism tract lies within the boundaries of grant No. 6418, it was excluded by the language of the deed to Grernt, of December 16, 1891, describing the land intended to be conveyed. These words ¿re:
‘ ‘ Being the same lands conveyed by Orion Clemens to Peter Schneitter by deed bearing date of Jnly, .1859, recorded in Book I, p. 139, of the records of said ■county, and which was afterwards conveyed by the heirs of Peter Schneitter to A. L. Crawford by deed ■dated December 22, 1883, and recorded in Book Q, pp. .315, 316, in the register’s office of said county of Fen-tress, to which two deeds reference is made for more practical description of said tract of land.”
This is a mistaken view. It is true the deed from •Orion Clemens to Schneitter after describing the land ■therein conveyed by the grant No. 6418, and by metes and bounds, concludes with the language: “Including 5,000, acres, platting out 3,000 acres, prior claims, and leaving 2,000 acres by estimation.” This could not have referred to the Chism land because that land was
The deed of April 14, 1892, supra, not being operative as color of title to the Chism tract, so as to confer title on the Crawford Coal & Iron Company through adverse possession thereunder for seven years, under the first section of the act of 1819, thereby overriding the previous deed to Gernt, the deed of said Crawford Coal & Iron Company to Brier Hill Collieries conferred no title to it as to the Chism tract, and the complainant cannot recover.
The same result must follow on another ground, aside from the foregoing, and even on the assumption that title did pass to Brier Hill Collieries. The latter on the 18th day of October, 1904, executed a deed of trust to the Mercantile Trust Company purporting to convey the Chism tract, along with many other tracts
In this State the complainant cannot succeed in ejectment unless he show both the legal title, and the right of Immediate possession. Shannon’s Code, section 4970. This section of the Code is sufficient to cover the point, but our cases hold with unanimity that the plaintiff inejectment must show the legal title in him. King v. Coleman, 98 Tenn., 562, 40 S. W., 1082; Lowry v. Whitehead, 103 Tenn., 396, 53 S. W., 731; Garrett v. Land Co., 94 Tenn. 459, 479, 29 S. W., 726; Hubbard v. Godfrey, 100 Tenn., 158, 159, 47 S. W., 81; Langford v. Love, 3 Sneed (35 Tenn.), 309; Edwards v. Miller, 4 Heisk. (51 Tenn.), 314; Campbell v. Campbell, 3 Head (40 Tenn.), 325; Crutsinger v. Catron, 10 Humph. (29 Tenn.), 27. When a trust deed or mort
Other grounds of defense are claimed, but we need not consider them, since the chancellor’s decree must he reversed and the hill dismissed on each and both of the grounds already stated and considered.
The complainants will pay all of the costs of the cause.