92 Tenn. 13 | Tenn. | 1892
The complainant seeks a . rescission of a contract of sale of a leasehold estate in a tract of 5,700 acres, upon which is situated a valuable coal-mine. The conveyance also embraced certain movables, such as miners’ houses, coal-cars, rail and tramways, screens, scales, mining tools, and also certain rights of way over adjacent lands. The conveyance was made by the Eox Coal and Coke Company, a Tennessee corporation, which
IJpon the pleadings and proof, the Chancellor, upon final hearing, dismissed the bill. The complainant has assigned as error the action of the Chancellor in not finding, upon the -evidence,' that a fraud Avas practiced upon complainant, by misr representations made to induce the sale, concerning the daily output of the mines Avhile being oper’-ated by the vendor. "We do not think the Chancellor erred in this respect. Complainant and one Hood do testify that Mr. Line, the secretary of the defendant company, did represent, that the output had averaged betAveen- tAvo hundred and tAvo hundred and fifty tons per day. Mr. Line Amry positively denies the statement. He ■ is confirmed, as to what passed between himself and Mr. Cham-bei’lin at the time the sale Avas consummated, by the eAÚdence of Mr. Pritchard, who Avas present during the negotiations as counsel for the Eox Coal and Coke Company. Whatever question may be made upon the competency of the evidence of
Assuming both Mr. Hood and Mr. Line to be equally credible witnesses, complainant’s case,, on this point, must fail, because not supported by the weight of proof. To strengthen this view, there is the added circumstance that complainant had sent two competent persons to examine the property, and this fact, taken with the positive testimony of both Mr. Line and Mr. Pritchard, indicates that complainant was fully advised as to the character and prospects of this property by his agents, and acted upon their reports to him.
The materiality of the alleged misrepresentation does not clearly appear. Whether defendants had obtained an output of from forty to fifty tons per day, or two hundred tons per day, might depend entirely upon the force employed by them, and not be a consequence of the want of ...capacity in the mines to put out the larger quantity with an adequate force. That the property is very valuable as a coal property is freely admitted by Mr. Hood, complainant’s agent for the examination of the property. This witness says that “taking the report of Mr. Lawson as a basis” (an expert sent
To rescind a contract of sale upon the ground of a misrepresentation as to the character, capacity, or quality of the property sold, it ought to be made to clearly appear that such misrepresentation was concerning a material matter, and operated as a material inducement to the purchase.
The next insistence of complainant was, and is,, that the defendant company were guilty of such fraudulent concealment of a material fact affecting; its title and right of possession as entitles him to a rescission. The facts upon which this allegation rests are substantially these: In 1873 a grant was issued by the State 'to one B. E. Walker, for a portion of the lands covered by the leasehold estate conveyed to complainant. In 1881 Walker filed a bill in the Chancery Court against the Eox heirs, who are .the original lessors under whom the Eox Coal and Coke Company claimed. The object of this bill was to remove the Eox title as a cloud upon the Walker title, to stay waste, and to eject the Eox heirs from the land covered by the grant to Walker. The Eox heirs claimed under a grant much older than that held by Walker, but were unable to connect themselves with it, for the reason that one link in their chain of title was a Sheriff’s deed, which they did not support with a record showing judgment and
After losing- his ejectment suit, Walker at once instituted another suit, for the purpose of obtaining possession from the Foxes, or those claiming under them, of the lands covered by his grant. For this purpose he brought an action at law of forcible entry and detainer before a Justice of the Peace ■of Ithea County. Instead, of making the Foxes, or their then lessees, Line and Winchester, defendants, he instituted his suit against three cmploxjes of the lessees, and alleged that they — Davis, Blevins, and Travis — had wrongfully and forcibly entered upon his lands and deprived him of the possession. There was a judgment by the Justice in favor of Walker, and an appeal by the defendants to the Circuit Court. This is the suit which was pending at the time of the sale to complainant. Line and Winchester had in the meantime, and while the suit was pending, sold and > assigned their lease to the defendant, the “Fox Coal and Coke Company.”
In explanation of the silence of the defendant concerning this suit, involving the rightfulness and legality of its possession, it having received the possession from Line and Winchester pending that suit, defendant says that it attached no importance to the suit, inasmuch as it had ■ been advised by its counsel that Line and Winchester were not parties, and that the possession of Line and Winchester was not' affected by its pendency,' and that, as it claimed under them, it could not be dispossessed by any judgment in a suit wherein they wrnre not concluded.' ■ ‘
The important question upon this issue is as to the -possible effect of Walker’s suit upon the possession of the' assignors of the lease: If the assignor could be ejected under a writ 'of possession issuing in that case, it wóuld follow that complainant could likewise be ejected if he should
The facts appearing in this record, as to- the possession of Line and 'Winchester, are substantially these: At the date of the beginning of Walker’,s action before the Justice, they, as lessees, had taken possession an^ opened up coal-mines within the Walker - grant. Erom a bill filed by them to enjoin Walker’s suit (but dismissed voluntarily, and hence without prejudice), which is filed as evidence in this cause by complainant, we find that they had a numerous force of hands engaged in and about the opening and operation of their coal-mines. The defendants to Walker’s suit to ere three of these hands. The employes sued were not tenants of any part of the--premises, and did not reside upon the disputed interlap, and had no interest whatever in the lease or in the mining operations. Neither of them was a manager, superintendent, or boss, and neither had any sort of control or authority, as representing the lessees, over the premises or over their fellow-servants. This, we think, is implied from the absence of any averment or evidence indicating the contrary, as well as from the affirmative evidence that they were mining employes. Under these facts, was the pending suit one which involved the possession of Line and Winchester? Were they and their other servants and employes liable to be ejected by a writ of possession issuing in that case against - their three servants and employes, Davis, Travis, and Blevins?
If the defendant in possession entered peacefully, and without collusion, and in his own right, though he have not the vestige of a title, he can defy even the true owner when sought to he ejected by this summary remedy.
.The object of the remedy is to keep him in possession who first lawfully obtained it, and, all considerations, of title aside, to restore to possession an occupant who has been forcibly excluded. Undoubtedly such an action will lie against any person actually in possession through force. It does not matter whether such person’s possession be for himself or for another.
Were the defendants such persons actually in possession? If so, they might be expanded by means of this summary action. What was the extent of their possession? Was it co-extensive with the limits of the lease to Line and Winchester? If it was, then the plaintiff, by ejecting them, would be restored to the possession of his entire grant. But it seems too evident to need argument that three of a numerous force of hands engaged in operating extensive coal-mines cannot be said ■ to have been in possession of the mines. How can it be then said that the right to remove them from the premises carried with it the right to remove their employers, their ...superiors,
Admitting that under a judgment against a few of a large number of such employes, the .few actually sued might be ejected, yet, what is the Sheriff to do when ho finds that many other persons not sued have the same kind of possession ? Can he exclude them also? If so, upon what principle? It cannot be upon the ground that they are in possession under the defendants to his writ, for, demonstrably, this is not the fact. That all are alike servants and employes of a common master does not solve the difficulty, because that common master was not a defendant in the judgment. If the possession of all in a common employment is equal, then the possession of none can be disturbed who wore not parties to the proceeding under which it is sought to disturb that possession. That all had a common employer, and that
That Line and Winchester assisted these employes in the defense of the suit against them, by employing counsel or otherwise, is of no moment. It did not operate to make them pai'ties. They might have obtained leave to bo substituted as defendants, and then obtained the legal right to defend and appeal, and have thus been concluded. This they did not choose to do, and Walker did not choose to make them defendants. What they did in aid of the defendants creates no estoppel. This point has been expressly ruled in reference to an action of ejectment, which was against a tenant. The assistance, through counsel, rendered the tenant by his landlord was held not to conclude the landlord bjr way of res judicata or es-toppel. Boles v. Smith, 5 Sneed, 105.
That the assignee of complainant was in fact subsequently ejected from these mines by a writ of possession issuing against Davis, Blevins, and Travis, is of no moment in this suit. If they were wrongfully ejected, as we have intimated, their remedy is against those who abused the process of the Court. That fact can cut no fig
We have treated complainant’s case as if lie bad amended bis bill and set up bis re-acquirement of the title to this leasehold, and had been in position to tender back to defendants the interest acquired under the contract be seeks to rescind. We have deemed it best to meet the questions upon tlieir actual merits, and determine the suit so far as a rescission or abatement of purchase-price ivas sought.
Affirm the decree of the Chancellor, with costs.