105 Tenn. 563 | Tenn. | 1900
This is an ejectment suit. There was a decree in the Court below and an appeal to this Court. Upon hearing in the Court of Chancery Appeals the decree of the Court below was modified, and there was an appeal to this Court by the complainant, and the defendants, Bothchilds d aX., have filed the record upon writ of error.
The first feature presented is that the complainant sues as a domestic corporation, but fails to show that it was ever chartered or organized as such.
Tbe Act places this list of domestic corporations on the same status as the published Acts' of the Legislature, of which the Courts will take judicial notice, and no proof need be made of the same. Shannon, §§ 5584, 5585, and 5586.
The defendants, Rothchilds and others, assign as error that there was a break in complainant’s title, and the Court of Chancery Appeals held that this was cured by a deed from the executors of W. S. McEwen to the complainant as to the undivided half interest of W. S. McEwen. It is found by tbe Court of Chancery Appeals that McEwen conveyed this interest (through mesne conveyances) until it reached complainant in 1871,
We come next to the question of title upon its merits. The land in controversy is covered by three separate grants from the State. The defendant, East Tennessee Iron & Coal Co., cferaign their title to the State under a grant to East-land and Lane No. 21929, of date January 30, 1838, and this is the oldest grant and the best paper title, and will be referred to as title or grant No. 1. The complainant, Coal Creek Consolidated Coal Co., claim under grant No. 26078 to Wm. Scott, of date January 29, 1848, and this- title will be referred to as No. 2. The defendants, Kothchilds and others, claim under a
The defendants, Rothchilds and others, Avho oavu the third title, appealed to this Court. Title Ho. 1 covers the whole of the land in controversy. Title Ho. 2 covers only a part of title Ho. 1, and only part of title Ho. 3. Just outside the lines of the second title, but inside the lines of
We have not ’ access to all the reports and cases cited, but it is fair to assume that the substance and holding of the cases is properly stated. It will be noticed that this text does not say that the effect of the adverse holding is to divest tire paper title and vest it in the party holding adversely, but to divest the estate. In other words, the adverse holder becomes entitled tp the prop*-erty, but he acquires it not by drawing the paper title to himself, but by extinguishing such paper title and establishing another title on his assurance or color, coupled with his adverse possession.
In Waterhouse v. Martin, Peck, 392 and 456, it is said that not only the right of possession is barred under our statute of limitations, but the right of property also, and the adverse possessor acquires what, his adversary loses. But this means that he acquires the property which his adversary loses, not that he acquires it by his adversary’s title, but by his own title.
In Trim v. McPherson, 7 Cold., 18, the Court uses . the language, “the title to the property will be regarded ■ as vested ' in the possessor,” but this
In Hopkins v. Calloway, 7 Cold., 37, it is lield tiat under tie, first section of tie Act of 1819 an adverse possession of seven years under an assurance of title purporting to convey tie fee, not only bars tie remedy of tie party out of possession, but vests tie possessor witi tie absolute estate in fee simple. But tiis language must be taken to be a general expression, and not an absolute iolding under all contingencies. It is evident tie adverse possession does not vest a fee simple estate as against married women, infants, and persons under disability except under tie saving provisions of tie statute nor against any person as to wiorn tie holding was not adverse. Such persons iad no right of action, they could not sue . in their own names; as tG them tie statute did not run.
We think tiis is tie extent of tie holding and tie real decision in tie cases of Wallace v. Hunnum, 1 Hum., 450; McLain v. Ferrell, 1 Swan, 54; Railroad Co. v. Mabry, 1 Pick., 47; Belote v. White, 2 Head, 712; Nelson v. Trigg, 4 Lea, 705, 706; Barnes v. Railroad, 2 Leg. Rep., 272 (S. C., 2 Shannon’s cases, 15); and also the large number of eases holding a similar doctrine as to personal property. See Garrett v.
It is true that the title acquired by the adverse holder may ‘be as effectual for remedies and defenses as title acquired in any other manner, as is held in Greer v. Course, 24 Am. St. Rep., 438; Norment v. Eureka Co., 39 Am. St. Rep., 45, and note page 54; Myers v. McGavock, 42 Am. St. Rep., 630, note page 649; Cannon v. Stocman, 95 Am. Dec., 205, note page 209; 3 Washburn on Real Property, 163-165.
The latter authority says: “The statute takes away- the title of the real owner and transfers it, not in form indeed, but in legal effect, to the adverse occupant. In other words, the statute of limitations gives a perfect title.” But it is evident the learned author was but emphasizing the fact that the statute did not merely take away the remedy, but also vested the estate under the new title. This we think means that whereas before the original owner had a fee simple title, now the adverse holder has it. Not the title of the original owner, for that was extinguished, but the title built upon the paper assurance ^of the adverse possessor coupled with his adverse possession. It must- be admitted the language is broad enough to admit the contrary construction, but it
. We have not seen proper to refer to the Kentucky cases in this discussion, because we think the statute of Kentucky is materially different from our own, inasmuch as it declares in express terms that the adversé possession shall bar and toll the right of entry into such land by any person under an adverse claim or title, and such possession as will bar the right to recover the 'same shall vest the title in the occupant or his vendee. General Statutes of Kentucky, 1879, Sec. 1, p. 627. This language may be construed that the title of the original owner shall be tolled and vested in the adverse holder, but it is quite different from the language of our statute.
This Court has had occasion to know the system of issuing grants by the State, under which multiple grants ■ have been issued to the same lands. It has been a fruitful ■ source of litigation in the Courts, and this Court judicially knows that from the beginning of its history the _ State has issued two or more grants to the same land, thus giving under the sanction of the State claims of title to the same lands to various parties, and the Court is continually called upon to pass upon these conflicting, titles and determine which is the better, until quite a system of land laws more or less arbitrary have been built up in order to •quiet titles. We think that as one of these rules
premises to show as well as we can 1he relative relations of the three grants and the portions cov
It is said, there can be but one true title, and this is true if the term true title is used as. synonymous with superior title. But there may be many grants purporting to convey a fee simple-title to the same land, and such is the case whenever there is a conflict of grants. Each purports to be a fee simple title, and for practical pui’poses may be so regarded so long as it is not. brought into contest with a superior title purporting to convey a fee. The- contest decides which is the superior title while each purports to be in fee. The terms “true titles” and “titles in fee simple” have been used in our books to distinguish between the character of titles acquired under the Act of 18 i 9 and those acquired by adverse possession before that Act, the title in the one case being vested in the adverse holder while in the ' other he simply has a right of possession only. But no title can with propriety be said to ever become the true title until its superiority to all other titles is either conceded or established after contest.
"While we have not had the time to read closely all the cases cited, we are aware of none of them presenting the exact question here involved— that is, the right of an intervening or intermediate title as against a title acquired by a.
We are of opinion that a claimant under title with adverse possession as against the holder of one title cannot ipso facto acquire a superior title as against other 'claimants having title in themselves, and as to whom he has never been in adverse possession. To make his title superior to all other titles, the party must have a possession that is adverse to all other titles, and he only obtains a true title when he holds adversely for the required time against all titles superior to his own.
We will suppose the attitude of these parties to be reversed, and that the suit is brought by the claimants of the third title to establish it as against claimant under both the first and second grants. They w'ould have to support their action first by a grant from the State for the land, next air assurance of title under the conveyance to them, and, third, a possession on the premises. ISTow, as to the claimants under the first grant,, they could succeed because they have an assurance of title and adverse possession within the inter-lap, but as to the second grant claimants they should' not succeed, because, while their assurance of title covers lands within the second grant, there is no possession on the interlap between the bound-, aries of the second and third titles. The theory upon which they would recover against the first
We are of opinion, therefore, that the Court of Chancery Appeals is in error; that the holders under the third grant have never drawn to themselves the first title, and do not hold under it, but that is extinguished as to the land embraced in the boundaries of the third grant, but that so much of the land embraced in the third grant boundaries as lies within the second grant must be held to pass under that grant, the second, to complainant, the first title having been extinguished and virtually abandoned. This of course only extends to the interlap between the second and third grants and no further.
The costs of this Court will be paid by the "Rothchilds, or parties claiming under the third, grant; the -costs of the Court below as adjudged by the Chancellor.