80 Tenn. 1 | Tenn. | 1883
delivered the opinion of the court.
Bill filed November 25, 1880, to remove a cloud from the title of the complainant to certain land, and to recover possession of the land. The complainant avers that it owns a tract of land containing 40,000 acres, which is described by metes and bounds, and the title to which is deraigned [from the State, through the grantees and subsequent conveyees, to the Company. It is alleged that the defendant claims certain land included in the boundaries of complainant's title papers under a deed made by the clerk and master of the chancery court, by a title claimed to be derived by mesne conveyances from John Seiber and John MeKamy, grantees from the State by virtue of Entry No. 751, made January 7, 1839, and a grant to them on August 25, 1849. The bill prayed that complainant's title to the land be declared valid and perfect, that the defendant be perpetually 'enjoined from claiming title to any part thereof, and that complainant have
The Seiber and McKamy grant is for 2,000 acres, and the greater part of the land called for by' it is included within two of the grants under which the complainant claims, the Richardson grant and the Clark grant. These two grants are for 5,000 acres each, and lie side by side in the form of parallelograms of equal size. The defendant’s grant, in the form of an irregular parallelogram, lies diagonally across the southern part of the Richardson grant, three of its four corners extending outside of the boundaries of that grant on the east, south and west, the western corner being on the Clark grant. The complainant’s entries and grants are older than the entry and grant of the defendant. The complainant had, therefore, the better paper title, and the reliance of the defendant is upon having acquired the better title by the statute of limitations. The chancellor was of opinion that the complainant was entitled to all the land in dispute covered by the ( lark grant, and to all the land claimed by the defendant, under the deed of the clerk and master, north of the original northern line of the Seiber and McKamy grant, within the Richardson grant. But he was also of opinion that the defendant had ac
Whether the bill be treated as a bill to remove a cloud from the complainant’s title to the land in dispute, or as an ejectment bill, the complainant, who is not in possession, must show a good legal title, or such an equity as against the defendant as to draw from him his title: Ross v. Young, 5 Sneed, 627. No such equity exists in this case, the parties claiming under different and independent rights. The complainant has the oldest entries as well as oldest grants, and its title under the Richardson grant is properly deraigned. For, although Richardson conveyed before he obtained his grant, he conveyed the land, not his interest therein, with a covenant of special warranty. The conveyance was by a formal deed, which recites that, for a money consideration, Richardson had “bargained and sold and doth hereby transfer and convey to W. S. McEwen, his heirs and assigns forever,” the land, describing it, with the following covenant: “I do covenant and bind myself, my heirs and representatives, to warrant and defend the title of said land to Wm. S. McEwen, his heirs and assigns forever, against any claim to bo made by myself, or any person claiming through or under me, but no further.” The reason why an after-acquired title enures to the benefit
The Seiber and McKamy grant, under which the defendant claims, was issued August 25, 1849, upon an entry made January 7, 1839. At the time the entry was made, Seiber was the owner, and in the actual occupation of 250 acres of the land under an old grant, and McKamy was in like manner the" owner of 50 acres under an older grant. The entry made by them, as well as the grant subsequently issued (hereon, included the land thus held and occupied by them, and,, it seems, several small tracts of land in the cove of the mountain . along the creek bottom, held by other persons under older titles. These older titles also antedated the entries and grants of the complainant, which cover the same lands. There is proof that there are, outside of these old grants and settlements, about 1,000 acres of land not occupied by any person, being on the mountain, which are covered by the title papers of both parties Of these unoccupied lands, about 765 acres are in one body, and claimed by the defendant under a deed executed November 20, 1872, by Levi Seiber and wife, describing the land by metes and bounds. This tract has been surveyed, and a plat of it is located upon the map of the grants
The defendant’s chain of. title from the Seiber and McKamy grant is as follows:
1. Deed from W. H. Whitson, clerk and master, to Levi Seiber, dated July 19, 1869, which undertakes to convey all the land in the grant itself, and an additional strip in the northern boundary by a change' in the call oí the first line for course, which the chancellor corrected by his decree not appealed from.
2. Deed from Levi Seiber and wife to E. A. Need and G. W. Ross, dated November 20, 1.872, which undertakes ho convey the 765 acre tract above mentioned, beipg within ■ the grant, and the clerk and master’s deed.
3. Deed from W. II. Whitson, clerk and master, to E. A. Reed and G. W. Ross, dated September 13, 1878, in pursuance of a sale made September 1, 1873, for a parcel of land lying north and east of the 765 acre tract, the number of acres of which is not mentioned. Part of this land lies north .oí the northern line of the Seiber and McKamy grant, and is given to the complainant by that part of the chancellor’s decree not appealed from.
4. Deed from E. A. Reed and wife to G. W.
It is not contended that there has been any such open and continuous adverse possession by Reed and Ross and by Ross alone, under these conveyances, of any of the land in dispute, as would vest the defendant with a title under the statute of limitations. The effort in argument has been to show such possession in the original grantees, Seiber and McKamy, or at any rate in John Seiber, one of' these grantees and his children, as would perfect the title. But the defendant has failed to show a chain of title connecting him with the grantees and the grant. The deed of Whitson, clerk and master, of September 13, 1878, purports on its face to be made by him under a decree of the chancery court of Anderson county, “ made in the cause of G. W. Death, administrator, etc., complainant, and J. D. Taylor and others, defendants,” without further explanation. The other deed of Whitson to Levi Seiber of July 19, 1869, does purport to be made in pursuance of a decree and sale made in a cause pending in the chancery court of Anderson county, of “Levi Seiber, administrator of the estate of John Seiber, deceased, against Philip Seiber and others, heirs-at-law and distributees of the estate of the said John Seiber, deceased, pray
If, however, the bill be treated as an ejectment bill, the complainant must recover on his own title, and the defendant in possession may successfully defend by showing a better outstanding title in a third person: Massengill v. Boyles, 11 Hum., 114; Humble v. Spears, 8 Baxt., 156. A bill to remove a cloud from title was originally a remedy (pda timet, to enable a party in possession of land to remove a possible danger from an instrument capable of future misuse: 1 Sto. Eq. Jur., sec. 700. When this court extended the remedy to a person out of possession, and allowed him to recover the land, as well as to remove the cloud, the suit was virtually changed into an action of ejectment: Almony v. Hicks, 3 Head, 39. And so Judge McFarland in effect concedes in Buck v. Williams, 10 Heis., 264. There can be no reason in saying that a person in possession of land
This brings us to the question so elaborately argued by the counsel on both sides, whether there was such open, notorious, and continuous adverse possession for seven years as to give title, under the Seiber and McKamy grant, to the grantees and their heirs.
It will be remembered that both. Seiber and Mc-Kamy, when they made their entry, as well as when they took out their grant, were in possession of portions of the land under older grants. A continuance of such possession, it is clear, would not be a possession under the new grant: Smith v. Lee, 1 Cold., 550. And it may be conceded that an extension of the enclosures inadvertently, not intentionally, beyond the lines of the old grant, would not have been adverse within the meaning of the statute, for it would not have been an open and notorious invasion of the rights of the persons under whom the complainant claims. But an intentional extension of the enclosures, and, a fortiori, independent improvements and enclosures- openly made under a chain of right by virtue of the new grant, would be a possession which by time would be ripened 'into a perfect title to the extent of the boundaries of the new grant: Peck v. Houston, 5 Lea, 227.
The jjroof shows that shortly after the issuance of the grant to Seiber and McKamy, and before the year 1853, the grantees made a partition between them of the land claimed under the grant, by a line well
The surveyor, who ran out the lands and made the map thereof used in this case, testifies that there are lands outside of John Seiber’s old home grant, -which were cleared and improved by him, the house,' constituting a part of the improvement, looking like it was
But there is proof of pther clearings. The’ witness, Ploskins, proves that in 1853 he bought from John Seiber 300 acres of land, part of the 2,000 acres of the Seiber and McKamy grant. He owned, he says, about 200 acres of the land by a title older than the grant. The land he bought from Seiber pretty well surroundel his old holding. He was to have all from the dividing line between Seiber and McKamy, to begin at White Log branch, thence to the beech corner of the grant, thence south 400 poles, thence around the big bench of the Butt to the beginning. He says that a part of the land thus bought had been cleared by Pleas. Seiber, a son of John Seiber, who had fenced the clearing, and raised, corn on it before he bought. He also proves, what is abundantly shown by other testimony, that Philip Seiber, another son of John Seiber, cleared land on the Butt of the mountain, lived there several years, and tended it every year. The witness states another
In this view we have an actual clearing, enclosure and cultivation of a part of the .2,000 acre grant by John Seiber, outside of his home grant, before the year 1853, and knowledge of that possession, even if notice be necessary, brought home to the then owners of the title under which the complainant claims. That possession at once started the running of the statute of limitations to the boundaries of the grant, and if kept up continuously for seven years, although upon other parts of the granted land, would give title. The evidence does show that before 1853 Philip Seiber, a son of John Seiber, did clear and improve a few acres on the Butt of the mountain, afterwards occupied by Fred Seiber, another son of John Seiber, until the end of ‘the year 1863, when he went into the Federal army, his wife remaining in possession until the close of the war. This clearing seems to have been abandoned in 1866, and the very site of it lost, so that no witness locates it with any certainty. In February, 1853, Philip Seiber married, and either that year, or within two years thereafter, moved with his family to another small clearing which he had also made and improved on the Butt, and remained there, cultivating the land, until the close of the year 1863, when he, too, went into the Federal army, which entered Knoxville in September of that year. Even when he did not live on this clearing, Philip seems to have cultivated it. If the seven years adverse possession was completed
It is argued that the possession of John Seiber’s sons was for themselves, not for their father. And there is evidence that the sons claimed the property as their own. There is no proof, however, of even a parol gift of the land to them, or either of them, by the father, and the proof is clear that they took possession under him. Nor is there any thing to show that the father had any notice of a holding by either of the sons adverse to the possession taken under him: Jordan v. Maney, 10 Lea., 145.
Under these circumstances, and particularly in view of the notorious claim of John Seiber to the land under the 2,000 acre grant, and the partition between him and McKamy, of which it is clear the persons
The report of the Referees will, therefore, be set aside, and the chancellor’s decree, so far as it was-appealed from, affirmed. The costs of this court will be paid by the complainant, and the costs of the court below as adjudged by the chancellor.