| Tenn. Sup. Ct. | Nov 6, 1808
The lessor of the plaintiff had the oldest entry and grant. The plaintiff's entry called to begin at a certain place, running east and south for quantity. The defendant's entry began at the same place, calling to run east and north for quantity. The defendant's entry was made before the plaintiff's grant issued.
On the part of the defendant, it was proved that older claims intervened to the east and north, by which he was confined in making his survey, so that he could not get his quantity without running to the west of a north line from the beginning.
The plaintiff also ran his line to the west of a south line from his beginning, and also north, by which means the interference was created.
For the plaintiff, it was insisted that, as the defendant's entry being the youngest, called to run east and north, he could not hold the land where the tenant in possession lived, which lay to the west of the beginning; to which the defendant gave the above answer.
Possession for seven years was insisted on as to which it appeared that the father of the lessor of the plaintiff having obtained a grant died, when a person claiming under the defendant, by permission to live on the land, was in possession, which possession had been continued ever since by tenants who *352 lived on the land by permission, or leases of the defendant, or those under whom he claimed. More than seven years had elapsed since the first taking possession till the time of bringing suit.
For the plaintiff, it was contended that but a little time of the seven years had elapsed when the father died. That the representative of the deceased, being an infant, had three years to bring suit after coming of age, by the 4th section of the statute of limitations. In this case the plaintiff produced a grant for the land in contest, which is older than the defendant's, and on legal principles would entitle him to recover the land, if not barred by seven years' possession. Our practice, however, has carried questions of this kind back of the grant, to the entry. Whenever this is done we must consider ourselves governed by the same principles as we are in a court of equity. The moment we leave the grant and recur to the entry, we get into a field of equity, and must be governed by its principles. It is insisted by the defendant, that, when his land was run out by the surveyor, he could not run further to the east and north than he did, on account of older claims, which the surveyor was ex officio bound to respect, and bound his survey on, if he knew of them; that not finding a sufficient quantity of vacant land to the east and north the surveyor made up the deficiency by including it to the west, the land there never having been entered, and the surveyor could not be presumed to know that the plaintiff's survey had taken it in, as no grant had issued to the father of the plaintiff, nor any record made of the survey. Under all the circumstances of the case, this reasoning seems to be correct.
Had the plaintiff proved that the surveyor of his land was prevented from running to the east and south by older claims, so as to be able to get his quantity, and by these older claims was thrown upon the west and north of his entry, the question would have been entirely different, and we should be inclined to think, in that case, the plaintiff would hold against the defendant. That question, *353 however, does not occur in this case. As it respects the duty of surveyors in running out lands, having regard to older claims, see 1779, c. 4, § 7; 1784, c. 14, § 7; 1 Sessn. 1799, c. 6, § 6.
On the part of the plaintiff, it has been insisted that the persons in possession of the land under the grant of the defendant ought to show leases, otherwise their possession can have no effect on the operation of the statute of limitations.
This proposition is not acceded to; the possession of a tenant at will, by parol or writing, is the possession of the grantee, and consequently available under the statute. It is sufficient if the possession was not tortious or adverse. In the case of Hampton's Lesseev. M'Ginnis, at Jonesborough, it is understood the Court were of opinion that it was not necessary for the defendant to deraign a connected title to himself from the original grant; the statute might be available without it. Though this has been brought into view in the argument, there is no necessity to say any thing further on that ground. Whenever the statute of limitations begins to run, the intervention afterwards of any of the disabilities mentioned in the fourth section will not stop or impede its progress. It will continue to run uninterruptedly, until the expiration of seven years.1 Verdict for the defendant.
NOTE. — This case is cited, in connection with Hampton v.
McGinnis,