6 Tenn. 286 | Tenn. | 1818
This an ejectment upon which a verdict and judgment were given for the defendants, in February term, 1816, in the Circuit Court for the county of Montgomery. The facts are these: —
A grant issued for the lands in question to John Elliott, 10th July, 1788, 640 acres. He died May, .1789, leaving George S. Elliot, his only son and heir, then of the age of one year, who conveyed to Darby, 22d January, 1816. Oldham and Johnson were appointed the administrators of J. Elliot, deceased, and were removed by repeal, April, 1791, at which time Zilpha Elliot, the widow, was appointed. She was also at the same time appointed the guardian of George S. Elliot. At April term, 1792, George
The judgment in favor of James Elliot was founded upon a writ, returned to April, 1791, against Oldham * and Johnston, administrators. It was returned executed; the plea of plene administravit was pleaded, and a note made that no affidavit was required. A verdict was given for the plaintiff; damages, ¿£163 16s. A fi. fa. issued against the goods and chattels, lands and tenements of J. Elliot, deceased, not executed. It was reissued the 9th of June, 1792, and a return was made upon it, that land jvas sold in Davidson for part. A venditioni issued for the residue. On the 23d of October, 1793, Neville, by deed, reciting his appointment as special guardian, reciting also thefi.fa., and an order of July, 1793, to sell the real estate, and a sale made by Neville, by virtue thereof, of a tract of land in the forks of Red River, granted the 10th of July, 1788, to John Elliot, deceased ; he, therefore, conveyed the same to M‘CarroI. On the 23d of January, 1793, M‘Carrol conveyed to Reasons part of this tract, and on the same day to Pollard another part. They had possession from 1793 to the day of the trial, in August, 1816.
In 1812, a bond was made between M‘Carrol on the one side, and George S. Elliot, and Walker, who had married his sister, a daughter of J. Elliot, deceased, on the other, to abide by the award of certain persons; which bond is lost. The contents were proved on the trial to be, to submit all matters in dispute. The award was by parol, and directed M‘Carrol to pay George S. Elliot and Walker $400, and to make a deed to them for 320 acres of land in the county of Davidson, and that Oldham and Johnston should pay them $460 each. M‘Carrol executed a bond for the conveyance,
Upon this statement it must be taken that the sale to M'Carrol was made to him by a special guardian, and the deed executed by that guardian did in reality convey no title for want of an order, and also because an order for selling the ward’s estate could not legally be given to such a guardian. But he had by the deed an appearance or color of title. A color of title is, where a conveyance is made by an apparent owner, or person apparently having an authority over his estate, which conveyance would actually have passed the title, had the circumstances existed which were reputed to exist. Such color is not raised, either by a bond, covenant, or agreement to convey hereafter. That cannot be taken for a conveyance, which only stipulates for a conveyance to be made hereafter. Under such color, if the grantee by deed, or by what is equivalent in law for 'transferring the title, for example, a devise or descent, being in, shall continue in the actual possession for seven years, when no capacity or disability is imputable to the owner, and without any action commenced against him to recover the lands, his title will thereby become good and indefeasible forever. It is supposed by some that a deed founded upon a grant, the phraseology used in 1797, ch. 43, § 4, implies a regular chain of conveyances from the second or other subsequent grantee to the tenant, who has been in possession for seven years. Let us examine this position. Why should the Legislature prefer one who is in possession by a regular chain, to him who is in possession, but not by a regular * chain ? Has one a better title at first than the other ? Are they not equally innocent and equally meritorious in settling and improving the country, and in adding to its- strength, wealth, and importance ? Let us suppose a case. A is a second or
But as to M‘Carrol himself, the plaintiff is not barred by the act of limitations; for it did not begin to run in his favor till the expiration of the mother’s guardianship, or the coming to age of the heir; after which a continuation of the possession by M‘ Carrol became adverse to the heir. And from this latter period seven years have not expired before the commencement of this action. The deeds of conveyance made to the bargainees by M‘Carrol, cannot be taken to be good so far as the power of the guardian extends, and therefore to be good as leases till the heir come of age ; for they are not made' as leases in writing ; nor are covenants made that the tenants shall improve the plantation; nor other covenants made which are required by 1762, eh. 5, § 18, without which the lease is void. The bargainees are in no otherwise than under the title of M'Carrol, derived under the deed of Neville. Their possession under it is adverse to the heir’s title. In an action by
Judgment was entered for Pollard and Reasons, absolutely ; and the record remanded as to M‘Carrol. And a motion being made for reconsideration as to the time when the act began to run against Pollard and Reasons, which it was urged was only from the coming of age of George S. Elliot, the court took time'to advise upon this part of the motion only until next term.
See, as to color of title, note to Wilson v. Kilcannon, 4 Hay. 182.