125 Tenn. 497 | Tenn. | 1911
Lead Opinion
delivered the opinion of the Court.
The complainant filed his ejectment bill, claiming title and right to possession of 2,500 acres of land described therein. The defendant Rocky River Coal & Coke Company claims title and possession of 600 acres of the land described in the bill.
Complainant bases his right upon grant No. 3,375, issued by the State of Tennessee on July 29, 1834, to one Henderson Pope, from whom he deraigns title through a series of intermediate conveyances and descent cast.
There is an interlap of about 600 acres between the two grants, and this is the land in controversy.
1. It is insisted that, regardless of whether the complainant has established title, he cannot recover, because his suit was not brought against the Rocky River Coal & Coke Company until seven years had elapsed from the time the said company entered into adverse possession of the land; and the fact is that the Rocky River Coal & Coke Company was not made a defendant until after the lapse of seven years. But complainant brought his suit within six years against defendant Hart Prater. It is claimed, however, in behalf of defendant Rocky River Coal & Coke Company that the institution of the suit, at that time, was ineffectual to stop the running of the statute of limitations, because Hart Prater was a mere servant or employee of the said company, and not a tenant under it.
The fact is that D. L. Hasten, through whom the Rocky River Coal & Coke Company claims title, placed Hart Prater on the land to hold for him under a contract that Prater was to receive, -in payment for such service, the sum of seven dollars per month, and, in addition, he was allowed to cultivate the land, and take the proceeds of such tillage. After Prater had remained upon the land for several years under this contract, Hasten sold the land to J. M. Overton, trustee, and he continued Prater on the land at eight dollars a month and
On the 4th of March, 1907, the defendants filed a petition for removal of the cause to the federal court.’ It appears to have been removed to that court, and then to have been remanded to the chancery court some short time prior to March 9, 1909, on which latter date defendant Hart Prater filed his answer. In this answer he admitted that at the time of the filing of complainant’s bill, and for some time prior thereto, he had been “in the possession, use, and enjoyment of said land, and the rents and profits thereof, holding and claiming the same as the tenant of the Rocky River Coal'& Coke Company; . . . that he had" not entered on the land, save only as such tenant, and he was holding as such tenant for the said Rocky River Coal & Coke Company under the title held and possessed by said company.” This answer averred that the lands were granted lands, and that the Rocky River Coal & Coke Company, and those
On May 14, 1909, the complainant filed an amended bill, in which he brought the Rocky River Coal & Coke Company before the court as a defendant, on the strength of the statement in the answer of Hart Prater that he was holding as tenant of that company. D. L. Hasten, J. D. Raht, J. M. Goodbar, and J: M. Overton,, who were * made defendants to the amended bill, answered, disclaiming any interest in the property. Hart Prater answered, saying that since his answer was filed to the original bill he had ceased to be a tenant of the Rocky River Coal & Coke Company, and had moved away from the land. The Rocky River Coal & Coke Company filed its answer, denying the title of complainant, and pleading the statute of limitations of seven years.
It thus appears that at the time the original bill was filed Hart Prater had been in occupation of the land for about sis years. During the time the case was in the federal' court, and before Hart Prater’s answer was filed, seven years had elapsed from the time that Hart Prater first entered upon the land, and the Rocky River Coal & Coke Company was made defendant later.
As it appeared to the public, Hart Prater was in possession of the land, living in a house within an inclosure thereon; and the land was in a remote and
In Warvelle on Ejectment, sec. 108, it is said:
“While the subject is not altogether free from doubt, the better opinion would yet seem to be that, where a person is in the actual occupation of the land only as an incident of his employment, he is not to be regarded in the same light as a tenant, and his possession is more like that of a servant. And where the occupation of land by a servant is connected with the service, or is required by the employer for the necessary or better performance of the service, the possession is always that of the master. Chatard v. O’Donovan, 80 Ind., 28, 41 Am. Rep., 782. This raises some interesting questions in an action brought for the recovery of the land. It is a rule, both*506 of the common law and of the statute, that if the premises, for the recovery of which the action is brought, are actually occupied by any person, such occupant shall be named as defendant in the suit. The rule is broad enough to embrace every kind of occupancy, and if literally construed would include persons wdio are in the nominal possession of land merely as servants or employees of the adverse claimant. And this was the construction given to it in the earlier decisions. Doe v. Stradling, 2 Starkie (Eng.), 187. And see Shaver v. McGraw, 12 Wend. (N. Y.), 558.
“Modern authorities reverse this holding, and announce that such persons are not to be regarded as occupants within the meaning of the law, and, notwithstanding .such occupancy, the rule at present would seem to be that an action of ejectment cannot be maintained against them. Chiniquy v. Catholic Bishop of Chicago 41 Ill., 148; Danihee v. Hyatt, 151 N. Y., 493, 45 N. E., 939; Lattie-Morrison v. Holladay, 27 Or., 175, [39 Pac., 1100]; Polack v. Mansfield, 44 Cal., 36. At all events, mere employees of the defendant, who have simply been permitted to reside upon the lands in controversy at the time suit is brought, and who claim no rights or interest therein, are not necessary parties defendant. Shaw v. Hill, 83 Mich., 322, [47 N. W., 247], 21 Am. St. Rep., 607; Danihee v. Hyatt, supra.
“The general rule, that ejectment must be brought against the party really interested in the possession, and not against the mere agents or employees by whom his occupancy is maintained, only applies, however, to oases*507 where the principal or employer-may he sued. If the ■employer is not amenable to an action, the rule fails, and the agent, servant, or employee becomes the proper party defendant. Thus, ejectment may not be brought against the United States, bnt will lie against an agent •or officer of the United States in possession. See Polack T. Mansfield, supra.”
In Hanson v. Armstrong, 22 Ill., 442, it was held that it was not necessary to make any other party thau the occupant a defendant. In Hendricks v. Rasson, 49 Mich., 83, 13 N. W., 367, it appeared that a man let his son have money toward buying a farm and lived with him on it, working all over it, receiving a certain proportion of the crops, and occupying certain rooms in his house, ■exclusively, claiming a right to remain on the premises. It was held that these facts did not in themselves make it necessary to implead him as a joint defendant, with his son, in an action in ejectment; further, that a defendant in ejectment cannot, for the purpose of defeating the action, rely on the non-joinder as defendant of any person occupying- the premises with him under a ■claim of right that is merely subordinate to and wholly inseparable from his own possession. In Shaver v. McGraw, supra, it was held that ejectment for premises occupied and possessed by a servant, although he claimed no beneficial interest, must be brought against such servant. In Lucas v. Johnson, 8 Barb. (N. Y.), 244, it was held that if there be an actual occupant he must be named as defendant in ejectment; that, if the premises are actually occupied, it is immaterial who
We deem it proper to refer to tbe principal cases cited in Cyc. and by Warvelle, in order that tbe facts on which tbe decisions in those cases rest may be compared with the facts in tbe present case.
In Hawkins v. Reichert the evidence was conflicting. Some evidence tended to prove that defendant moved a small wooden building on the premises, which was the beginning of the ouster, and was in possession and claiming the premises as his own at the commencement of the suit; that one Klatt, who lived in the house that was moved upon the premises, was but the servant of the defendant; that he was working on the premises and under the direction of the defendant, and moved the house under his orders. On the other hand, the testimony tended to prove that Klatt was a tenant of the defendant, and the defendant testified positively that Klatt
In Chatard v. O'Donovan it appeared that plaintiff was a bishop of the Catholic Church, and that he had placed O’Donovan in possession of the parsonage of the congregation named, to occupy so long as he served the congregation as priest, but that his term of service depended entirely upon the will of the bishop, and that it was his duty to surrender the property whenever he should be removed from his care of the congregation by the bishop; the bishop, under the rules of the church, being the sole arbiter of the question as to when a removal should be made; that for good cause to him appearing the bishop removed O’Donovan and demanded possession of the parsonage and church, which O’Donovan refused to yield. Thereupon suit was brought for the possession. The court held that the plaintiff was entitled to recover, on the ground that the relation between the parties was that of master and servant, and -that the possession was the possession of the bishop; that the occupancy of the servant was subject to the will of the master, and when the relation of servant and master terminated it became the duty of the servant to at once vacate the premises,
There is nothing in Shaw v. Hill applicable to the ■subject except the following: There was “some evidence tending to show that one Curran was in the actual occu
In Lattie-Morrison v. Holladay (Morrison v. Holladay) one of the questions was whether a service on one Malin was sufficient to stop the running of the statute of limitations in a suit brought to recover an interest in the property known as the “Seaside House.” The court, after stating that under the Oregon Code an action for recovery of real property must be commenced against the party “in the actual possession of the premises at the time,” said: “The facts about which there is no dispute are that Malin, who resided in Portland, was temporarily in possession of the property in controversy at the time the action was commenced as the mere servant or employee of Holladay, having been sent down a few days before to prepare the Seaside House for the reception of guests, and to act as manager thereof during the season, and that he claimed no interest in, or right to, the possession of the premises in any other capacity than as a mere hired servant or employee, subject to the orders and control of his employer. Under
In Danihee v. Hyatt the plaintiff brought his action of ejectment against John Hyatt for a small triangular piece of land lying between the premises occupied by the plaintiff and che premises in which the defendant’s wife had a leasehold interest. Soon after defendant’s wife acquired title to the lease she entered into the actual possession of the premises thus conveyed, together with the piece of land in dispute, and thereafter actually occupied this disputed land, claiming that it formed a part of the land to which she had acquired title under the. leasehold deed. She graded the land in dispute, making a driveway partly over it and partly over her adjoining land, which extended from the highway in front to a barn standing in the rear. When plaintiff commenced his action, he knew that defendant’s wife
Numerous eases are cited by defendant exhibiting different states of facts wherein persons were held to be servants rather than tenants. Of these we need only cite, as typical of all, Mead v. Owen, 80 Vt., 273, 278, 67 Atl., 722, 13 Ann. Cas., 231; Davis v. Williams, 130 Ala., 530, 30 South., 488, 54 L. R. A., 749, 89 Am. St. Rep., 55; Haywood v. Miller, 3 Hill (N. Y.), 90; Kerrains v. People, 60 N. Y., 226, 19 Am. Rep., 158; Bowman v. Bradley, 151 Pa., 351, 24 Atl., 1062, 17 L. R. A., 213; Hughes v. Overseers of Chapham, 5 M. & G., 54; King v. Stock, 2 Taunt., 289. We deem it unnecessary to review all of these cases. The first of these cited suffi-
We have stated the rule prevailing in other States, and have given numerous illustrations from cases decided in those States. Where the relation of master and servant merely is apparent and unquestioned, and the master is subject to suit, we see no practical inconvenience in its administration. Where, however, the solution of this question as to whether the person in occupation of the land is in fact a tenant, or merely a serv
The question in the phase now represented is one of first impression in this State, and we must adopt a rule which is in harmony with the policy of our law.
Our Code (Shannon, sec. 4972) provides, as to the actions of ejectment: “The action is brought'against the actual occupant, if any, and, if no such occupant, then against any person claiming an interest therein or ■exercising acts of ownership at the commencement of the. suit.” We have no decision construing the word, •“occupant” as it occurs in this section. It must be construed in the light of the history of ejectment cases as they have arisen in this State. The defense most generally interposed in this class of cases has been the statute of limitations. Until within comparatively a recent period there were many very large bodies of unoccupied land in this State, and there are still such bodies in our mountainous regions. The custom has been for persons desiring to claim land either to squat upon it themselves, or to place a tenant thereon to hold for them. It has been held that when the owner saw a possession fixed upon his land, or when such possession was so open, public,
There is no danger that the rights of persons whom such occupants represent, either as tenants or servants, may be injured by the construction we have given. It has been held in this State that, although judgment has been rendered against the person in possession, it will
Of course, cases may be imagined where servants in possession, having no personal interest in the property, would neglect to notify the master of a suit brought against them, and judgments by default might be taken and writ of possession awarded without knowledge of
2. There is a regular chain of conveyances from the grantee of the State down to the complainant. It is insisted, however, by the defendant that one link is broken.. The facts connected with this matter are as follows: There appears upon the registration books of Marion county a copy of the grant which the State issued to ■Henderson Pope, and, following that, a writing purporting to be a deed referring to the maker of the deed as “the grantee in the within grant,” and purporting to convey to David Schoolfield the land described in that grant. It is said that this deed, even if properly introduced in evidence, conveys nothing, because it de
It is next insisted that the deed was not properly introduced in evidence, because there is no certificate of the register that the paper relied upon and introducd in evidence as a copy was in fact a copy thereof. The ■objection is based upon the fact that the register, in making certificate, referred to “the foregoing grant.” We are of the opinion, however, that under the liberal construction which the paper should be given it is perfectly clear that the register intended to certify that all which preceded his certificate was a true copy of what appeared upon his record. Whether he intended to use the word “grant” in the sense of a grant or patent by the State, or in its more enlarged sense of any kind of a deed from one person to another, is immaterial. If in the former, sense, he understood by grant the whole paper which he had copied, both face and back; or, if he understood the word “grant” in its larger sense, the result would be the same.
We are of the opinion, therefore, that the deed was properly admitted, that the complainant has shown a complete chain of title, that the chancellor’s decree should be reversed, and a decree should be entered here for the complainant.
Rehearing
The complaint made in the petition is based on the second point contained in the original opinion of the conrt. The instrument there referred to appears as foL lows upon the transcript of the record of the lower conrt:
“No. 3,575. Henderson Pope.
“State of Tennessee No. 3,37'5.
“To all whom these presents shall come, greeting: Know ye that by virtue of entry No. 1,201 made in the office of the entry taker of Marion county and entered on the 18th of February, 1834, pursuant to the provisions of an act of the general assembly of said State passed on the 9th day of January, 1830, there is granted by the said State of Tennessee unto Henderson Pope a certain tract or parcel of land containing five thousand acres by survey bearing date of the 14th day of July, 1834, lying in said county and in the county of Bledsoe adjoining a five thousand acre survey made in the name of Aaron School-field known as No. 1 and on both sides of Big Birush creek a branch of Sequatchie river beginning at a black oak and hickory and white oak pointers said School-field’s northeast corner of said survey near the left bank of the north fork of said Brush creek crossing and running thence with said Schoolfield line east crossing said Long fork one thousand poles to a stake then north nine hundred and sixty poles to a stake then east crossing said Brush creek one thousand poles to a white oak near the east bank of said creek at the foot of a hill in Bledsoe*526 county, thence south crossing Savages turnpike and said Brush creek again nine hundred and sixty poles to the beginning exclusive of one thousand acres contained in the lands with the hereditaments and appurtenances.
“To have and to hold the said tract or parcel of land with its appurtenances to the said Henderson Pope and his heirs forever.
“In witness whereof William Carroll Governor of the State of Tennessee hath hereunto set his hand and caused the great seal of the State to be affixed at Nashville on the twenty-ninth day of February, in the year of our Lord one thousand eight hundred and thirty-four and fifty-eighth year of our independendence., Wm. Carroll. “By the Governor:
“Sam G. Smith, Secretary.
“Henderson Pope is entitled to the within described land. R. Nelson, Register of the Mountain Dist. Recorded in my office Book E, page 310. R. Nelson, Register of the Mountain District.
“Know all men by these presents that I Henderson Pope the grantee within named for and in consideration of the sum of five hundred dollars to me in hand paid the receipt of which is hereby acknowledged have granted bargained sold assigned and set over and by these presents do grant, bargain, sell, assign and set over unto David School field of the county and State aforesaid his heirs and assigns the within named tract of land containing five thousand acres and described as ■..therein mentioned to have and to hold the said tract of*527 land hereby mentioned nnto the said David Sehoolfield his heirs and assigns forever. In witness whereof the said Henderson Pope hath hereunto set his hand and seal, this 11th day of September, 18B4, signed, sealed and delivered in the presence of us. Henderson Pope. [Seal.] “State of Tennessee, Bledsoe County.
“Personally appeared before me Sam’l S. Story clerk for the circuit court for said county Henderson Pope with whom I am personally acquainted and who acknowledged that he signed sealed and executed the above transfer for the purposes therein contained witness my hand at office the 12th day of September, A. D. 1834.
“Registered 20th Feb. 1836.
“Sam’l Story, Clerk.
“State of Tennessee, Marion County.
“I, C. A. Quarles, register, do hereby certify that the above and foregoing grant and certificates is a true and correct copy of a grant and certificates as the same appears of record in my office in Blook C, page 374. Witness my hand and seal this Feb. 8, 1910. C. A. Quarles.
“[Seal.] For Marion County, Tenn.”
The exceptions made to the introduction of the foregoing evidence are thus stated in the record:
“On the trial of this cause, when complainant offered in evidence the paper writing purporting to be a transfer, assignment, deed, or conveyance from Henderson Pope to David Sehoolfield, dated the 11th day of September, 1834, and being part of a paper writing made Exhibit 5 to the deposition of A. D. R. Lanier, the de*528 fendant excepted to the introduction and consideration by the conrt as evidence the said paper 'writing: First, because it did not describe any lands thereby conveyed, or attempted to be conveyed; second, because it was not certified; third, because it was not properly certified as required by law in such cases; fourth, because there is nothing in the record to show that said paper writing was ever appended or affixed to, or indorsed upon, any part of the paper writing preceding it, purporting to be a grant for five thousand acres of land to Henderson Pope, being grant No. 8,375.”
We think the original opinion fully and properly disposes of all of these objections. We shall only add to what is there said on the general subject that the register has the right to give certified copies, and such copies are evidence. Shannon’s Code, section 567, subsec. 7; also sections 5573 and 5576. Section 5573 reads: “Duly certified copies of all records and entries, official bonds, or other papers belonging to any public office or by authority of law filed to be kept therein are evidence in all cases.” Section 5576 reads: “The term ‘record’ used in the foregoing section includes any record of any county, common law, circuit, criminal or chancery court, and, in general, every public record required by law to be kept in any court of this State; and also the books of the registers, the surveyors, and the entry takers throughout the State.”
No form for such certificate is prescribed in our statutes or decisions. The matter must therefore be determined on principle. A certificate of the register of
But the point stressed in the petition to rehear is that the register, in his certificate, used the words “foregoing grant and certificates.” As we understand the argument contained in the petition to rehear, and the accompanying brief, it is that the certificate only covered
Let the petition to rehear be overruled.