East Tennessee Coal Co. v. Taylor

| Tenn. | Sep 15, 1914

Mr. Chief Justice Neil

delivered' the opinion of the Court.

Ejectment in the chancery court of Morgan county for 5,000' acres of land. The chancellor decreed in favor of complainants, and the defendants have appealed and assigned errors.

Error No. 1. This must he overruled. We think it appears clearly from the record that, in the description of the lands by the entry and grant numbers in the deed reproduced on page 27 of the transcript, the grant number, “21902,” was by clerical mistake written in that form when the parties meant to write the number 4 4 21903. ’ ’ This is shown by the following evidence. The line in the deed reads:

G-rant No. 2Í903 is in the record, and it shows on its face that it is based on entry No. 1951 in the name of John L. Smith for 5,000' acres. It is also shown that there is no other entry of that hind on the record books of Morgan county. Now,'while it is true that if the grant number “21902” had stood alone on the deed the land covered by No. “21908 ” could not have been conveyed thereby, still the other facts connected therewith show that the intention was to convey the land embraced in the grant based on an entry No. 1951 in Morgan county for 5,000 acres in the name of John L. Smith, and the evidence further shows that the true number of that grant was 21903. Furthermore, it is shown that 21902 was based on entry No. 1984 in the mame of John Smith, and that grant and entry are in the record. So there can be no doubt there was a mere clerical error, and that it was- subject to correction by the other facts referred to in the description, the concurring facts of the name of the enterer, the number of the entry, and the number of acres, and was so corrected.

Error No. 2. This must be overruled. It is true that on March 1, 1867, George F. Gerding conveyed the land in controversy to William A. Kobbe, and the latter on May 11,1877, conveyed it to Phillip F. Kobbe and Edward Ball, and that on May 11, 1878, they conveyed it to Algernon S. Sullivan, and that the only heir at law of the latter, George H. Sullivan, through whom complainants claim, executed a deed to Will D. Wright, which deed is a link in the chain of title, and that this deed contains, among other things, the following language:

“This indenture, made the 28th day of November, one thousand eight hundred and ninety-nine, between George H. Sullivan, of the city, county, and State of New York, both individually and as assignee of the firm of Kobbe & Ball, party of the first part, and Will D. Wright, of Knoxville, State of Tennessee, party of the second part: Whereas, by an assignment made on the 29th day of March, 1878, Phillip F. Kobbe and Edward Ball, as partners, of the firm of Kobbe & Ball, did assign to Algernon S. Sullivan, of the city of New York, all their property, real and personal; and whereas, by deed dated the 11th day of May, 1878, the said Phillip F. Kobbe did convey to Algernon S. Sullivan individually certain lands in Morgan county and elsewhere in the State of Tennessee; and whereas, the said Algernon S. Sullivan died on the 4th day of December, 1887, leaving him surviving his widow, Mary Mildred Sullivan, and his son, George EL Sullivan, his sole heirs, and thereafter on the 29th of September, 1891, said George H. Sullivan was duly appointed substituted as-signee of the firm of Kobbe & Ball in the place of said Algernon S. Sullivan, deceased, and on the 14th day of August, 1890', the said widow, Mary Mildred Sullivan, did by deed of said date convey to George H. Sullivan all of her right, title and interest in and to said real estate: Now this indenture witnesseth.”

Then follows a conveyance of the land covered by entry No. 1951 and other lands. The deed is signed: “George H. Sullivan, as Assignee, and Individually.”

What effect should be given to the recitations concerning the “assignment made on the 29th day of March, 1878”? There is nothing else in the record to show the extent or nature.of this assignment. Was it made for the benefit of creditors? Such conclusion, if reached, must be based oh the mere use of the term £ ‘ assignment. ’ ’ Let us assume this conclusion; then, who were.the creditors? None are named. It is true there , might be an assignment for all creditors without specifying their names, and the trustee might sell, and convey a good title. Williams v. Otey, 8 Humph. (27 Tenn.), 563, 568, 47 Am. Dec., 632. And this although the instrument did not in terms vest in the trustee a power of sale, since that would be implied. Id. And in case ,the first trustee should die, the new or substituted trustee would take the same title and powers, without nn express vestiture. Wooldridge v. Bank, 1 Sneed (33 Tenn.), 298; Williams v. Neil, 4 Heisk. (51 Tenn.), 282; Hughes v. Brown, 4 Pick. (88 Tenn.), 578, 13 S. W., 286, 8 L.R.A. 480" court="Tenn." date_filed="1890-02-27" href="https://app.midpage.ai/document/hughes-v-brown-8298334?utm_source=webapp" opinion_id="8298334">8 L. R. A., 480; Realty Co. v. Andrews, 1 Thomp. (128 Tenn.), 725, 731, 732, 164 S. W., 1175. Therefore whatever title, and power of sale Algernon S. Snllivan had we should have to further assume became vested in George H. Sullivan, and such title passed to his vendee, and the latter would not be bound to look to the application of the purchase money. Williams v. Otey, supra. Certainly third parties could not complain. However, we are of the opinion that the recitations in the deed are too meager to convey any certain information as to a legal assignment, and must be disregarded, and that it must be held that the deed made by Kobbe & Ball to Algernon S. Sullivan on May 11, 1878, conveyed the legal title to him, and that this was subsequently conveyed to Will D. Wright by George H. Sullivan, who was the only heir at law of Algernon S. Sullivan, by his aforesaid deed of November 28', 1899.

Error No. 3. This is overruled. This assignment is based on the action of the chancellor in holding that entry No. 1839 is the same land described in the exclusion clause of the deed. It is difficult to make the calls correspond, but the surveyor testifies that No. 1839 is correctly shown on his map, Exhibit A, as lying within entry 2846, for which complainants sue, and we are inclined to believe the chancellor’s conclusion is-correct. However, it is unnecessary to decide the point, since the burden is on the party claiming adversely to-the grant to show the bounds of the excluded land,, and in case of failure to make such showing the grant will be treated as covering all of the land within its. bounds. This is tbe rule under a general exclusion clause. Iron & Coal Co. v. Schwoon, 124 Tenn., 176" court="Tenn." date_filed="1910-12-15" href="https://app.midpage.ai/document/southern-iron--coal-co-v-schwoon-8300735?utm_source=webapp" opinion_id="8300735">124 Tenn., 176, 200, 135 S. W., 785. Tbe rule must be tbe same if it be impossible to apply tbe deed’s description of excluded land to any land on tbe ground. At all events it is not shown that tbe land claimed by tbe defendants lies within tbe exclusion clause. It thus appears that tbe defendants bave no ground on wbicb to question complainants’ rights by reason of tbe aforesaid exclusion clause. .

It results that tbe decree of tbe chancellor must be affirmed, with tbe costs of this court and of tbe chancery court.