Gernt v. Floyd

131 Tenn. 119 | Tenn. | 1914

Mr. Justice Williams

delivered the opinion of the Court.

This is an ejectment suit, the appeal being that of Gernt, complainant below, from a decree dismissing his bill.

The first ground assigned by the chancellor for his action was that, a deed offered by Gernt as a link in his title chain was void for lack of sufficient definiteness in the description of the property. The conveying clause of that deed sets out numerous tracts and describes the eighth tract, here involved, as follows:

“All our interest in the following described lands in the county of Fentress, State of Tennessee, to wit: . . . (8th) Entry No. 555, Grant No. 6090'.”

It is said in support of the chancellor’s ruling-that there does not appear on the face of the deed the name of either the enterer or the grantee, the date of either the entry or the grant, what the acreage was, or what State issued the grant; that the territory now covered by the limits of Fentress county before the Cession Act of 1789 belonged to the State of North Carolina, which as sovereign issued grants; that a strip of that county’s territory along its north line (which is the Tennessee-Kentueky State line) was formerly claimed by the State of Kentucky, but was yielded by that State to Tennessee under a convention or treaty between the two States on terms that patents to lands therein which had been issued by Kentucky should be recognized by this State. It is argued that there appear, therefore, to be three States which in the past have issued grants of land in what is now Fentress county, either or all of which may have issued grants designated by the number 6000, and that since the date of the grant is not set ont to indicate that Tennessee was, since the cession and convention referred to, ncessarily the issuing sovereign, the description is too vague and uncertain to pass title.

The chancellor, we are persuaded, failed to give weight to certain rules for the construction of deeds.

First, instead of being astute to find some possibility that might, when taken into consideration, render the deed void, it was the duty of the court to uphold the deed if by any reasonable construction it was possible to ascertain from the description, what property it was intended by it to convey, and a liberal construction should have been given to afford a basis for validity. White v. Hembree, 1 Overt. (1 Tenn.), 529; 1 Jones, Real Prop., section 323.

Where a degree of uncertainty arises from the descriptive words, as to their application to a subject-matter, the court should assume the position and view the circumstances of the contracting parties, and hold the deed valid if from a consideration of its recitals and the presumptions naturally arising a sufficient description may be found or assigned. Calton v. Lewis, 119 Ind., 181, 21 N. E., 475.

The natural presumption is that a grant of land described as being located in this State is a grant issued by this State, not another.

When, further, it is considered that the sovereignty of North Carolina over lands in the borders of Tennessee terminated over a century ago, and that at that time lands in Fentress county were not being settled, it would be a violent and unnatural strain to assign a recited grant of as bigb a number as 6090 to that State as issuer. And it would be possible, though highly improbable, that Kentucky in the narrow strip, referred to above, over which it attempted, at an early day, to exercise sovereignty, issued a grant so numbered and based upon an entry 555.

We therefore, hold that the words “Entry No. 555, Grant No. 6090” should be referred to this State as sovereign grantor. Beal v. Blair, 33 Iowa, 318; Butler v. Davis, 5 Neb., 521.

A means of identification, by reference, is therefore given. By referring to the land office records of this State it is made to appear that grant No. 6090 lies in Fentress county, and that it is based upon entry 555 ; and by proof it is shown that only one grant of that number, from whatever source issuing, is known to exist in that county.

The chancellor bases his decree in favor of the defendants on another and distinct ground: That at the date the above deed to Gernt was executed an antecedent in title of defendants was in the actual possession of the tract of land it purports to convey, and that, therefore, that deed was void for champerty under the terms of our statute which provides:

“If any person sell any lands or tenements not having possession of them by himself, agent, or tenant, the same being adversely held by color of title, cham-perty shall be presumed until the purchaser show that such sale was bona ficle.” Code, Shannon, section 3175.

The adverse holding or possession in order to make a conveyance executed by the party ont of possession void for champerty mnst at least be as high in nature and dignity as that-possession which is held to be adverse under the statute of limitation. While not in terms stating this to be the case, onr reported decisions. on champerty without variation have proceeded upon that, conception. Green v. Cumberland, etc. Co., 110 Tenn., 35, 39, 72 S. W., 450; Campbell v. Ice & Coal Co., 126 Tenn., 524, 532, 150 S. W., 427.

Not only does logic compel such a ruling; considerations of convenience and of symmetry in the body of the law on kindred subject-matters lead us to announce the above rule. A considerable body of law approach- ■ ing definiteness has already been built up in the decisions of this court as to what constitutes adverse-possession of realty under the statute of limitation,, and these cases by easy reference may show the indicia-of adverse holding in the law of champertous conveyances.

The tract of land in question is, by the weight of the proof, shown to have been, in ample part, capable of cultivation; and the possession as claimed by the defendants consisted of intermittent cuttings of timber on the part of their predecessor in title and the erection by him of an uninclosed, unlocked lumber shack for use as “bachelor quarters” during the logging season only, which structure even was not openly or notoriously occupied at the date of the challenged conveyance, so far as any definite proof in. the record shows.

The burden to show the requisite adverse possession was upon the defendants; and by clear proof of positive facts, rather than by inference or conjecture. Alexander v. Polk, 39 Miss., 737; Rogers v. Eagle Fire Co., 9 Wend. (N. Y.), 611; note to Huston v. Scott, 35 L. R. A. (N. S.), 755.

Other contentions of the parties are disposed of orally.

The decree of the chancellor is reversed, and the cause remanded for further proceedings.