121 Tenn. 308 | Tenn. | 1908
delivered the opinion of the Court.
The chancellor on the hearing was of opinion that the allegations of the bill were met and denied by the answer and were not sustained by the proof, whereupon he dismissed the bill with costs. Complainant appealed, and has assigned the action of the chancellor in dimissing his bill as error.
Complainant deraigns its title to entry, No. 2347, and grant, No. 25507, issued by the State of Tennessee to Julian F. Scott, December 6, 1845. The defendants
It is conceded that entry, No. 2347, owned by Julian F. Scott at the time he conveyed the lands in question to William Lewellyn in the year 1852 does not cover all the lands included in his deed to said Lewellyn, hut it is claimed by complainant that said Lewellyn went into the actual possession of said lands and held them adversely for more than seven consecutive years, thereby perfecting his title to the entire boundary. The Henderson possession relied on by complainant is outside of the north line of entry, No. 2347, and if that possession has been continuous and adverse, it perfected complainant’s title to the entire boundary covered by the deeds. It is conceded that entry, No. 2347, only covers a small portion of the land in controversy, but the remainder of the land is embraced within the boundaries described in the deed from Julian F. Scott to William Lewellyn, dated November 20, 1852.
Defendants deny, first, that complainant had any color of title to the land in controversy; and, second,
It is claimed by the complainant that William Lew-ellyn, its predecessor in title, maintained an adverse possession of the Henderson tract, comprising about twenty acres, continuously for a period exceeding seven years, under his deed from Julian F. Scott, dated November 20, 1852, but not acknowledged until November 22, 1858.
We will first determine whether the complainant has established a color of title to the land in controversy. In complainant’s deraignment of title there appears a deed from William Lewellyn to James H. Lewellyn, dated September 5, 1876. The deed describes several tracts of land, but the one in controversy is described in said deed as follows: Second tract. “A five hundred acre tract, deed from J. P. Scott to William Lewellyn in the year 1852, lying .on the east side of Emory river, In district, No. 4.”
It is conceded that this deed is a vital link in complainant’s deraignment of title. The validity of this deed is attacked by counsel for defendant (1) for insufficiency of the description of the land, and (2) because it does not appear that said deed was ever delivered.
Counsel for defendants objected to the reading of the deed from William Lewellyn to James H. Lewellyn on the ground that it was void for insufficiency of description. The chancellor sustained the objection and ex-
It is said the chancellor was of opinion that this reference was insufficient to authorize the court to look to the deed from J. F. Scott to William Lewellyn made in the year 1852, but that the reference should have been to a recorded deed, giving the book and page where registered.
Complainant also introduced J. H. Lewellyn, the ven-dee in the deed from William Lewellyn, made September 5, 1876, who testified that the land described as the second tract in his deed is the same land which his father William Lewellyn purchased from Julian F. Scott in the year 1852, and is the land in controversy in the present suit.
It is conceded that, if complainant can supply the insufficient description in the deed of 1876 with the deed from Scott to Lewellyn made in 1852, the description is complete, since the land is described in the latter deed by metes and bounds. The deed from Julian F. Scott to William Lewellyn made in the year 1852 is not referred to in the later deed as a recorded con
It is conceded by the counsel for the complainant that, unless the deed in question contains intrinsic evidence of a reference to the deed from Julian F. Scott to William Lewellyn made in 1852, the latter deed could not be looked to to supply the description, and that parol evidence would not be admissible to aid defendants in the identification:
Such is the rule announced by the court in the case of Johnson v. Kellogg, 7 Heisk., 266. It is insisted, hoAV-ever, that the deed from William Lewellyn to James H. Lewellyn does import on its face to contain a distinct reference to said original deed for a further identification of the land. We think this is undoubtedly true, for otherwise there would be-no purpose for a reference to the deed from J. F. Scott to William Lew-ellyn made in 1852.
We have been referred to no case holding that a reference in one deed to another for a more sufficient description of the land must be a duly recorded conveyance. It may be that such will be the rule since the passage of the act requiring an instrument or paper
In Byrd v. Phillips, 120 Tenn., 14, 21, 22, 111 S. W. 1109, decided at the September term, 1907, it was said: “It is .practically conceded that the rule relied upon by the complainant could have been invoked by his vendor, because it took title under a deed which simply referred to the'grant issued to Eastland for description, without undertaking to set out the property by metes and bounds; for it is well settled that a reference to a prior -deed or grant for description, without more, incorporates the description of that deed or grant in the later instrument. 2 Devlin on Deeds, sec. 1020, and cases cited in note. . . . The rule on this subject, with its limitations, is well stated on page 882, vol. 5, of Cyc., in these words: ‘When land is described in a grant or conveyance by reference to another grant or conveyance, the description contained in the latter is regarded as adopted by and incorporated into the for- . mer, and the land therein described will pass.’ ”
In Hopkins on Real Property, p. 421, it is said:
“Where land is described by means of reference to map or plat, the map or plat referred to becomes a part of the deed for the purpose of that conveyance and anything which appears thereon may affect the terms of the grant.” ...
“So, also, if the land is described by a mere reference to another deed in which the land is conveyed, the effect is the same< as when the reference is toi a map.*317 When the map or deeds are referred to for the purpose of description, they may he identified by parol evidence.”
“Parol evidence is used to extend an imperfect reference in one document to another.” Wood on Statute of Frauds, sec. 387.
“But the writing relied upon to establish such a contract for the sale of land need not describe the lands which are the subject of the sale otherwise than by reference therein to some extrinsic fact or instrument by means of which the lands can be known with sufficient certainty.” Id., sec. 397 (note).
“A description of land by reference to the title whereby it was acquired, as land received by the vendor from his father or land bought from a given person,,is sufficient.” Page on Contracts, vol. 2, p. 1057.
In Swiney v. Swiney, 14 Lea, 316, the description in a deed as “two tracts of land adjoining each other in Marshall county, containing in all about 3531- acres, the land being the land on which I now reside” was held sufficient. In that case Judge Freeman in delivering the opinion of the court, said: “There should be a description of the land in the deed or in some paper to which it expressly refers.”
In Smith v. Graves, 15 Lea, 459, the following description was held sufficient: “All the mineral, coal, iron ore, fire and potter’s clay, marble, building stone and other mineral, etc., etc., upon or under the farm or tract of land in the county of Scott in the State of Ten
It will be observed that there is no particular description of tbe second tract except that it lies on tbe east side of Emory river in district, No. 4, and it is otherwise described as being situated in tbe county of Morgan and State of Tennessee. It is shown by tbe proof that tbe Emory river runs through Morgan county for a distance of twenty-five or thirty miles, and a description of land as lying on tbe east side of Emory river in district, No. 4, would be very indefinite, but when there is a reference in tbe deed to tbe deed from Julian F. Scott to William Lewellyn in tbe year 1852, we think tbe description is sufficient.
It is suggested in tbe argument that while tbe deed describes the land as lying in district, No. 4, that it is actually located in tbe Ninth district of Morgan county. It appears that this land is described in subsequent deeds as being situated in the Ninth civil district, but it does not appear whether this is correct or not. There is no proof to show that tbe land described
We are therefore of opinion that this reference to the former deed from Julian F. Scott to William Lew-ellyn in the year 1852, especially when the evidence of James H. Lewellyn is considered, clearly identifies the land in controversy.
It is next insisted on behalf of the defendants that there was no delivery of the deed from Julian F. Scott to William Lewellyn made in 1852 and that this fact would defeat the color of title under which the com
As already stated, complainant claims that William Lewellyn was in adverse possession of the Henderson tract from 1852 to 1862 under a color of title. It is insisted that the deed dated- November 20, 1852, was not acknowledged until November 22, 1858, and, defendants insist, was not delivered until acknowledged. It is conceded by counsel for complainant that the acknowledgment of this deed was not made until six years after its execution. It is insisted on behalf of complainant that the presumption of law is that wliere a delivery is necessary the deed is delivered on the day it bears date.
In Lawson on Presumptive Evidence, pp. 102, 103, and notes, it is said: “If a deed concludes as ‘witness our hands and seals/ and the testative clause speaks only of the signing and sealing, the presumption is that, it was duly delivered.”
“If there is no proof when a deed or note was delivered the presumption is that it was delivered on the day it bears date.”
“If a deed is duly attested, the presumption is that it was duly delivered.”
It has been held in this State that registration alone-nothing more appearing, would, not establish a delivery. Tompkins v. Bamberger, 3 Lea, 579.
In this case, it is concedéd that the deed was not acknowledged until six years after its execution, and
In 13 Cyc., p. 731, c, it is said: “A deed will, in the absence of evidence to the contrary, be presumed to have been delivered on the day on which it bears date, or, as is declared in some cases, on the date of its execution and acknowledgment. Again, it has been decided that where the date of a deed is prior to that of the acknowledgment, the presumption as to delivery on the day of date does not apply.”
But Ave find that the decided weight of authority is that delivery, in the absence of proof to the contrary, is presumed to have been made at the date of the deed, although its acknowledgment appears to have been made at a subsequent date. Mr. Freeman in a note to Blanchard v. Tyler, 86 Am. Dec., 63, after stating the general rule that, Avhere no other considerations enter into the question, and in the absence of proof to the contrary, a deed will be presumed to have been delivered at its date, and after citing a few cases holding that where the deed appears to have been acknowledged on a day subsequent to its date, it will be presumed to have been delivered on the later date, then states the rule thus: “But the weight of authority is against the position that the date of the acknowledgment should be taken prima facie as the date of its delivery, and in favor of the doctrine that, in the absence of all proof
“In Raines v. Walker, 77 Va., 92, the court say that, in the absence of proof to the contrary, a deed will be presumed to have been delivered at its date; that a subsequent acknowledgment is by no means inconsistent with a prior delivery, or that at most it is not sufficient to rebut the presumption arising from its date. To the same effect is Harmon v. Oberdorfer, 33 Gratt., 502, [where] the court say that it may well happen that a deed is delivered and accepted either with an intention not to record it, or to have it acknowledged for that purpose at a subsequent time. The doctrine that where a deed has been acknowledged at a date subsequent to its date, its delivery will be presumed as of that date, is denied in Clark v. Akin, 16 Kan., 166. In Ford v. Gregory, 10 B. Mon., 180, the court go to the extent of saying that a subsequent acknowledgment is of itself evidence of a prior delivery.”
The remaining question is whether complainant has established an open, notorious, and continuous adverse possession of the land in controversy. It is claimed by complainant that such a possession by William Lewel-lyn of the Henderson tract, comprising about twenty