121 Tenn. 400 | Tenn. | 1908
the opinion of the Court.
This is an action of ejectment, brought in the circuit court of Van Burén county, to recover about two hundred acres of land described as follows: Beginning at a stake painted white, where the west boundary line of grant, No. 6808, to J. A. Lane for one thousand acres crosses the south boundary line of grant, No. 9209, granted to James and O. H. P. Seals for one thousand acres, and running thence east to the' said Seals line twenty-two poles to the center of Glade creek; thence down said creek as it meanders to its mouth; thence down Bee creek as it meanders to the west boundary line of grant, No. 6808; thence south with said line one hundred and fifty poles to the beginning.
The general issue was interposed by the defendant below, who is the plaintiff in error here.
It is unnecessary to set out these findings in full. We shall give only the substance of them, so far • as they affect the questions now before the court for disposition.
His honor rendered judgment on these findings in favor of the plaintiff below.
From this judgment the defendant below brought the case to this court by writ of error, and has here assigned errors. In what we shall hereafter say we shall dispose of these various errors assigned as far as may be necessary.
In order that the findings referred to may be more easily and fully understood, we attach to this opinion a map, shown on page 404, which we find with the brief of the counsel for defendant in error. Its accuracy is not questioned by counsel for plaintiff in error, and it presents the controversy more plainly and simply than does the blue print found in the record.
From section 1 of the findings it appears that the Groves grant was the oldest of the three grants mentioned, and hence carried the better title, or, as we should more properly say, the'title. It also appears from this finding that the grantees under the Seals grant, Ho. 9209, tolled the title, or drew to themselves
From sections 2, 3, 10, and 11, of the findings it is apparent that the defendant in error and those under whom he claims tolled the Seals title to the land in controversy in the present case, since it is found as a fact that his predecessors in title held adverse possession for more than seven years under deeds purporting to convey a fee of a large body of lands, including the small boundary in controversy. It is immaterial that The actual possession (house, or fenced field, as the case may be) was not on what is now the disputed land, inasmuch as the rule is undoubted that, where an actual possession is placed upon a tract of land covered by a deed or other instrument purporting to convey land by a definite boundary, the possession of one claiming under such instrument is extended by construction of law to the limits of the boundaries described in the instrument. This is true, whether the claim, or defense, as-the case may be, is made either under the first section or the second section of the act of 1819(2 Scott’s Laws 1715-1820, pp. 482,483, c. 28). Lieberman v. Clark, 114 Tenn., 117, and authorities
It is clear, from the fourth, fifth, sixth, and eighth findings, that although the title papers, under which plaintiff in error and her predecessors in title claim, in fact covered the land in controversy, yet that the possession taken and dominion really exercised thereunder only extended to the creek as the western limit thereof, and did not cover the land in controversy.
Prom what has already been said, it follows that defendant in error and his predecessors in title had by operation of the statute of limitations acquired the title to the land in controversy, and that this was the status in 1899, when the plaintiff in error established an adverse possession upon said land at the point marked K on the map. Defendant in error and his predecessors in title had not only tolled the Groves title as to this land, but had as to it nullified the intervening Lane grant, No. 6808, under wThich plaintiff in error claims.
The first question that arises at this point is whether the adverse possession extended beyond the limits of the inclosure to the boundaries set out in the deed claimed under, or whether it was confined to the inclosure.
It appears from the fifth, seventh and ninth findings that the plaintiff in error claimed adverse possession under the Carpenter deed, made in March, 1887. That deed covered the lands in controversy. The inclosure at K lay within this deed, and we are of the opinion that adverse possession extended to the limits of the deed, and so covered all of the land sued for in the present case.
The Carpenter deed, however, was not registered. This brings us to the next inquiry; that is, whether the fact of nonregistration prevented plaintiff in error, defendant below, from relying upon the deed under the second section of chapter 28 of the Acts of 1819 (2 Scott’s Laws 1715-1820, p. 483), in full defense of the action brought by defendant in error for the recovery of the land.
We are of the opinion that it did not. The contrary view is based on chapter 38, p. 54, of the Acts of 1895.
The second section of the act declared that section 2764 of the Code of 1858 (Shannon’s Code, sec. 4457) should be amended by inserting in that section, after the words “in possession,” the following words: “Under recorded assurance of title.”
The two sections of the Code above referred to ares as follows:
Section 2763 reads:
“Any person having had, by himself or those through whom he claims, seven years’ adverse possession of any lands, tenements, or hereditaments, granted by this State, or the State of North Carolina, holding by conveyance, devise, grant, or other assurance of title, purporting to convey an estate in fee, without any claim by action at law or in equity, commenced within that time and effectually prosecuted against him, is vested with a good and indefeasible title in fee to the land described in his assurance of title.”
Section 2764 reads:
*409 “Anri on the other hand any person, and. those claiming under him, neglecting for the said term of seven years to avail themselves of the benefit of any title, legal or equitable, by action at law or in equity, effectually prosecuted against the person in possession, as in the foregoing section, are forever barred.”
The next section (2765) reads:
“]Sfo person, or any one claiming under him, shall have any action, either at law or in equity, for any •lands, tenements, or hereditaments, but within seven years after the right of action has accrued.”
Owing to the great similarity between sections 2764 and 2765 — indeed, their apparent identity in substance and legal effect — both have been supposed to refer to and cover the defense allowed under the second section of chapter 28 of the Acts of 1819. This view has been current to a considerable extent among the members of the bar of the State, and has appeared in several of our cases. This is, however, a mistaken view. A resort to the original act shows that' section 2764 was taken from the first section of the act, while section 2765 was taken from the second section of the act. Sections 2763 and 2764 are to be construed together; the first of these barring the right, and the second barring the remedy. Section 2765, taken from the second section of the Act of 1819, simply bars the remedy. It does not bar the right. The second section of the act of 1819 seems to have been construed in our earlier cases as .having a broader scope than the first section; that is,
We have made a very extensive examination of our authorities for the purpose of discoAmring hoAV section 2765 has been referred to. In most of the cases the court speaks generally, even since the enactment of the Code of 1858, simply of the second section of the act of 1819, without referring to the section of the Code supposed to embody it; but we find that Mr. Justice Cooper, who was one of the compilers of the Code, in his edition of the Tennessee reports, uniformly refers in his head-
It may seem anomalous that an unregistered deed could not be used under section 2763, and yet might be good as supporting a defensive right under section 2765. However, this precise state of tbe matter was contemplated in Jones v. Perry, supra. At tbe same time that case was decided tbe court bad not yet determined, as it subsequently did in tbe case of Stewart v. Harris, 2 Swan, 656, that an unregistered deed would be operative under the first section of tbe act of 1819, but held that question in reserve. Considering such matter, tbe court said in that case:
*412 . “The possession having been proved, the next question is, how and against whom does if; operate? The deed executed by the Joneses to the Steels was dated on the 23d of May, 1826, and registered the 25th of February, 1829, .This suit was commenced the 24th day of February, 1835. Seven years did not elapse from the time the deed was registered up to the time of the commencement of the suit. Whether, therefore, the first section of the a.ct of limitation of 1819 (chapter 28) will operate to bar the complainant’s, claim is a question of some doubt, and which it is not necessary to decide. We shall therefore consider the case in reference to -the second section of said act.”
The court thereupon proceeded to hold that the defense was good under the second section. 10 Yerg., 81, 82.
What was said by the court upon this subject in Byrd v. Phillips, 120 Tenn., 14, 29, 30, 111 S. W., 1109, 1113, was merely inadvertent, and is not to be held as in conflict with the present opinion.
It results that the judgment of the court below must be reversed, and judgment entered here in favor of the plaintiff in error on the merits of the cause, and for the costs.