109 Tenn. 143 | Tenn. | 1902
Beard delivered the opinion of the Court.
The bill in the present case was filed by complainant, who alleged that he was the owner in fee of a tract of land in Jefferson county, and that under cover of some form of deed the defendants had taken possession of one part of it and, claiming to be the owners thereof, were cutting and removing valuable timber therefrom. The purpose of the bill is to remove this deed as a cloud upon the title and to stay waste.
The tract of land of which complainant claimed to be the owner was described by metes and bounds, and this -description was supplemented by a list of the several mesne conveyances through which, it was alleged, the complainant deraigned his title.
Defendants answered, denying that complainant
Note. — Mr. Justice Shields, being of counsel, did not sit in this case.
While preparing for the trial of the case, the complainant discovered that he was unable to produce a grant from the State; and he thereupon proceeded to enter the tract, and upon this entry procured the issuance of a grant. Having done this, by leave of the court and also by consent of the defendants, he amended his original bill by writing on the margin, immediately following the descriptive portion, these words: “And being the same land held by complainant under entries 2,202 and 2,203, and grant issued to him by the State.” In the order granting the leave and setting out the words of the amendment is the following recital: “Thereupon come the defendants by solicitor and enter their appearance and waive copy and notice.” At the same time a formal answer was filed, directed to- the bill as thus amended, in which the defendants say that “they deny that the land in controversy in this suit is covered by a grant, or that complainant has any grant as in his amended bill is alleged.” Subsequently the bill by leave of the court and consent of the defendants was further amended on its margin, by giving the date of the issuance and the number of the grant. In the order authorizing its amendment there is a recital that the defendants come and put in their answer heretofore filed, and rely upon it as an answer to the bill as amended.”
It is true, as insisted by the defendants, that the rule is that if-a complainant has no title at the time of filing his original bill, and subsequently acquires one, he can not bring it forward by a supplemental (and, it may be added, by an amended) bill, but he must resort to an original bill. Story, Eq. PL, sections 339, 340.
No effort, however, was made by the defendants to invoke this rule until, on the tidal of the cause, the grant was offered in evidence, when on their motion it was excluded. The complainant now insists that this objection came too late; that the consent which the defendants gave to the making of the amendment, and the formal answer thereto, necessarily implied an agreement on their part that the amended bill was to be treated as in the nature of an original bill setting up this newly acquired title.
There was no objection thus to treat the bill, if the parties so agreed. In fact, it was proper that it should be done, as upon thé record it is apparent that the complainant had, under his grant, title to the land,
This being so, the court of chancery appeals was right in dealing with the new title as if set up by an original bill, as the effect of the amendment in question was “to operate as a new suit.” Corder v. Dolin, 4 Baxt., 238.
The decree of the court of chancery appeals is affirmed.