37 Tenn. 300 | Tenn. | 1858
delivered tbe opinion of the Court.
This was an action of' ejectment instituted in tbe Circuit Court of Obion county, in tbe year 1850, by tbe defendants in error, to recover of tbe widow and heirs of Richard T; Meriwether, a tract of land in said county. .Yerdict and judgment were rendered for tbe plaintiffs below, for tbe land claimed in tbe declaration, except seventy-three acres — a part of ' tbe tract — as to which tbe judgment was for tbe defendants. A motion for a new trial was made by tbe widow and heirs of Richard T. Meriwether and overruled — a bill of excep
The plaintiffs below claim under a grant from the State of Tennessee to McLemore and Yaulx for 640 acres of land, and have the older entry, survey and grant. The defendants claim to derive title under a grant from the State of Tennessee to "Wheaton & Tisdale for 2000 acres of land, founded on an entry in their name, dated the 26th of May, 1821, and both of these entries bear the same date, and are remarkably special.
The McLemore & Yaulx entry calls to begin on the bank of the Mississippi river, at the northwest corner f C. H. P. Marr’s 50 acre survey, running east with his line to his northeast corner — thence south with his east boundary 80 poles — thence east 360 poles — thence north, &c., for complement — bounding on said river on the west. The Wheaton .& Tisdale entry calls to begin on the bank of the Mississippi river, at the upper corner of Gr. W. L. Marr’s 320 acre survey, and the corner of C. H. P. Marr’s 50 acre survey — running east to the southeast corner of C. H. P. Marr’s said survey — thence north with his line to McLemore & Yaulx’s southwest corner of their 640 acre entry — thence east to their southeast corner — thence north to the south boundary of McLemore & Hopkin’s .1148 acre entry— thence east to their southeast corner — thence north with their line to J. Currin & Co.’s southwest corner — thence east with their line, &c., for complement, to join Edward Thursby’s north boundary.
The certificates of survey upon these two entries, and the grants are in precise conformity with their calls—
Richard T. Meriwether, at a very early day, became the owner of the Gr. W. L. Marr 320 acre survey; and while the proof shows that he knew how these surveys had in fact been made, and how the lines had been run and marked; yet he further believed they were founded in mistake, and that the owners would be obliged to take possession and hold in conformity to their entries, certificates of survey and grants. That acting upon this assumption, and with a view, to a pur
The record shews that in the year 1834 the Whea-ton & Tisdale, grant had, by a decree of the Supreme Court at Nashville, been partitioned between the'owners,
For 13th District.”
Regarding this survey as furnishing the true boundaries of his land, Richard T. Meriwether continued his possession, which was adverse, claiming under his purchase from Sharp in accordance with the lines of this survey, until his death in 1840, leaving his widow and children in possession, which , they have continued to this day under a like claim of ownership. At his death many of his children were infants. The widow’s dower was not assigned her, and by some arrangement between her and the children, she has continued the possession and enjoyment of the property; some of the children living with her ever since the death of her husband. Richard T. Meriwether never claimed south of the line which he had run and marked between the grants of Wheaton & Tisdale, and Thursby — nor did his widow and children, until sometime after the institution of this suit, • when becoming alarmed lest it might be decided against them, they caused suit to be brought against one Larman, who held under the Thursby grant, for lands lying south of the line, and this suit has been decided in favor of Larman. It will, therefore,
This being so, it is manifest that Richard T. Meri-wether’s widow and heirs are protected under the act of 1819, ch. 28, § 1, to the extent of Watson’s survey and that the possession of his heirs may be connected with his possession. ■ But they themselves, before the suit and after their father’s death, had the seven years possession required by the act; and having had in his. life-time possession under the proper deed and “ assurance ” of title, and they being in by descent under him, are equally protected. Hubbard & Wood vs. T. Wood’s lessee, 1 Sneed, 279.
And it cannot be necessary or material that either his widow or heirs should have had actual knowledge of the existence of this deed, or that Richard T. Meri-wether had taken it and held under it; nor that they should know that he held under any particular deed. In many cases it would be impossible to furnish proof of such knowledge, and to require it would defeat the protection the statute intended to give altogether. Title deeds may be lost or destroyed and may never come to the knowledge of the ancestor’s family, even if they be capable of understanding them, or of having any knowledge upon the subject. In this case, it is clear, that Richard T. Meriwether’s widow and heirs held and claimed this land because he had purchased it and paid for it; and we hold that the character and extent of
That the possession of Mrs. Meriwether here was not adverse to her children is most manifest. Besides, some one or more of the children always had a joint possession with her, and the possession was, in law, theirs, and inured to the benefit of all the co-heirs, and as to all the shares had the effect to bar the claim of McLemore & Vaulx. 1 Swan, 138.
It is objected that we have no evidence that this lost deed was a conveyance in fee simple. But we can understand the witnesses and transaction in no other sense; Meriwether’s purchase was in fee and so was his first deed; and the second deed was manifestly intended to carry out the same purchase with specific boundaries. The witnesses speak of it as a deed of conveyance, conveying the land to Meriwether, cand to suppose that the deed, under the circumstances, only conveyed a life-estate, would be at variance with the nature of the transaction and the entire case. Indeed we are unable to perceive how the contents of the deed could, under the circumstances of this case, be more fully established. This view being at variance with that taken by his Honor, the Circuit