141 F. 821 | 6th Cir. | 1905
after making the foregoing statement, delivered the opinion of the court.
The opinion of the Tennessee Supreme Court in Sampson’s Heirs v. Chester’s Heirs, though announced before this case was originally heard by this court, was unreported, and, being unknown to counsel, was not called to our attention. The question in that case arose between two Tennessee grants covering the same land. The court held that both grants were based upon invalid entries; the complainants’ entry, because not carried into a grant during the life of any extension act, and the defendants, because junior to the complainants and not made during any hiatus. The court, in this situation of matters, held that an entry was not indispensably necessary to the validity of a grant, citing for this, Craig’s Lessee v. Vance, 1 Overt. 182, a case referred to and commented upon in former opinion of this court. Neither grant being based upon a valid entry, the court held that the state’s title passed under the older of the two grants.
Inasmuch as counsel for the defendant have very earnestly urged that the decision of the question of the validity of the grant based upon no entry or upon one which had expired was not necessarily involved, and is not, therefore, an authoritative opinion of the Tennessee court which we should follow, we have set out the opinion of the court elsewhere, as well as the dissenting opinion by Justice Wilkes. The dissenting opinion makes it plain that a majority of the Tennessee court chose to place the opinion and decision, not upon the ground so strenuously urged by Justice Wilkes, that the complainants had failed to show a perfect legal title and could not recover, however weak the title-of the defendants, but upon the ground that, although the entries upon which both grants were based were void, that an entry was not essential to the validity of a grant and, there
The Burgner grant, the grant under which the complainant deraigns title, is the oldest grant. It issued upon an expired entry. The West grant laps upon the Burgner grant. It is junior in date and issued upon a junior entry made at a time when the Burgner entry was a live entry. Under the decision in Sampson v. Chester, the Burgner entry when the Burgner grant issued was void, and under the same decision the West entry, so far as it conflicts with the Burgner entry, was also void, because made when there was no hiatus. The case is therefore governed by the decision in Sampson v. Chester. Neither entry is in evidence. Neither was valid when carried into a grant, so far as the younger conflicted with the senior entry. But this does not affect the validity of the grant to Burgner. it ■carried the state’s title as of the date of -the grant, and the state had no title to grant when the West grant issued to the land covered by the Burgner grant. There can be no doubt but that if this case were being heard in the Supreme Court of Tennessee, the Burgner grant would be held a valid grant. We shall therefore withdraw our former opinion, and hold that the complainants’ title under the Burgner grant is the superior title, and affirm the decree of the Circuit Court in so far as it held the Burgner grant to be superior to the extent that the one interfered with the other. The Circuit Court did not decide the extent of this interference, and gave the parties leave to try out this question of boundary in another suit if they shall be so advised. The assignments which go to the complainants’ deraignment of title under the Burgner grant have been considered. We ■conclude that the Burgner land was sold and title passed under the levy, condemnation proceedings, and order of sale under the Sevier judgment.
E. S. Mathews, executor of Alexander Mathews, redeemed from Sevier and obtained a good title under the Sevier proceedings. It is therefore unimportant whether his own levy and sale was regular or irregular. The description of land sold under the Sevier levy and
The levy of the Sevier execution is objected to because made by one J. G. Teller, who does not append to his signature upon his return the office held by him. That he was in fact a constable at the time appears from his designation as such just before and just after upon other process in same case, as well as from parol evidence that he was exercising the functions of a constable. That he assumed to be an officer and made a levy and return under a writ directed only to a lawful officer is enough, upon a collateral attack, to justify the presumption that he was such at date of his levy. Keely v. Sanders, 99 U. S. 441, 447, 25 L. Ed. 327.
There is nothing in the objection that the legal title at date of levy 1867 was not in Burgner, but in one Tilford as trustee under a mortgage made by Burgner in 1841. It is not satisfactorily shown that the land described in the trust deed is any part of the land now claimed by complainant. Aside from that, the time which had elapsed between the making of-the trust deed to Tilford and the levy by Sevier was such as to justify a presumption that the debts secured thereby had been satisfied; in which event the title would revert to the grantor, the trust having been executed. That trust deed was made December 8, 1841. The levy was made May, 1867. Upon a collateral attack, and in absence of all evidence that any of the claims so secured were still unpaid, a presumption may be indulged in favor of the satisfaction of the deed. Thompson v. Thompson, 2 Head, 405. After so gueat a lapse of time every reasonable presumption should be indulged in favor of the validity of the proceedings now attacked collaterally. Pope v. Couts et al., 16 Lea (Tenn.) 82; Sheafer v. Mitchell, 109 Tenn. 182, 71 S. W. 86.
One link in complainant’s chain of title was a sheriff’s deed made April 30, 1890, to G. W. Tilford. Tilford at the time was dead. Pending the litigation appellee, complainant below, filed a supplemental bill for the purpose of bringing into the case a curative sheriff’s deed, made pending the suit, for the same land, direct to complainant by direction of the executor of Tilford. Several objections are made to this deed. Tilford redeemed this land in 1869, from E. S. Mathews, executor, who had redeemed from Sevier, but took no deed from the sheriff. In April, 1890, the sheriff then in office and successor to the sheriff in office at date of Tilford’s redemption, made a deed to Tilford, not knowing t-hat Tilford was dead. This sheriff’s deed was one of the links in the complainant’s title when this bill was filed. Being made to one who was dead the deed was ineffectual. Weihl v. Robertson, 97 Tenn. 458, 37 S. W. 274, 39 L. R. A. 423. To cure this defect, complainants procured a written direction from West, executor of Tilford, to the sheriff then in office, to make a deed direct to them, they having acquired Tilford’s equitable title. This was done and another deed executed by the sheriff then in office, being the successor to the sheriff who made the sale under the
Finally, it is said that a complainant can not acquire a title pending his suit and bring it forward by supplemental bill. That is not this case. The complainants had an imperfect but inchoate title when they brought this suit. They simply perfected the existing title by obtaining a valid sheriff’s deed in place of an invalid one which attempted to convey the same title. It was not error to permit a curative deed to be thus brought forward. Gibson’s Suits in Equity, 650; 2 Daniel Pl. & Pr. (4th Ed.) 1515 and 1516, and notes; Mutter v. Chanvel, 5 Rus. 42; Sadler v. Eovett, 1 Moll. 162; Jaques v. Hall, 3 Gray (Mass.) 194.
The decree of the lower court must be affirmed.