136 Tenn. 687 | Tenn. | 1916
delivered the opinion of the Court.
The complainant brought an action of forcible entry and detainer against the. defendants in the chancery court of Scott county. The bill describes a consolidated body, composed of many previously distinct tracts of land, but all embraced in one deed, and under one general boundary, both in the conveyance by complainant’s immediate vendor, and the conveyance to the latter by his own vendor. The allegation was, in substance, that the defendants had entered upon this land, and constructed a building and were taking the rents. The consolidated tract embraces about 12,000 acres. The defendants answered, disclaiming as to all of the land except one tract of 200 acres embraced in the general boundary, and known in the record as the Allen Hughett tract. They admitted that they had entered upon this, and denied that complainants had any possession of it at the time they (the defendants) made their entry. They also claimed title to this land as heirs at law of Allen Hughett, or as the tenants of such heirs.
It will contribute to a clear understanding of the controversy if we pause here and fully develop defendant’s claim of title, since the settlement of that matter will have, as we think, a material hearing upon the relevancy of a considerable part of the evidence offered in support of complainant’s possession.
It is contended by the defendants, who are his heirs,, or the tenants of his heirs, that, having acquired title by seven years’ adverse possession, the subsequent abandonment of the possession by Allen Hughett did not annul the title so acquired.
"We have no knowledge, of any case exactly in point in this State, but, on principle, the conclusion is sound. The land having been previously granted by the State to other persons, seven years’ adverse continuous possession under color of title would pass title, or toll the true title, operating just as if a valid deed had been made, and the subsequent relinquishment of possession could not divest’ the title. There are numerous cases in other' jurisdictions that fully sustain this conclusion. Schall v. Williams Valley R. Co., 35 Pa., 191, 203-206; School District v. Benson, 31 Me., 381, 52 Am. Dec., 618; Austin v. Bailey, 37 Vt., 219, 224, 225, 86 Am. Dec., 703; Summerfield v. White, 54 W. Va., 311, 322, 323, 46 S. E., 154; Branch v. Baker, 70 Tex., 190, 7 S. W., 808; Parham v. Dedman, 66 Ark., 26, 29, 30, 48 S. W., 673; Tennessee C., I. & W. R. Co. v. Linn, 123 Ala., 112, 26 South., 245, 82 Am. St. Rep., 108; Sage v. Rudnick, 67 Minn., 362, 69 N. W., 1096; Allen v. Mansfield, 82 Mo., 688; Martin v. Martin, 76 Neb., 335, 107 N. W., 580, 124
Still assuming that Allen Hughett acquired title to the tract before he abandoned possession of it, defendants insist that it was essential that complainant should have secured an actual possession on the special tract, the two hundred acres, as distinguished from a possession upon some other part of the consolidated tract, in order to hold the status of one in possession of the particular tract, and to enable them to proceed against an intruder in an action of forcible or unlawful entry and detainer; that a possession upon some other part of the consolidated boundary would not be tantamount to, or could not be effective as, a possession of the particular tract itself.
The complainants controvert the point of law, and rely upon Lieberman v. Clark, 6 Cates (114 Tenn.), 117, 85 S. W., 258, 69 L. R. A., 732. That case, it is true, reaffirms the well-recognized principle that where there is an actual possession, pedis possessio, on any part of a tract of land, under a paper defining boundaries, that possession is extended by construe
A case exactly in point, as applicable to the present controversy, is Elliott v. Coal & Coke Co., 109 Tenn., 745, 71 S. W., 749.
The complainant in that case, having consolidated under one deed all of his lands, consisting of several distinct, but contiguous, tracts, claimed that a possession anywhere upon such consolidated holding would extend to every tract embraced, though other people owned grants to land lying within, or partly within, the general boundary. The court refused the contention, and held in that case, which was ejectment, that there must be an actual possession on some part of the special tract or parcel in dispute. The general rule long recognized and supported by numerous cases is, of course, that where there are inter-lapping grants or conveyances there must be an actual possession on the interlap or disputed ground in order to start an adverse holding in respect thereto. Napier v. Simpson, 1 Tenn., 448; Talbot v. McGavock, 1 Yerg. (9 Tenn.), 269; Hightower v. Smith, 7 Yerg. (15 Tenn.), 500; Smith v. McCall’s Heirs, 2 Humph. (21 Tenn.), 163, 165; Stewart v. Harris; 9 Humph. (28 Tenn.), 714, 715; Tilghman v. Baird, 2 Sneed (34 Tenn.), 196, 199; Waddle v. Stuart, 4 Sneed (36 Tenn.), 534; Creech v. Jones, 5 Sneed (37 Tenn.), 631; Snoddy v. Kreutch, 3 Head (40 Tenn.), 302, 204; Foster v. Grizzle & Hutchins, 1 Cold. (41 Tenn.), 534; Boles v. Smith, 1 Shan. Cas.,
These authorities run from our very earliest down to those of a very recent date.
The point in Elliott v. Coal & Coke Co. is that the consolidation of several tracts under one deed does not change the rule as to existing rights or ■ claims. And manifestly so; otherwise the claimant of a small tract in a large general boundary embracing thousands of acres' and extending over many miles would never know when his rights- were invaded, and he might, by lapse of time, lose his land without ever having a reasonable opportunity to learn that the constructive possession incident to ‘his title had been supplanted by the actual possession of another, or in any way impaired. The opposite view would require the owners of land to watch the records for consolidations, and, in case of their forming, to constantly explore wide areas for adverse holdings — an insupportable burden. ■ Moreover, having found s'ueh holding, a house, or an inclosed field, or the like, at a point remote from the particular acreage claimed by himself, it is impossible to see how he could insist upon its removal.
But the principles stated do not preclude one owner of several contiguous tracts from consolidating them
It is perceived that in the preceding discussion we have noted, in respect of the possession of the constituents of a consolidated tract, a “distinction be
Obviously, when we say one is in possession of a tract of land for himself alone, we mean that he is in the exclusive possession. This necessarily involves too, the thought that his possession is adverse to, and exclusive of, the claims of all other persons. But as to what constitutes possession in a given instance it is sometimes difficult to determine, owing to the existence of qualifying circumstances. But there are well-established examples in the reported cases of approved possession, these, among others: A house occupied or kept locked; a fenced field with the inclosure maintained. There are also approved precedents extending the effect of such possession to the limits of any paper writing, defining boundaries, within which boundaries .are found such house or inclosed field. Possession is a fact composed of act and inten
“The eastern and western moieties of the original tract of land in question became from the date of the conveyance to Stuart (in 1903) separate and distinct tracts, and the actual possession of the eastern tract by the defendant, though under a conveyance purporting to include both tracts, gave him no constructive possession of the western moiety, because there cannot be in legal contemplation a possession, either actual or constructive, of the same identical tract of land-, in two. adverse claimants, at the same time.’’
Thoroughly in line with this is the case of Hunter v. Bills, 3 Shan. Cas., 97. Both are applications of the greater, underlying principle that, when rights in dif
An illustration of these principles, useful to a degree, may be found in some applications of the action of ejectment as administered at the common law; that action not being as with us one wholly to try title (Hubbard v. Godfrey, 100 Tenn., 150, 47 S. W., 81), but a possessory action (Kent, C. J., in Smith v. Lorillard, 10 Johns. [N. Y.], 338, 355-357); and in many respects like our action of forcible entry and detainer, which likewise involves possession, although not title, or the latter only in an incidental way. This special phase of the matter is well presented in an excerpt which we take from the opinion of the supreme judicial court of Massachusetts in Slater v. Rawson, 6 Metc. (Mass.), 439, 445, et seq., in which numerous precedents are cited and briefly quoted, viz.:
“It is objected that the defendant never had any legal possession of the land in question, because, as his possession did not amount to a disseisin, the constructive possession still continued in Jacobs, who had the legal title. This is true as between the defendant and Jacobs; for, if that is a tortious pos*704 session;, • not amounting to a disseisin, tire constructive possession, as between the tort-feasor and the party having the legal title, is considered as continuing in him who has the right. But the tort-feasor may, nevertheless, well maintain an action of trespass on a writ of entry against a stranger without title for a trespass or a disturbance of Ms actual posses-, sion; . and the defendant in such an action cannot defend on the ground that the plaintiff’s possession was the possession of the true owner. A party may have a possession which is legal and valid against one party, and not against another. A tenant at will may maintain trespass against a stranger, ■ although his possession is the constructive possession of his lessor. In an action of trespass quare clausum, fregit, the defendant can never plead soil and freehold in a third person, without alleging a license from him, because a party having actual possession, but not the right of possession, has a good title against a party having none.
“In Harker v. Birkbeck, 3 Bur., 1556, the plaintiffs had possession under a third person, by virtue of an agreement not stamped, and which therefore conveyed no title; and it was held that the plaintiffs, having possession, might maintain trespass against any one having no right. Upon the same principle it has been frequently decided that a mere intruder cannot protect himself in his possession by setting up an outstanding title in a stranger. On this ground it was held in Jackson v. Harder, 4 Johns. (N. Y.),*705 202, 4 Am. Dec., 262, that a person, having had possession of land for eight or ten years was entitled to recover possession against a mere intruder. And in Jackson v. Hazen, 2 Johns. (N. Y.), 22, the plaintiff recovered judgment in ejectment, on a mere posses-sory title of three years’ continuance, on the ground that a naked .prior possession is a sufficient title against a mere intruder. In Lund v. Parker, 3 N. H., 50, Chief Justice Richabdson says: ‘‘There is no doubt that possession of land without title, or color of title, is sufficient evidence of a seisin in the possessor to entitle him to hold the land against every person who can show no better evidence of title.’ And this principle is well established in this commonwealth. In Newhall v. Wheeler, 7 Mass., 189, it was held that actual possession was prima fade evidence of a legal seisin, and that a stranger should not be permitted to control this evidence by proving the existence of a trust estate. In Cutts v. Spring, 15 Mass., 137, it was decided that a grantee of land from the commonwealth, who had taken possession of more land than he was entitled to hold under his grant, had a right to maintain trespass against a stranger who had entered without right. The court there say: ‘It is wholly immaterial to the defendants whether the location covered more land than the terms of the grant would warrant. The plaintiffs were seised as well as possessed, in regard to every one but the commonwealth, who might or might not reclaim part*706 of the land located, as not conveyed.’ In Cook v. Rider, 16 Pick. (Mass.), 188, it appeared that the. plaintiff had no title to the locus, except by entry on a vacant lot, incapable of cultivation, and by driving down stakes around the exterior lines of the lot, and by erecting saltworks on a portion of the land. And it was held that the plaintiff had a sufficient possession to maintain trespass against a stranger, who entered without right. But such a possession manifestly was not a disseisin of the true owner. The same principle is.laid down in Spurr c. Bartholomew, 2 Metc. (Mass.), 485, 486. So in a case decided in 1838 or 1839, Jackson v. Worcester Railroad (not reported), it was held that the demandant was entitled to recover the premises on his title by possession, although the possession was not such as would constitute a disseisin of the true owner. After this decision the tenants, on a motion for a new trial, proved that they had derived title to a portion of the demanded premises from the true owner, and as to that portion it was finally decided that the demand-ant had acquired no title by disseisin, and could not maintain his action.”
In accord are Smith v. Lorillard, supra, and First Parish in Shewsbury v. Smith, 14 Pick. (31 Mass.), 297. In closing the opinion in the case last cited, Chief Justice Shaw said:
“If a lawful owner in whom the legal title remains chooses to interfere and set up his legal claims, the law; in consistency with its own rules in regard to*707 the transmission of title, may Tbe compelled to admit Ms claim. But,” lie pertinently inquires, “if such owner, upon considerations of propriety, equity, and conscience, chooses to acquiesce, and permit the party in possession to retain that possession, notwithstanding any defect of title, by what rule of law, of equity, or sound policy can a mere stranger he allowed to interfere and by his own act violate the actual and peaceable possession of another .and thereby compel him to disclose a title in the validity or invalidity of which such stranger has no interest?”
In Hubbard v. Godfrey, supra, this court, speaking through Mr. Justice McAlister, referred to some of the foregoing cases, and to others having the same bearing, and did not disapprove them as applying to a possessory action, but said they could not apply to an ejectment case in Tennessee, because under our practice such a case always involves a controversy over the leghl title.
It is perceived that the consideration we have given the case before us is based up to this point on the assumption that possibly Allen Hughett had acquired title to the two hundred acres either through the tax deed made to him by Thompson and Jeffers, or under the statute of limitations operating through that deed as a color of title. The point is important, as previously intimated in reaching a conclusion on the evidence as to complainant’s possession of the two hundred acres. If Allen Hughett acquired title under either method, even though he subse
Therefore the question now to be examined is whether the tax deed referred to either conveyed an estate in fee, or purported to convey such estate. We answer that it did neither. Carlinda Bowling had no title; she was only the widow of Tom Bowling who owned the land and died, on the happening of which event the title descended to his heirs. At most, she owned a dower or life interest, and she is now dead. The deed did not purport to convey an
' Having determined that Allen Hughett acquired no interest in the land, it follows that the defendants did not, in law, enter upon the two hundred acres in controversy as his heirs at law, but only as strangers. They have therefore no right to question the con-
The great controversy on the facts has been waged over the question whether the complainant had succeeded in showing it had an actual possession within the two hundred acres when defendants entered upon it. It is not denied, as we understand the record, that complainant has sufficient evidence showing the existence of actual possessions upon other parts of the twelve thousand acres. The chancellor seems to have found such actual possessions upon other parts of the large boundary, while the court of civil appeals found such possession within the two hundred acres. In this condition of the two’ holdings the defendant insists there is no concurrent finding on the question of possession, and that it remains at large for the decision of this court, while the complainant contends for the opposite view. Governed by the prin'ciples already stated, we incline to the defendant’s’ view on this particular point; but we do not regard it as of any special moment, because an actual pos
The defendants, however, contend that, even if the evidence of the complainant as to possession on other parts of the whole tract shall prevail, still there can be no recovery, because the two hundred acres is a part of two grants to Eastland, and that the complainant has not proven an actual possession on any part of these Eastland grants. The complainant contends strenuously that such proof bas been made. In the view we take of the case, on the principles already stated, the question is not material. No claimant under the Eastland grants is before the court, and defendants, wholly unrelated to these grants, cannot make the question. It is not like the defense of outstanding title in ejectment. The rationale of that defense in an action of ejectment is that the plaintiff in such an action must succeed on the strength of his own title, not on the weakness of that of the defendants, and in our practice must exhibit a perfect title. If the true title be outstanding in a third party, the plaintiff has failed to carry the burden which the law imposes. The rule does not apply to suits of focible entry or unlawful entry and de-tainer. Possession is the foundation of such an action, and the question of title, all of our cases on
However, as to the Eastland grants referred to (Nos. 21917 and 22268), we think the evidence shows that complainant’s possessions, known as the Dock Bowlin possession and the Lick Cave possession'and the Alf Gribson possession of part of his house, and near to it, are within the former, and that known as the Cave field possession is within the latter. Therefore, even under defendant’s contention, ’the Eastland grants would interpose no obstacle to complainant’s action.
The two possessions last mentioned also lie within the so-called Allen Hughett tract, and this fact would solve the question against defendants if there were any such tract, but, as we have found and held on the grounds stated supra that Alf Hughett’s claim was not under color of title, and só did 'not exist when defendants entered upon the land in controversy as his heirs or tenants of his heirs, the fact is immaterial.
On the grounds and for the reasons stated, we are of the opinion that there was no error in the decree of the court of civil appeals in this case, and it is therefore affirmed.
