Smith v. Cross

125 Tenn. 159 | Tenn. | 1911

Mr. Justice Neil,

delivered the opinion of the Court.

This was an ejectment bill filed in the chancery court of Scott county to recover about 250 acres of land. There are numerous defendants who claim through intermediate conveyances from one Richard Smith, the father of the complainants. The latter claim through their mother. The chancellor rendered his decree in favor of the complainants as to some of the defendants, and denied relief as to others; the difference in results as to the respective parties depending upon facts peculiar to the several conveyances. The complainants did not appear from any portion of the decree adverse to them except that part which fixed the beginning corner, and the western boundary line of the 250-acre tract 27 poles and 15 links further eastward than they contended the location should be. Upon this latter subject the complainants appealed and assigned error. All the defendants against whom adverse decrees were rendered appealed and assignd errors.

There are certain questions which affect the rights of all of the complainants and defendants respectively, outside of the boundary question above mentioned. This latter Ave shall lay Avholly out of Anew until we dispose of the main controversy.

The general questions above referred to relate to the following facts:

On the 20th day of May, 183-6, Josiah Terry procured a grant from the State for the 250 acres in controversy. On the ll'th day of September, 1860, he conveyed the land to Harmon Terry, Miles Terry, Jasper Terry, and Elizabeth Terry, the children of his son Martin Terry. The nominal consideration expressed in this deed was $500; but it appears that the real consideration was the support and maintenance of Josiah Terry and his wife during the rest of their lives. After a time Martin Terry grew tired of the bargain and desired to remove to some land he owned in a portion of Scott county, called “The Wilderness,” a feAV miles distant from the 250 acres. In order that he might be relieved of the burden, he induced his sister, Rachel Smith, the wife of the above-mentioned Richard Smith, to undertake the care of his father and mother, and, as part of the agreement, to take title to the land. This was agreed to. A deed was made purporting to convey the land to Rachel Smith, and signed by Josiah Terry, Martin Terry, and the children to whom it had been conveyed by Josiah Terry, although the latter were minors. This deed purported to convey an estate in fee. This was in 1862. Rachel Smith and her husband entered upon the land and held possession of it from 162 to 1891, when Rachel died. Richard Smith continued in possession of the land until his death in 1902. During the lifetime of Richard and Rachel Smith they conveyed part.s of the tract, and there is no controversy as to these. After the death of Rachel Smith, her surviving husband, Richard Smith, conveyed the residue of the land to various persons, some of whom still hold the land so conveyed. Other vendees conveyed to other parties still, and these to' others. The present holders are the defendants herein.

The complainants do not insist that the deed which Rachel Smith, obtained, as above stated, conveyed to her any title, but claim that it was good as an assurance of title. It is the theory of complainants that when Rachel Smith and her husband remained upon this land adversely for more than seven years, indeed about eighteen years prior to her death, she acquired title, and that when she died her husband was tenant by the curtesy, and that his subsequent sales were good for his lifetime; that they could not sue his vendees until after his death; that the present suit was brought within seven years after that time; and that therefore no statute of limitations has run against them. r Most of the complainants likewise are married women, and were such at and before their mother’s death and have so remained since, and they claim that in no event could the statute run against them. There were nine of the children, but only seven of them sued, and the chancellor gave relief only as to a seven-ninths undivided interest.

The general defenses offered as to the whole case may be thus stated:

1. It is insisted that the deed from Josiah Terry arid others was not good as an assurance of title because in the body of the deed Martin Terry, the father of four of the vendors, purported to act as their agent when the evidence shows that, although the fact did not appear on the face of the deed, they were minors and could constitute no one their agent for such purpose; also, that the deed purports to have been signed and acknowledged by the children in person, when the evideence, now offered, shows that neither of them could read or write, and they were so young they could not have intelligently acknowledged the instrument. From these facts it is argued that the deed was fraudulent as to the minors, and so known to Eachel Smith at the time of its execution, and therefore the statute of limitations could not run in her favor or in favor of her heirs at law, citing Waterhouse v. Martin, Peck, 392, 409. Although the facts are as above indicated, and the deed was void as to the minors, yet it purported on its face to convey an estate in fee, and was an assurance of title. Therefore, the satute would run, since the law is that if the instrument purports to convey an estate in fee, and adverse possession be taken and held thereunder, the statute of limitations will run in favor of such possession, even though the deed be in fact void. Vance v. Johnson, 10 Humph, 214; Clark v. Chase, 5 Sneed, 636; Thurston v. University, 4 Lea., 513, and cases cited; Nelson v. Trigg, 4 Lea, 701, and cases cited; Hubbard v. Godfrey, 100 Tenn., 150, 57 S. W., 81. This is true even though the deed be forged. Clark v. Chase, supra. The case of Waterhouse v. Martin has been overruled, on the point referred to, hv subsequent cases. Love v. Shields, 3 Yerg., 408 (involving a void tax deed, known to be void by the conveyee at the time he took it) ; Goodloe v. Pope, 3 Shan. Cas., 634 (a champertous deed); Gray v. Darby, Mart. & Y., 396; Blantire v. Whitaker, 11 Humph., 313, 317, 318; Clark v. Chase, supra; Hunter v. O’Neal, 4 Baxt., 494; Ramsey v. Quillen, 5 Lea, 184; McBee v. Bearden, 7 Lea, 731; Boro v. Hidell, 122 Tenn., 80, 99, 120 S. W., 961, 135 Am. St. Rep., 857 — all involving cases of fraudulent conveyances. In Love v. Shields, the case of Waterhouse v. Martin was referred to by book and page, although the style was not given. The rule stated in Love v. Shields, Clark v. Chase, and other cases is that the statute made no such exception, and the court should not and could not make it. What has been stated upon the law point is sufficient; but we add that we do not believe Rachel Smith was consciously guilty of any fraud. We are convinced that she and the family, including her father, brother, and husband believed they were making a lawful substitution of Rachel for her brother Martin in the care of the old people, and that by the deed she was but receiving reasonable compensation for the anticipated service. The purpose of the adults was to effect a rescission of the former deed and the substitution of a new party to the contract, the sister for the brother. They dealt with the rights of the minors,- it is true, in a manner unwarranted by law, and the latter could have recovered the land if they had sued in time. The youngest is now, however, more than fifty years old, and the statute of limitations has long since run as to them.

2. In order to state the next defense it is necessary to recite a fact not previously mentioned. On the 17th day of June, 1867, Richard Smith procured from the State a grant for 600 acres of land which the defendants claim .entirely covers the 250. acres. They insist that from the date of that grant the possession of Richard Smith was for himself, and not in right of his wife; also, that under the constitution of 1870, Sched. 4, the running of the statute was suspended from May 6,1861, to January 1,1867, and this time could not he counted; that, leaving out this period, there was only that from January 1, 1867, to June 16, 1867, for the statute to run in favor of Rachel Smith; and that on the latter date it began to run in favor of Richard Smith under his 600-acre grant. Hence there was only six months and sixteen days of adverse possession in favor of Rachel Smith. Conceding that the statute did not begin to operate until January 1, 1867, although Rachel and Richard Smith went into possession in 1862, its running would not be stopped by Richard Smith’s procurement of the grant of June 16, 1867, in his own name. When the title, or assurance of title, is in the wife, the joint possession of the husband and wife inures to the benefit of the wife. Templeton v. Twitty, 88 Tenn., 595, 14 S.W., 435; Woodruff v. Roysden, 105 Tenn., 491, 58 S. W., 1066, 80 Am. St. Rep., 905.

The legal presumption is that the possession is with the legal title. Welcker v. Staples, 88 Tenn., 49, 51, 12 S. W., 340, 17 Am. St. Rep., 869; McLemore v. Durivage, 92 Tenn., 482, 492, 22 S. W., 207; Foster v. Jordan, 2 Swan, 476, 480, 481. It can make no difference that the husband is the head of the family, claims the property as his own, and apparently controls it as such; if the wife reside with him, and the title is in her; the law adjudges the possession to be hers. Fancher v. De Montegre, 1 Head, 40, 41. The husband could not change this status by procuring, pending such joint occupation, a conveyance to himself, since the wife is not bound to choose between her husband and her land. Ramsey v. Quillen, 5 Lea, 184, 192. At the time Richard Smith received the 600-acre grant from the State, the latter had no title to so much as covered the 250 acres, having previously granted that to Josiah Terry; therefore the only possible effect of that action, so far as concerned the 250 acres, if it had any effect at all, would have been an endeavor to place himself in the position of claiming adversely to his wife while occupying the land with her, and while she was living in the house with him as his Avife. This Avould have been absurd. The law would not tolerate such a status; certainly would not presume its existence. The husband cannot so rid himself of the presumption of law in favor of the wife’s possession Avilen with her he enters upon land conveyed to her. That presumption remains so long as they occupy the land as husband and Avife, and the conveyance to her remains unchanged.

Therefore, the husband and wife having remained upon the land for more than seven successive years from January 1, 1867, indeed until her death February 2, 1891, the title became vested in her under the statute of limitations (Sh. Code, section 4456); and upon her death descended to her children, or descendents of such, as her heirs at law, subject, however, to her husband’s tenancy by the curtesy. Templeton v. Twitty, supra.

3. But it is next said that by Richard Smith’s occupancy of the land subsequent to his Avife’s death, and the occupancy of those claiming nnder him, and to whom he sold, for more than seven years, the heirs of the wife were divested of the title; that is, that such occupancy was adverse, and under the 600-acre grant, from the death of the wife. There is nothing to show that Richard Smith assumed this adverse relation to his children, immediately upon the death of his wife. His legal relation was that of tenant by the curtesy — that is, a life tenant —and hence a trustee, or quasi trustee at least, for the remaindermen. Vaden v. Vaden, 1 Head, 445; King v. Sharp, 6 Humph., 55 He could do nothing to impair the remainderman's interest, as by acquiring a title adverse to that interest. 16 Cyc. (Tit. Estates), 617. If he could not effect such acquisition by direct purchase, it is certain he could not do so by adverse possession. Indeed, the possession of the life tenant is not adverse but in harmony with the rights of the remainderman, since the latter do not ripen into a right of possession until the falling in of the life estate; meantime the life tenant holds for the protection of the fee as well as of his oavii estate. We conclude therefore that Richard Smith conveyed to his vendees or donees, as the case may be, only his life estate, which he of course had the right to do, and that the possession of his conveyees could not be adverse to the heirs of Rachel Smith, his wife, during the pendency of the life estate, since they had no right to possession, or to bring suit therefor until the falling in of the .life estate. Carver v. Maxwell, 110 Tenn., 75, 83, 71 S. W., 752.

In addition to the foregoing, it is clear no title could, in any event, have been acquired by Richard Smith through, adverse possession under his 600-acre grant, because the grant was not registered in Scott county pursuant to chapter 38, Acts of 1895; his assumed adverse possession not beginning until the death of his wife, February 2,1891, therefore not having attained to the statutory requirement of seven years, prior to the time the act was passed. The grant itself was of no force to transmit title to the land in controversy because the State had previously granted the same land to J osiali Terry and had no interest left which it could grant or convey. Its new grant thereafter could only serve as an assurance of title, to be made effective by seven years’ adverse possession thereunder, as the deed of any private person, and like such deed required to be registered in the county where the land lay. This is in accordance with, the very terms of the Acts of 1895, ch. 38. This act declared that no title should be vested by virtue of adverse possession unless the “conveyance, devise, grant, or other assurance of title” under which such possession was claimed, should have been registered for the full term of seven years in the county.

4. The point is made that Rachel Smith acquired no title by adverse possession under the deed made to her by Josiah Terry, Martin Terry, and the children of the latter on the 14th day of April, 1862, because that deed, as registered in 1865, owing to the confusion of boundaries, in transcribing the deed upon the books of the county register, purported, so far as the calls were concerned, to convey only one small corner of the land really covered by the original. But prior to the act of 1895 above referred to registration of an assurance of title was not required as a prerequisite to the acquisition of title by seven years-' adverse possession thereunder. Stewart v. Harris, 2 Swan, 656; HcBee v. Bearden, 7 Lea, 731, 733. Rachel Smith’s title was perfected by seven year’s adverse possession long prior to 1895. However, the deed, even as registered, also described the land as that on which Josiah Terry lived. This would have been sufficient, because the place was prominently located, on a public road, and well known. Dougherty v. Chestnutt, 86 Tenn., 1, 5 S. W., 444; Staub v. Hampton, 117 Tenn., 706, 726, 101 S. W., 776. But, aside from all of the forgoing considerations, it is only necessary to say that the purpose of registration, aside from the act of 1895, supra, is but to give notice to subsequent innocent claimants under the maker of the deed, and to protect the land against appropriation by his creditors. Shan. Code, section 3752. It has no bearing upon, and is unrelated to, a title claimed under another and altogether different line or source, save when the two come into conflict; and the question is whether a particular deed can be introduced in evidence by a plaintiff in ejectment; objection being made thereto for want of registration. See the cases upon this subject referred to and discussed in Wilkins v. McCorkle, 112 Tenn., 688, 699-702, 80 S. W., 834. Of course, what has just been said has no bearing upon controversies such as were the subject of the opinions in Topp v. White, 12 Heisk., 165; Napier v. Elam, 6 Yerg., 108; Ingram v. Morgan, 4 Humph., 66, 40 Am. Dec., 626; Frizzell v. Rundle & Co., 88 Tenn., 396; 398, 399, 12 S. W., 918, 17 Am. St. Rep., 908; and Embry v. Galbreath, 110 Tenn., 297, 75 S. W., 1016.

5. It is urged that the heirs of Rachel Smith are es-topped by her conduct in permitting her husband to use the land as his own. No such estoppel is pleaded*in the answers, and there is no evidence that the defendants, or any one under whom they claim, were misled by any act clone by Richard Smith during his wife’s life. SO' there is neither pleading nor evidence on which to base the point. In deed, all of the conveyances under which defendants claim were made after the death of his wife.

6. It is insisted that the complainants are estopped because they stood by for years and saw the defendants expend money in improvements on the lands without making known or bringing forward their claims. Complainants meet this fully by showing that they had no knowledge of their mother’s title until about one year before the present suit was brought, and only discovered it then by looking through the old papers of their father’s estate which had since their father’s death been chiefly in the hands of his son, defendant E. W. Smith, and after the latter had removed to a distant State. One cannot be estopped from a present assertion of his rights because he failed to assert them at some prior time when he had no knowledge of them, unless his failure to seasonably acquire such knowledge was the result of culpable negligence. Morris v. Moore, 11 Humph., 433; Moore v. Johnson, 7 Lea, 580, 583; Taylor v. Nashville, etc., R. Co., 86 Tenn., 228, 6 S. W., 393; Collins v. Williams, 98 Tenn., 525, 41 S. W., 1056; Crabtree v. Bank, 108 Tenn., 488, 67 S. W., 797; Parkey v. Ramsey, 111 Tenn., 302, 307, 76 S. W., 812; 2 Pom. Eq. Jur. section 807; Bigelow on Estoppel, 480.

7. The defendants base an estoppel on the alleged fact that the complainants received from their father all of the purchase money which he obtained from the sale of the lands after the death of their mother. It is in proof that soon after the death of Rachel Smith he divided among her children $500, which he said was their mother’s money; but the record does not show from what source she obtained it, nor, otherwise than by his own statement, how he came by it. Some years afterwards he divided about $2,000 among his children. It may be inferred from Richard Smith’s frugal habits that some of this fund consisted of money he had received from sales of the land; but the record is indefinite as to how much he received from that source, and how much from other sources, consisting of other lands he dealt in, and, as to so much as may have, come from- the land in question here, there is no means of telling how much should be credited to his life estate, and how much to the fee in the land. In short, the facts are too indefinite to permit J~he defendants to base a solid defense on.

8. The defendants finally say they are innocent purchasers, and for that reason should not be disturbed. The defense is not applicable to a controversy of the kind before us. Here we have no secret equities which the complainants are endeavoring to assert against the legal title, nor any fraud or oppression tlie effects of which they are seeking to escape, hut only a contest for superiority between two conflicting chains of title, each of which must eventually rest upon a grant from this State. Every one who buys land takes the risk of a grant prior to that on which his title rests. But grants are public records, and there need never be any real risk if the search for prior grants is prosecuted with thoroughness. On failure to make such exhaustive search, nó one can complain and successfully defend under the dectrine of innocent purchaser. Craig v. Leiper, 2 Yerg., 193, 196, 197, 24 Am. Dec., 479.

9. A deed was offered in the court below purporting to have been made by one of the complainants, Savannah Litton, to Mary S. Burchfield for three acres of the land. This deed was objected to because the certificate thereto was void. It was undoubtedly void, and there was no error in this action of tíie chancellor. It is urged, however, that the deed was good between Mrs. Litten (a widow) and Mrs. Burchfield without acknowledgment or registration. Such deeds are good between the parties, and as to them may be proven, even though no certificate of acknowledgment is attached thereto, and might be used to support or defend an action of ejectment (Stewart v. Harris, 2 Swan, 656; McBee v. Bearden, 7 Lea, 731, 733), prior to Acts of 1895, ch. 38, and may still be used to support a defensive right under the second section of the Acts of 1819, ch. 28, but not under the first section (Kittel v. Steger, 121 Tenn., 400, 117 S. W., 500). The deed referred to purported to have been executed in 1904, and Renee fell within the Acts of 1895, ch. 38, and co.uld not in any event be used to support title under the first section of the act of 1819. Being good, however, between the parties to it, it might have been used as an estoppel against the claim of Mrs. Litton, if it had been proven alrtinde; but there was no such evidence offered. Mrs. Litton does admit in her deposition that she “sold” the three acres to Mrs. Burchfield, but she was not asked whether she executed the deed offered, and there is no testimony on the point. The chancellor threfore did not err in execcluding the paper offered.

10. In 1888 Richard Smith and his wife, Rachel, executed a title bond to Alvis Litton, the husband of Savannah Litton, for a portion of the land in controversy, which was to be paid for in certain installments. Alvis Litton paid $50 and a yoke of oxen, which covered only a small part of the consideration mentioned in the deed. After his death, and after the death of Rachel Smith, her surviving husband, Richard, made a deed of this land to his daughter Savannah Litton, which she testifies was without consideration, in fact was a gift, and was not made in compliance with the title bond. It is insisted for defendants that Rachel Smith was estopped by the execution of this bond, and her heirs through her. The rule in this State that a married woman can convey her lands only by deed with privy examination is so well established that no authorities need be cited to support it. Whether Rachel Smith would have been estopped to claim the land, without refunding the consideration, if the evidence showed it had been paid into her own hands (Bradshaw v. Van Valkenburg, 97 Tenn., 316, 323, 37 S. W., 88), we need not stop to consider, since there is no evidence of that kind in this record.

11. It is insisted that as the deed made by Richard Smith purported to convey an estate in fee to the 75 acres therein described, to Mrs. Litton, and the persons to whom she conveyed that land, in various parts, had held adversely for more than seven years, their title was perfected. The chancellor held that Savannah Litton could not recover against any of the persons to whom she had made deeds, but permitted the other complainants to recover their undivided interests. There was no error in this. As said in an earlier paragraph of this opinion, Richard Smith had a life estate in the land, and his deed conveyed, in legal effect, only this to Savannah Litton, and pending that life estate the statute would not run against the complainants who were remaindermen. Carver v. Maxwell, supra.

12. Defendant Nick Stanly purchased a part of the land in controversy at a chancery sale, under a decree on a bill filed by J. T. and E. W. Smith, administrators of Richard Smith, to enforce the vendor’s lien, for purchase money supposed to be due Richard Smith’s estate on a sale made by him to another person. The amount received by the estate was $300, and this was distributed among the complainants and other children of Richard Smith as his distributees before it was known their mother owned the land. The chancellor, as a condition of the recovery, charged the land with the $300 and interest, and ordered an account to ascertain mesne profits, which, he decreed should he offset by such amount as the evidence should show any improvements made had permanently enhanced the value of the land, and also by the amount of taxes paid by Stanly. This was a correct decree.

The foregoing disposes of all of the errors assigned by the defendants. The complainants assigned error only upon the action of the chancellor in fixing the western boundary of the tract. This assignment presents a question of fact. We have fully considered it in the light of the record and briefs, and find that the chancellor reached the correct result.

Decree affirmed.