100 Tenn. 565 | Tenn. | 1898
This is an ejectment bill filed in the Chancery Court of Grundy County to establish complainants’ title to a tract of land comprising about one hundred and sixty acres, and to remove a cloud from said title. The Chancellor dismissed the bill. On appeal the Court of Chancery Appeals reversed the decree of the Chancellor and pronounced a' decree in favor of complainant for the lands in controversy. Defendants, McDowell and Ferguson, appealed and have assigned errors.
Complainant, the Tennessee Coal, Iron & Railroad Co., derives its title from grant No. 5087, issued by the State of Tennessee to S. B. Barrell, April 25, 1837, for 5,000 acres. This grant was based upon an entry duly made by S. B. Barrell November 21, 1836. Defendants, McDowell and Ferguson, derive their title from a grant issued .by the State of Tennessee to Stephen Kilgore, Jr., March 1, 1856, for one hundred and sixty acres. It is conceded by counsel that this one hundred and sixty acre tract granted to Kilgore was comprised within the boundaries of the 5,000 acre grant issued to S. B. Barrell.
The claim of defendants is that, notwithstanding the senior entry and grant of this land to Barrell, that they and their predecessors in title had been in possession of the' one hundred and sixty acre
The Court of Chancery Appeals find that defendants are estopped to assert title to the land, on account of certain acts in pais on the part of Stephen Kilgore, Jr., their predecessor in title and the original grantée of this one hundred and sixty acre tract.
The first assignment of error on behalf of defendants is that the facts found by the Court of Chancery Appeals would not, as a matter of' law, have estopped Kilgore • to claim title to the land in controversy, and hence his privies and successors in title are not esstopped.
The specific objection made to the decree of the Court of Chancery Appeals is that it does not find that complainant company was misled, or that its title was acquired upon the faith of any conduct or representations made by the said Stephen Kilgore, Jr. On this point the Court of Chancery Appeals, through Judge Wilson, finds, viz.: “It is moreover clear when the representatives of the Burrell interests came to survey out the Barrell lands and convey them to the complainant, . . . they did survey and include in its transfer to the complainant company all of the Kilgore grant aforesaid except the fifty odd acres embraced in what is known as the Kilgore improvements. We think, also, the weight of
“It may be very true,” says that Court, “that assuming his (Kilgore’s) title to be perfect, he would not be estopped as against Barrell to assert his title because of a parol agreement to surrender all of his grant except that embraced in his improvements. But we apprehend that a different question is presented if the facts show that he stood by and permitted the representatives of Barrell to sell and convey the land, outside of his improvements, to the complainant, without asserting his claim and title to the same.”
The Court concludes its opinion as follows: “We find as a fact that in 1867, Kilgore, knowing that the representatives of Barrell had surveyed out his (Kilgore’s) improvements on grant 11,602, and for the purpose of selling and transferring the remainder to the complainant, Tennessee Coal, Iron & Railroad Co., estopped himself by his acquiescence, and by subsequent permission or acquiescence in the sale of lots up to his improvements, and the cutting and removal of timber, from asserting title to the land in dispute. ’ ’
We have thus quoted at length from the opinion, for the reason it is earnestly insisted that upon the facts found no estoppel can be predicated. It is insisted by counsel that the Court of Chancery Appeals does not find that the recognition by Kilgore of the right of the representatives of Barrell to convey all of his grant, outside of his improvements, was at a time anterior to the execution of the deed by the Barrells to the complainant company, or that such recognition in any way induced the acceptance of that deed or the consummation of that trade.
It was held in Patton v. McClure, M. & Y., 339, “that if one knowingly, though he does it passively by looking on, suffer another to purchase and expend money upon land under an erroneous opinion of title, without making his claim known, he shall not afterwards be permitted to exercise his
Again, in Stowe v. Barker, 6 Johns. Ch., 167, it was held, viz.: Where one having title “acquiesces knowingly and freely in the disposition of his property for a valuable consideration, by a person pretending to title and having color of title, he shall be bound by that disposition of the property, and especially if he encouraged the parties to deal with each other in such sale and purchase. It is deemed an act of fraud for a party cognizant all the time of his own right to suffer another party ignorant of that right to go on under that ignorance and purchase the property or expend money in making-improvements upon it.” This cáse is cited in Morris v. Moore, 11 Hum., 434, and the principle therein laid down is approved. These principles, applied to the facts found by the Court of Chancery Appeals, are conclusive of this case, and result in its affirmance.
There is one view of the case presented by the Court of Chancery Appeals from which we are constrained to dissent, and that is in respect of the statute of limitations. The question presented was whether the title of Kilgore had been perfected by seven years adverse possession under his grant. The Court of Chancery Appeals found that Kilgore’s grant was issued to him March 1, 1856, and although he went into possession and remained con
This question, however, is immaterial, since the estoppel found by the Court of Chancery Appeals is conclusive of the case against the defendants.