102 Tenn. 328 | Tenn. | 1899
This bill was filed on the third of October, 1893, by H. M. Turnage against
On the nineteenth of November, 1849, A. C. McDonald and wife conveyed to Constantine Paine 1,878acres of land, which, complainants claim, includes this Shelton and Paine tract and the ninety-four acres in controversy. On the fifteenth of March, 1882, James Paine conveyed to H. M. Turnage this 1,878acres and Turnage went into immediate possession of same. There was at the time Turnage took possession some 150 to ’200 acres cleared of this 1,878acres, and Turnage cleared up several hundred more acres and having in cultivation between 500 and 600 acres and held continuous possession to the bringing of this suit. .
In 1891, defendants, Thos. R. Kenton and N. B. McCormick, made an entry and survey of the 94 acres in controversy, and on June 3, 1893, procured a grant from the State of Tennessee, and this is the cloud complainant seeks to remove. There is no deraignment. of title of this 94 acres by com
This is a question of fact, to be determined by the proof, and necessitated the reading and study of this voluminous record of over 400 pages.
The grant to this 300 acres, beginning on the bank of Old River, runs east to a defined point, thence south 60 poles to a stake, thence in a south■westerly direction with the meanderings of said lake to Bear Creek, thence west with thé meanders of said creek to Old River, etc.
The two deeds from McDonald to Constantine Paine in 1849, and from James Paine to Turnage in 1882 of the 1,878 acres, have for their southern boundaries this 300 acres, being the southern part of the 1,878 acres, substantially the sarnie calls. Recent surveys of this southern portion of these tracts, especially the survey made by J. A. Green, county surveyor, made in 1887, seems to show that from the point 60 poles from the cottonwood the meanderings of the lake are first in a southwesterly direction around the foot of the lake, thence for some distance -in a southeasterly direction to what is now known as Bear Creek, and that this Bear Creek runs in a southern slightly eastern direction to Old River.
The defendants claim that when this grant of the 300 acres was made, in 1845, there was a creek called Bear Creek which did run westerly from the lake to Old River, as called for in the grant, and
There was much proof taken on both sides, and there was some . contradictions of fact. It is sufficient to say of this proof that it clearly appears that the whole of this 300 acres to the present Bear Creek, including the 94 acres in controversy, has always been known as the Paine and then Turn-age land; that Turnage so claimed to Kenton before Kenton’s entry, and that the present Bear Creek has always been known as such, and this testified to by the most reliable, by reason of better acquaintance with facts, of defendant’s witnesses as well as complainant’s.
It also, we think, satisfactorily appears that what is now claimed to be the old bed of Bear Creek, and which defendants claim was the southern boundary of 300-acre grant, was • never the Bear Creek called for in this entry and grant, but was a mere slough, through which the water ran from the lake tó Old River during high water.
If the creek now known as Bear Creek is the one referred to in the entry and grant, the lines then run with the creek, though in different directions from those given in ’ entry, grant, and deeds. Calls for natural objects, such as bank of stream,
In this last case it was held that where a call for course would deviate from a creek called for, parol evidence will not be admitted to set up the line that would be followed by the course unless it was at the time of the grant actually surveyed and marked.
We conclude, then, upon this question of fact that this 94 acres was included in the grant to the 300 acres and in the deeds to the 1,878 acres.
The second contention of defendant is that because the land actually inclosed and occupied for seven years continuously by the complainant was not a part of this 94 acres in controversy, the complainant cannot recover, although the land so occupied, and also the 94 acres, was', a part of the 1,878 acres included in complainant’s deed from Paine to Turnage.- This contention of defendant is, we think, unsound.
The prerequisites to recovery in ejectment are to show that the land in controversy has been granted, and, having shown that the State is no longer interested and that the statute of limitations are operative upon the land by reason of the grant, then show either a continuous title or color of title in complainant with seven years’ actual occupancy of some part of the land under color of this title.
To hold that the clearing or inclosure must be on every separate grant composing a large tract embracing several grants conveyed in one deed, would be contrary to the holding of former decisions and to the express words of the statute (Code, § 3459), which says: “Anyone holding land, by himself or is vested with a good and indefeasible title in fee to the land described in his assurance of title.” It is sufficient if complainant has shown grant to the land in controversy and a color of title with seven years’ adverse possession of a 'part of land covered by his deed, whether that actually occupied is a part of the grant or not.
We do not think the case of Carter v. Ruddy, 166 U. S. Rep., 493, holds contrary to this ruling. In that case the conveyance was of a block of land