197 F. 500 | 6th Cir. | 1912
This case has already been before this court upon review of a decree sustaining a demurrer to the bill. In the opinion of Judge (now Mr. Justice) Lurton on the former review
The fundamental error sought to be corrected is that the second call of the patent from the state of Kentucky to Harp reads, “thence north 23 degrees west, 70 poles to a chestnut oak,” instead of “north 23 degrees east, 70 poles to a chestnut oak,” as actually surveyed on the ground preliminary to application for patent, and as shown by the duly, filed plat. The mesne conveyances specifically sought to be reformed are those from Williams to Rogers and from the latter to the American Association, Limited.
The bill prays generally that Williams be required, on receiving a certain sum in payment therefor, to convey to complainant the land in question by its correct description, by way of specific performance of an alleged contract between Williams and Rogers; the misdescription in the deed thereunder being alleged to have resulted from a mutual mistake of fact made by those parties. The bill also prays that complainant be decreed to have title to the land under the reformed description. It is alleged that the defendants Hughes and Davis took conveyance from Williams with full knowledge of the facts alleged in the bill, and stand with respect to the title in Williams’ shoes.
The bill was demurred to (so far as the causes are here material) (a) because barred by the Tennessee statutes of limitation; (b) on account of delay and laches; (c) on the ground that the bill states no case for reformation; and (d) that no case for specific performance of the contract between Williams and Rogers is stated. This court reversed the decree of the Circuit Court ,which dismissed complainant’s bill, and remanded the cause to the Circuit Court with directions-•to overrule the demurrer. ' i
The defendants thereupon answered the bill, admitting the discrepancy referred to between the description of the tract in the patent and the actual survey made on the ground; and admitting that, by virtue of the Harp grant and the conveyance to Williams, the latter became “by law invested with the title to the tract of land embraced in the actual survey and plat”; and that defendants Hughes and Davis have no greater rights than Williams, they standing only in his shoes.. The answer denies any mistake of fact in the description of the tract conveyed by Williams to Rogers, and alleges that such description
1. The alleged mutual mistake of fact.
The land covered by the reformed descriptions in the conveyances as decreed by the court below is that portion of the tract acquired by Harp under grant No. 3,290 lying southeast of the crest of the mountain dividing Bear creek from Clear fork. This portion, according to the survey made on the ground by Harp before he obtained his grant, contains 38 acres. Appellants concede that all question of the reformation of the grant from the state of Kentucky to Harp, its acquisition, by descent, by the latter’s heirs upon his death intestate, and the deed from the Harp heirs to Williams, has been eliminated from the present record, and that Williams must be held to have had perfect title to the tract in question at the time he made his conveyance to Rogers. This concession is made, not only because of the decision of this court upon the former appeal, but because the appellants Hughes and Davis claim under Williams, and so are estopped to deny his title. By the settled law of Tennessee, in case of discrepancy between the calls contained in the patent and those in the survey actually made upon the ground, the latter control, and the grant will be held to convey the land actually surveyed, although the calls, for courses and distances fail to cover any part of the land so surveyed. Staub v. Hampton, 117 Tenn. 706, 101 S. W. 776; American Ass’n v. Williams, supra, 166 Fed. at page 24, 93 C. C. A. at page 8, and cases there cited.
In the year 1874 the state of Kentucky had granted to one Clapp a 'large tract of land, and this grant conveyed the title of the state to all lands within its boundaries not surveyed previously to the issuance of the grant. The Clapp title passed by mesne conveyances to one Gatliff. The portion of the Harp grant in controversy here, however it may be surveyed, lies wholly within the boundaries of the lands deeded by Clapp to Gatliff. The record is convincing that at the time of the survey by Merwin, with' a view to purchasing Williams’ interest in the Harp grant, the American Association was engaged in buying from Gatliff the tract so conveyed to the latter by Clapp, amounting to several thousand acres. Indeed, Merwin’s letter to Rogers of April 22, 1891, before Williams’ conveyance was taken, says:
“I think we have at last found the land covered by Levi Harp, No. 3290, a part of which you contracted from W. D. Williams. At least we have found one corner of it and two marked lines. The other corners seem to be buried in oblivion. This is land which the Association wants, as it cpts completely across a tract which Gatliff is selling to us. The grant cuts itself in two, but to the best of my knowledge Williams’ half of it, to-wit: the half which lies on the south side of the crest of the ridge which divides the waters 'of Bear creek and Clear fork, will hold 26% acres. If possible it would be better to take a deed describing the grant by the original calls, and specifying which part Williams conveys. Gatliff’s half only amounts to about five acres.”
And, while the written contract under which the American Association ultimately (and long before the discovery of ¥he error in the Harp grant and in the Merwin survey) bought the Gatliff title is dated' October 13, 1891, and thus a few months later than the deed from Williams to Rogers, the written agreement referred to states that it is “executed in exact accordance with previous agreements made by correspondence, and in lieu of, and to put in one paper the result of all’agreements in regard to the below described subject, between A. Gatliff, of Williamsburg, Kentucky, and Alex. A. Arthur, for the American Association, Limited.”
2. The statute of limitations.
“No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action has accrued.”
If section 4458 is applicable, section 4473 manifestly has no application, because the case presented would thus not be, within the general designation of “other cases not expressly provided for.” If section 4458 applies, the defense of limitation fails, because defendants never had actual possession of the land in controversy; and it is settled by Tennessee decisions that actual possession is necessary to maintain defense under section 4458. Foster v. Grizzle, 1 Cold (Tenn.) 530; Smith v. Lee, 1 Cold. (Tenn.) 550, 551; Stewart v. Harris, 9 Humph. (Tenn.) 714; Pullen v. Hopkins, 1 Lea (Tenn.) 741, 744; Hicks v. Tredericks, 9 Lea (Tenn.) 491, 492.
Is the proceeding before us an action “for any lands,, tenements, or hereditaments”? Both the sections in question are contained in the
lands.” It was. not necessary to seek possession, for the defendant had not such possession. The bill prayed that Williams be required to convey the land to complainant by its proper boundaries; that title be divested out of Williams and vested in complainant; and that the deeds from Williams to his codefendants be canceled. The decree adjudged reformation of the conveyances in question, and decreed a valid, indefeasible title to the land to rest in complainant, declared that the deed from Williams to the other defendants conveyed no title, and canceled the same as a cloud upon complainant’s title. The clerk of the court was required, upon complainant’s application, to certify a copy of the decree for registration, a not unfamiliar practice in substitution for the earlier practice of providing conveyance by a master. The construction we have adopted is not without support in precedent. In Brandenburg v. McGuire, 105 Ky. 10, 44 S. W. 96, 19 Ky. Law Rep. 1598, a statute barring actions for the recovery of realty if not brought within 15 years was held to apply to an action to supply a lost deed. A statute of 'Missouri imposing a limitation of 10 years upon actions for the recovery of lands has been held applicable to actions brought to set aside deeds made in fraud of creditors. Stout v. Rigney (C. C. A. 8) 107 Fed. 545, 548, 46 C. C. A. 459, and cases cited; Clapp v. Leavens (C. C. A. 8) 164 Fed. 318, 320, 90 C. C. A. 250. A statute of Arkansas authorized a purchaser of lands' under sheriff’s sale to institute, proceedings requiring the persons interested to show cause why the sale should not be confirmed. In Parker v. Overman, 18 How. 137, 141 (15 L. Ed. 318), it was said of an action under that statute .that “it acts upon the land.” The case did not involve question of limitation of action. As indicating the tendency of the Tennessee courts to recognize and enforce the spirit of its limitation laws, it is to be noted that the limitation provided by section 4473 to “actions on judgments” has been held to apply to a suit to vacate a stay of judgment and to recover a new judgment thereon. Ballard v. Scruggs, 90 Tenn. 585, 588, 18 S. W. 259, 25 Am. St. Rep. 703. See, also, Sheratz v. Nicodemus, 7 Yerg. (Tenn.) 9, 12. The correctness of the construction we- have adopted is strengthened by its results. In an action in ejectment, upon proof of the error in the calls of the grant, recovery could be had according to the actual survey, and without reformation of the grant. Garner v. Norris, 1 Yerg. (Tenn.) 62, 66; Nolen v. Wilson, 5 need (Tenn.) 332; Staub v. Hampton, 117 Tenn. 706, 743, 101 S. W. 776; American Ass’n v. Williams, supra, 166 Fed. at page 24, 93 C. C. A. at page 8. And while an adverse claimant not in possession can, under section 4972 of the Tennessee Code, be sued in ejectment (Smith v. Lee, 1 Cold. [Tenn.] 550, 551; American Ass’n v. Williams, supra,. 166 Fed. at page 21, 93 C. C. A., at page 5), yet the statute of limitations would not run against such an action unless,
3. Reformation of judicial sale.
“That the title to all of the assets of the said insolvent corporation * * * remaining unsold' and undisposed of, be divested out of the American Association, Limited, * * * and vested absolutely in the American Association, Incorporated.”
In our opinion, complainant thus succeeded to all the rights of the American Association, Limited, and Rogers, with respect to the land in controversy, including the claimed right of reformation.
4. Laches and delay.
We find no error in the record, and the decree of the Circuit Court is accordingly affirmed, with costs.