128 Tenn. 689 | Tenn. | 1913
delivered the opinion of the Court.
This is ejectment, and the facts appear by stipulation of counsel as follows:
P. L. Nichol owned the whole of lot No. 61, of which the land in controversy is a part. Nichol sold to Michael Halloran the eastern half of lot No. 61 in June, 1864, Halloran understood that he bought and paid for a fifty-foot lot, which was exactly one-half of original lot No. 61; but when he inclosed it by fence, by accident, he laid off his fence so as to include a frontage ■of about fifty-two feet on Broad street, and about fifty-four feet on the alley in the rear. He held the land as inclosed for more than twenty years before this bill was filed, under fence, with a residence on a portion of the lot; but he did not know that he had more than fifty feet under fence until the year 1910, and he never intended to claim more than fifty feet. The strip in controversy formed a part of Halloran’s yard. In December, 1899, Halloran conveyed to his two daughters the eastern half of lot No. 61, fronting fifty feet ■on the north side of Broad street. They took possession of the tract as inclosed by Halloran, and held it until October, 1906. October 23, 1906, they conveyed do the defendants the eastern half of lot 61, fronting fifty feet on the north side of Broad street. Defendants took possession of the whole tract under fence, and have since occupied the said entire tract. After Nichol sold the eastern half of lot 61 to Halloran, he
It is perceived that the question involved is whether the mistaken or- accidental inclosure of the strip in controversy by Halloran, and the subsequent holding of the same by his privies in title for more than seven years, have formed a bar to- the complainant’s right of action. . On the authority of Erck v. Church, 87 Tenn., 575, 11 S. W., 794, 4 L. R. A., 641, we must hold that the complainant’s suit is barred. It is insisted, however, for the complainant, that Erck v. Church is in conflict with the great body'of the law in this state on the question of accidental possession. Kirkman v. Brown, 93 Tenn., 476, 27 S. W., 709; Brock v. Burchett, 2 Swan, 27; Gates v. Butler, 3. Humph., 447; Coal Creek Mining Co., v. Ross, 12 Lea, 1; McSpadden v. Iron Co., 42 S. W., 497, opinion of Court of Chancery Appeals, April, 1897; Coal Co. v. Ferguson, 35 S. W., 900, opinion of Barton, Judge, Court of Chancery Appeals, October 5, 1895; Calloway v. Sanford, 35 S. W., 776, opinion by Barton, Judge, Court of Chancery Appeals, August 31, 1895; Coal Co. v. Lawson, 35 S. W., 456.
Without questioning the authority of Erck v. Church, we desire to reaffirm the soundness of Kirkman v. Brown and the other cases cited, and which comprise the body of the law in this State upon the effect of accidental possession. Erck v. Church, is reaffirmed, and will be followed in cases similar in their facts,- in so far as it holds that an actual inclosure of lands, although taken and held by accident or mistake, if maintained for a period of more „than seven years, will bar an action of ejectment under the second section of the act of 1819.
The decree of the chancellor is affirmed.