122 Tenn. 656 | Tenn. | 1909
delivered the opinion of the Court.
The complainants, alleging that, with the defendant James L. Williams, they are heirs of John Williams, deceased, file the present bill to remove clouds upon the title to a tract of land described therein, to eject the defendants from the possession, and also for partition of the same. They deraign title to a grant to their ancestor, John Williams, issued by the State on the 25th day of August, 1849, which is in these words: “Commencing at a black oak tree about 70 yards north of the road leading from Jamestown to R. Rains, and
Various defenses were interposed by the several defendants. Among them were the following: First, that prior in date to the Williams grant, the State had issued three different grants, to wit, Nos. 6,420, 4,719, and 6,398, which, interlapping, covered the entire tract embraced in that to Williams, and, this being so, as a matter of law his grant was not color of title under the first section of the act of 1819 (Acts 1819, c. 28); second, that, upon a proper survey of his grant, Williams’ possession was outside its limits; third, that Mary F. Wright, one of the complainants, had conveyed a part of the tract now claimed by her; and, fourth, adverse holding on grant 4,719.
The case was tried by the chancellor, sitting as a jury, and he found as facts that complainants’ grant was located with reasonable certainty by a survey of one P. H. Smith, which is made a part of the record, and that John Williams, the grantee, was in possession of a part of the tract within the boundaries of his grant for more than seven years after the issuance of the grant
The chancellor, while finding the facts with the contention of defendants as to the covering of the Williams grant by the prior and interlapping grants referred to, yet held that the adverse possession of the grantee Williams for seven years on the interlap of his grant with grant 6,420 was under color of title. He found as a matter of fact and law that the second of the above defenses was not well taken, that the third was maintained, and the fourth he declined to rule on. All parties have appealed.
For the defendants it is insisted that the case of Bleidorn v. Pilot Mountain Coal & Mining Co., 89 Tenn., 166, 204, 15 S. W., 737, has settled the rule in this State that a junior grant, with words of exclusion such as are found in that of Williams, is not color of title, converting into a fee an adverse holding of seven years. There is no doubt that from Napier v. Simpson, 1 Tenn., 453, down to Byrd v. Phillips, 120 Tenn., 14, 111 S. W., 1109, adverse holding under a junior grant upon an interlap for the term of seven years gave the occupant a fee under the first section of the act of 1819, and it was not the purpose of the court, in the Bleidorn Case, to modify this rule. All the court did was to hold that under the facts of that case this rule did not apply. We
Tbe title set up by tbe Bleidorn beirs originated in three entries, numbered, respectively, 1,942, 1,949, and 1,950. Tbe contest over entry 1,949 was chiefly with tbe Pilot Mountain Coal & Mining Company, which relied upon certain entries and grants as superior outstanding titles. Among these were entry 1,727, grant 22,339, to Julian F. Scott, for 5,000 acres, and entry 1,925, grant 22,329, to Hannah M. Byrd, for 5,000 acres. One of tbe questions was: Had the statute of limitations barred a recovery of tbe land covered by entry 1,727? This was answered in tbe original opinion in tbe affirmative; tbe court finding that what is called in tbe record “Scarborough possession No. 2” was begun as early as 1846 or 1847 under Julian F. Scott, tbe grantee under entry 1,727, continuing adversely for seven years, and this operated to bar complainants’ claim. Complainants filed a petition for rehearing, calling attention to tbe fact that tbe possession was within entry 1,925, known as tbe “Hannah Byrd entry,’.’ and this, being a special entry, was excluded from-tbe grant under which they claimed, and this possession was inoperative as an adverse possession within tbe interlap of 1,727 and 1,949. As to this the court said: “This ques-' tion was not decided, and attention was not called to it, either in tbe oral or printed arguments. . . . Tbe grant to Eastland upon entry 1,949 describes tbe granted land as. a certain tract containing 2,500 acres, ‘begin
The court further said: “The defendant the Pilot Mountain Coal & Mining Company introduced the entry and grant to Hannah Byrd, and relied upon it as an outstanding paramount title, operating to defeat complainants in so far as it conflicted with complainants’ grant. We decided that it was a subsisting paramount title, and as such effective to defeat complainants to the extent of its interlap with 1,949. Another necessary effect of this proof is to exclude the lands so held from the operation of complainants’ grant; that is, complainants’ grant must be so run as to exclude the older title. The Scarborough possession No. 2 was apparently within the interlap of the three grants; but,
In other words, the court, finding the Hannah Byrd entry to be special and older than entry 1,949, held it within the words of exclusion, and as much outside the terms of the grant as if named, and therefore a possession on it was not adverse to complainants, and the grant based on this entry was not color of title to the defendant. That this was the full extent of this holding, we think, is made clear later on, when discussing the rule of evidence laid, down in Bowman v. Bowman, 3 Head, 47, and Fowler v. Nixon, 7 Heisk., 719, that it devolved on the defendant who disputes the title of a plaintiff, claiming under a grant excluding older titles without describing them, to show the existence of such older titles, and, stating the reason of the rule, then added: “Here the defendant made such proof, and its legal effect was to defeat complainants by showing a superior outstanding title. But another of the legal effects of such evidence was to entirely exclude this paramount title from the operation of complainants’ grant, by force of the excluding words of the grant.”
Now, referring to the words of the grant in this case, it is found that the State by its terms undertakes to vest in the grantee all the land embraced in its de
The chancellor found, as has been stated, that complainants’ grant No. 9,946 was located with reasonable certainty by the survey of P. H. Smith; that the call for the south end of the west boundary line of the grant, or, in the words of the grant, “commencing at a black oak tree about seventy yards north of the road leading from Jamestown to R. Rains, and about three hundred yards north of said [White Oak] creek,” as fixed in the survey, was fully warranted by the local conditions existing at that point. Following the first call, this surveyor ran 800 poles on a direct line to a stake. As to this the chancellor, in his opinion found in the record, said: “Having located the west boundary line
There is no doubt, in a case like that of Burns v. Greaves’ Lessee, Cooke, 75, where the entry and grant were of a tract of land “lying on the north side of Duck river, on the first creek above Spring creek, beginning on said river three-quarters of a mile below the mouth of said creek,” without anything else to direct, a subsequent enterer would naturally assume that the beginning point was to be found by following the meanders of the river. This was the view entertained by the court in that case, and is the view expressed in a number of cases cited by counsel. But we think there is as little doubt that when a course is called for, or a distance between two points, unless there is a clear in-
We think in this case the intimations clearly indicate that a direct line was intended by both the State and the grantee.
White Oak creek is referred to as a locative call, showing that it was the south boundary of the land granted; but the distance it lay along that creek on a straight line was 800 poles. Whatever ambiguity there might be in this call is removed by the fact that the north line of the grant corresponds in length with it. Prom the stake, which is the terminal point of the east line as it ran north, this north boundary extends west 800 poles to a white oak about 10 poles east of Bee (evidently Big) creek.
We agree, therefore, with the chancellor that Williams’ adverse holding was within the limits of his grant.
The finding by the chancellor, as a faet, that J. M. Wright was in possession of the Mosey Wright, or, as it was sometimes called, the Owens, place, for more than seven years after the Williams possession went down, we think is warranted by the evidence. We, how
In view of all the facts, we think the adverse possession of Wright was limited to the boundaries of the West grant, and that the chancellor was, as a matter of law, right in so holding.
The record shows that a part of the 100 acres covered by entry 192, dated June 10, 1829, on which issued grant 2,468, dated June 10, 1829, lies within the limits of grant 9,946. This, we are satisfied, is one of the tracts which made up the 600 acres of prior claims to be platted out. Whatever part of this tract that lies within the Williams grant complainants have no claim to and have no right to recover. As it is not clear how much of this tract does lie within grant 9,946, this case may be remanded to ascertain the facts, and for a decree founded thereon. The remand will also include the order of reference provided for in the chancellor’s decree.
We are entirely satisfied with regard to the chancellor’s holding that entry 496, on which grant 6,420 issued, was a special entry, and, this being so, the grant
We concur with the chancellor in his opinion that complainants were not' entitled to a recovery of. any of the land embraced in grant 4,719, as they had no possession within that grant. Elliott v. Cumberland Coal & Coke Co., 109 Tenn., 745, 71 S. W., 749.
We also concur in his holding limiting the recovery of Mary P. Wright in this case by the terms of her deed to Blanchard and others, and also that complainants under their bill are not entitled to a decree, savé for their respective interests in the property sued for.
The chancellor’s decree is affirmed, except in the respect indicated herein. The costs of appeal will be paid as follows: One-third by complainants, one-third by Cumberland Coal & Coke Company and the Mississippi Valley Insurance Company, and the remaining one-third will be paid by the other defendants named in the bill.