Hampton's Lessee v. M'Ginnis

• Citation: 1 Tenn. 286
• Parties: HAMPTON'S LESSEE v. M'GINNIS.
• Decision Date: 30 September 1808
• Court: Tennessee Circuit Court

1 Tenn. 286

HAMPTON'S LESSEE

v.M'GINNIS.

Superior Court of Law and Equity of Tennessee.

September, 1808.

[ S. C., 2 Tenn., 9.]

Ejectment, plea not guilty.--The lessor of the plaintiff claimed under a grant upon a county warrant for 262 acres to Jacob Warmack, dated the 24th of October, 1782. A deed from Warmack to himself was produced.

The defendant claimed under a grant to William Richie, upon a county warrant for 300 acres, dated the 18th of November, 1788, describing certain metes and bonds. Inman conveyed the same to M'Namee, by deed of the 19th of September, 1789, and M'Namee conveyed to the defendant 230 acres, part of the 300 acres by deed dated the 23d of May, 1793.

This case was lengthily and ingeniously argued by Campbell and Kennedy for the plaintiff, and White and Williams for the defendant.

The defendant relied on the statute of limitations, seven years' possession with color of title.

To this the plaintiff's counsel objected, that the defendant could not avail himself of this defence, because he could not show a regular chain of title from the grantee, Richie, to himself. At the time Richie conveyed to Inman, 6th November, 1788, he had no title himself, and consequently could not convey any. Richie did not get a title by grant from the State until twelve days after he conveyed to Inman. The deed might operate as a covenant to convey, but nothing more. The Act of 1797, c. 43, sec. 4, has these words: “that in all cases where any person or persons shall have had seven years' peaceable possession of any land by virtue of a grant, or deed of conveyance founded upon a grant, and no legal claim by suit in law by such person set up to the said land within the above said time, that then in that case the person or persons so holding possession as aforesaid shall be entitled to hold possession in preference to all other claimants such quantity of land as shall be specified in his, her, or their said grant or deed of conveyance founded on a grant as aforesaid; and any person who shall neglect for the said term of seven years from the time of such peaceable possession having been obtained to avail themselves of any title or legal claim which he, she, or they have to any land within this State, shall, and are hereby, declared to be forever barred,” with a proviso in favor of minors, &c.

This act is explanatory of the Act of 1715, c. 27, Ird. 12. It clearly shows what the understanding of the Legislature was, and as such is a safe guide. The act contemplates only such possessions as are covered by a grant or deed of conveyance founded on a grant. Now it is manifest that the conveyance from Richie to Inman was not founded on a grant, because he had no grant at the time the conveyance was made to found a deed on. This being the case, any subsequent conveyance through Inman could not be founded on a grant. The foundation being taken away, the superstructure must fall.White, e contra.--The defendant took possession in the fall 1793, and has continued that possession until now; the writ did not issue until the 8th of September, 1802. It is true that Richie did not obtain a grant from the State for twelve days after he had conveyed to Inman; but it is sufficient to give color of title, which is sufficient to cover the possession. If a person out of possession leases to another, the lessor is estopped, 3 Cun. Bac. 441. If we can not avail ourselves of possession we would be in a worse situation than a mere tenant at will. The Act of 1715, c. 27, sec. 2, respects imperfect titles already obtained. Sec. 3 is levelled against plaintiffs, or those who wish to oust possessors. In this section, the situation of the claim of the possessor is not taken into consideration at all. No matter what kind of claim the defendants may have, the plaintiff is barred if he does not assert his claim within seven years.

Verdict for the defendant.--upon which there was a rule for a new trial; previous to the disposition of the rule, the judges delivered their opinions, which included their reasoning in the charge to the jury. In this charge, however, Campbell, J., stated that he was inclined to think with the plaintiff's counsel.

Powell, J., did not give any opinion at that time.

Overton, J.

In considering the question before the Court, the ideas of Dickinson, J., 4 Dallas, appendix, upon another occasion, appear to be correct. “That the best way of discovering how far arguments, deduced from resolutions of Congress, can be applied upon this occasion, will be to consider them not separately, but conjointly, as forming a system that existed in force at the time of the transaction.” So it seems with respect to the Acts of 1715, c. 27, and c. 38, sec. 5, Ird. 12, 23. These two acts are so inseparably connected in the consideration of what is necessary to constitute a title, that we can not have a full view of the first without the other. We will, however, consider how the law stood previous to the passing of those acts.

By the common law, conveyances of real property might be made without deed by feoffment, therefore, the statute 21 J. I. c. 16, did not contemplate title by deed so as to enable the possessor or defendant to avail himself of it. That statute related only to the claim of the plaintiff in relation to the time that constituted a bar. Our Statute of 1715, c. 38, sec. 5, enacts that “no conveyance or bill of sale for lands (other than mortgage), in what manner or form soever drawn, shall be good and available in law unless acknowledged or proved, and registered in the county where the land lies, which shall be valid without livery of seisin, or other ceremony whatever.” This section manifestly does away all other modes of conveying real property, than that by deed. The Legislature in their act of the same session, c. 27, declared their reason for passing that act, usually called the Act of Limitations. The caption is, “for avoiding suits in law.” The preamble states “that great suit, debate, and controversy hath heretofore been and may hereafter arise,” and after stating the causes from whence those inconveniences arose, it proceeds “for prevention whereof, and quieting men's estates, and for avoiding suits in law.”

The fourth section, after prescribing seven years as “a perpetual bar against all manner of persons whatever,” gives a reason, “that the expectation of heirs may not in a short time leave much land unpossessed, and titles so perplexed that no one will know of whom to take or buy land.” Taking into view this act only, it would seem that no deed, or color of title by deed, would be necessary on the part of the defendant. Possession alone would be sufficient to enable a possessor to avail himself of the statute; but when it is considered that the fifth section of c. 38 passed during the same session, forbids all other modes of conveyance than that by deed, it will result as a presumption or inference of law that possession alone will not imply right, nor be sufficient to exclude the idea of trespass. As conveyances by feoffments, which might rightfully possess a person of land without deed is not allowable, a bare possibility without deed or authority under a deed would always imply a trespass. And hence has originated the idea of giving color of title to the possessor by deed so as to exclude the idea of trespass. No tort feasor or trespasser on land shall derive a benefit from seven years' possession, as being contrary to a moral principle and sound maxim of law, “that no man shall take advantage of his own wrong.”

The argument of the plaintiff's counsel, respecting the ??ffect of the deed from Richie to Inman, seems to be a sound one. Richie, having no legal right, could not convey any. It might operate by way of estoppel to Richie, and his heirs, or by way of covenant to make a legal right, but these are different considerations from that of conveying a title to Inman.

Haywood and Taylor, in their Reports, both say that it is necessary for the possessor to have color of title, and Haywood in 2 vol. 103, 104, says that nothing less than a deed will give color; a bond will not do it.

This seems to be correct. The Act of 1715, c. 38, sec. 5, will not acknowledge any other method of conveying. It excludes all others, so that a bond with that view would be a nullity.

The main and important question, however, is whether it were necessary to give this color, that the defendant should show a regular chain of conveyances from the grantee to himself. Let the question be considered.

First, independent of the Act of 1797, c. 43, sec. 4. Secondly, under the alterations introduced by that act. Thirdly, the argument of the defendant's counsel, if they should fail in showing color of title in themselves that they have showed a better subsisting title out of the lessor of the plaintiff, to-wit, in Inman, and therefore the lessor of the plaintiff ought to be barred.

No decision can be found in Haywood's or Taylor's...