Sartain v. Dixie Coal & Iron Co.

• Decision Date: 29 November 1924
• Citation: 266 S.W. 313,150 Tenn. 633
• Parties: SARTAIN v. DIXIE COAL & IRON CO.
• Court: Tennessee Supreme Court

266 S.W. 313

150 Tenn. 633

SARTAIN v. DIXIE COAL & IRON CO.

Supreme Court of Tennessee.

November 29, 1924

Certiorari to Court of Civil Appeals.

Bill by D. W. Sartain against the Dixie Coal & Iron Company. Decree of dismissal was affirmed by the Court of Civil Appeals, and complainant brings certiorari. Reversed and remanded, with directions.

Robinson & Lockhart, of Chattanooga, and W C. Abernathy, of Tracy City, for appellant.

C. H Garner, of Tracy City, for appellee.

MALONE Special Judge.

This is a replevin bill for certain coal alleged to have been mined on the property of the complainant, Sartain.

Under answer and cross-bill, filed by the defendant, alleging the insolvency of complainant, etc., the chancellor permitted a cross-replevin, and turned the coal over to the defendant upon the execution of a sufficient forthcoming bond. This action, we may observe in passing, was plainly erroneous Dearmon v. Blackburn (1853) 1 Sneed (Tenn.) 390 392, 393, 60 Am. Dec. 160; 23 R. C. L. 881, 882.

As stated in the latter text:

"It is the well-settled general rule that one from whom property has been taken by a writ of replevin cannot maintain a cross-replevin or another action to recover possession of the property while the first action is pending."

The chancellor, on the hearing, dismissed the bill, and the Court of Civil Appeals affirmed the decree.

Complainant brings the case to this court by certiorari.

A large amount of proof has been taken, and many questions of law and fact are discussed in the briefs of counsel; but in the view which we take of the case, only a few of these need be noted.

The facts, briefly stated, are as follows:

In 1916, complainant, Sartain, purchased the land in question from Robert Phipps, by parol sale. There was a residence on the land, and Sartain added certain other improvements, and has since resided there. He insists that Phipps sold him four acres, and Phipps says that he sold four acres; but when a deed was made by Phipps, some three years later, it conveyed only two acres.

In 1918, J. H. and T. B. Northcut leased to defendant Dixie Coal & Iron Company a large tract of land, which surrounded and included the four acres on which Sartain was then living. At that time, as already stated, Sartain had not obtained a deed from Phipps, and had no color of title. The Dixie Coal & Iron Company began mining operations, and in February or March, 1919, ran a cross-entry near or under Sartain's premises.

He protested against this, and the matter was referred by the employees of the company to T. B. Northcut, one of the lessors. Northcut thereupon took up the question of the exchange of the coal lying under the land which Sartain owned for an additional surface acreage.

While there is some confusion and conflict in the evidence, we concur in the view of the chancellor and Court of Civil Appeals that a parol sale or exchange was then made.

By this parol agreement the Northcuts transferred and conveyed to Sartain the surface rights in eight acres (being four acres in addition to the four claimed by him), and he conveyed to them all the mineral rights in the land which he was claiming under his parol purchase from Phipps, excluding only sufficient earth or mineral to support his residence and barn.

A deed, dated March 29, 1919, from J. H. Northcut to Sartain, appears in the record. It bears out the terms of the parol exchange, as stated in the testimony of Sartain, reciting that for a consideration of $1, "and the exchange of mineral for surface," T. B. and J. H. Northcut, of the firm of H. B. Northcut & Son, have quitclaimed to D. W Sartain a certain tract of land, which is then described by metes and bounds, containing about eight acres, and "bounded all around by the lands of said Northcut."

The deed recites that--

"The surface only is conveyed to tract of land with sufficient underground mineral and solid left to support said Sartan's barn and dwelling house."

This deed is signed only by J. H. Northcut, and is not acknowledged.

Complainant, Sartain, said nothing about it in his deposition, and did not even mention the parol sale or agreement until this was developed on his cross-examination. The deed was produced by his counsel during the cross-examination of J. H. Northcut, after Northcut had stated that only two additional acres of surface were conveyed under the parol contract, and that no deed was made. When the deed was thus produced (apparently for purposes of contradiction), Northcut admitted that it was in his handwriting, and signed by him, but could not remember anything about it, nor could he explain it. He says:

"That this paper, if it represents anything, was just made to show Mr. Sartain during this delay my good faith in the transaction."

As already stated, Sartain makes no explanation whatever of the deed, nor does he tell how it came into his possession.

It appears that there was a delay, on the part of Sartain, in obtaining a deed from his parol vendor, Phipps. This deed was dated October 9, 1919, and covered only two acres, instead of the four acres which Sartain claimed he had bought.

In any event, Sartain went into possession of the additional acreage, conveyed under his parol agreement with Northcut, fenced it, and put part of it in cultivation.

In the fall of 1919, a few weeks before the bill herein was filed, complainant notified defendant to cease mining on his premises, and put a fence across the face of the entry, which fence was removed by defendant's employees. The mining operations were suspended under an injunction issued in another suit between the same parties.

There is a conflict in the evidence concerning the exact point where the coal now in dispute was mined--whether or not this was under Sartain's two-acre tract, for which he had a deed from Phipps.

Sartain had never offered, before bringing his suit, or in his bill, or during the taking of the proof, to return the additional four-acre surface which he acquired under the parol trade with Northcut; nor did he return, or offer to return, the unacknowledged deed, dated March 29, 1919.

I. The chancellor placed his decision on the following grounds, as shown by his written opinion:

(a) That complainant could not rescind his parol agreement of sale without putting Northcut "in statu quo."

As said in the chancellor's opinion:

"He cannot retain possession of the land, or part of the land purchased under parol agreement from Northcut, and declare the transaction is not binding on him."

(b) That complainant has not "put himself in position to plead the statute of frauds."

(c) That under the parol agreement there was no trespass or interference, on the part of the defendants, in mining the coal.

It is claimed, on behalf of complainant, that there was no pleading to justify the chancellor's decree, nor that of the Court of Civil Appeals, and in this connection it is pointed out that the defendant filed a sworn answer and cross-bill in which no mention was made of the parol sale; nor was there any claim that the mining was justified thereunder.

On the contrary, the contention of the defendant was that complainant had no title to the land, and therefore was not entitled to immediate possession of the coal; that Northcut owned the land, and therefore his lessees had a right to mine the coal; and that complainant's deed from Phipps was champertous and void.

Thus it is averred in the sworn answer:

"Defendant, further answering, says that complainant, as defendant is informed and believes, claims the ownership and the right to possession of said two cars of coal by virtue of a deed alleged to have been executed to him by one Robert Phipps to about two acres of land in Grundy county, Tenn., in October 1919. Complainant has no title whatever to the land described in his said deed, nor is he now, nor has he ever been, in possession of the coal underlying the surface of said land. That at the time of the execution of said deed to complainant, and long prior thereto, James H. Northcut, defendant's lessor, with defendant and others as his tenants, was in actual, peaceable, open, public, notorious, exclusive, and adverse possession of said land described in complainant's said deed and especially the coal thereunder, by registered assurance of title, purporting to convey an estate in fee and definitely describing the boundaries thereof, and that complainant's said deed is champertous, void, and of no effect."

It is also pointed out that defendant, in this sworn answer and cross-bill, states that "not more than one-fifth of the coal in each of said cars of coal came from the land described in complainant's said deed, which contains approximately two acres of land, and of which two acres complainant claims to be in possession"; that the other four-fifths came "from other land not claimed by the defendant and of which the complainant does not claim to be in possession"; and that the one-fifth and four-fifths have been "so mixed and intermingled that it is impossible to separate the same," etc., and therefore the coal is not subject to an action of replevin.

Thereafter, the defendant was permitted to amend its answer and cross-bill, in the present case and three other cases between the same parties, so as to allege that:

"Since the filing of defendant's answer as a cross-bill, defendant has caused a survey to be made of the land described in complainant's deed from Phipps, and also the entry and rooms where the coal replevied was taken, and finds, and so alleges, that none of the coal replevied in any of these causes was taken from the land covered by said deed from Phipps to complainant."

As will be noted, neither of the defenses held good by the...