Duke v. Helms

• Citation: 46 S.W. 761,100 Tenn. 249
• Parties: DUKE v. HELMS.
• Decision Date: 19 January 1898
• Court: Supreme Court of Tennessee

46 S.W. 761

100 Tenn. 249

DUKE
v.
HELMS.

Supreme Court of Tennessee.

January 19, 1898

Appeal from chancery court, Davidson county; Thomas H. Malone, Chancellor.

Suit by George Duke against J. P. Helms. There was a decree for defendant in the trial court, and from a decree of the court of chancery appeals giving complainant partial relief, defendant appeals, and complainant brings error. Affirmed.

T. G. Ewing, for complainant. J. P. Helms and Percy Kinnaird, for defendant.

WILKES, J.

This is an ejectment bill to recover a house and lot in the city of Nashville. The chancellor held that, while complainant had the legal title to the premises, the defendant was entitled to hold them under the statute of limitations. There was a special appeal prayed from the decree, so far as it held complainant barred by the statute. On hearing in the court of chancery appeals, that court sustained the decree of the chancellor as to the house and ground occupied by it, and also as to an undivided one-half interest in the part of the lot not covered by the house, but held that defendant had not had actual inclosure of the lot as a whole, and hence could only recover the title to an undivided half of the lot held under color of title. Both parties are before the court,-- the defendant by appeal from so much of the decree as fails to give him the whole lot, and the complainant by writ of error from so much as fails to give him the entire lot.

The title of the property is this: Prior to 1878 it belonged to Wyley Duke, and descended from him to complainant as his only heir. Wyley Duke had been married several times, and, when he died, his widow, who was not complainant's mother, was left in possession. She remained in possession until she died in 1883. When she died she left her daughter, Mrs. Gamble, and her second husband, Cross, in possession of the premises. August 20, 1883, the daughter, claiming the property, conveyed to her stepfather, Ed. Cross, an undivided one-half interest in it. This is the beginning of defendant's paper title. On June 4, 1886, Cross filed a bill for partition. Decree was entered for sale for that purpose July 13, 1886. The property was sold, and bought by Fulghum, and the sale confirmed to him in 1888. He afterwards conveyed to defendant Helms April 15, 1890. The bill was filed May 6, 1893. The house had been occupied all the time from the date of Wyley Duke's death in 1878, and was held adversely to complainant.

It is insisted...