Allis v. Hunt

• Decision Date: 26 February 1927
• Parties: ALLIS ET AL. v. HUNT ET AL. LOCKHART v. IBSON ET AL. LOCKHART v. PHIPPS.
• Court: Tennessee Supreme Court

294 S.W. 509

155 Tenn. 155

ALLIS ET AL. v. HUNT ET AL.

LOCKHART v. IBSON ET AL.

LOCKHART v. PHIPPS.

Supreme Court of Tennessee.

February 26, 1927

Rehearing Denied June 11, 1927.

Appeal from Chancery Court, Hamilton County; W. B. Garvin Chancellor.

Suits by George Allis and others against J. B. Hunt and others, by May B. Lockhart against John P. Ibson, and others, and by May B. Lockhart against Robert Phipps. Decree for complainants and defendants appeal. Decree modified.

Jeff D Fults, of Tracy City, for appellants.

F. T Fancher, of West Palm Beach, Fla., for appellees.

CHAMBLISS J.

In a memorandum opinion filed in these consolidated causes, the numerous questions presented by this large record have been dealt with in detail. This opinion, for publication, is confined to a discussion of the question of law, assumed to be of general interest, arising out of the insistence that certain conveyances from the Church heirs to the complainants, suing in ejectment, were executed and delivered while the defendant Ibson was in adverse possession of a portion of the lands sued for.

While several large tracts of land are involved generally in the litigation, it is with respect to what is known in the record as the W. T. Parker tract, of some 600 acres, lying in the northeast corner, and wholly within the boundaries of the Church grant of some 5,000 acres, that the issue of champerty is pertinent.

The Church heirs had the record and better title to the entire grant, but, previous to the making of the conveyances to the complainants, defendant Ibson, under color of title to this northeast 600-acre tract, entered and established thereon an actual possession, a residence and small inclosure, claiming to the extent of his color of title boundaries. Subsequently, and within three years of Ibson's entry, the Church heirs entered upon the 5,000-acre grant, and placed thereon one or more actual possessions, none of which were, however, located within the 600-acre Ibson tract. In this situation the conveyances were made to complainants. To what extent were these conveyances champertous?

Under our statutes (Shan.'s Code, §§ 3171, 3172), any sale or grant is "utterly void, where the seller has not himself, or by his agent or tenant, or his ancestor, been in actual possession of the lands or tenements, or of the reversion or remainder, or taken the rents or profits for one whole year next before the sale"; and any suit brought for the recovery of the lands so granted "shall be forthwith dismissed." Id. § 3173.

The chancellor held that, upon entry of the true owners, by placing possessions within the Church grant, although outside of the Ibson boundaries, Ibson's adverse possession was reduced to his actual inclosure, and that the conveyances were champertous to this extent only, that the constructive possession of Ibson was neutralized by that of the true owners. He cites Hunnicutt v. Peyton, 102 U.S. 333, 26 L.Ed. 113, and the Tennessee cases of Iron Co. v. Tennessee Coal, Iron & R. Co., 131 Tenn. 221, 174 S.W. 1122, and Jones v. Coal Creek Mining Co., 133 Tenn. 183, 180 S.W. 991, and authorities therein cited, for this holding.

Iron Co. v. Tennessee Coal, Iron & R. Co. was a case of an interlap--one grant over a part of another--and is distinguished on its facts in that, while the defendant with the weaker title first entered, he placed his actual possessions on the interlap, and the true owner coming later, within three years, placed his possessions, likewise, on the interlap. On principle and authority the constructive possession of the true owner thereupon neutralized the possessions of the holder of the weaker title and restricted him to his actual inclosure. The court in that case quotes approvingly from Creech v. Jones, 5 Sneed, 632, and Norvell v. Gray's Lessee, 1 Swan, 96, 107, language sustaining the conclusion. But the situation herein presented was not dealt with. Here the true owner, subsequently entering, placed no actual possessions within the boundaries of Ibson's constructive possession.

In Jones v. Coal Creek Mining Co., supra, it appears that the contest was between two claimants, neither of whom had title, between two trespassers. The Coal Creek Company was first in possession, and the court holds, stating a suppositious case, that, if it had been the true owner, the entry of a trespasser would not have had the effect to drive back the Coal Creek Company to its inclosures, saying:

"In such case the law regards the possession is with the true owner as a superior right, and if, while he is in actual possession of his land, a claimant without title enters, he will be confined to his actual enclosures though he have color of title." (Italics ours.)

But this is not the instant case. However, the court adds:

"This is upon the ground that there can be only one possession of land, and in a contest between the true owner and a trespasser, both attempting to hold actual adverse possession at the same time, the constructive possession as to that part of the land outside the actual enclosures is held to be that of the owner."

In support of this general statement, Tennessee cases heretofore referred to, with others, are cited, and also 2 Corpus Juris, pp. 242, 243, and Hunnicutt v. Peyton, 102 U.S. 333, 26 L.Ed. 113. For example, the case of White v. Lavender, 5 Sneed, 648, is strongly relied on, and it does emphasize the general rule that "the legal seizin, or possession, in judgment of law, was in the party having the legal title." But in that case there had been "no actual possession, on either side, within the interference," and in this situation the court quite readily reached the conclusion that, when the holder of the better title entered, although subsequently to the other claimant, and placed his possessions within his boundaries, although outside of the interlap--this being another interlap case--his constructive possession overrode that of the other claimant, who was without any actual possession on the interference.

Nor do other Tennessee cases cited for appellees appear to us to be controlling, such as Berry v. Walden, 4 Hayw. 174, and Walker v. Fox, 85 Tenn. 154, 2 S.W. 98. In Berry v. Walden, it was held only that:

"Where a tract is covered by two grants, and both grantees are in possession of the part so covered by both, the possession operates nothing, for it is deemed to continue in him who hath the title."

Walker v. Fox decided only that, when disputed land is covered by deeds of both parties and each has a possession within the interference, but neither has title, their possessions neutralize each other, as to the land within the lap not in actual possession.

Passing now to authorities from other jurisdictions cited by the learned Chancellor, he and counsel for appellees chiefly rely on Hunnicutt v. Peyton, supra. This leading case, and Green v. Liter, 8 Cranch, 229, 3 L.Ed. 545, also a number of cases from other states, are cited by 2 Corpus Juris, p. 243, for the following statement of the pertinent rule:

" Subsequent Entry by Owner. If the claimant enters on land under color of title and, by his actual possession of part and claim of title to the whole, obtains constructive possession of the entire tract, and the owner of the true title afterward, and before the title by adverse possession is perfected, enters upon the same tract in another place, claiming the whole, the prior constructive possession acquired by the former is overcome by that of the latter, so that he can acquire title by adverse possession, as against the true owner, to only that portion of the land which he actually occupies."

But it will be observed that the case stated is that of a color of title claimant who claims title to the whole tract involved, upon which same tract the true owner subsequently enters, placing his actual possessions in a different place. In other words, the subsequent actual entry is within the boundaries of the adverse claimant under a prior entry. So that once more the case dealt with is not identical on its facts with that here presented. The true owner in that case entered his actual possession within the boundaries covered by the color of title, and thereby neutralized the adverse holding. In the instant case the true owner entered his actual possession outside of the boundaries of the color of title--outside the disputed territory.

Looking to the leading case cited for the text above quoted from Corpus Juris, we find that the holding in Hunnicutt v. Peyton, supra, is thus stated in the headnote:

When a person enters upon unoccupied land, under a defective title, and holds adversely, "if the true owner be at the same time in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder."

It will be noted that this statement of the holding in that case is consistent with quotations herein made from Corpus Juris, and with the principle that, to be effective as an adverse possession, the actual possession must be on the disputed territory. But, upon examination of the facts, it appears that in that case, as in the instant case, the true owner entered subsequently and within three years, and did not place his actual possessions within the boundaries of the tract upon which the adverse claimant with inferior title had placed his actual possessions. This case, therefore, appears, when its facts are considered, to support the conclusion reached by the chancellor.

But is this the rule in Tennessee? We think not. It is, of course well recognized that the Supreme Court of the United States, in dealing with land titles, commonly follows the land laws of the...