Atkinson v. Atkinson

• Decision Date: 11 March 1939
• Citation: 130 S.W.2d 157,23 Tenn.App. 269
• Parties: ATKINSON v. ATKINSON et al.
• Court: Tennessee Court of Appeals

130 S.W.2d 157

23 Tenn.App. 269

ATKINSON v. ATKINSON et al.

Court of Appeals of Tennessee, Middle Section.

March 11, 1939

Certiorari Denied by Supreme Court July 1, 1939.

Appeal from Chancery Court, Fentress County; A. F. Officer Chancellor.

Ejectment suit by W. B. Atkinson against John W. Atkinson and another for possession of land. From a judgment for complainant defendant Mrs. Bertha Atkinson appeals.

Reversed and bill dismissed.

W. A. Garrett, of Jamestown, for appellant Bertha Atkinson.

Robert F. Turner, of Jamestown, for appellee W. B. Atkinson.

CROWNOVER Judge.

This is an ejectment suit.

The complainant, W. B. Atkinson, alleges in his original bill that he is the owner of a tract of land of 70 acres in Fentress County; that the defendants unlawfully detain from him 5 acres of said land; and he asks that title and right to possession of said tract of 5 acres be decreed to him and that he be put in possession thereof.

The defendant John W. Atkinson lives in Campbell County. He acknowledged service of process, but filed no answer or pleading, and pro confesso was entered against him.

Mrs. Bertha Atkinson, divorced wife of John W. Atkinson, filed her answer denying that W. B. Atkinson was the owner of said 5 acre tract, and claiming the same herself, without setting out her source of title.

The further allegations of her answer and her cross-bill, seeking a recovery against John W. Atkinson, were stricken by the Chancellor on the complainant's demurrer and motion to strike on the ground of impertinence, multifariousness and misjoinder, to which action the defendant Mrs. Bertha Atkinson excepted.

The cause was heard by the Chancellor on oral evidence by consent.

The complainant, W. B. Atkinson, offered no evidence to title in himself other than that he had executed and delivered to John W. Atkinson a deed conveying the property (it appears that the tract contained 12 1/4 acres) to him; that the deed had not been recorded; and that John W. Atkinson had redelivered the deed to him, but he did not execute any reconveyance to him; that John W. Atkinson had obtained a divorce from Mrs. Bertha Atkinson, and since the divorce Mrs. Bertha Atkinson had occupied this tract of land. No adjudication was made in the divorce decree about the title to the land.

The defendant Mrs. Bertha Atkinson showed no title in herself, but relied upon the failure of the complainant to show title in himself.

The Chancellor decreed that the complainant, W. B. Atkinson, was the owner in fee and entitled to the immediate possession of the land, and awarded writ of possession.

The defendant Mrs. Bertha Atkinson's motions for a new trial and in arrest of judgment were overruled by the Chancellor, to which she excepted, and appealed to this Court, and has assigned errors, which are, in substance, as follows:

(1) The Chancellor erred in holding and decreeing that the complainant, W. B. Atkinson, had established legal title to said land.

(2) The Chancellor erred in sustaining the complainant's demurrer and motion to strike.

W. B. Atkinson testified that he was the owner of a 70 acre tract of land which included the tract involved in this suit; that he sold the 12 1/4 acre tract to John W. Atkinson prior to February 1, 1937, who went into possession of the same and built a house on the land; that on February 1, 1937, he executed a deed conveying the 12 1/4 acres and delivered the same to John W. Atkinson, which deed was never recorded, but was retained in John W. Atkinson's possession; that John W. Atkinson and wife, Mrs. Bertha Atkinson, were later divorced, and she and her children remained upon the land; that John W. Atkinson, several months prior to this suit, instituted unlawful detainer proceedings against Mrs. Bertha Atkinson, which action was dismissed by the justice of the peace; that John W. Atkinson still owed him $50 on the purchase price of the land and surrendered the unrecorded deed to him.

He filed a copy of the deed, which showed that the consideration was $250 cash, the receipt of which was acknowledged, and a note for $56.25. The note was not filed.

Mrs. Bertha Atkinson testified that she and John W. Atkinson were divorced and she has since lived upon this property with their minor children; that three or four months before this suit John W. Atkinson instituted unlawful detainer proceedings against her, introducing at the trial this unregistered deed; that the action was dismissed by the magistrate; that a short time afterwards W. B. Atkinson instituted unlawful detainer proceedings against her, introducing the same deed, which action was dismissed; that John W. Atkinson told her he had paid in full for the land.

Other witnesses testified that John W. Atkinson had told them he had paid for the land.

The appellee, W. B. Atkinson, in this Court filed a motion to strike the appellant's assignments of errors on the grounds that they are too general and do not comply with Rule 11, subsection 2, of the Rules of this Court. This motion is overruled. While counsel did not strictly comply with the rules of our Court, the assignments of errors are accompanied by a statement of the case, brief, and argument, which supply any deficiencies of the assignments of errors. Tennessee Procedure by Higgins & Crownover, sec. 1989.

1. The defendant's first assignment of error must be sustained, as the evidence shows that the complainant has no legal title to the property involved. The testimony of the complainant himself shows that his claim to have the legal title to said land depends upon this unrecorded deed which he testifies was surrendered or redelivered to him by John W. Atkinson.

Even if the deed had been surrendered in good faith by John W. Atkinson to W. B. Atkinson, the redelivery or surrender of it would not revest W. B. Atkinson with the legal title. Morgan v. Elam, 12 Tenn. 375, 4 Yerg. 375; Howard v. Huffman, 40 Tenn. 562, 3 Head 562, 563, 75 Am. Dec. 783; 18 C.J. 406, 407.

"By the execution and delivery of a deed, the title passes, and the returning of it to the vendor, whatever may be the intention of the parties, will not revest the title in him. A re-conveyance is indispensable." Howard v. Huffman, 40 Tenn. 562, 3 Head 562, 75 Am. Dec. 783; Page v. Meath, 3 Shan.Cas. 717, 720.

In an ejectment suit the complainant must show that he has the legal title to the property in order to recover. Gibson's Suits in Chancery, 4th Ed., sec. 1047; Code, sec. 9118; Demarcus v. Campbell, 17 Tenn.App. 56, 65 S.W.2d 876; Hubbard v. Godfrey, 100 Tenn. 150, 159, 47 S.W. 81; Campbell v. Campbell, 40 Tenn. 325, 3 Head 325, 326; Langford v. Love, 35 Tenn. 308, 3 Sneed 308, 311; King v. Coleman, 98 Tenn. 561, 570, 40 S.W. 1082.

He may establish his legal title by deraigning title from the State, or by seven years' adverse possession under a registered color of title, where the land had been granted by the State of Tennessee, or by prescription (twenty years' actual adverse possession) when a legal title will be presumed, or by deraigning title to a common source. Scruggs v. Baugh, 3 Tenn.App. 256; Cannon v. Phillips, 34 Tenn. 211, 2 Sneed 211; Keel v. Sutton, 142 Tenn. 341, 219 S.W. 351.

In ejectment the plaintiff cannot recover, even against a naked trespasser, without proof of a perfect title. Hubbard v. Godfrey, 100 Tenn. 150, 47 S.W. 81.

If the defendant had no claim whatever but that of mere possession, he would still be required to produce the legal title before he could have her ejected. King v. Coleman, 98 Tenn. 561, 570, 40 S.W. 1082.

He must rely on the strength of his...