Bleidorn v. Pilot Mountain Coal & Mining Co.

• Decision Date: 30 September 1890
• Citation: 15 S.W. 737
• Parties: BLEIDORN <I>et al.</I> v. PILOT MOUNTAIN COAL & MINING CO. <I>et al.</I>
• Court: Tennessee Supreme Court

15 S.W. 737

BLEIDORN et al. v. PILOT MOUNTAIN COAL & MINING CO. et al.

Supreme Court of Tennessee.

September 30, 1890.

Appeal from chancery court, Morgan county; HENRY R. GIBSON, Chancellor.

Pickle & Turner and Sam Vance, for complainants. Henderson & Jourolmon, L. A. Gratz, D. K. Young, Sam E. Young, and J. H. Lewallen, for respondents.

LURTON, J.

This is a bill of ejectment. The lands involved embrace some 15,000 acres lying on the Cumberland mountain, in Morgan county. Complainants claim title under the will of Louis Bleidorn. This will was executed in April, 1852. Under it, this body of wild mountain land was devised to Mrs. Bleidorn for life, with remainder at her death to complainants. Mrs. Bleidorn died November 7, 1882, and this bill was filed three years thereafter. Much of the land is adversely held, and as to this the plea of the statute of limitations is relied upon. If this will was effective to create a life-estate in Mrs. Bleidorn, then no possession which began during the existence of this life-estate will operate to bar the suit of complainants, this suit having been filed within three years after the termination of the life-estate. The testator, Louis Bleidorn, resided, at the time of his death, in the city of New York. Its execution and attestation occurred in the state of New York, and in all these respects it was executed in strict accordance with the statutes of this state concerning wills of realty. It was duly proven, and admitted to probate in New York; and this probate was in accord with our statute. The objection urged by defendants is that it was never admitted to probate in this state until 1887. Some years after the institution of this action, defendants strenuously insist that a will conveying lands in this state is a nullity as a conveyance of such land until probated in this state, and that it operates as a conveyance only from the date of such probate. The question as to whether a will duly probated in another state, and executed according to the laws of this state, is operative as a conveyance of lands in this state without registration here, was most elaborately considered by this court in the case of Smith v. Neilson, reported in 13 Lea, 461. It was there held that "a foreign will, duly proved and recorded in the state of the testator's domicile according to the requirement of the laws of this state, * * * will pass lands in this state as between the parties, without record or registration here, and a copy of such will, duly authenticated under the act of congress, will be evidence." This conclusion was reached as the proper construction of our statute of wills, and has been adhered to in more than one unreported case. The question is one which affects the titles to large bodies of land in this state, and, a doubtful statute having been construed, after full argument and laborious consideration, the result there announced will be adhered to, however we might be disposed to regard it if an original question. But upon another ground this defense would prove unavailing. Pending this litigation, this will was duly proven and recorded in this state, and a copy of the record admitted as evidence, without objection. The effect of this registration was to confirm and perfect the title of complainants, and this confirmation relates to the date of the execution of the will. It was not the acquirement of a new title after suit brought, but the confirmation of a defective title. The effect of the recording of the will was not to confer a title as of the date of the registration or probate, but to vest and confirm title as of the date of the testator's death. In Crockett v. Campbell, 2 Humph. 411, it was held that a deed executed after commencement of suit, confirming one defectively made before suit, was admissible, and operated to confirm the defective execution of a power of attorney. So a tax-deed made after suit brought was held admissible in evidence in an ejectment suit, it being operative to confirm a deed theretofore made, but defective in its recitals. Brien v. O'Shaughnesy, 3 Lea, 725. See, also, Ward v. Daniel, 10 Humph. 607. It follows that the will of Louis Bleidorn operated to create a life-estate in his widow, and, as a result, no adverse possession which began after the death of the testator, in April, 1852, will operate to bar complainants, as remainder-men, suing within the period allowed by the statute for such suit, after the falling in of the life-estate.

The title of complainants originated in three entries for about 5,000 acres each. These entries were made February 17, 1836. Grants issued upon all these entries to Thomas B. Eastland in June, 1838. These entries were numbered, respectively, 1,942, 1,949, and 1,950. The contest over entry 1,949 is chiefly with the Pilot Mountain Coal & Mining Company, who claim title under varous grants to the larger part of the land covered by it. The entries and grants under which this corporation claim, or which are relied upon as outstanding titles superior to that of complainants, are as follows: (1) Entry No. 1,727: Grant No. 22,339, to Julian F. Scott, for 5,000 acres. (2) Entry No. 1,925: Grant 22,329, to H. M. Byrd, for 5,000 acres. (3) Entry 2,683: Grant 27,076, to David M. Peters, for 600 acres. (4) Entry 2,244: Grant 23,171, to J. F. and R. Scott, for 500 acres. (5) Entry 1,495: Grant 22,166, to Samuel Scott, for 5,000 acres. None of these entries or grants cover the whole of complainant's entry 1,949, and some of them lap upon each other.

1. As to the conflict between entry 1,727 and entry 1,949. Entry 1,727, as indicated by its number, is an older entry than 1,949, but the grant upon the latter issued first, and, unless 1,727 was a special entry, then the older grant upon a younger entry is the better title. Entry No. 1,727 is not in evidence. It is copied into the transcript, but counsel have signed an agreement that it was not read in evidence below. For this reason, we cannot now look to it. It, therefore, not appearing that the senior entry was a special entry, the senior grant, though founded upon a junior entry, must be held the superior title. To avoid this result, the defendant the Pilot Mountain Coal & Mining Company plead and rely upon a decree of the chancery court of Morgan county, adjudging that entry 1,727 was a title superior to that of complainants. It is insisted that complainants were parties, and therefore concluded by this adjudication, and it is relied upon as res adjudicata. To understand the effect of this plea it is necessary that the facts concerning it be stated. The title of the Pilot Mountain Company to much of the land claimed by it within the bounds of entry 1,949 is by deed from one G. A. Huelicker. Huelicker, by a change of conveyance, becomes the owner of entry 1,727, which, as before stated, laps upon 1,949, and covers, perhaps, one-half of the land within the younger entry. While thus the owner of this title, Huelicker, on the 7th March, 1877, filed an original bill in the chancery court of Morgan county, charging that he was the owner in fee of a tract of 5,000 acres, some having been entered by entry 1,727; that this entry conflicted with certain entries subsequently made; and that, upon these junior entries, grants had issued to Thomas B. Eastland. He charged entry 1,727 to have been a special entry, and that he had been in possession under his title for more than 20 years, and that the persons claiming title under the Eastland grants had never been in possession. He prayed that his title be decreed the superior title to the extent that it conflicted with the Eastland grants, and that the interfering titles be canceled as clouds upon his own superior title. This bill was filed against F. Clapp, S. S. Davis, and a number of others. Among those sought to be made defendants, and named in the caption as such, were a class of persons not designated by name, but described as "the heirs of L. Bleidorn." All of the defendants were stated to be non-residents of the state, and publication for them as non-residents prayed. Publication was made as prayed and, none of the defendants appearing or defending, a decree pro confesso was entered, and this was followed by a final decree in accordance with the prayer of the bill. By this decree, entry 1,727, and the grant thereon, was adjudicated superior to any title claimed by defendants, and their titles canceled as clouds, and all of defendants were enjoined from setting up or asserting any which conflicted with that set out as owned by Huelicker. L. Bleidorn was dead at the date of this suit, and complainants were his heirs at law, though they take this land as devisees, and not as heirs. If they were parties to this bill of Huelicker, it may be assumed that in the courts of this state they would be concluded by the decrees therein rendered, although such a decree against non-residents, parties only by publication, and who entered no appearance, would be treated by the courts of the United States and of other states as a nullity. Hart v. Sanson, 110 U. S. 151, 3 Sup. Ct. Rep. 586, and cases cited. When such a proceeding is expressly authorized by statute, a decree against a non-resident, a party only by publication, is, from the necessity of the case, and by force of the statute, valid and conclusive, within the jurisdiction authorizing such publication. Inasmuch, however, as the jurisdiction is dependent wholly upon statute, the compliance with the statute must clearly appear. If, therefore, the heirs of L. Bleidorn had been named in the caption as defendants, and publication had been made for them by their proper names, such publication would have operated to make them parties as non-resident defendants. But they were not named either in the bill or in the publication. The only allusion to them in the bill is found in the caption, where they are sought to be made defendants by description as "heirs of L. Bleidorn." By section...