Bouldin v. Taylor

• Decision Date: 29 August 1925
• Parties: BOULDIN ET AL. v. TAYLOR ET AL. A. D. CLARK & CO. v. TAYLOR.
• Court: Tennessee Supreme Court

275 S.W. 340

152 Tenn. 97

BOULDIN ET AL. v. TAYLOR ET AL.

A. D. CLARK & CO. v. TAYLOR.

Supreme Court of Tennessee.

August 29, 1925

Appeal from Chancery Court, Grundy County; T. L. Stewart Chancellor.

Suit by M. E. Bouldin and others against Cordelia A. Taylor and others, consolidated with a suit by A. D. Clark & Co. against the named defendant. Decree for complainant, A. D. Clark & Co. and the named defendant appeals. Reversed and remanded.

MALONE Special Judge.

These were ejectment bills, consolidated and heard together in the court below. The chancellor gave a decree, awarding to the complainant, A. D. Clark & Co., the land in question. The defendant Mrs. Cordelia A. Taylor has appealed to this court.

A. D Clark & Co., a foreign corporation, claimed the ownership of two tracts of mountain land in Grundy county, Tenn. On the interlap of these tracts (as complainant claims) was a small house or cabin. For some time prior to the year 1913, this cabin had been under the control of an agent of the defendant Mrs. Taylor. In March, 1913, Gordon Northcutt, an employee of the complainant, A. D. Clark & Co., took possession of this house, and added other improvements, holding on behalf of the complainant. It is claimed by complainant that the house was then standing open, vacant, disused, and out of repair. On behalf of Mrs. Taylor, it is claimed that the cabin was locked, with the key in her agent's possession, and that Northcutt broke the lock, and thus forcibly entered the premises.

Thereafter in the first part of July, 1913, Mrs. Taylor instituted an action of forcible and unlawful entry and detainer, before T. B. Roddy, a justice of the peace of Grundy county, against A. D. Clark & Co., and Gordon Northcutt and John Barker, its employees. The process in the case was served only on Northcutt and Barker. A judgment by default was entered against them, and by the terms of this judgment Mrs. Taylor was awarded possession of the improvements and a tract of some 1,100 acres of land on which the improvements stood, which was described in the detainer warrant.

A. D. Clark & Co. then took the case to the circuit court of Grundy county, by certiorari, but on motion of Mrs. Taylor their petition was dismissed.

Thereupon, on July 14, 1913, the original bill was filed in the chancery court at Altamont, in the case of M. E. Bouldin et al. v. Cordelia A. Taylor et al.

A. D. Clark & Co. had purchased this land from the heirs of J. E. Bouldin, and these heirs were made cocomplainants, apparently for the purpose of avoiding the champerty law.

The defendants to the suit were Mrs. Cordelia A. Taylor, who claimed the 1,100 acres, as aforesaid, T. B. Roddy, the justice of the peace who had tried the detainer's suit, and Elijah Shrum, sheriff of Grundy county.

The bill sought a recovery of two tracts therein described by metes and bounds, and to enjoin the defendant Roddy from issuing, and the defendant Shrum from executing, the writ of possession in favor of Mrs. Taylor.

The bill was answered only by Mrs. Taylor, who was the real party in interest. In her answer she claimed ownership of the 1,100-acre tract described in her detainer suit, and disclaimed title to all other lands sued for in the bill.

She also claimed adverse possession of this 1,100-acre tract, and pleaded the statute of limitation of seven years.

She further pleaded outstanding title.

A considerable amount of proof was taken under these pleadings, and the case heard by the Honorable V. C. Allen, then chancellor for this division of the state.

In December, 1914, Chancellor Allen handed down a written opinion in the case, holding, in substance:

(a) That complainant, Clark & Co., and defendant Mrs. Taylor both claimed the land in question under one J. M. Riley--the complainant claiming through a chain of title established by mesne conveyance and descent cast--the defendant through a tax proceeding under which the land was sold as the property of Riley.

(b) That both parties, for these reasons, were estopped to question J. M. Riley's title, and that the defendant Mrs. Taylor was estopped to rely on the defense of outstanding title.

(c) That complainant showed a paper title, authorizing a decree in its favor, unless defeated either by adverse possession or by the tax title above mentioned.

(d) That defendant Mrs. Taylor, under the proof, had failed to make out the defense of seven years' adverse possession.

(e) That the tax deed, which merely described the land assessed to J. M. Riley as "2,500 acres including the falls of Collins river and also including the place known as Riley's mill seat," was void for want of a sufficient description.

(f) That the tax deed should accordingly be canceled, and complainant recover the land as prayed in the bill.

A final decree was drawn by counsel for complainant in accordance with this opinion, and mailed to counsel for defendant. This decree was retained by counsel for the defendant Mrs. Taylor, and on February 15, 1915, he filed an elaborate petition to rehear. Before action on this petition was had, and before the decree which had been drawn was entered, Chancellor Allen died. His death occurred about the last of February, or the first of March, 1915.

Mr. Mercer, who was then one of the solicitors for complainant, Clark & Co., was appointed to succeed Chancellor Allen. He was, of course, incompetent to make any order in the case, and nothing appears to have been done for some months, except that in May, 1915, the case was transferred, by consent of parties, from the chancery court at Altamont to the chancery court at Tracy City.

In 1916, Chancellor Stewart succeeded Chancellor Mercer. A petition was filed before him on behalf of the complainant, A. D. Clark & Co., seeking to have the decree, which had been drawn in accordance with Chancellor Allen's opinion, entered nunc pro tunc. It appears that this decree had been conditionally approved by Chancellor Allen, who directed, however, that the same be shown to counsel for the defendant Mrs. Taylor before it was entered. Issues were made up under this petition, and proof taken, and the matter heard by Chancellor Stewart, who, in November, 1918, denied the petition, and remanded the case to the rules for additional proof, if the parties desired to take it.

Pending these proceedings, and in the year 1917, the complainant, A. D. Clark & Co., bought up certain outstanding titles on which the defendant Mrs. Taylor had relied in the original trial before Chancellor Allen; but fearing that this purchase pendente lite would not avail it in the new trial before Chancellor Stewart, another bill was filed in April, 1919, by A. D. Clark & Co., as the sole complainant, against Mrs. Taylor, as sole defendant. This is the suit of A. D. Clark & Co. v. Cordelia A. Taylor.

In this bill, the complainant described three additional tracts of land, to which it was alleged the defendant Mrs. Taylor was wrongfully claiming title.

The various proceedings had in the other case were described at length.

It was then alleged that in 1917, while that cause was pending on the petition above mentioned, complainant acquired, by purchase, the title to the three new boundaries described in the bill, and that complainant now claims title to these three boundaries of land from sources of title entirely independent of the sources through which it claimed ownership of the land described in the original bill.

It is alleged that the only defense made to the original bill was that the boundaries in question (purchased pendente lite) constituted outstanding titles.

It is further alleged that:

"Complainant is advised that it cannot rely on its after-acquired titles to the three tracts or boundaries of land in said original suit No. 1170, under the holding of the Supreme Court of this state, and in order to get the benefit of its after-acquired title as well as the benefit of the title it owned to the land described in its original bill, No. 1170, this bill is filed as an original bill.

Complainant is advised and alleges that all the proof taken by both parties on the merits in said cause No. 1170 would be applicable to this cause, and all the proof that may be taken in this cause by either party on the merits would likewise be applicable to said cause No. 1170. That the same boundary of land is in litigation in this cause as in cause No. 1170 and the parties on both sides are represented by the same solicitors. Complainant therefore avers that this cause should be consolidated with said cause No. 1170, and that they should be heard together as one suit."

The bill contained an appropriate prayer in this behalf, and sought the same relief asked under the original bill.

The defendant Mrs. Taylor filed a full answer to the bill, reiterating the defenses in her original answer, and denying the right of the complainant to have the causes consolidated, or to have proof taken in one case considered in the other.

Thereafter (the exact date of the order not appearing in the record), the two causes were, on motion of complainant, consolidated. The defendant Mrs. Taylor excepted to this action of the chancellor, "for the reason that said motion comes too late, cause No. 1170 having been filed in 1913, and prepared for trial long since in so far as defendant is concerned."

A considerable amount of additional proof was taken, and the causes were heard together by Chancellor Stewart in November, 1920. On the trial of the cases, the defendant Mrs. Taylor excepted to the action of the court in permitting depositions taken in one of the consolidated causes to be read in the other.

Chancellor Stewart entered a final decree, awarding the disputed land to complainant, with the exception of...