Byrd v. Phillips

• Decision Date: 23 May 1908
• Citation: 111 S.W. 1109,120 Tenn. 14
• Parties: BYRD v. PHILLIPS et al.
• Court: Tennessee Supreme Court

111 S.W. 1109

120 Tenn. 14

BYRD v. PHILLIPS et al.

Supreme Court of Tennessee.

May 23, 1908

Appeal from Chancery Court, Scott County; Hugh G. Kyle, Chancellor.

Ejectment bill by L. Byrd against Abner Phillips and others. Judgment for complainant, and defendants appeal. Affirmed.

Young & Young and E. G. Foster, for appellants.

Lucky Sanford & Fowler, for appellee.

BEARD C.J.

This is an ejectment bill, filed to recover a tract of land lying in Scott county, embraced in entry 777, upon which was issued a grant by the state to T. B. Eastland, No. 21,937. Complainant through a line of intermediate conveyances deraigns title from this grant.

The defendants Hall, Schaver, and Cross rely for defense upon the statute of limitations of seven years, and, in addition, that independent of the statute they have a good and indefeasible title to all the lands within this grant.

In order to a proper understanding of the points raised for and against the defense of the statute of limitations, it is necessary to give the contents of some of the instruments found in complainant's chain of title, and also of certain of those through which defendants deraign their title, together with a statement of facts shown by the record upon which is rested this defense of adverse possession.

As stated above, the title of complainant originates with entry 777, upon which the state, on June 30, 1838, granted to T. B Eastland the tract of land in controversy, describing it by metes and bounds, followed by the recital that it contained 4,000 acres. The description then is concluded as follows "Including within the above calls of prior legal claims, 1,000 acres."

Prior to the issuance of this grant, the record shows that within its exterior lines there had been issued by the state the following grants: Grant No. 20,389, to Blagburn Thompson, for 50 acres, dated November 2, 1836; grant No. 20,478, for 50 acres, to Richard Griffith, on December 10, 1836; and grant No. 20,083, to Robert Lawson, for 150 acres, dated September 20, 1836. The first two of these grants are distinctly located on the map of the survey made for the complainant. While more difficulty is encountered as to the grant issued to Robert Lawson, yet we think the weight of the testimony is that its location is as shown on this map and as claimed by the complainant, and that it is one of the grants excluded by implication from the operation of grant No. 21,937. Bleidorn v. Pilot Mountain C. & N. Co., 89 Tenn. 204, 15 S.W. 737.

It is contended by the complainant that by a series of intermediate conveyances the title acquired by the grantee, Eastland, was vested in the East Tennessee Coal & Iron Company, and that this company, on the 8th of February, 1888, made a deed to him in which it conveyed large bodies of land situated in the counties of Scott, Anderson, and Campbell, in this state, and, among others, the tract in question, describing it as follows: "Situated *** in Scott county, and known as entry 777 in said Campbell county, grant 21,937, from the state of Tennessee to T. B. Eastland, *** beginning at a maple, dogwood, and beech, the northwest corner of the tract, herein described as entry 759; thence with the line of same south 894 poles to a black gum and white oak; thence west 894 poles, with the line of the tract herein described as entry 776, crossing New river at a white oak; thence north 894 poles to a stake in an old field west of New river; thence east, crossing New river at 70 poles, crossing a branch at 284 poles, crossing a wagon road at 574 poles, crossing Paint Rock creek 844 poles, in all 894 poles, to the beginning."

The defendant deraigns title to a tract of 1,150 acres, which lies within the exterior lines of grant No. 21,937, through mesne conveyances, from one Jas. McDonald. On the 14th of June, 1858, McDonald executed a deed to Alexander Armstrong, by which he conveyed to him this tract, describing it by metes and bounds. Subsequently it was sold by the clerk and master of the chancery court of Scott county under a decree pronounced in the case of Armstrong et al. v. Petree et al., and a deed was made by that officer to its purchasers, P. L. Woodworth and David Logan, on the 30th of November, 1880. The record further shows that by a deed properly executed, bearing date March 1, 1845, James McDonald became the owner of the 50 acres covered by the Blackburn Thompson grant No. 20,389, and on the 21st of November, 1842, Richard Griffith conveyed to him the 50 acres covered by grant No. 20,478, and also 50 acres off the south end of entry No. 715, upon which grant No. 20,083 issued to Robert Lawson, of date September 20, 1836. On the 31st of July, 1854, there was issued to McDonald grant No. 29,162 for 500 acres, and on October 1, 1857, there was issued to him another grant, to wit, No. 29,984, for 500 acres. So it was, at the time of his conveyance to Armstrong, he was the owner of record of 1,150 acres, made up of these different tracts, all lying, as has been stated, within the exterior lines of grant No. 21,937. The record makes it clear that several years prior to 1860, during the time that McDonald was such owner, and subsequent thereto, there were possessions upon them, and that these possessions were made by him and his successors in title, setting up claim to the whole tract of 1,150 acres. It also appears that among these successors, who held such possession and set up claim of title, were Woodworth and Logan, who, as did their predecessors, claimed ownership to the limits of the McDonald tract. We think it clear that this possession continued unbrokenly, and was in existence at the time complainant acquired his title in 1888. To meet this condition, however, complainant insists, and we think this insistence is well sustained, that the great weight of the testimony is that these possessions were within the Thompson and Griffith grants and the 50 acres taken off the south end of the Robert Lawson grant, and that as these grants, being prior in point of time, were excluded from the operation of grant No. 21,937, issued to Eastland, possessions on them were not adverse to that grant, and cannot be relied upon to make out the defense raised upon the statute of limitation.

It is practically conceded that the rule relied upon by the complainant could have been invoked by his vendor, because it took title under a deed which simply referred to the grant issued to Eastland for description, without undertaking to set out the property by metes and bounds; for it is well settled that a reference to the prior deed or grant for description, without more, incorporates the description of that deed or grant in the later instrument. 2 Devlin on Deeds, § 1020, and cases cited in note 2. It is contended, however, by the defendants, that this rule cannot be invoked by complainant, as his deed from the East Tennessee Coal & Iron Company, made in 1888, while referring to the entry and grant, follows with a description of the land conveyed by metes and bounds, and has neither words of inclusion nor exclusion. This being so, it is argued that, from the particular description given, it was the purpose of the vendor to convey and of the vendee to acquire the title to the whole tract of land within these metes and bounds. The rule on this subject, with its limitations, is well stated on page 882, vol. 5, of Cyc., in these words: "When land is described in a grant or conveyance by reference to another grant or conveyance, the description contained in the latter is regarded as adopted by and incorporated into the former, and the land therein described will pass. The reference, however, must be definite and specific, in order to control a specific description which in itself is plain and unequivocal." The reports furnish many illustrations of the general rule and its limitation. Melvin v. Proprietors, etc., 5 Metc. (Mass.) 15, 38 Am. Dec. 384; Dana v. Middlesex Bank, 10 Metc. (Mass.) 250; Whiting v. Dewey, 15 Pick. (Mass.) 428; Raymond v. Coffey, 5 Ore. 132; Herrick v. Hopkins, 23 Me. 217; Gano v. Aldrich, 27 Ind. 294; McEowen v. Lewis, 26 N. J. Law, 451; Jones v. Smith, 73 N.Y. 205. In Bleidorn v. Pilot Mountain C. & N. Company, 89 Tenn. 212, 15 S.W. 737, is found a statement arguendo to the same effect. See, also, 2 Devlin on Deeds, § § 1038, 1039.

The defendants, however, we are satisfied, notwithstanding the character of complainant's deed, are in no better condition to avail themselves of the statute of limitation as against complainant than they would have been against complainant's vendor. Giving full effect to the particular description contained in the deed which complainant took from his vendor in 1888, it was simply a case where that vendor undertook to convey more property than he owned, while the possession relied upon to make out the case of adverse holding at the time existed and continued to exist upon land lying within the limits of the deed, but which neither the grantor nor grantee claimed. In 3 Washburn on Real Property, p. 748, the author embodies in the context the principle which controls in this case; the same having been announced by the New Hampshire court, to wit "Where a grantor embraced land to which he had no title in the same deed with that to which he had title, and his grantee entered upon and occupied that part only to which the grantor had title, it did not operate as a disseisin of the owner of the other land described in the deed, although such deed was duly recorded." So in Tiedeman on Real Property, § 696, it is said: "If the title was only void as to a part of the land conveyed, the occupation of that part to which the grantor had title will not give the grantee constructive possession of the other part to which he has no title, so as to...