Coal Creek Mining Co. v. Heck

• Decision Date: 30 September 1885
• Citation: 83 Tenn. 497
• Parties: THE COAL CREEK MINING COMPANY v. J. H. HECK et al.
• Court: Tennessee Supreme Court

83 Tenn. 497

THE COAL CREEK MINING COMPANY

v.J. H. HECK et al.

Supreme Court of Tennessee.

September Term, 1885.

FROM KNOX.

Appeal from the Chancery Court at Knoxville. W. B. STALEY, Ch.

ANDREWS & THORNBURGH and LUCKEY & YOE for complainants.

WEBB & MCCLUNG, HENDERSON & JOUROLMON, W. P. WASHBURN, W. M. BAXTER, C. J. SAWYERS and W. H. PACE or defendants.

FREEMAN, J., delivered the opinion of the court.

The bill of complainant was filed December 7, 1881, to assert a title to land described as follows: Beginning at a large white oak, also the northeast corner of 26,086, made to H. Wiley, and which corner is eighty poles north of a stake, four poles below Bowling's Mill on Coal creek; thence north 45° west twelve hundred poles to a chestnut tree at the northerly side of a path from Ben Wheeler's to the widow Turner's; thence south four hundred and ten poles to the northerly line of a tract of land conveyed to the Coal Creek Mining and Manufacturing Company by H. H. Wiley, W. S. McEwen and Charles A. Bulkley, by deed registered in the register's office for said county of Anderson, in Book C, vol. 2, pages 10, 11 and 12; thence with the last mentioned line nearly east to a mountain oak, the northwest corner of said grant to H. H. Wiley; thence south about 55° east with the line of said grant to the beginning, the said tract of land being part of grant No. 22,267, made by the State of Tennessee to Thomas B. Eastland.

Defendants, it is charged, claim title to the land sued for under conveyances made by H. H. Wiley, deceased, and the executors of W. S. McEwen, deceased, but they are alleged not to have had any title to said land, but that their heirs, executors, and all persons claiming under them, are estopped from claiming said land by the terms and provisions of a certain writing in the form of an agreement of compromise between said Bulkley, Wiley and McEwen, made December 25, 1871, and which is filed as an exhibit to the bill. It is claimed that this agreement provided that Bulkley should convey to complainant said grant No. 22,267, which he accordingly did, and that Wiley and McEwen, being officers of complainant at the time of the conveyance by them of said land to defendants, were bound to protect complainant's property, and so no title passed to defendants as against the company to their vendees, the respondents. The prayer is, that the claim of respondents be declared a cloud on complainant's title, and for a decree that complainant owns the fee of said land, for a writ of possession, and an account for waste, for removal of coal, cutting timber, etc., and for general relief.

The land described above is claimed to be part of grant No. 22,267, made by the State of Tennessee to Thomas Eastland, and the estoppel sought to be set up in the bill is against any title derived from McEwen and Wiley, and all persons claiming under or through them, and is rested, as is seen, on the face of the agreement referred to.

Respondents deny the allegation of the bill that McEwen and Wiley never had any title to the land in dispute, and were not owners thereof, and claim that by an inspection of the exhibit to the bill it will be seen that it is specially stipulated that all the land lying outside of the 40,000-acre boundary therein referred to, was to belong to McEwen and Wiley. It is then averred all the land herein sued for did lie outside of said boundary, and so remained the property of said McEwen and Wiley, and that they had held actual and adverse possession of the same for more than twenty-five years, with the exception of a small tract. It is also insisted that for a long time after March, 1872, McEwen, Wiley and Bulkley were the sole stockholders in said corporation, and practically construed the said agreement to mean as maintained by respondents, and that Bulkley had acquiesced in the claim of Wiley and McEwen until 1878 or 1879, and the now complainants, until the filing of this bill.

Without going into the details of the pleadings further, it suffices to say that respondents claim to have purchased from Wiley and McEwen, and to have regular conveyances from them or their representatives, and then with proper averments plead they are innocent purchasers, without notice of any equity whatever, and in fact that none exists as against them.

On the hearing the chancellor dismissed complainant's bill, from which there is appeal in error to this court. The Referees report adversely to the chancellor's decree, and recommend a reversal, to which defendants file various exceptions.

Objections are made that the exceptions filed are insufficient to raise the questions, but on looking at them we think they fairly open all the questions, and are in reasonable conformity to the statute, and the practice under it, as adopted by this court. The briefs furnish such references to the record as to the facts as have been uniformly accepted by this court, and the exceptions, with one exception, sufficiently point out errors of law, and raise vital questions in the case.

In order to present the first question to be decided in this case on these pleadings, it suffices to say, complainant claims to hold grant No. 22,267 by a regular chain of conveyances from the original grantee. It claims that this grant is the oldest grant, with the oldest entry, and covers the land in dispute.

Defendants claim the larger portion of the contested land under grant No. 22,273, with mesne conveyances granted to them, or what is adjudged to be equivalent to a conveyance, a reservation of “such part of the grants specified as conveyed, as lie outside of what is known as the 40,000-acre boundary” in a deed made by Charles A. Bulkley, W. S. McEwen and Henry H. Wiley, conveying the land to complainant, the coal company; this deed dated April 22, 1872.

That deed is evidently made in pursuance of the agreement of December 25, 1871, though it is not so stated on the face of it, the consideration for the large body of land then conveyed being nominal--one dollar.

It is proper to say here that the main contest in this case, or the contention involving the largest amount of land, grows out of an interlap between the lines of grant 22,267 and grant No. 22,273. Conceding complainant owns 22,267, the question is, whether the facts in this record give complainant or defendants the better title to the land held by them under 22,273 embraced within the lines of complainant's grant. By the deed of Bulkley, Wiley and McEwen, above referred to, conveying the large body of lands, consisting of six grants of 5,000 acres each, referred to by simple number of grants, and another large body of 40,000 acres each, giving its boundaries by calls and specific description, there are found two exceptions, first, of “a fifty-acre tract within said boundary purchased by said McEwen and Wiley from John Reynolds, which is not to be embraced in this deed,” but “the same is hereby expressly excepted and reserved by said McEwen and Wiley, and is bounded,” etc. After the description of said fifty acres follows: “and it is further understood that such part of the grants hereinbefore designated as lie, outside of the 40,000-acre boundary (which had been before given definitely) are not hereby intended to be conveyed, but are expressly excepted and reserved to said McEwen and Wiley.” Then follows the habendum clause to the company of all the land thus described, with a covenant of special warranty, to-wit, the parties “covenant and agree for themselves, their heirs, representatives, to warrant and defend the title to the said several tracts of land against any claim to be made by themselves, or by any person claiming through or under them, but no further or otherwise.” In the enumerated six grants referred to as conveyed by the above deed, is found grant No. 22,273, and the main part of the land now in contest is the part of the land embraced in the calls of said grant, lying north of the boundary of the 40,000 acres, consequently outside of it. Bulkley, at this date, is assumed to have owned 22,267, but caused it to be conveyed to the complainant by deed of date December 16, 1872, made by himself and wife afterwards, simply describing the land conveyed--this and another grant--by the number of the grants. Bulkley, in this deed, gives no covenant at all as to the title, and the wife only a special, and that a very special one, against any act of hers by which the title or “any part thereof now or at all times shall or may be impeached.”

It is proper to say, that by the agreement hereinbefore mentioned (Ex. A), the parties to it, McEwen, Wiley and Bulkley, were to procure a charter of incorporation for mining and manufacturing purposes, “and when obtained they” were “to convey to said company all right, title and interest which they may have in and to said lands included in the grants and boundary above mentioned, with the exception of the fifty-acre tract bought by McEwen and Wiley from John Reynolds, and such portions of said grants as may lie outside of the boundary of the 40,000 acres above set forth.”

From this it is seen clearly that this conveyance referred to was made in pursuance of, and in execution of the agreement, and was intended by the parties specifically to exclude from its operation both the fifty-acre tract and the land within the deed lying outside of the 40,000-acre boundary, and to give the same to McEwen and Wiley as against the company. It is to be remarked the land thus agreed to be, and conveyed, was to make up the capital stock of the company, for which shares of stock were to be issued to the three parties on a specified basis.

With these facts before us, what is the legal result of this reservation to McEwen and Wiley of the lands outside of the 40,000-acre boundary, the line of which is undisputed? We need not notice the distinction found in the books between an exception and a reservation, as the language of this deed is both ““excepted and...