Copeland v. Murphey
| Citation | 42 Tenn. 64 |
| Parties | WILLIAM COPELAND v. THOMAS G. MURPHEY. |
| Decision Date | 30 September 1865 |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM KNOX.
This cause was heard by Chancellor SETH J. W. LUCKEY, at the April term, 1865, when a decree was made in favor of complainant, from which defendant appealed.
JAS. R. COCKE & HENDERSON, for complainant.
HAYNES, BAXTER & FLEMING, for defendant.
The complainant commenced an action of ejectment in the circuit court of Knox county against the defendant, for recovery of the tract of land containing twenty-five acres, and afterwards filed this bill, for the purpose of staying waste thereon pendente lite.
The answer of defendant, is filed as a cross bill. Complainant claims the land under a grant from the State of Tennessee, dated December 10th, 1824, for forty-five acres. Defendant alleges that prior to the date of the grant, complainant and one John Murphey, and one Solomon Harmon, each owned a tract of land adjoining each other, in what was known as Hinds' Valley, at the back of which, and between the same and the top of a ridge, known as Beaver Creek Ridge, lay a piece of vacant land which constituted a desirable appendage to their several farms, and it was agreed between them that complainant should enter the land and procure a grant in his own name, for the benefit of all; and in pursuance of that agreement, complainant did enter and procure a grant for the land, and at some time thereafter conveyed that portion of the same which lay back of Harmon's farm to Harmon, but that the deed from Copeland to Harmon has been lost, or mislaid so that it cannot be found, and has never been registered; that on the 28th of October, 1828, Harmon conveyed the land to one Cliburn, who on the 13th of December, 1838, conveyed to defendant, Murphey and one Luttrel, a tract of one hundred and twenty acres, embracing the tract alleged to have been conveyed by Copeland to Harmon, and by Harmon to Cliburn, and the same now in dispute; and on the 15th of September, 1854, Luttrel conveyed his interest in the tract of one hundred and twenty acres, to defendant, Murphey. Defendant also charges that Harmon and those claiming under their several deeds, and claiming the same as their own adversely, since 1828. Defendant asks that said deed, alleged to have been lost, be set up, and relies upon adverse possession of more than seven years, as a bar to complainant's right.
Complainant, in his answer to the cross bill, denies that he made the agreement, as charged, concerning the entering of the land, and procuring a grant therefor; but says, in substance, that he did propose to them to enter the land, having heard some one else was about doing so, but that they declined, saying “they were not able, or in a fix to enter it,” but complainant could enter it for himself, and if they ever needed it, they could purchase it from him, if he had too much woodland attached to his farm. He also says, that said Murphey brought to him a deed for him to execute, purporting to convey to Harmon a portion of the tract, but that he refused to sign the deed, or if he signed it, refused to deliver it, because he was not willing to sell the boundary as specified in the deed; and denies that Harmon, or those claiming under him, have had adverse possession of the land for seven years before he brought his action of ejectment.
The grant to Copeland, and the deed from Harmon to Cliburn, and from Cliburn to Murphey and Luttrel, and from Lutrell to Murphey, are exhibited in the record.
Two questions are presented for our consideration:
1st. Has the defendant shows the fact of the execution, delivery and loss of the deed from Copeland to Harmon, so as to entitle him to have the same set up. The charge is not based upon the knowledge of the complainant in the cross bill, but upon the information. The answer of Copeland, then, to say the least, is suspiciously equivocal; and taken together with all the circumstances in the case, leads us strongly to suspect that the charge is true; but that is not sufficient. The answer of Copeland substantially denies the execution and delivery of the deed. Only one witness has been examined touching the existence of the paper--James M. Murphey,--who proves, in substance, only that his father, John Murphey, about 1850, handed to him a paper, stating to him at the time, that it was a deed for the disputed land; that it purported to be a deed from Copeland to Harmon for twenty-five acres of land. No attempt is made to prove the genuineness of the paper, or the fact of its execution, delivery or loss. In fact, the inference is, that although it may have been signed by Copeland, yet that it had never been delivered to Harmon as it was still in the hands of John Murphey, who Copeland says, brought the deed to him to procure its execution. The proof not only fails to show the fact of the loss of the deed, but it fails to show that any effort or search has been made to find it. We are of the opinion, the proof is wholly insufficient to authorize a court in the face of our statute of frauds and registration laws, to set up and give effect to the paper as a deed of conveyance from Copeland to Harmon for the land in controversy.
2d. Has there been such an adverse possession of the land in controversy, as will vest the title thereto in the defendant, Murphey, and defeat the title of complainant, Copeland?
The proof shows that Cliburn claimed the land, and cut timber on it, from the date of his deed in 1828, up to 1838, when he conveyed to Murphey and Luttrel, that defendant Murphey has been living upon, and cultivating the original tract owned by Harmon, ever since the date of the purchase from Cliburn, claiming the entire tract within the calls of the deed, under the deed, as the land of himself and his cotenant, Luttrel, up to the date of the conveyance from Luttrel to him, in 1854; since which time, he...
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