Davidson v. Foley
| Decision Date | 25 November 1966 |
| Citation | 57 Tenn.App. 22,414 S.W.2d 123 |
| Parties | W. R. DAVIDSON and William R. Carter, Appellants, v. Frank FOLEY and Reba Foley, Appellees. |
| Court | Tennessee Court of Appeals |
Jackson, Tanner, Reynolds & King, Nashville, for appellants.
Claude Callicott, Nashville, for appellees.
This is a suit seeking to have the title and right to possession of a tract of land in Davidson County, decreed to the complainants and for an injunction against defendants restraining them from setting up any claim or doing any acts calculated to interfere with complainants' right, title, interest and possession of said property. While the Chancellor in his memorandum opinion designates it as a suit to quiet title to property and to remove a could therefrom, it is, essentially, a suit in ejectment, as provided for in § 23--1302 et seq. T.C.A.
The defense set up in the answer is that defendants have had actual, open, notorious, continuous and exclusive adverse possession of the property involved for more than twenty years, and further, that complainants' action is barred under Section 28--203, T.C.A. since defendants have had such adverse possession of the property for more than seven years next before the filing of this suit.
The answer also asserts that the deeds under which complainants claim title to the property in question are champertous and void.
The Chancellor found in favor of the defendants both on the grounds of adverse possession and champerty.
From the final decree dismissing complainants' bill they have appealed and assigned errors.
The essential facts necessary to a determination of the issues involved are substantially as follows:
Complainants purchased from Vulcan Materials Company, a New Jersey corporation, 44.21 acres of land in Davidson County located on the Lebanon Road near Nashville which was a part of a larger tract originally owned by Carrie M. Campbell.
In April 1941, Carrie M. Campbell sold to defendants part of the original tract, being a parcel fronting 100 feet on the Lebanon Road and running back 300 feet to a line. In June 1942 Lucille Campbell Ross, successor to Carrie M. Campbell, sold defendants another parcel 100 300 feet adjacent to the parcel above mentioned thus giving them a 200 foot frontage on Lebanon Road.
Defendants claim that later in 1942 they bought from Frank L. Ross, et al, an additional 60 to 70 feet in width by 300 feet in depth lying adjacent to the property already acquired by them, paying $500.00 for same but that Ross failed to deliver a deed to said property as he promised to do, and that defendants went into possession of same at that time, built fences around it and claimed said parcel of land holding it adversely to all the world since that time, this parcel being the property involved in this suit.
After the purchase of the tract of 44.21 acres by the complainants from Vulcan Materials Company, Inc. by deed dated December 10, 1962, they say they discovered that defendants had taken possession of and were claiming title by adverse possession of the aforesaid parcel comprising approximately .75 of an acre.
Thereafter, on November 24, 1964 they filed their original bill praying, among other things, 'That the title and right of possession to said tract of land be decreed to complainants and that they be put in possession thereof by decree of your Honor's Court.' They also prayed for an award of damages as a result of the alleged unlawful taking by the defendants and for the removal of the cloud on complainants' title and an injunction against interfering with complainants' right, title, interest and possession of said land.
The Assignments of Error challenge the Chancellor's findings and decree holding that the defendants established title and right to possession by prescription and because he excluded certain testimony of the witness John Bates with reference to property identification maps of Davidson County as being irrelevant and immaterial.
Counsel for defendant asserts that the issues are as follows:
(1) Did the complainants, without regard to the champertous nature of their and their predecessors' deeds, prove a good and complete title, sufficient to maintain this suit?
(2) Were the deeds in complainants' chain of title champertous?
(3) Did the defendants have adverse possession of the property in dispute for more than seven (7) years immediately prior to the filing of the Bill on November 24, 1964, so as to, under T.C.A. § 28--203, bar the complainants' suit?
(4) Did the defendants have adverse possession of the property in dispute for twenty (20) years immediately prior to the filing of the Bill on November 24, 1964, and thus acquire title by prescription?
Defendants insist that complainants did not establish title such as would sustain this suit.
In Hubbard v. Godfrey, 100 Tenn. 150, 47 S.W. 81, it was held that the plaintiff in ejectment must show a perfect title to recover even against the defendant who has no title or is a naked trespasser. He cannot recover upon comparison of titles with the defendant.
And as has been held in numerous cases in Tennessee, plaintiff must recover, if at all, on the strength of his own title and not because of the weakness of want of title of the defendant. Coal Creek Mining & Manufacturing Co. v. Ross, 80 Tenn. 1; Woods v. Bonner, 89 Tenn. 411, 18 S.W. 67; Wilson v. Wilson, 137 Tenn. 590, 195 S.W. 173; Hilton v. Anderson, 149 Tenn. 622, 261 S.W. 984.
'Where a complaint alleging ownership of realty on which defendant is constructing a fence, and seeking a decree restraining the building of the fence, and declaring complainant to have the better title to the land, is met by an answer denying such ownership and claiming title in defendant, the suit is in ejectment, and not to establish boundaries, requirking complainant to establish title in order to maintain it.' McCrellis v. Wells, Tenn.Ch.App., 64 S.W. 293.
'To maintain an ejectment bill the complainant plainant must show title by deraignment from the State or from a common source, or by the requisite possession under color of title.' Clay v. Sloan, 104 Tenn. 401, 58 S.W. 229.
Complainants have not traced their title back to a grant from the State, nor by deraignment to a common source with that of defendant since defendant claims by adverse possession in the absence of any deed or written assurance of title. Complainants did not establish adverse possession with color of title for seven years. In deraigning title complainants refer to three wills all dated prior to December 10, 1955, and the only instruments of record in the Register's Officer shown by their proof consist of a deed from Frank L. Ross and others to Eugene Jackson, Jr., dated December 10, 1955, a deed from Eugene Jackson, Jr., and wife to Lambert Brothers, Inc., dated December 16, 1955, and a deed from Vulcan Materials Company to the complainants dated December 10, 1962.
Therefore, it would...
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Bridgewater v. Adamczyk, No. M2009-01582-COA-R3-CV (Tenn. App. 4/1/2010)
...a trespasser. Id. (citing Lowry v. Whitehead, 53 S.W. 731 (Tenn. 1899); Hubbard v. Godfrey, 47 S.W. 81 (Tenn. 1898); Davidson v. Foley, 414 S.W.2d 123 (Tenn. Ct. App. 1966)). "The complainant in an ejectment suit must establish title by deraigning title to a common source under which both p......
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Johnson v. City of Mt. Pleasant
...Hubbard v. Godfrey, 100 Tenn. 150, 47 S.W. 81 (1898); Lowry v. Whitehead, 103 Tenn. 396, 53 S.W. 731 (1899); Davidson v. Foley, 57 Tenn.App. 22, 414 S.W.2d 123 (1966). The complainant in an ejectment suit must establish title by deraigning title to a common source under which both parties c......
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