Demarcus v. Campbell

• Decision Date: 21 January 1933
• Citation: 65 S.W.2d 876
• Parties: DEMARCUS v. CAMPBELL et al.
• Court: Tennessee Supreme Court

Page 876

65 S.W.2d 876

DEMARCUS v. CAMPBELL et al.

Court of Appeals of Tennessee, Eastern Section.

January 21, 1933.

Certiorari Denied by Supreme Court June 24, 1933.

Appeal from Chancery Court, Union County; Ben Robertson, Chancellor.

Suit by J. T. Demarcus against Will Campbell and another. To review an adverse decree, the defendants appeal.

Reversed, and bill dismissed.

Child & Ailor, of Knoxville, for appellants.

R. M. Vertrees, Robert D. Taylor, Dawson E. Hale, and Green, Webb & Bass, all of Knoxville, for appellee.

CASSELL, Special Judge.

Bill in the chancery court of Union county by J. T. Demarcus against Will Campbell, a deputy sheriff of Union county, and M. C. Hale of the same county. It is stated that the complainant is the owner of certain land in district No. 4, Union county, containing 75 acres, and that one R. D. Taylor, an alleged guardian of Nancy Cox, in June, 1929, filed an original bill in the county court of Knox county for the purpose of selling certain lands in both Knox and Union counties for the support of said Nancy Cox, who was alleged to be a lunatic. The bill was filed against Nancy Cox alone, and avers that on December 7, 1929, an order for the sale was confirmed by the court on 29th of January, 1930, title was divested out of Nancy Cox and vested in said M. C. Hale. It was further stated that at the time of the filing of the bill, and entry of order of sale, and confirmation thereof, in fact during the pendency of all the proceedings, complainant Demarcus was in open, notorious and adverse possession of the said tract of land claiming same by virtue of a registered color of title. It was also alleged that a part of said land was purchased by complainant from Rachel Beets and Nancy Cox by deed dated April 10, 1907, and recorded in the office of reporter of Union county, and the balance of the land was conveyed to him by deed from Conrad and Elmo Cox by deed dated March 19, 1918, and registered in the registry of deeds of Union county on June 22, 1922, and the complainant went into possession of said property at the time of the conveyances to him and he has had members of his family living in the house on said land since the purchase of the same. It was also alleged that his possession was open, notorious, and adverse to the whole world and was so at the time of the alleged sale in the county court of Knox county and the purchase of same by Hale.

Complainant then pleads the statute of seven years, under color of title and has filed his deeds as exhibits to the bill. It is further alleged that the defendant Campbell deputy sheriff, is about to forcibly eject complainant from his said property and throw his household goods out in the road and place the said M. C. Hale in possession thereof.

A writ of injunction was prayed and granted to enjoin the execution of the writ of possession. The answer filed by the deputy sheriff Campbell stated that he executed the writ of possession and dispossessed the persons living on the property on March 12, 1930. The defendant Hale answered and admitted that one R. D. Taylor, guardian of Nancy Cox in the county court of Knox county, had had the land sold for the support of Nancy Cox, a lunatic confined in one of the institutions for the insane in Knox county, and that by the decision of the county court of Knox county he became the purchaser of the lands described in the original bill and owner of the same. It is denied that complainant was in open, notorious, and adverse possession of the land under color of title by registered deed; however, he avers that the deed mentioned by the complainant in the bill obtained from Beets and Cox was not put on record until February 11, 1930, which was after the sale of the property had been confirmed by the county court of Knox county on January 30, 1930. Defendant further says that Nancy Cox was the rightful owner of the property, that she was insane at the time she became the owner, and that she has remained so since. As to the other tract of land it is averred that this court had already adjudicated in another case that Elmo and Conrad Cox had no title to the tract of land until after the death of their mother, Nancy Beets Cox, and that J. T. Demarcus had no legal or equitable interest in the land.

A cross-bill was filed in the case by defendant Hale in which it is alleged that, after J. T. Demarcus had been ejected from the land, J. T. Demarcus and Troy Demarcus wrongfully entered the land again and are trespassing on his property. Cross-bill prays for relief and for an injunction against J. T. and Troy Demarcus to restrain them from trespassing on his land. An exhibit was filed to the cross-bill which consists of a decree confirming sale, also a report of sale, and purports to divest title out of Nancy Cox and vest it in M. C. Hale.

The chancellor on November 16, 1931, decreed that the complainant was entitled to relief sought in the original bill, and that defendant and cross-complainant were not entitled to any relief under the cross-bill, and suit was dismissed.

The injunction issued against the deputy sheriff which enjoined him against executing the writ of possession was made perpetual, and from this decree the appellant was granted a writ of error which was filed in the court on July 20, 1932, and errors are assigned by the defendants to the chancellor's action as follows:

"1. The Chancellor erred in decreeing that the complainant Demarcus is entitled to the relief sought in his original bill.

"2. The Chancellor erred in decreeing that the defendant and cross-complainant Hale is not entitled to any relief under his cross-bill and in dismissing said cross-bill.

"3. The Chancellor erred in decreeing that the injunction granted in complainant's favor upon the filing of the cross-bill be made perpetual.

"4. The Chancellor erred in decreeing that the sale of the land in question by the County Court of Knox County was null and void.

"5. The Chancellor erred in decreeing that the defendant and cross-complainant Hale be perpetually enjoined from setting up any claim to said land based on said decree of sale."

The only depositions taken in the case were those of J. T. Demarcus and W. M. McCoy. Demarcus states that he lives in Union county and knows M. C. Hale and the deputy sheriff, Will Campbell. Demarcus states that on or about the 1st of April the deputy sheriff served a writ of possession on him, but he had owned the tract of land in the Fourth civil district of Union county since 1917 and would file a copy of the deeds as an exhibit to his deposition which, however, he did not do. That he went into possession of the land in 1917 and got his deed two or three years afterwards. The property had an old house on it, and part of the land was put under cultivation. He says that they built a boxhouse on it about seven years before he gave his deposition, and that he was in possession of the property at the time original bill was filed in the case of Robert D. Taylor, Guardian, v. Nancy Cox, in the county court of Knox county on June 24, 1929, and said his son Troy Demarcus was living at the house at that time and is still living there. He said that at the time Hale knew he had possession of the land, as he was his neighbor and lived about one-half mile away. He further stated that A. E. and A. C. Cox got title to the land through their mother, and that they built a house on this land about seven years before the present suit; that all the land was not under fence, but some of it was being pastured with cattle.

Witness McCoy stated that he is the son-in-law of J. T. Demarcus, having married his daughter in 1919, and that the house was built about three years afterwards; that he moved out in 1929, and that J. T. Demarcus moved in and has lived there continuously ever since.

We will first dispose of the motion filed by complainant J. T. Demarcus, to dismiss the case:

"Comes the complainant, J. T. Demarcus, and moves the Court to dismiss this cause, for the reason that no appeal was perfected from the Chancery Court of Union County within the time provided by law, and for the reason that the same is, therefore, not properly before this Court for any action at this time.

                               "Thurman Ailor, Solicitor."
                

This motion is overruled because a petition for a writ of error was filed within a year after the decision of the lower court, and in such cases notice of the granting of the petition is issued by the clerk and no notice of the granting of the writ except by the clerk is necessary. Complaint is made that the assignments of error are not sufficient in themselves in that they vi...