Dunlap v. Sawvel

• Decision Date: 30 June 1920
• Citation: 223 S.W. 142,142 Tenn. 696
• Parties: DUNLAP ET AL. v. SAWVEL ET AL.
• Court: Tennessee Supreme Court

223 S.W. 142

142 Tenn. 696

DUNLAP ET AL. v. SAWVEL ET AL.

Supreme Court of Tennessee.

June 30, 1920

Appeal from Chancery Court, Bledsoe County; Foss H. Mercer Chancellor.

Action by Virginia C. Dunlap and others against S. M. Sawvel and others. From a decree of dismissal, complainants appeal. Affirmed as modified.

Solon L. Robinson, of Pikeville, and R. E. Robinson, of Sparta, for plaintiffs.

J. B Swafford, of Dayton, for defendants.

CASSELL Special Judge.

This is an action of ejectment, brought by Virginia C. Dunlap, P. H Schoolfield, Jr., James C. Schoolfield, John T. Billingsley and wife, Mrs. John T. Billingsley, Mrs. Versha Norwood Unice Schoolfield, John L. Schoolfield, Mrs. Hortense Legate, Mrs. Sue Bozarth, next friend to and on behalf of Katie Schoolfield and Mary Schoolfield, R. E. Schoolfield, S. B. Schoolfield, J. L. Schoolfield, Jr., H. M. Schoolfield, A. B. Schoolfield, Nina Hopson, Bertie Cannon, Angie Hopson, William Hopson, Mrs. Eddie Harrison, Stewart Hopson, in his own right and as next friend to and on behalf of Nettie Fay Pennington, Pattie H. Hankins, C. C. Schoolfield, Robert Schoolfield, John A. Schoolfield, H. M. Schoolfield, J. L. Schoolfield, John V. Spring, Fannie Page Haynes, next friend to and on behalf of Jesse Haynes and William Spring Haynes, Mrs. Clara Boring Ball, John R. Boring, in his own right and next friend to and on behalf of Edward Earl Reeves, John Peter Reeves, Fred Reeves, and Addie Elizabeth Reeves, H. B. Stephens and wife, Clara Stephens, Aaron T. Schoolfield, J. R. Schoolfield, A. H. Nail and wife, E. M. Nail, S. H. Cowan and wife, Anna Cowan, R. W. Walker and wife, Minnie Walker, Dave Schoolfield, Curry Schoolfield, Burt Humble and wife, Ethel Humble, Henry Turner and wife, Nancy Turner, J. L. Schoolfield, Mary Schoolfield, and Robert B. Schoolfield, executor of the estate of W. A. Schoolfield, deceased, to recover 5,000 acres of land under grant 4764 on entry 1226, state of Tennessee, to James I. Riddle, excluding 2,500 to 3,000 acres of prior claims (some 33 small tracts owned by actual settlers), and to recover damages for timber alleged to have been cut on the land by the defendants since the year 1912.

Defendants say complainants may be entitled to 40 acres in the northeast corner of said grant and to 4 or 5 acres in a narrow strip, partly triangular in shape, east and north of Mrs. J. E. McDaniel's 75 acres, described in Exhibit A to the bill, and also defendants disclaim from 5 to 10 acres adjoining what is known as the Thomas Knight claim near the top of the mountain at Lowes' Gap, being two small triangular-shaped pieces just south and north of the east corner of the Knight land. As to the remainder of the land sued for, defendants plead the statute of limitations of 7 years by their predecessors in title and themselves, plead outstanding title, and plead equitable estoppel.

The chancellor dismissed complainants' bill and the case is now before this court by appeal of complainants, although both parties assigned errors.

Complainants have deraigned title from the state of Tennessee through their ancestors and seem to show a perfect chain of title. In fact, this is admitted by the defendants in their proof. We will now dispose of the defense set up by respondents in order to arrive at a conclusion in the case.

At the outset, we may set it down as a sound proposition of law that, in absence of a superior title being in the defendants or outstanding or shown, complainants must recover the land sued for, and in order to eliminate some questions of law, which counsel seem to disagree on, we will mention these at the beginning.

First, the grant sued on excludes prior legal claims, and we hold it to be the law that the burden of proof, to show these prior legal claims is on the defendants, and not only is this true, but defendants must show that these exclusions cover certain specific tracts. In the absence of such a showing everything else out of the way, complainants will recover the land embraced within the calls of their grant. Kobbe v. Land Co., 139 Tenn. 266, 201 S.W. 762; Iron & Coal Co. v. Schwoon, 124 Tenn. 209, 135 S.W. 785; Bowman v. Bowman, 40 Tenn. (3 Head) 48; Fowler v. Nixon, 54 Tenn. (7 Heisk.) 719; Bleidorn v. Pilot Mountain, etc., 89 Tenn. 166, 204, 15 S.W. 737; Wright v. Hearst, 122 Tenn. 656, 127 S.W. 701.

The defendants attempt to show in the record that complainants' ancestor, Charles Schoolfield, deeded away several tracts of land within the calls of grant 4764, and there is some proof tending to show that Charles Schoolfield did as a matter of fact attempt to convey three tracts of land, of 500 acres each, within the calls of the grant, but from the description in the deeds filed in the record and from the other proof in the record we are unable to locate these tracts of land. It is contended on the part of the defendants that Charles Schoolfield platted this land into 10 small tracts, and deeds are put into record for what is known as tracts 7, 8, and 9, but the descriptions of these tracts are insufficient, for by them the land cannot be located, and we believe that the preponderance of the proof as found in this record is against any accurate location of this land being shown. For instance, tract known as lot No. 6, found in the record at transcript, page 192, calls to begin on lot No. 7, deed being dated the 15th of August, 1837; tract No. 2, purporting to convey 500 acres, number of lot not given, calls to begin on lot No. 9, deed dated 15th of August, 1837 (transcript, page 196); tract No. 3, designated as lot No. 7 and purporting to convey 500 acres, calls to begin on lot No. 8, deed dated 25th of May, 1837 (transcript, 204); tract No. 4, from David Schoolfield to Charles V. Caper (transcript, page 208), purporting to convey 500 acres and designated as lot No. 9, calls to begin on lot No. 8. These are the only deeds filed by defendants to show conveyances from Charles Schoolfield, and not one of these deeds fixes a locative corner or known point that can be found. The nearest any witness comes to locating these lots is the testimony of J. L. Daniels, witness for defendants, in which this witness attempts to locate the four lots by assuming that at some time there were other conveyances, made by either Charles or David Schoolfield, and he seems to think that there were originally 10 lots, numbered from 1 to 10, consecutively, and that these 10 lots consumed practically all of the 5,000 acres. From the evidence of Daniels and Blackburn, the two surveyors in the case, we are of the opinion that these four lots, 6, 7, 8, and 9, might be shown to be susceptible of several definite locations. To be exact, these four conveyances have no fixed beginning locations, and we doubt exceedingly if lot No. 9 is inside of the grant at all, even though this lot does not purport to be conveyed by Charles Schoolfield.

We think that, in order to estop the complainants from recovering the land which they are plainly entitled to recover (everything else being out of the way), by having deraigned a perfect title from the state of Tennessee, by mesne conveyances made by their ancestors in interest, these conveyances must be capable of being definitely located and shown on the ground embraced within the grant. We are of the opinion that the preponderance of the evidence in the record is to the effect that these four lots in question cannot be definitely located, and therefore these conveyances do not work an estoppel against the complainants; especially would this be true of the conveyances executed by David Schoolfield. In this connection, however, we will say that there is a conveyance in the record of 200 acres from Charles Schoolfield to E. L. Barabino in the northwest corner of the tract, which complainants cannot in any view of the case recover as this 200 acres is definitely located and was deeded away, and is eliminated from any possible recovery in this case. This 200 acres is set out in Exhibit 1 to the deposition of J. L. Daniel filed herein (transcript 200), deed dated September 25, 1837.

Defendants seek to show that complainants are estopped on account of these conveyances to establish their title to the land in question, but on examination of the pleadings we do not find that estoppel is pleaded as to these conveyances anywhere in the defendants' answer, and our courts have uniformly held that estoppel, in order to avail anything, must be especially pleaded, and for this reason we do not consider that, even if the lands described in the deeds could be located, the complainants would be inhibited from recovering their land, in the absence of estoppel being especially pleaded. Daniel's Chancery Practice (5th Ed.) 659-661; Turley v. Turley, 85 Tenn. 261, 1 S.W. 891; Jourolmon v. Massengill, 86 Tenn. 81, 5 S.W. 719. However this is, we say that, had estoppel been specially pleaded, we think the descriptions so vague and indefinite that it would not have availed defendants anything for reasons above stated.

We next come to the question of superiority of titles as to certain entries and grants, on account of overlapping of grants 4789 4793, and 4794, entries 1165, 1166, and 1158, with grant 4764 (complainants' grant). It is claimed by defendants that these entries and grants, which are shown on Exhibit A to the deposition of M. G. Blackburn, constitute what is known as one of the Eastland and Lane system of entries (checkerboard system), and that these entries depend on each other for location, the initial entry being No. 1140, which is special, and that this system, being special, is a better title than complainants' grant, and that complainants cannot recover for this reason. It appears, however, in the record, that neither the original...