Earnest v. Little River Land & Lumber Co.

• Decision Date: 20 November 1902
• Citation: 75 S.W. 1122,109 Tenn. 427
• Parties: EARNEST et al. v. LITTLE RIVER LAND & LUMBER CO. et al.
• Court: Tennessee Supreme Court

75 S.W. 1122

109 Tenn. 427

EARNEST et al. v. LITTLE RIVER LAND & LUMBER CO. et al.

Supreme Court of Tennessee.

November 20, 1902

Appeal from Chancery Court, Sevier County; John P. Smith Chancellor.

Suit by J. G. Earnest and others against the Little River Land & Lumber Company and others. From a decree of the court of chancery appeals in favor of defendants, plaintiffs appeal. Affirmed.

Lucky Sanford & Fowler and S. T. Logan, for appellants.

Webb & McClung, M. B. McMahan, J. R. Penland, and Pickle & Turner for appellees.

BEARD C.J.

This is an ejectment bill filed to recover a large body of land lying in Sevier county. Several matters of minor importance were presented at the bar, but, confessedly, as the case involves one controlling or determinative question, to avoid confusion we will state only so much of the record, and that in a condensed form, as bears on this question.

The state issued three series or classes of grants, which interlap so as to cover the lands in controversy, at different dates and to different persons. The older grants were issued in the year 1838 to grantees who are not parties to this suit, and who, so far as is disclosed, are not setting up title under their grants. The intermediate grants are conterminous, and were issued to the ancestor of the present complainants in the year 1841, and the junior grants at a still later date. The complainants claim under the intermediate grants, and the defendants under the later grants. But in addition to this claim the defendants rely on the fact that before the institution of this suit they had themselves, and through their privies, held continuous, exclusive, adverse, and peaceable possession of these lands within the interlap of these grants for the full term of seven years, and under an assurance of title purporting to convey an estate in fee.

As against parties claiming under the grant first in the order of issuance, it is conceded that the defendants, by this adverse holding, have obtained the superior title, but the contention of complainants is that such holding has not been operative against them; to the contrary, that the removal or extinguishment, as they say, of the first grants, by this adverse possession, has vitalized or infused title into their intermediate grants, by virtue of which they have both the right of property and the right to the possession of their land as against defendants. In other words, the defendants insist that, under the first section of the act of 1819, the effect of this adverse holding is to invest them with an "indefeasible title in fee," good against all the world. On the other hand, the complainants contend that this possession of defendants has extinguished the first or superior grants, and at the same time set at large the intermediate grants under which they claim, and they are now the muniments of the true title, enforceable against the defendants and all others. Is such claim maintainable on principle or authority?

We think it may be safely asserted that if an individual owner in fee, for a valuable consideration, should make and deliver a deed conveying to a purchaser, without reservation, a tract of land, such writing would take out of the owner all estate, and vest it in the vendee. So, the registration laws out of the way, a second and third deed from the vendor to other parties, in which he undertook to convey to them the same property, would be waste paper, in no way affecting the title or estate of the first conveyee. But a very different condition would be brought about, should the third grantee go into possession of the land, and hold it adversely for the term of seven years. Then, under the first section of the act of 1819, he would secure what, up to the moment of the expiration of this term, the first grantee had,--an estate in fee, good and indefeasible, not only against the first grantee, but against all invaders of his rights, including, of course, the intermediate grantee. In such a case no one would claim that the loss of estate by the first inured to the benefit of the second, as against him, whose assurance of title had ripened into an indefeasible title. If this be true, then there must be found some intelligent and well-defined distinction between private and public grants, to give a different effect to an adverse holding under the last of a series of grants of the same property from the state. Such distinction, at least, is not found in patents for public lands issued by an officer acting under authority of the statutes of the United States. In such case the "patent carries the fee, and is the best title known to a court of law." Bagnell v. Broderick, 13 Pet. 450, 10 L.Ed. 235. It is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles, until set aside or annulled, unless it is absolutely void on its face. Hooper v. Scheimer, 23 How. 235, 16 L.Ed. 452; Johnson v. Towsley, 13 Wall. 72, 20 L.Ed. 485; Gibson v. Chouteau, 13 Wall. 92, 20 L.Ed. 534. We can conceive of no reason, and none is suggested at the bar, why the same is not true as to grants issued by the state. The title to the land is primarily in the state. It is there absolutely and indefeasibly, save by its own act. Ultimately it sees proper to part with a portion of its domain, over which it is lord paramount, and does do so by the issuance and delivery of a grant in which the property is confirmed to the grantee, without limitation or condition. Held by the state, it was a fee simple absolute, and such an estate passes by the terms of the instrument to its grantee. Nothing remains in the state to be afterwards disposed of. The estate in the land is gone, and there is nothing left upon which a subsequent grant can operate. It is true, there are exceptional cases in which this rule will not control, such as when a younger grant is made to relate to an older special entry, but the present is not one of those cases. This rule is applied uniformly in controversies between parties claiming land under successive grants, where the statute of limitations is out of the way. In such a controversy, the claimant under the older grant will always succeed, upon the ground that by it the state had parted with the estate or title to the land. It is true that it has been found that the state has often issued a number of grants to the same land; but this was without warrant of law, and has resulted either from carelessness upon the part of the officials of the state, from incorrect surveys, or possibly other causes. The courts have been burdened with litigation growing out of the multiplication of grants, but nowhere has it ever been intimated that there were two or more titles to the same land, which might be parceled out in a series of grants. There is but one "good and indefeasible title," as is said by Judge Lurton in Coal Co. v. Wiggins, 15 C. C. A. 510, 68 F. 449, and this title passes to the first grantee, "and as it is impossible," says Judge Reese in Crutsinger v. Catron, 10 Humph. 27, "that there shall be a good, subsisting legal title in two different persons, claiming in different rights to the same land," we think it clear that, as the state has nothing left to dispose of, subsequent grantees obtain nothing.

Leaving, however, these general considerations, which seem to dispose of the present controversy, inasmuch as it would follow that the intermediate grantees took nothing covered by the first grants, we return to the specific question, did the adverse holding by the defendants of the property located within the interlap of all the grants, as hereinbefore set out, serve to draw to them or vest in them the absolute title to this property, which they can maintain against every owner, or did it simply extinguish the rights of the first grantee or grantees, and leave them exposed to the substantive rights and the aggressive attacks of complainants, under the cover of their intermediate grants?

This brings us to an examination of the first section of the act of 1819, which, in substance, is carried into Shannon's Code, §§ 4456-4458, and reads as follows:

"Sec. 4456. Any person, having had by himself or those through whom he claims, seven years' adverse possession of any lands, tenements, or hereditaments, granted by this state, or the state of North Carolina, holding by conveyance, devise, grant or other assurance of title, purporting to convey an estate in fee, without any claim by action at law, or in equity, commenced within that time and effectually prosecuted against him, is vested with a good and indefeasible title in fee to the lands described in his assurances of title.

"Sec. 4457. And on the other hand, any person and those claiming under him, neglecting for the said term of seven years to avail themselves of the benefit of any title, legal or equitable, by action at law, or in equity, effectually prosecuted against the person in possession, as in the foregoing section, are forever barred.

"Sec. 4458. No person, or any one claiming under him shall have any action at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action has accrued."

The conditions that lead to the passage of this celebrated act are recorded in the opinions of the courts of that day. Barton's Lessee v. Shall, Peck, 218; Wallace v. Hannum, 1 Humph. 449, 34 Am. Dec. 659; and Dyche v. Gass' Lessee, 3 Yerg. 401. But nowhere are they more graphically portrayed than in the preamble to the act itself, which is in these words, "Whereas many disputes have arisen with regard to the proper construction of the statute of limitations, and the time seems fast approaching when the titles to land will become so perplexed that no man...