East Tennessee Iron & Coal Co. v. Wiggin

• Decision Date: 04 June 1895
• Docket Number: 265.
• Parties: EAST TENNESSEE IRON & COAL CO. et al. v. WIGGIN et al.
• Court: U.S. Court of Appeals — Sixth Circuit

68 F. 446

EAST TENNESSEE IRON & COAL CO. et al. v. WIGGIN et al.

No. 265.

United States Court of Appeals, Sixth Circuit.

June 4, 1895

This is an action of ejectment brought to recover a tract of mountain land containing 5,000 acres, lying in Campbell county, Tenn. The plaintiffs below claimed title through and as heirs at law of one Timothy Wiggin, a subject and resident of Great Britain, who died in London, February 1, 1856. Plaintiffs' ancestor acquired title by deed in 1840, but never resided in the United States or had any actual possession of the lands in controversy. He left surviving him seven heirs, four of whom have continuously resided 'beyond the limits of the United States and the territories thereof. ' The other three stirpes have been residents of the United States since 1865. The defendants in possession claimed under inferior and junior paper titles except as to one parcel of 50 acres, held under an older and superior grant. These junior grants for lands within plaintiffs' grant were as follows: (1) Grant No. 28,171 to John McCoy, dated August 21, 1851, for 200 acres; (2) grant No. 28,172, to John McCoy, dated October 21, 1851, for 1,000 acres; (3) grant No. 27,939, to Jacob Hammon, dated April 10, 1851, for 2,000 acres. The defense as to the lands held under these junior grants depended upon the statute of limitations. There was a judgment for the defendants as to the lands held under the grants for 50 and 200 acres respectively, and for three undivided sevenths, being the interest of the resident heirs of Timothy Wiggin in the McCoy grant for 1,000 acres. For the rest there was a judgment for the plaintiffs. From this judgment the defendants have sued out this writ of error.

W. A. Henderson, for plaintiffs in error.

Henry H. Ingersoll, for defendants in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

After stating the facts as above, the opinion of the court was delivered by LURTON, Circuit Judge:

There is a preliminary question for decision relating to the legality and sufficiency of the bill of exceptions. The cause appears to have been tried with a jury in February, 1894. A motion for a new trial was made and overruled February 9 1894. The bill of exceptions is dated June 21, 1894. Appellees say that this was after the term had closed. This insistence is based upon the provisions of the statute prescribing the terms of the circuit court for the Eastern district of Tennessee. The statute provides for terms at Knoxville beginning the second Mondays in January and July, and at Chattanooga, in the same district, beginning the first Mondays in April and October. The argument is that, when the Chattanooga term began, the Knoxville term was necessarily at an end. This is not sound. Section 612, Rev. St., provides that circuit courts may be held at the same time in the different districts of the circuit. By section 611, cases may be heard and tried by each of the judges authorized to hold the circuit court, sitting apart and concurrently. Unless sooner adjourned, a term of the United States circuit court may extend from the beginning of one term to the opening of the succeeding statutory term of the same court. The practice has in this circuit been almost universal to keep the court open from one statutory term to the succeeding regular term. This bill of exceptions was allowed and signed before the beginning of the ensuing term, and is altogether regular and valid.

Appellees have also insisted that it does not sufficiently appear that exception was taken to the charge or refusals to charge at the time the charge was delivered or refused. The bill of exceptions has not been prepared with that degree of care and accuracy which might be expected from the learning and skill of the attorneys representing appellants. Still it is evident, upon a fair and careful construction of the paragraph reciting the exceptions taken by appellants, that the expression 'then and there excepted' refers to the time when the court charged or refused to charge as requested, and not to the later day when a motion for a new trial was overruled.

There was evidence tending to show that John McCoy, the grantee under grant No. 28,172, took adverse possession under his junior grant as far back as between 1849 and 1853, and therefore during the lifetime of Timothy Wiggin, the ancestor of plaintiffs, and that his possession was continued down to some time during the Civil War, when he abandoned his occupation, and disappeared amid the smoke and dust of that conflict, leaving no trace behind, and has not since turned up. This evidence tended also to show that this adverse occupation was under a grant purporting to convey a fee. Beginning during the lifetime of Timothy Wiggin, it was continuously maintained for a period of more than seven years, including more than three years after descent cast upon the plaintiffs below. Defendants below endeavored to connect themselves with McCoy's title through a sheriff's deed made in 1870, purporting to convey certain lands which had been levied on and sold as the lands of McCoy, to satisfy a debt due to James Williams, the vendee under the sheriff's deed. Williams, in 1877, conveyed the land embraced in his deed to one L. Silcox, who, in 1886, conveyed the same land to defendant Bird. There was evidence tending to show that, after Williams took his sheriff's deed, he took possession, and that that possession had been kept up by himself or those who succeeded to his title for some 12 or 15 years before this suit was brought. The proceedings upon which the sheriff's deed to Williams was founded were not operative to convey the title to the 1,000-acre grant now under consideration. The suit was begun by attachment of McCoy's lands as a nonresident. The levy of the attachment did not embrace this particular body of land, and no liberality of construction will justify the subsequent inclusion of this parcel in the sheriff's deed of 1870. That deed was therefore inoperative as a conveyance of McCoy's title, and was properly held by the district judge as useful only as color of title.

Appellants insisted that the effect of the evidence as to McCoy's adverse possession was to extinguish the Wiggin title, and vest in McCoy the superior legal title, and that plaintiffs could not recover upon a title which had been thus annulled by adverse possession for the period required by the Tennessee statute. They also insisted that the subsequent adverse possession of Williams, Silcox, and Bird, under deed purporting to convey the fee, was adverse to the title acquired by McCoy, and resulted in its extinguishment, and that thereby defendants had acquired the perfect legal title. Their further insistence was that it was wholly unimportant whether the sheriff's deed to Williams was operative as a conveyance of McCoy's title, and equally unimportant whether they connected themselves with the McCoy possession or not, provided his possession was operative to toll the superior title originally in Timothy Wiggin.

The Tennessee limitation of actions for the recovery of land is found in sections 3459-3461, Mill. & V. Code. Those sections are from the Tennessee act of 1819, and were carried into the Code without change. They are as follows:

'3459. 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 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 land described in his assurance of title.

'3460. And, on the other hand, any person, and those claiming under him, neglecting for 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.

'3461. No person, or anyone claiming under him, shall have any action, either at law or in equity, for any lands, tenements or hereditaments, but within seven years after the right

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