Erck v. Church

• Decision Date: 07 May 1889
• Citation: 11 S.W. 794
• Parties: ERCK <I>v.</I> CHURCH.
• Court: Tennessee Supreme Court

11 S.W. 794

ERCKv.

CHURCH.

Supreme Court of Tennessee.

May 7, 1889.

Appeal from chancery court, Shelby county; B. M. ESTES, Chancellor.

J. M. Gregory, for complainant. Gantt & Patterson, for defendant.

DICKINSON, Special Judge.

Complainant filed this bill September 25, 1886, to recover possession of a parcel of land in Memphis, fronting 3 feet and 10 inches on Lauderdale street, and 5 feet 7½ inches on Humphries street, being 309 feet in length. It is admitted that complainant has a good legal title, and that he has a right to recover, unless it has been defeated by the operation of the statute of limitations. Mackall sold and deeded to Warner a lot contiguous to the parcel in dispute, fronting 50 feet on Lauderdale street and the same width on Humphries street, bounded by parallel lines. In taking possession Warner did not measure his 50 feet. Mackall, at the time Warner purchased, pointed to a group of trees, and designated one as being on the south boundary line of the lot sold. Warner fenced in his purchase and placed his south fence along the line indicated, believing that he was inclosing the parcel purchased of Mackall, and no more. He in fact inclosed with his 50-foot lot the parcel in dispute, and from that time continued to hold as his own the entire tract included by his fences. Warner sold to defendant, Church, by deed, following the description in the deed from Mackall to him, which embraced the 50 feet, but not the parcel in dispute; and Church took possession of the whole tract, as inclosed by Warner, and held it as his own. It is admitted that Church has not held seven years, but that Warner and Church together have held more than seven years. Complainant contends that the statute of limitations has not operated for these reasons: First. That Warner did not intend to inclose any ground but the 50 feet he purchased; that he took possession of, and held the disputed parcel by mistake; and that, therefore, the statute was not set in motion, because an essential requisite, namely, an intention to hold adversely, did not exist. Second. That the periods of possession by Warner and Church cannot be connected, because they are both wrong-doers, and there is no privity between them.

On the first question we are without precedent in this state. The case of Gates v. Butler, 3 Humph. 447, is erroneously cited by complainant as sustaining his contention. In that case plaintiff asserted title by constructive possession of a large tract, a portion of which he claimed to have held adversely for seven years by actual possession. This possession, if it existed, came by inclosing a small portion of land in the disputed grant by mistake, in placing the fence on the supposed boundary line of a contiguous tract, held by a different title. The proof made it most probable that the fence was on the true boundary line. The court said: "Under these circumstances, the court charged that the accidental and unintended inclosure of a small part of the land for seven years would not vest a valid title, etc. In this we think there was no error, and we affirm the judgment." There is a wide difference between a plaintiff actively setting up a title claimed to be perfected by accidental possession of a portion of land embraced in an instrument giving a color of title, and one defending by a possessory right to the extent of his actual inclosures. A court would be slow to assist one who, though having a color of title to a tract of land, by mistake, and without intention to assert his title, had inclosed an insignificant portion of the tract, and afterwards, on discovering his accidental holding, sought to extend by construction this possession so as to invest himself with an indefeasible title to the whole, and thus convert the possession which might be a shield for defense commensurate with his actual occupancy into a weapon of attack as far-reaching as the limits embraced in his deed. The case of Gates v. Butler decided that such possession could not avail for such a purpose, and nothing more. The courts of the different states are in conflict upon the question we are considering. In Wood on Limitation of Actions the opposing rules are stated, and the cases sustaining them respectively are cited. Section 263. In French v. Pearce, 8 Conn. 439, the defendant occupied lands not embraced in his deed, under the mistaken idea that they were included in his deed. There was no evidence that he intended to occupy such lands adversely, except such as might be afforded by the fact that he occupied and used them as his own. The court held that he thereby acquired title to the land by possession. Under the second section of the act of 1819 "no person, or any one 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 of action has accrued." If one enter upon the land of another, whether with intent of disseize or mistaking it for his own, a right of action accrues at once to the owner. If the one so entering holds and claims the land as his own for seven years continuously, then, certainly, the conditions of the statute will have been fulfilled. The right of action of the true owner accrues at once upon the entry, and is not dependent upon the state of mind or the knowledge as to boundary lines possessed by the one entering. If the fact of knowledge or intent were an essential element of disseisin, then the real owner would have no right of action against one who had entered by mistake, until after he was convinced of his mistake, and then, with knowledge of his error, continued to hold, thus altering the character of his possession, and technically ousting the true owner by a change of mental condition. Such a contention, under our statute, is not tenable. The right of action accrues when one takes possession as his own, whether by mistake or otherwise, and the right of recovery is barred in seven years from such entry, if the possession be unbroken. The possession and adverse holding are notice to the world and to the true owner, to the extent of the occupancy, and the visible physical fact should not be overcome by mere refinements based upon mental status. To hold otherwise would be to place the intentional wrong-doer in a better position than one who had innocently entered upon the lands of another, and expended his means in good faith. The intentional land-grabber, who, with premeditated wrong, took possession of lands, would be protected, while one who, by error of surveyor or as to natural monuments, innocently and by mistake entered on the wrong land and improved it in good faith, would not be protected if he held twice seven years. A mistake of a surveyor in locating a city lot for valuable improvements might cause one to place a wall a few inches beyond the actual line called for by his deed, and no length of possession short of the time required for a presumption of a grant would quiet the possessory right. It is manifest from the proof in this cause that Warner and Church intended to hold all the ground embraced by their fences as their own. Such possession was adverse under our statutes, whether it was by mistake as to the real boundaries or not; and, if continued for seven years, it would bar an action for recovery of the land...