Garrett v. Belmont Land Co.

• Decision Date: 26 February 1895
• Parties: GARRETT et al. v. BELMONT LAND CO. et al.
• Court: Tennessee Supreme Court

29 S.W. 726

94 Tenn. 459

GARRETT et al. v. BELMONT LAND CO. et al.

Supreme Court of Tennessee.

February 26, 1895

Appeal from chancery court, Davidson county; Andrew Allison Chancellor.

Bill by A. E. Garrett and others against the Belmont Land Company and others to recover land. From a decree for complainants defendants appeal. Reversed, and bill dismissed.

J. C Bradford, Baxter & Hutcheson, and J. H. Acklen, for appellants.

A. E Garrett, E. H. East, and Vertrees & Vertrees, for appellees.

WILKES J.

This is an ejectment suit brought by A. E. Garrett and J. A. Hayes, Jr., to recover lots 23 and 41 in what is styled the "O. B. Hayes Plan," a suburb of Nashville. The Belmont Land Company claims and is in possession of lot No. 41, and defendand Valentino claims and is in possession of No. 23. Upon the hearing, the chancellor gave judgment for the complainants for the lots, and defendants have appealed and assigned errors.

Both parties trace their titles to a common source,-Joel A. Hayes, Sr.,-who was the father of complainant J. A. Hayes, Jr., the father-in-law of complainant Garrett, and the brother of Mrs. Adelicia Cheatham, under whom the defendants derive their title. Complainants' title is as follows: On the 5th of December, 1873, the Second National Bank of Nashville recovered a judgment before Justice of the Peace James Everett against one Henry M. Hayes for $370 and costs. Joel A. Hayes, Sr., the brother of H. M. Hayes, became stayor on the judgment. After the stay expired and on the 6th day of August, 1874, the justice issued an execution on said judgment, which came to the hands of Constable W. C. Shaw, and was levied by him on lots 11, 20, 23, and 41 in O. B. Hayes' plan, as the property of J. A. Hayes, the stayor. After the levy of the fi. fa., the papers were returned to the law court of Davidson county for the condemnation of the land. The order of condemnation was entered by that court January 29, 1875. Venditioni exponas issued on the 2d day of March, 1875, and the lots were sold by the sheriff on the 1st day of May, 1875, the Second National Bank becoming the purchaser, at the price of $107.42 for each lot. Afterwards, on the 7th day of July, 1877, the sheriff executed to the Second National Bank a deed to said four lots. On October 13, 1877, James McLaughlin, president of the Second National Bank, executed and delivered to A. E. Garrett and J. A. Hayes, Jr., a deed to said lots. It is insisted this deed is invalid, because, as signed, it was not the deed of the bank, but simply that of James McLaughlin, and because it was not executed under the seal of the bank. But it is insisted, if the deed shall be held valid, that Garrett and Hayes, Jr., held title to the lots not for themselves, but for the use and benefit of Joel A. Hayes, Sr., having in fact redeemed or repurchased them for him, and having afterwards been repaid the amounts advanced by them to regain the lots.

It is assigned as error that the chancellor should have held: First. That defendants, and those under whom they claimed, had been in adverse possession of said lots, under color of title, for more than seven years next preceding the filing of the original bill. Second. That the deed of James McLaughlin, president of the Second National Bank, under which complainants claim, was void, and conveyed to them no title in said property; or, at most, vested in them only an equity, which was insufficient to entitle them to recover. Third. That the alleged purchase of the lots by complainants from the Second National Bank was in law and fact a redemption for J. A. Hayes, Sr.

Appellants' claim of title is as follows: On July 12, 1875, Mrs. Adelicia Cheatham, a sister of Joel A. Hayes, Sr., recovered a judgment in the circuit court of Davidson county against Joel A. Hayes, Sr., upon which execution issued and was levied September 4, 1875, on these two lots, 23 and 41, as well as lot No. 11, and other real estate not now in controversy; and on November 26, 1875, the lots were sold by the sheriff, and lots Nos. 23 and 41 were bought by Mrs. Cheatham, and the sheriff made a deed to her February 15, 1881. She conveyed the lots, January 11, 1887, with other lots, to Lewis T. Baxter, for $49,000, and on October 17, 1889, Baxter and wife conveyed lot No.

23 to E. C. McDowell, who afterwards sold the same to defendant. J. L. Valentino. March 17, 1890, Baxter conveyed lot No. 41 to the Belmont Land Company. It is claimed that Mrs. Cheatham paid taxes on the lots from the time she bought them, in 1875, and claimed them as her own until she sold them, January 11, 1887. They were not inclosed, but lay in an open common, which had been subdivided into a large number of lots, known as the "O. B. Hayes Plan." These lots were owned by different parties, and were mostly vacant and unimproved. No roads or highways were built through them until, in 1888, the defendant company opened what is called "Belmont Avenue." Until this was done the lots were inaccessible, and their value was speculative, and dependent on the growth of the city. On the 23d of April, 1883, Mrs. Cheatham, by a deed duly registered, dedicated to the public, for use as a highway, 10 feet off of each of these lots fronting on Belmont avenue, but the lots are not mentioned specifically by numbers, and the deed was not registered until after the bill in this case was filed; and in 1889 the Belmont Land Company graded and put a drain pipe through No. 41. In the meantime complainants paid no taxes upon the lots, nor exercised any public acts of ownership over them, until about October 23, 1890, when this bill was filed. This is virtually all the evidence in regard to possession.

Defendants plead and rely on the statute of limitations, coupled with this adverse possession, which they insist was all that the lots were capable of, and they cite and rely upon the following cases: West v. Lanier, 9 Humph. 762; Creech v. Jones, 5 Sneed, 631; Copeland v. Murphey, 2 Cold. 64; Pullen v. Hopkins, 1 Lea, 744; Ewing v. Burnet, 11 Pet. 41; Bynum v. Carter, 4 Ired. 310; Green v. Harman, 4 Dev. 158-161; Buck v. Holt, 74 Iowa, 294, 37 N.W. 377; Hatch v. Bigelow, 39 Ill. 546; Krider v. Lafferty, 1 Whart. 303; Banner v. Ward, 21 F. 820; Costello v. Edson, 44 Minn. 135, 46 N.W. 299. In these several cases it was held that digging sand, digging ore, the annual making of turpentine, running a plowed furrow around a tract of prairie land, laying down sidewalks and placing agent's signboard on a town lot, growing and cutting willows for basket making, cutting underbrush, grubbing and paying taxes on village lots, under the facts of the respective cases, constituted adverse possession, without actual inclosure or residence upon the premises. In the answer filed by the defendants they state that "said blocks or lots of land are what are known as 'fine blue grass lands,' and are suitable for cultivation. They are located in the suburbs of the city of Nashville, and are entirely too small for agricultural purposes. It is true, no person has attempted to build a house on either of them, or to inclose any part of either of them, until recently, when each lot was inclosed. Said blocks or lots are like a great many other lots in the suburbs of Nashville,-they have been left uninclosed and unimproved until recently, awaiting a purchaser who desired to build. The only acts of ownership of which they were susceptible in their uninclosed condition was the payment of taxes upon them, which have all been paid by Mrs. Cheatham, or those claiming under her, since her purchase." It is proper to remark in this connection that taxes were not paid upon the lots by either party by specific description, and none have at any time been paid, or claimed to have been paid, by complainants; but defendants claim that Mrs. Cheatham paid taxes upon these lots, along with other property and lots owned by her in the same locality, after her purchase until the sale. We are of opinion that neither party has had such actual adverse possession of the lots as would ripen their claims into perfect titles by virtue of such possession, and that the property has not had such inclosures as it was susceptible of. They have recently been inclosed, and the proof shows that before the war they were inclosed by fences, and the cases cited do not apply, even if it were conceded that they are good law in Tennessee, which it is not necessary now to determine. There must be actual inclosure, whenever the property is susceptible of such inclosure, in order to make out a case of adverse possession of town lots. Pullen v. Hopkins, 1 Lea, 741; Hicks v. Tredericks, 9 Lea, 492; Newell, Ejectm. p. 728, § 41.

It is insisted that the deed executed to Garrett and Hayes was invalid to convey to them a legal title to said lot, and at most could only vest them with an equity. The objection to the deed is as to the mode in which it was signed and acknowledged, and the fact that the seal of the bank was not attached or affixed to the instrument. The deed recites on its face that "the consideration-$700-was paid by the grantors to the Second National Bank," and that "the bank conveys, remises, and releases," etc and that "said Second National Bank covenants," etc., and "said bank will warrant and defend against all persons claiming under it." It concludes: "In testimony whereof the Second National Bank of Nashville hath hereunto set its hand, by its president, James McLaughlin, this 13 Nov. 1877, at Nashville, Tenn. [Signed] James McLaughlin, President 2nd National Bank." The acknowledgment was taken before the clerk of the county court, and recites that the within-named James McLaughlin, president of National Bank, appeared, etc., and acknowledged that he executed the annexed...