Gudger v. Barnes
| Decision Date | 30 April 1871 |
| Citation | 51 Tenn. 570 |
| Parties | Robt. L. Gudger et als. v. Allen A. Barnes. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM HENRY.
Appeal from the judgment of the Circuit Court in favor of the Defendants, January Term, 1869. LUCIEN L. HAWKINS, Sp. J.L. M. Jones and J. B. Heiskell for plaintiffs; Ejectment brought December 24, 1876, by the holder of the legal title, who has given a title bond. Bond given in 1837. Agreement to pay balance by one of the Hughes heirs holding the property in 1851.
The time during which the statute was suspended is not to be computed. This was held by this court, at Knoxville, in the case of Carter v. Wolfe, 1 Heis., 694.a1
The acknowledgment of a debt within sixteen years does away with the presumption of payment, and sixteen years is required to raise anew the presumption unaided; less time will not answer.
The question of Res judicata does not interfere with our right to recover. The matter relied on is authority, not adjudication. See McKissick v. McKissick, 6 Hum., 75. The adjudication as to the lien in equity is not a judgment as to the legal title in ejectment. The res is different.
The rule as to adverse possession is that where the possession of one party is consistent with the right of the other; the possession will not operate under the statute. This is illustrated in the cases of landlord and tenant, mortgagor and mortgagee, trustee and cestui que trust: Marr v. Chester, 1 Swan, 418.
This is a relation created by contract, in which the right of the vendor to hold the title is expressly acknowledged, and it is part of the contract that he shall hold the title until the money is paid, and then convey, “and not till then.”
This is not an implied trust. It is a trust (if a trust) by contract, in which the parties have created the relation, and undertaken to hold under it.
We attack the case of Ray v. Goodman, 1 Sneed, 589. The parallel drawn by the judge in that case to show that the case of vendor is not similar to that of mortgagee, is between the contrary parties. He says, in effect, there is no similarity between the creditor in the one case and the debtor in the other.
This case is wholly inconsistent with the cases of Anthony v. Smith, 9 Hum., 509; Graham v. McCampbell, Meigs, 52, 56; Lincoln v. Purcell, 2 Head, 152; Ellis v. Temple, 4 Col., 320; Kinsey v. McDearmon, 5 Col., 396; Meadows v. Hopkins, Meigs, 181; Chilton v. Niblett, 3 Hum., 404; Valentine v. Cooley, Meigs, 613; Norris v. Ellis, 7 Hum., 463, 464. See also Young v. Irwin, 2 Hay., 9;1 Dev., 434;1 Dev. & Bat., 567;2 Dev., 195;Dow v. Gilchrist, 1 Jones, 355;1 Ired., 152;Suffern v. Townsend, 9 Johns., 35;Cooper v. Stower, 9 Johns., 331;Moore v. Andrews, 14 Ark., 636;Smith v. Robinson, 13 Ark., 541.
The cases in Tennessee are cited in 2 Meigs, 1281-3, 3 b, et seq. See in addition, 3 Sneed, 243; Marr v Gilliam, 1 Col., 497; Marr v. Chester, 1 Swan, 416;Vance v. Johnson, 10 Hum., 218;8 Hum., 670; Waddle v. Stuart, ?? Sneed, 535; Yarborough v. Newell, 10 Yer., 382;Ingram v. Smith, 1 Head, 421;Hubbard v. Wood, 1 Sneed, 279;3 Head, 699;Hammett v. Blount, 1 Swan, 385;Vance v. Johnson, 10 Hum., 217;Story v. Saunders, 8 Hum., 663;Martin v. Youngblood, 8 Hum., 584;Overton v. Allen, 3 Head, 440;Turner v. Turner, 2 Sneed, 31; Hilton v. Duncan, 1 Col., 313, 318; Ganaway v. Tarpley, 1 Col., 578; 1 Swan, 138;Saunders v. Harris, 1 Head, 208;Fancher v. Montegre, 1 Head, 41;Foster v. Jordan, 2 Swan, 476;Merriweather v. Vaulx, 5 Sneed, 310;Chairs v. Hobson, 10 Hum., 356;Woodson v. Smith, 1 Head, 277-9;McCorry v. King's heirs, 3 Hum., 267.
J. D. Porter, Jr., for defendants, contended that the statute of limitations applied, and cited Sailor v. Hertzog, 2 Penn., 182; Marr v. Gilliam, 1 Col., 488; 3 Head, 435; 4 Dev. & Bat., L., 409; 3 Washb. Real Prop., 3d ed., 145, sub-s., 48; Ib., 127, sub-s., 23; Ray v. Goodman, 1 Sneed, 586; Code, 2768; Ang. on Lim., 2d ed., 397.
Defendants have held under title from Williams since November, 1856. This was a disseisin. 3 Washb., 121, sub-s., 16. Registration was notice: Shultz v. Elliot, 11 Hum., 183; Valentine v. Cooley, Meigs, 613. The case is res judicata: 2 Parsons on Cont., 234; sec. 10, 237; Duchess of Kingston's case, 20 Howell's St. Tr., 538; Bouchand v. Dias, 3 Denio., 238;Estill v. Taul, 2 Yer., 467.
This action of ejectment was commenced by plaintiffs, the heirs of Robert Love, deceased, to recover a tract of land of two hundred and fifty acres, in Henry county.
The proof shows the land was granted to Robert Love, by Grant No. 1,009, of date May, 1828, by virtue of warrant dated in 1816, and that plaintiffs are his heirs.
The recovery of plaintiffs is resisted by defendant on several grounds growing out of the following state of facts:
Robert M. Hughes seems to have been living on this land in 1826 or 1828, in a house, as the witness says, inside of a field of about twenty acres, and continued to reside on the land till 1841 or 1842, when he died. When said Hughes died, he left his family on the place, a portion of whom remained on the place, till, perhaps, 1861, when one Diggs went into possession, as we assume, under the heirs of Hughes, who was succeeded by Kendall, he holding under the heirs of Hughes, until the sale of thirty-one acres of the land by the surviving heirs of Robert M. Hughes, except James, who is not accounted for as far as we can see in the proof, either as being dead, or having sold his claim as heir of the said Robert M.
In January, 1837, Robert M. Hughes seems to have purchased the tract of land from Robert Love, through James B. Love, purporting to be the agent of Robert Love, and took, what is claimed to be a title-bond to make him a title--the conclusion of said paper being as follows: “now it is understood by the parties that the said Hughes is to defray and pay all taxes that may become due hereafter, and to pay to Robert, his heirs or assignee, the aforesaid six hundred and fifty dollars, with interest until paid from this date, and when so discharged, then the said Robert Love, by himself or legal representative, is to make a title, and not before; and when done and complied with, the above obligation to be void,” etc. Hughes gave his two notes for said bond, due one and two years after date--a large portion of which remains due and unpaid, as far as we can see.
These facts raise the first question presented for our consideration, whether a vendee claiming by title-bond, nothing more appearing, is holding such adverse possession of the land as will bar the right of action of his vendor, who retains the legal title by virtue of the title-bond, as security for payment of the purchase money, so that seven years will give a possessory right to such holder.
In case of Sheratz v. Nicodemus, 7 Yer., 12, where land was sold and conveyed by deed, and the purchaser held seven years after the notes or a part of them fell due, it was held that the statute of limitations barred a bill filed to enforce the lien of vendor as to such notes. The principle of this case is, that the possession of a vendee under a deed, although the purchase money is not paid, is adverse to the title of his vendor, and the lien was in the nature of a claim on land, and could not be sued or maintained after seven years, under second section of act of 1819.
The opinion in this case by Judge Catron is short, and the reasoning by which he reached his conclusion not given at length. We may pass from this case, however, as it was a case of land conveyed by deed, and the plaintiffs in this case insist, has no application to the present case.
The next case in which the relation in which vendor and vendee stand to each other, is discussed by this Court, is that of Ray v. Goodman, 1 Sneed, 587.
That was a case of sale made, and title-bond given, the legal title being retained by the vendor. A bill was filed to enforce the vendor's lien, more than seven years after the notes for purchase money fell due, and the Court held that the possession of the vendee for seven years, under his title-bond, gave the vendee a right of possession that could not be disturbed by the vendor's bill, and that the lien of the vendor was barred by section 2, act of 1819. In fine, the Court decided that the holding of the vendee was adverse as to the possession of the land, and that such adverse holding operated to bar the suit to enforce the lien, on the assumption, that the bill for the enforcement of the lien, was a suit in equity for the land, or in the language of the Court, “to take the land for the satisfaction of the notes for the purchase money.” p. 588. The argument of the Court is based on the language of the second section of the act of 1819: that no “person shall have any action or suit, either in law or in equity, for any lands, tenements or hereditaments but within seven years next after his right to commence such action shall have accrued; and that all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments, shall be had and sued within seven years next after the title or cause of action or suit hath so accrued.” etc.
We have examined carefully the opinion of the Court on this question, and as it is one of importance, we are urged by counsel, in arguments of great ability, to review the subject, and to overrule this decision.
What, then is the position of the vendee in possession of land purchased by him, for which he holds the bond of his vendor for title and has given the vendor his notes for payment of the purchase money.
The vendee has purchased the land for himself, and not for another, either his vendor, or any one else. He owes no fealty to the seller, and in claiming to hold in opposition to him, or in refusing to surrender the possession to him, he is guilty of no breach of faith; on the contrary, his claim to hold for himself is consistent with his contract, under which he was let into possession: James v....
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