Heard v. Elliott

• Decision Date: 28 March 1906
• Citation: 92 S.W. 764
• Parties: HEARD v. ELLIOTT et al.
• Court: Tennessee Supreme Court

92 S.W. 764

HEARD v. ELLIOTT et al.

Supreme Court of Tennessee.

March 28, 1906.

Appeal from Chancery Court, Sequatchle County; T. M. McConnell, Chancellor.

Action by B. A. Heard against E. T. Elliott and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

By an act passed in July, 1870 (Acts 1870, p. 115, c. 68), the office of entry taker in the state was consolidated with the office of county surveyor. By chapter 55, p. 51, of the Acts of 1875, the office of county entry taker for the various counties in the state was abolished. On the 26th of February, 1879 (Acts 1879, p. 65, c. 46), the Legislature passed an act entitled "An act to establish the entry taker's office."

Section 1 of this act reads as follows:

"Be it enacted by the General Assembly of the state of Tennessee, that there shall be elected by the justices of the county courts, a majority of the justices being present, at the April term of the court or any quarterly term of said court, every four years, an entry taker for any county in this state which may desire to have an entry taker for their respective counties. Said entry taker shall hold his office for four years and until his successor is elected, and qualified. That the county, if it revives the office of entry taker, may impose the duties upon the county surveyor or register, or elect some one else to fill the office."

The remaining sections concern the oath, bond and fees.

During the year 1881 J. A. Thurman was elected county surveyor of Sequatchie county, and his election was entered upon the minutes of the county court. The minutes do not show that he was elected entry taker, or that the duties of that office were annexed to his office as county surveyor.

On April 4, 1887, Thurman was elected entry taker by the county court, and this election was entered upon the minutes of the court.

The Court of Chancery Appeals finds and reports that from 1881 continuously until January or February, 1904, J. A. Thurman was in possession of the books and records of the entry taker's office, held himself out as entry taker, was reputed to be and was recognized as such by the public, and that during all this time he performed the duties of the office, making entries, etc.

On the 21st of January, 1887, defendant made his entry before Thurman. Complainant's entry was made on April 4, 1887, being after the formal election of Thurman as entry taker and the entry thereof upon the minutes of the county court.

Both entries are special. Defendant's grant was issued on his entry April 11, 1887. Complainant's grant was issued on his entry April 19, 1887. Both grants cover substantially the same land.

If defendant's entry is valid, his grant relates to it, and he has the prior right. If defendant's entry is void, complainant's right would be superior, since his grant would relate to his entry of April 4, 1887, and thus supplant defendant's grant of April 11th.

The case turns upon defendant's entry; that is, upon the question as to whether it is valid or invalid.

The chancellor decreed in favor of the defendant, dismissing the complainant's bill. On appeal the Court of Chancery Appeals affirmed the decree of the chancellor. From the latter decree an appeal has been prosecuted to this court, and errors have been assigned here.

C. C. Moore, for appellant. Stewart & Stewart, for appellees.

NEIL, J. (after stating the facts).

We are of opinion that the Court of Chancery Appeals acted correctly in affirming the decree of the chancellor. The long possession by Thurman of the books and papers of the office and performance of the duties thereof with the acquiescence of the public, prior and up to the time when defendant's entry was made, constituted him an entry taker de facto; that is, if such an office was then in existence, a question which we shall presently consider. We adopt as correct the following definition made by Chief Justice Butler in State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409:

"An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised, first, without a known appointment or election, but under such circumstances of reputation or acquiescence as was calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged to be such."

We have several decisions in this state bearing upon one or more of the points contained in the foregoing definition. They are State v. Hart, 106 Tenn. 269, 61 S. W. 780; Mayor v. Thompson, 12 Lea, 344; Brewer v. State, 6 Lea, 198; Cheek v. Bank, 9 Heisk. 489; McLean v. State, 8 Heisk. 249, 250; Douglas v. Neil, 7 Heisk. 437; Kelley v. Story, 6 Heisk. 202; Calloway v. Sturm, 1 Heisk. 764; Turney v. Dibrell, 3 Baxt. 235; Ward v. State, 2 Cold. 605, (91 Am. Dec. 270; Blackburn v. State, 3 Head, 690; Venable v. Curd, 2 Head, 582; Moore v. State, 5 Sneed, 510; Pearce v. Hawkins, 2 Swan, 87, 57 Am. Dec. 54; Bates v. Dyer, 9 Humph. 162; Bank v. Chester, 6 Humph. 458, 44 Am. Dec. 318.

The special portion of the definition above quoted which is applicable to the present case is the first specification; that is, where one acts "without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be."

The facts above stated show the required circumstances of reputation and acquiescence. Although there was no actual color of office, in any form of appointment or election, still the long exercise of the duties of the office and the acquiescence by the public would, as...