Hopper v. Fisher

• Decision Date: 31 December 1858
• Citation: 39 Tenn. 253
• Parties: ELIJAH HOPPER v. DAVID FISHER.
• Court: Tennessee Supreme Court

39 Tenn. 253

ELIJAH HOPPER

v.DAVID FISHER.

Supreme Court of Tennessee.

December Term, 1858.

FROM DEKALB.

This cause was heard before his honor, Judge Goodall, at the April term, 1858. A transcript of the record of partition, from the Chancery Court at McMinnville, was offered as evidence. It was objected to upon the ground stated in the opinion of the court, and the objection overruled. Verdict and judgment for the plaintiff. The defendant appealed.

S. M. Fite, for the plaintiff in error, cited and commented upon Robertson v. Robertson, 2 Swan, 197;Douglass v. Harrison, 2 Sneed, 382; Act of 1851-52.

M. M. Brien, for the defendant in error relied on the following authorities to sustain the court below: Simmons v. Woods, 6 Yerg. 518; 1 Greenl. on Ev. sec. 19; Kilcrease v. Blythe, 6 Humph. 389;Thacher v. Chalmers, 5 Humph. 313;Robertson v. Robertson, 2 Swan, 197.

R. Cantrell, on the same side, cited, in addition, the act of 1852, ch. 152, sec. 6; Morris v. Richardson et al., 11 Humph. 389;Greenlaw v. Kernahan, 4 Sneed, 371.Wright, J., delivered the opinion of the court.

This was an action of ejectment, in the Circuit Court of DeKalb county, in which the plaintiff below had judgment, and the defendant has appealed in error to this court.

In deraigning his title, the plaintiff was compelled to use and rely upon certain decrees and proceedings had in the Chancery Court at McMinnville, to the reading of which the defendant objected; but the Circuit Court overruled the objection, and permitted the records to be read as a part of the plaintiff's title.

This is now assigned as error.

The land in controversy had been granted by the State of Tennessee to Thomas Hopkins. He died intestate, leaving a large estate in lands, in various tracts. His heirs-at-law, after his death, in the year 1838, by a decree in the Chancery Court at McMinnville, had a partition made of these lands, and the tract in controversy, with others, was allotted to the heirs of Judith Vaughan, a sister of the intestate.

In the same year, and the year following, the children and heirs of Judith Vaughan, by a decree in the same court, had partition made of the lands which had been allotted to them, and the tract of land in dispute was assigned to Thomas C. Vaughan, one of the children and heirs of Judith Vaughan.

In the bills and proceedings in both of these causes, certain of the heirs, who then appear to have been infants, were made defendants; and in the transcripts of the trials used on the trial of this cause, no subpoenas were found, nor does it appear whether or not any ever issued or existed, or whether said infant defendants were ever served with process, or had notice by publication, or otherwise, as required by law. As to this the records are silent. Nor is any order appointing a guardian ad litem found; and in one of the transcripts the answer of the guardian ad litem does not appear.

But in the decrees, in both cases, it is recited that the causes “came on to be heard, and were heard, before the Chancellor, upon the bill and answer of the minor defendants, by their guardian ad litem, John D. Lusk, when it appearing to the satisfaction of this court,” etc., and, after stating in the decree the rights and equities of the parties, the court goes on and decrees the partition.

It is assumed that these decrees are now to be held void for the want of service of process upon these infant defendants.

The defendant, so far as we can see, is a trespasser, and has no interest in the land in dispute; and whether these decrees were, at the time they were made, formal and regular, in no way concerned him. The heirs themselves do not complain, but have acquiesced in these divisions for nearly, or quite twenty years.

The defendant seeks to attack and overturn them collaterally, in order to hold the possession of a tract of land to which he manifestly has no title.

We are of opinion this should not be permitted, and that, as to him, these decrees should be held valid.

A Court of Chancery is a Superior Court, within the sense and meaning of the term, as contradistinguished from an Inferior Court. It has general power and authority to make partition of lands between tenants in common. This jurisdiction existed at the common law, and has been declared and recognized by many statutes since. It can in no just sense be claimed that the validity of these decrees shall be tested by the rules applicable to a court of peculiar, special, and limited authority.

When we see, therefore, that the Court of Chancery, at McMinnville had jurisdiction over the subject-matter of these decrees, and undertook to, and did...