Hornsby v. Davis

• Decision Date: 31 August 1895
• Citation: 36 S.W. 159
• Parties: HORNSBY et al. v. DAVIS et al.
• Court: Tennessee Supreme Court

Page 159

36 S.W. 159

HORNSBY et al. v. DAVIS et al.

Court of Chancery Appeals of Tennessee.

August 31, 1895.

Appeal from chancery court, Blount county; Henry R. Gibson, Chancellor.

Action of ejectment by Angelina Hornsby and others against E. H. Davis and others, which was dismissed as to complainant Hornsby. From the decree, defendants appeal. Modified.

Washburn, Pickle & Turner and Webb & McClung, for appellants. C. T. Cates, Sr., and C. T. Cates, Jr., for appellees.

BARTON, J.

This is an ejectment suit, begun April 9, 1891. Complainants claim under grant No. 22,172 issued November 29, 1838, by the state of Tennessee to John McCampbell, Joseph Esterbrook, and William Murray. Defendants Davis, Moores, Metcalf, Stinnetts, Wetzell, Rumsey, Watts, and Line answer, denying complainants' title; claiming title in defendants Watts and Line to so much of the lands sued for as lie within the boundaries of the grants from the state of Tennessee, — No. 24,585, issued January 21, 1842, to Joab Line and Jacob Grubb; No. 27,618, issued July 18, 1850, to Joab Line and George Wright; and No. 24,593, issued January 28, 1842, to Joab Line; disclaiming title to all the rest of the lands sued for; and relying on their adverse possession and the statute of limitations as a bar to complainant's recovery. As to complainant Angelina Hornsby, the suit was by her dismissed.

Title under grant No. 22,172, under which complainants claim, is traced as follows: First. Joseph Esterbrook, on the the grantees, died intestate May 18, 1855, leaving one child, Joseph Esterbrook, Jr., who died July 15, 1855, leaving his mother, Angelina M. Esterbrook, as his heir. She married William J. Hornsby July 23, 1868, and is still covert. She represented a one-third interest. Second. William Murray, another grantee, by will dated September 14, 1891, and probated October 8, 1891, devised his one-third interest to the heirs of John McCampbell, the other grantee. Third. John McCampbell, the other grantee by will dated November 14, 1853, and probated December 6, 1853, appointed James Anderson his executor, and in reference to these lands said: "I direct my executor to dispose of my mountain lands, lying in Blount county, Tennessee, as follows: To make sale thereof, and the proceeds thereof to be equally divided between my legal heirs at law." Fourth. On January 12, 1855, James Anderson, as executor of John McCampbell, deceased, conveyed to J. H. Martin one-sixth undivided interest in these lands. J. H. Martin, on February 7, 1887, died testate, leaving six children, complainants herein, as his heirs at law. A copy of his will is found on page 93 of the record, and is hereinafter referred to. Fifth. The heirs of John McCampbell, who have living representatives, were seven in number: Flora Anderson, Bessie Hair, Jane McCampbell, Sallie Hale, Bennett McCampbell, John M. McCampbell, Polly Mitchell, and Catherine McCampbell. Only three of these are represented, and two of them only partially, by complainants in this suit, to wit: (1) John M. McCampbell, who died in August, 1872, intestate, leaving two children, of whom complainant Kate Jenkins is one. She was married, November 1, 1869, before her father's death. (2) Polly Mitchell died between 1874 and 1876. Married 60 years ago. Her husband still survives her. She has three heirs: (a) Margaret Alexander's children, not suing; (b) complainant Prudence Chambers, who married March 6, 1864, before her mother's death, and is still covert; (c) Martha McCampbell, who died many years ago, leaving one child, complainant James H. McCampbell, now 36 years old. (3) Catherine Anderson, who died April 1, 1864, leaving three children: (a) Complainant Isaac Anderson; (b) complainant Mary Cochran, who married January 10, 1856, before her mother's death and is still covert; and (c) Robert Anderson, who died in 1889, leaving three children, complainants Ed. G. E., Robert L., and Mary G. Anderson. The defendants Watts and Line claim under the grants to Line and Grubb, Line and Wright, Joab Line, and one to Alexander McKenzie, No. 20,816, issued by the state of Tennessee on May 27, 1837, for 200 acres. They connect themselves with these grants by regular chain of conveyances. The grant under which complainants claim conflicts with each of the grants under which defendants claim.

This cause was heard by the chancellor on February 3, 1893. He found in favor of the defendants, to the extent of the McKenzie grant, covering 169 acres of the land sued for. He also found that defendants had held such adverse possession of part of the land in dispute as barred the rights of all the complainants except Mary Cochran, Prudence Chambers, and Kate Jenkins. As to them, he held that their disabilities of coverture protected them. But he confined defendants' possessions to the limits of their inclosures, decreed for complainants as to the rest of the lands in dispute and against defendants for all the costs of the cause, ordered a survey of defendants' inclosures to define definitely their boundaries, and refused defendants an appeal from that decree. On June 20, 1893, the surveyor and commissioner reported his survey of defendants' possessions, with map thereof and of lands in dispute, and thereupon the chancellor made a final decree in accordance with the holdings announced in decree of February 8, 1893, and defendants appealed. This report of the special commissioner and surveyor shows that 169 acres of the land sued for lies within the McKenzie grant, and that defendants' inclosures on the Line and Grubb, the Line and Wright, and the Joab Line grants, and outside the McKenzie grant, covered 31 acres of the land sued for.

Appellants, by their solicitor, assign the following errors, alleged to have been committed by the chancellor in said decrees: "(1) The court erred in limiting defendants' possessions to their actual inclosures. That these possessions were held under color of title, and should have been held to operate to the boundaries of said title papers; and complainants' bill should have been dismissed as to all, except, perhaps, Mary Cochran. That the lands in question were for the most part rough mountain lands, with but little of them fit for cultivation, but mainly valuable for timber and grazing. These inclosures, with many others, outside of the laps on complainants' grant, were made by tenants of defendant Line of lands fit for cultivation. That they built houses and fences wherever they pleased on these lands, lived on and cultivated the best part of the land, and used the rest for timber and pasturage; and that, besides the tenants' use, Line himself exercised an active control over the uninclosed lands for the pasturage of cattle and the exclusion of all trespassing cattle. That the chief object and purpose of these possessions on his part were to assert and maintain his title to these lands. That the intention determines largely the extent to which such possessions operate, and that in this case the possessions were open, notorious, adverse, and continuous, and there is no good reason for limiting them to actual inclosures. (2) The court erred in holding that complainants Prudence Chambers and Kate Jenkins were protected by their disabilities of coverture from the bar of the statute of limitations. (3) That the court erred in taxing defendants with all the costs of the cause. That they were successful to the extent of the conflict with McKenzie grant, 169 acres, and of their actual possessions, about which much of the evidence was taken and the costs incurred. That complainants should be onerated with at least some substantial part of the costs of the cause. (4) That the court erred in finding that J. H. Martin died intestate as to his interest in lands sued for, and pronouncing decree in favor of Mary R. Parrott for any interest in said land. That by his will said J. H. Martin disposed of his whole estate, including his interest in these lands. They are only excluded from the estimate of the value of his estate. Said Mary R. Parrott is expressly excluded from any share or interest therein. The presumption of law is against intestacy as to part of testator's estate. (5) That the court erred in decreeing to complainants, other than Martin's devisees, any part of the interest of John McCampbell in the lands sued for. He did not give these lands to his heirs and they never descended to them. Under his will, his interest therein passed to his executor, and not to his heirs. He gave to them a mere money legacy, to be paid out of the proceeds of the sale of these lands. The executor is not a party to this cause, and no reason given for his not being made such. That for the foregoing alleged errors the decree of the court below should be reversed and modified."

Under the issues thus presented, in addition to the statement above, showing the names of the parties and of the deraignment of title of both the complainants and defendants, which we find as above stated, we find the facts to be as follows: The defendants claim under three different possessions, on different parts of the land in litigation, which are as follows: (1) What is known as the "Stinnett Possession," which lies wholly within the interlap of complainants' grant and that of the Line and Wright grant. (2) The possession known and designated in the proof and on the maps as the "Buck Jennings or Watson Possession," which lies wholly within the interlap under the Joab Line grant. (3) The possession known as the "Abbott or Moore Possession," which lies within the Line and Wright and Line and Grubb grants, and within complainants' grant.

First, as to the Stinnett possession, we find that this possession commenced in the year 1885 or 1886, within seven years before suit brought, and that there was no actual substantial possession at this place prior to this time, such as would create a bar under the statute of limitations.

Second, as to the Buck Jennings or...