Hubbard v. Godfrey

• Citation: 47 S.W. 81,100 Tenn. 150
• Parties: HUBBARD et al. v. GODFREY.
• Decision Date: 18 July 1898
• Court: Supreme Court of Tennessee

47 S.W. 81

100 Tenn. 150

HUBBARD et al. v. GODFREY.

Supreme Court of Tennessee.

July 18, 1898

Appeal from chancery court, Cumberland county; H. T. Fisher Chancellor.

Ejectment bill by Hubbard & Abbott against C. O. Godfrey. From a decree for plaintiffs, which was affirmed by the court of chancery appeals, defendant appeals. Reversed.

Snodgrass Robinson & Derossett, for appellant.

Tracy & Cotter, for appellees.

McALISTER J.

This is an ejectment bill to recover the possession of a tract of land comprising about 1,050 acres, situated in Cumberland county. Defendant answered, denying title of complainants and denying also that complainants were in possession of land at time defendant entered. Complainants offered evidence to show title. Defendant showed no title in himself, but relied upon the failure of complainants to show title. The court of chancery appeals affirmed the decree of the chancellor, which was in favor of the complainants. Defendant appealed, and has assigned errors. The court of chancery appeals, by Judge Wilson, has filed a very elaborate opinion, presenting with great detail the facts of a very complicated litigation. Pretermitting a narrative of the details, we will content ourselves with a general statement of the case.

It appears from the findings of the court of chancery appeals that in 1837 the state issued six grants, each for 5,000 acres of land, to one John B. McCormick. The lands embraced in one of these grants, or partly in two of them, were assessed for taxes to one James E. Manning, as the reputed owner; and the land so assessed to him was condemned by the circuit court to be sold for the payment of delinquent taxes. In July, 1895 the land was sold, and purchased by F. F Narramore, James Scott, and P. M. Hoodenpyle.

On the 3d of July, 1857, the tax collector executed to the purchasers a deed wherein the land was fully described and bounded. No conveyance of this land to Manning by John B. McCormick, the original grantee, is shown in the record. It further appears that, shortly after this purchase, the purchasers, by a parol agreement, partitioned the land among themselves, and the part allotted to each was surveyed, and the lines and corners of each share distinctly marked. The land in controversy in this litigation was that part assigned under the parol partition to P. M. Hoodenpyle. This land was afterwards assessed to said Hoodenpyle for taxes, and in 1868 was sold for the payment of delinquent taxes, and at this sale was purchased by Seth Arnold, George Linder, and O. H. Perkins. On the 17th of August, 1874, complainants purchased the one-third interest of Arnold in this land. Linder and Perkins, on December 9, 1873, and June 18, 1874, respectively, conveyed their interests to one W. W. Powell. It further appears that complainants, at a subsequent time, instituted proceedings in the county court of Cumberland county against Charles W. Powell, minor heir of W. W. Powell, for the purpose of having this land partitioned, and to subject the interest of Powell to sale to pay its part of the cost of the proceeding and the taxes complainants had paid on the land for W. W. Powell. Such proceedings were had that commissioners were appointed, who divided the land, assigning 316 2/3 acres to complainants. This report was confirmed, and the costs taxed, one-third to complainants, and two-thirds to the estate of W. W. Powell. A decree was also pronounced ordering the clerk and master, as special commissioner, to sell the interest of the minor, to pay costs and taxes; and on the 15th of December, 1883, this interest was sold to the complainants, and the sale confirmed by the court. On April 27, 1885, the clerk of the court made complainants a deed to this Powell interest; and thus they became the owners of the whole tract allotted to Hoodenpyle under the parol partition between him, Narramore, and Scott, made in 1857 or 1858.

The court of chancery appeals was of opinion that the assessment of the land in Bledsoe county to Manning for taxes, the sale thereof to Scott, Narramore, and Hoodenpyle, and the deed of the tax collector to them, purporting to convey the fee, created an assurance or color of title, under our statute (Shannon's Code, § 4456). The land being in Bledsoe county at the time it was assessed and the taxes accrued, the sale and deed made by the official who sold, or his successor in office, although the land became a part of Cumberland county on its organization, was not absolutely void. It was, says the court of chancery appeals, an assurance or color of title, and possession thereunder for the prescribed period would give a good title. Cumberland county was not organized until 1856. Acts 1855-56, c. 6. The court of chancery appeals was also of opinion that, when this land was sold for delinquent taxes due from Hoodenpyle, the deed of the tax collector of Cumberland county to the purchasers, Arnold, Perkins, and Linder, constituted color of title, but that, on account of certain infirmities in the proceedings, they did not acquire a perfect title. As already stated, Arnold sold and deeded his undivided one-third interest to complainants. The other two parties, Perkins and Linder, sold and conveyed by deeds to W. W. Powell. These deeds were put of record, and from this time on the land was assessed for taxes, and the taxes paid by these purchasers. Powell died, and the interest of his minor heir, Charles L. Powell, was sold by the county court of Cumberland county, and acquired by complainants. On account of fatal irregularities in the latter proceedings, the sale of the interest of the minor heir was absolutely void. We also concur with the court of chancery appeals that the partition proceeding in the county court of Bledsoe county, wherein the court assumed to sell this land as the property of the minor heir of P. M. Hoodenpyle, deceased, for reinvestment for the minor in the state of Kentucky, was also void.

The court of chancery appeals very properly held that the deed of the tax collector of Cumberland county to Arnold, Perkins, and Linder was mere color of title; that the deed of Arnold of his interest to complainants was only an assurance of title; that the deeds of Linder and Perkins to W. W. Powell were but assurances of title; and that the deed of the clerk of the county court of Cumberland county, purporting to convey the interest of W. W. Powell, was likewise merely an assurance of title. The court of chancery appeals further found that the deeds of complainants to this land were a matter of record; that the land was assessed to them for taxes; that they had caused small pens to be erected on it, to evidence their claim and ownership; that these pens were erected at one point, then moved a short distance to another, then a short distance to another, and then a short distance to another, all of them being, however, on the land. The court of chancery appeals, however, find as a fact that these possessions had not been kept erected in the manner stated on this land continuously for seven years before the wrongful entry of defendant. It is, moreover, conceded by that court, that the erection of a small rail pen on land where hogs or cows are occasionally fed, is not such an open and notorious possession, or of such a character, as to meet the demands of our statute. Hicks v. Tredericks, 9 Lea, 491. "Such an occupation," says Judge Freeman, in the last case, "on such a tract of land, would not be a real bona fide possession, notifying

the owner of an adverse claim and occupancy." "Actual possession," says Judge McFarland "for seven years, is necessary to give the younger grantee the better title, under our act of 1819; and actual possession is generally understood to mean an inclosure by buildings, fences, or other similar improvements." Pullen v....