Jones v. Coal Creek Mining & Mfg. Co.

• Decision Date: 15 November 1915
• Parties: JONES ET AL. v. COAL CREEK MINING & MFG. CO. ET AL. [a1]
• Court: Tennessee Supreme Court

180 S.W. 179

133 Tenn. 159

JONES ET AL. v. COAL CREEK MINING & MFG. CO. ET AL. ^[a1]

Supreme Court of Tennessee.

November 15, 1915

Appeal from Chancery Court, Anderson County; Hugh G. Kyle Chancellor.

Action by William and Richard Edward Jones against the Coal Creek Mining & Manufacturing Company and another. From the decree defendants appeal. Decree for complainants for part of the land claimed, and bill dismissed as to the other land.

Lucky & Andrews, of Knoxville, and Sawyer & Underwood, of Clinton for appellants.

Scott & Chandler, of Harriman, and Wright & Jones, of Knoxville, for appellees.

FANCHER J.

This bill was filed October 5, 1910, by the complainants, who are citizens and residents of Great Britain, against the Coal Creek Mining & Manufacturing Company and the Poplar Creek Coal & Iron Company, Tennessee corporations, and is an action of ejectment for the purpose of recovering 5,000 acres of land in Anderson county originally granted by the state to Samuel C. Young by grant No. 22,382, issued February 9, 1839. Complainants deraign title from the grant by regular chain of conveyances and muniments of title. They hold as trustees under the will of Samuel Roberts, dated September 27, 1884, and who died September 25, 1885. He purchased February 4, 1856. The defendants claim title through three inferior grants, and rely upon the statute of limitations to perfect their title.

The Coal Creek Mining & Manufacturing Company claims and deraigns title to grant No. 40,475, issued to Wiley & McEwen December 19, 1873. This grant interlaps on the Samuel C. Young grant partly, covering a few hundred acres of the Young tract. The Coal Creek Company also claims a 200-acre tract which was granted to Alex Galbreath by grant No. 23,134, issued November 5, 1839. The record shows an agreement between the parties that it acquired whatever title there may be to this grant by regular conveyances.

The Popular Creek Coal & Iron Company claims and deraigns title to grant No. 26,058 to William Bailey, issued January 29, 1848, and this tract covers all of the Young grant, except that which is covered by the Wiley and McEwen grant, except a small piece of about 10 acres on the extreme east of that tract.

The Alex Galbreath grant claimed by the Coal Creek Company lies almost wholly within the William Bailey grant claimed by the Poplar Creek Coal Company, and only about one-third of this Galbreath tract lies within complainants' boundary.

It is conceded upon the record that defendant Coal Creek Company has had actual and continuous possession for a number of years within complainants' boundary and on the interlap with the Wiley and McEwen grant, but the exact date when this possession began is in some doubt. The first definite time established in the record of the beginning of this adverse holding is about December 10, 1888, when a lease on the Wiley and McEwen tract of land was executed by the Wiley Coal Company and the Coal Creek Mining & Manufacturing Company jointly to one Jerry Bunch, who thereupon moved upon the land, and from about that date a continuous possession is shown by actual inclosures erected by Jerry Bunch and kept up continuously by him and other tenants of defendant to the present time. His inclosures amounted to about 25 acres. One John Bunch also held possession of inclosures of about 12 to 15 acres within complainants' boundary. These inclosures were situated partly within the William Bailey tract and partly within the Wiley and McEwen tract; the common line dividing those two tracts passing through his (John Bunch's) inclosures. He stated that he went upon the land and held possession under a lease from Hornsby, a grantor of defendant, and later by agreement with Cox, who was a joint agent of the two defendants, and while he stated that he commenced to hold possession about 1884, he shows that he lived there about two years before Jerry Bunch made his inclosures, and he also shows that a part of the time he held for one Byrd, who claimed the land. He said that about 15 years ago Byrd bluffed him into taking a lease from him, and that he held for Byrd for 2 years, until the lawsuit was settled between Byrd and the defendants. In another statement he said that he began his clearing in 1889, and that he commenced first under Byrd, and that after the suit was settled he took the first lease under the Coal Creek Company. Since Cox has been agent, he has held for both the Coal Creek Company and the Poplar Creek Company, presumably holding on one side the line for one and on the other side for the other. Cox has been joint agent for these companies since 1897.

So we are unable to determine that the defendant Coal Creek Company's possession began before the latter part of 1888, or the first part of 1889, and during the first part of this holding it appears that there has been some adverse claim and possession of Byrd. It is not sufficiently clear that there was seven years' exclusive possession by the Coal Creek Company before John Bunch held for Byrd, and it is not satisfactorily proven that the exclusive possession for the Coal Creek Company since the settlement of the suit with Byrd has been more than 15 years. The Poplar Creek Company and its predecessors in title have been in actual possession of the William Bailey tract and within complainants' boundary by actual inclosures from March, 1884, and this has probably been continuous to the present time.

Complainants contend that they are not affected by this adverse possession, because William and Richard Edward Jones and Samuel Roberts, under whom they claim, have been residents and citizens of Great Britain during all the time that possession has been held by defendants, and that they fall within that provision of our statute which excepts from the operation of the limitation persons "beyond the limits of the United States and the territories thereof," and providing that:

"Such persons, or their representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceed three years, and in that case within three years from the removal of such disability." Shannon's Code, § 4448.

The bill avers that Samuel Roberts was a citizen and resident of Wales, Great Britain, and a nonresident of the state of Tennessee, except for a short period just before the Civil War, and that he remained in the state of Tennessee or within the United States until about the year 1868. Richard Edward Jones testified that Samuel Roberts was throughout his whole life a citizen of Great Britain, and never returned to the United States after the year 1870. Richard Edward Jones and his co-complainant, William Jones, are citizens and residents of Great Britain, but have both visited in this country. Richard Edward Jones stated that William Jones has lived at Sutton Lodge, Shrewsbury, in the county of Salop, in England, continuously since the year 1880, and that he, Richard Edward Jones, has lived at Oakley Grange, Shrewsbury, in the county of Salop, in England, continuously since the year 1902. He stated that he was in the United States of America upon several occasions between the years 1884 and 1892, but has not been in this country since 1892. He was paying visits in various places entirely upon pleasure, and was not in the state of Tennessee. He stated that his cotrustee, William Jones, was in the United States of America from June, 1857, until November, 1864, and that he made a second visit to the United States in April, 1890, returning to England in June of the same year, and had not been in the United States since the year 1890. His statements conflict as to when William Jones was in the United States, first saying that he had lived in England continuously since 1880, and stating in another part of his deposition that he visited the United States in 1890.

As to the Poplar Creek Company, the Patterson possession held by it and its vendors was held from the year 1884. Samuel Roberts, the ancestor, did not die until late in the autumn of 1885. The disability of complainants will not avail them as to grant No. 26,058, because the possession on it began before the death of Samuel Roberts. His disability ceased and the statute began to run after his death. It is well settled that no cumulative disability will prevent the bar. Guion v. Anderson, 8 Humph. 298, 326; Weisinger v. Murphy, 2 Head, 675; Patton v. Dixon, 105 Tenn. 97, 58 S.W. 299.

But if witnesses were mistaken in saying the possession for the Poplar Creek Coal Company began before the death of Samuel Roberts, did the statute run by reason of the visits of William and Richard Edward Jones to the United States after they became entitled to sue?

Our statute (Shannon's Code, § 4448) as to persons beyond the limits of the United States and the territories thereof is not like some other statutes of a similar nature which require citizenship in this country in order to bring a former nonresident citizen within the provisions of the law. Bond v. Jay, 7 Cranch, 350, 3 L.Ed. 367. Our act does not require a change of citizenship for the removal of this disability. The exception in our statute is as to persons beyond the limits of the United States and the territories thereof, and if they come within the limits of the United States or its territories they are no longer protected by its provisions.

The proof shows that Samuel Roberts died September 14, 1885 after having executed a last will and testament, under which he devised the property in question to William and Richard Edward Jones, the complainants, and their heirs, as trustees to hold the same on behalf of the several shareholders therein and with full...