Kobbe v. Harriman Land Co.

• Decision Date: 19 February 1918
• Parties: KOBBE v. HARRIMAN LAND CO. ET AL.
• Court: Tennessee Supreme Court

201 S.W. 762

139 Tenn. 251

KOBBE v. HARRIMAN LAND CO. ET AL.

Supreme Court of Tennessee.

February 19, 1918

Appeal from Chancery Court, Cumberland County; A. H. Roberts Chancellor.

Bill by George C. Kobbe against the Harriman Land Company and others. Decree dismissing bill, and complainant appeals. Affirmed.

NEIL C.J.

This was an ejectment bill filed in the chancery court of Cumberland county to recover about 5,000 acres of land. There were voluntary dismissals, however, as to all of the material defendants except the Cumberland Lumber Company, and it claims a much smaller acreage than that just stated, the exact amount of which it is unnecessary to note. The chancellor dismissed the bill, and the complainant has appealed, and assigned errors.

The facts, so far as it is necessary at this point to relate, are as follows:

The complainant, and the defendant Cumberland Lumber Company claim from a common source, one George F. Gerding. The land involved was embraced in Morgan county entry No. 1980, on which was issued grant No. 21987, to Thomas B. Eastland, June 30, 1838. This land subsequently by legal conveyances became the property of Gerding. He made four several conveyances of it. Under one of these the complainant Kobbe claims; under two of the others the defendant lumber company. The fourth the lumber company relies on for the defense of outstanding title, in case its reliance on the two others just mentioned and its defense of adverse possession shall be found unsupported in fact, or not sustained in law.

Complainant's chain of title, starting with the common source, runs as follows: Deed of Gerding to William A. Kobbe dated October 8, 1866, and an attachment proceeding by Gerding against William A. Kobbe in the chancery court of Anderson county, wherein an ancillary attachment was issued to Cumberland county, and this land levied on as the property of Kobbe. The style of that case was, George F. Gerding v. William A. Kobbe and Others, and William A. Kobbe v. George F. Gerding and Others. The latter was a cross-bill, which was voluntarily dismissed by Kobbe. The case then went to a hearing at the May term, 1872, of the Anderson chancery court on the original bill and the answer thereto, whereupon a judgment was rendered in favor of Gerding and against Kobbe for $69,000, and a decree was entered ordering the land to be sold for the payment of this judgment. A report of sale was made by the commissioner, showing that the land had been purchased by Mrs. Sarah Lord Kobbe, and the decree of confirmation recited that the complainant George F. Gerding had assigned his judgment against William A. Kobbe to the purchaser, Sarah Lord Kobbe, and it was directed that her bid should be held satisfied by payment of the costs and commissions. In confirming this sale the decree not only purported to divest title out of the defendant, William A. Kobbe, and to vest it in Sarah Lord Kobbe, but also purported to do the same in respect of Gerding, the complainant in that case. This decree was registered in Cumberland county July 3, 1873. Sarah Lord Kobbe made a deed of this land to complainant, George C. Kobbe, December 16, 1884, which was registered in Cumberland county November 17, 1887. She and her husband had previously, February 5, 1880, made a deed to George C. Kobbe for this same land. This deed was registered in Cumberland county August 25, 1916.

George F. Gerding had become owner of the land by deed from one Henry Wells of date January 27, 1844, which was recorded in the register's office of Morgan county, where the land then lay, on April 10, 1844.

When Cumberland county was created in 1855, this land was included within the bounds of the new county. This new county, so created in 1855 by an act of the Legislature, was organized, and the register's books opened on the first Monday in April, 1856.

The deed, above mentioned, which George F. Gerding made to William A. Kobbe on October 8, 1866, and which was the foundation of the attachment proceedings in Anderson county already mentioned, was never registered in Cumberland county.

The defendant traces its title to two deeds made by George F. Gerding, each the beginning link in separate chains of title, which finally united in one of defendant's predecessors in title before defendant obtained its own deed. The first of these chains begins with a deed made by George F. Gerding to D. F. Wilkin on February 6, 1856, acknowledged in due form February 16, 1856, and regularly registered in the register's office of Morgan county, the land then being a part of Morgan county, on the same day, February 16, 1856. The defendant deraigns title through a regular succession of conveyances from this deed. The complainant has no claim on and no connection with this chain of conveyances.

The second deed made by Gerding was executed on June 12, 1856, to Samuel C. Roberts, the land then being a part of Cumberland county. This deed was probated before the clerk of the county court of Morgan county May 10, 1873. It was recorded in the register's office of Morgan county May 10, 1873, and in the register's office of Cumberland county August 12, 1873. The defendant connects itself with this deed by a regular sequence of conveyances. The complainant makes no claim on and has no connection with this chain of title.

The third deed made by Gerding was made to one Charles B. Slausson, and was dated on its face December 18, 1855, but it is contended by complainant that this deed was antedated, and that the real, or true, date was June 14, 1856. This deed was recorded in Morgan county on October 9, 1856, and in Cumberland county January 19, 1915. Neither complainant nor defendant claim any connection with this deed, and, if any title arises out of it, such title can operate only as an outstanding one.

The fourth conveyance made by Gerding was the one which we have already mentioned in setting out complainant's chain of title, the deed of October 8, 1866, to William A. Kobbe.

On the facts so far stated it is evident, no other facts appearing, that defendant has the elder, and therefore the true, title of Gerding, under the chain beginning with the deed of Gerding to D. F. Wilkin of date February 6, 1856. But defendant's claim thereunder is attacked by evidence which shows that Gerding's deed to Wilkin, after setting forth as conveyed therein a list of some 20 different entries and grants, estimated to contain about 52,100 acres, and, among the tracts, the land in controversy, entry No. 1980 in the name of William G. Sims, grant No. 21987 for 5,000 acres dated June 30, 1838, contains an exclusion clause in these words:

"In all about 52,100 acres, more or less and excluding all older and better titles--including those tracts already deeded by said Wilkin as my attorney."

As already stated, there was a deed executed by Gerding to Slausson for the same land, which, on its face was dated December 18, 1855. This deed was executed through Wilkin as attorney in fact for Gerding. It was followed by a deed made, on the 15th of October, 1856, by Gerding and Wilkin. This deed, after reciting that the parties just named "did, on or about the 14th day of June, one thousand, eight hundred and fifty-six, convey by deed, containing covenant of full warranty on the part of George F. Gerding, and a quitclaim of all the right, title and interest of said Daniel F. Wilkin, to Charles Slausson forty-one thousand and five hundred acres of land in the county of Morgan, in said state of Tennessee, and whereas the said deed was antedated as of date December 18th, 1855, in order to cover conveyances of said premises which said Slausson had before made under and by virtue of a former deed for said premises, and whereas the acknowledgment of said deed was antedated by consent of parties," then continued:

"Now, therefore, in consideration of the sum of one dollar, and as a final settlement between parties, we hereby remise, release, quitclaim, and convey all our right, title, and interest, claim or demand of, in, or to all the premises and lands mentioned and described in said deed, hereby ratifying and confirming the same, both as to the date and acknowledgment thereof except," etc.

Then follows an exception of land not here involved. This deed was registered in Morgan county on February 23, 1859. The deed dated December 18, 1855, was recorded in Morgan county on October 9, 1856. Both were recorded in Cumberland county January 19, 1915. Defendant contends that the recitals of this confirmatory deed, which was introduced by complainant shows fully that the deed dated December 18, 1855, was really executed on or about June 14, 1856, and was antedated. The defendant also contends that this point is admitted in complainant's pleadings. But complainant contends that the confirmatory deed is subject to the construction that the deed introduced into the record, antedated as above mentioned, was intended to supply a former deed of that date conveying the same land which had been made by Wilkin as attorney in fact for Gerding, or by Gerding directly, and that such former deed truly bore the date of the antedated deed, and had been lost or mislaid; that this said former deed was the deed which was made to cover conveyances which Slausson had previously made. On the existence of such former supposed lost or mislaid deed, or on the assumption that the deed, now dated December 18, 1855, was truly dated of the latter date, and that the statements in the complainant's bill are mere matters of mistaken construction, and thus matter of law not binding, it is argued for complainant that the exclusion clause in the deed from Gerding to Wilkin became fully operative, and so the land in controversy though described by entry and grant...