M'Corry v. King's Heirs

• Decision Date: 31 July 1842
• Citation: 22 Tenn. 267
• Parties: M'CORRY v. KING'S HEIRS.
• Court: Tennessee Supreme Court

22 Tenn. 267

M'CORRY

v.KING'S HEIRS.

Supreme Court of Tennessee.

July, 1842.

This action of ejectment was instituted in the circuit court of Green county, by the heirs of Jane King against McCorry, for the recovery of lands lying on McCartney's creek in that county.

The case was submitted to a jury at the February term, 1842, Lucky, judge, presiding, when a verdict was rendered in favor of the plaintiffs. The defendant appealed in error.

J. A. McKinney, for the plaintiff in error.

Robert McKinney, for the defendants in error.

Reese, J., delivered the opinion of the court.

Between the years of 1787 and 1793, inclusive, the State of North Carolina granted to George Gillespie the elder, four several tracts of land adjoining each other, and calling to lie on McCartney's creek or McCartney's branch, two containing 100 acres each. On the 14th December, 1793, George Gillespie made and published his last will and testament, and therein, among other bequests and devises, devised as follows: “I give and bequeath to my beloved daughter, Jane Gillespie, her heirs and assigns forever, the tract of land I bought of James and Charles McCartney, lying in Greene county.” Some time after the death of George Gillespie the elder, his daughter Jane, the devisee, intermarried with one William King, and the defendants in error are their children.

In the year 1803 William King, without his wife in any manner joining therein, conveyed to Mahalon Hayworth the land comprised in the four grants made to George Gillespie above described, and also the land comprised in a 100-acre grant to one Ford, adjoining to and in some degree interfering with the Gillespie grants. In 1804 Mahalon Hayworth conveyed the land described in three of the Gillespie grants and in the Ford grant to John Copeland; and in 1809 one David Copeland conveyed the same to the plaintiff in error; and in the same year one Samuel McNair conveyed to the plaintiff in error a tract of land estimated to contain sixty acres, which the deed recited had been bought by him of Mahalon Hayworth. The plaintiff in error had been in possession of the land covered by his deed since the date thereof. Jane King, the mother of the defendants in error, died in January, 1828, and William King, her husband and their father, died in October, 1835.

The defendants in error commenced this their action of ejectment on the 4th February, 1837, in which they contend for the land comprised in the deed from William King to Hayworth; and in the circuit court, by the verdict of a jury, they recovered the same; but before the motion for a new trial, which had been entered in the cause, was disposed of, they released all title and claim to so much of the Ford grant as did not interfere with the Gillespie grants. A new trial was refused, and this appeal in the nature of a writ of error thereon prosecuted. The material points here discussed were all made in the circuit court, and are comprised in the well-considered and very distinct charge of the circuit judge to the jury. We deem it proper to quote here the whole of it from the record. “If there was any part of the Ford grant not covered by the grants to George Gillespie, and which Gillespie did not purchase from the McCartneys, or for which he had no title at the time of executing the will, for such part the plaintiffs were not entitled to have a recovery, as the testator could not devise lands to which he had no title. It is further insisted by the defendant's counsel that a portion of the land in some of the tracts is not identified with sufficient certainty to enable the plaintiffs to recover. On this point the court instructed the jury that the identity of the land sued for must be established with reasonable certainty; absolute certainty is not required; and if from the whole of the evidence the jury believe that any of the tracts are not sufficiently identified, or that the proof is so vague and indefinite that they can not determine where the land lies, for such tract they must return a verdict for the defendant.

For the defendant is is also contended that nothing passed under the devise in the will of George Gillespie but the land mentioned in the grant No. 1260, for 100 acres, and that no parol evidence can be introduced to explain the intention of the testator.

The court charged the jury on this point that the land purchased by George Gillespie from the two McCartneys passed to the devisee, Jane Gillespie, under the will of her father, and that parol evidence was admissible to show what land the testator actually purchased from James and Charles McCartney, and also to show how many tracts or parcels it was composed of, and that its identity might be shown, although there were no particular metes and bounds designated at the time of the original purchase.

Another proposition insisted upon by the defendant's counsel is that if the proof shows that Jane Gillespie, or King, as her husband, never had actual possession of more than the tract No. 1260, that with respect to the other three tracts Wm. King never was tenant by the curtesy, and so his wife's heirs were not barred from suing on the death of Mrs. King; and that possession of one tract is not the possession of another adjoining tract owned by the same person. In relation to which the court charged the jury that if the wife was seized in law, that is, had a legal title to lands, although there might be no seizin in deed, yet the husband would be tenant by the curtesy of such lands as the wife had a legal title to, although they might be waste and uncultivated, and never in the actual possession of either the wife or husband; and as to the facts of this case, whether there was an actual possession of one or all these tracts, the jury were the judges.

Again: it is further insisted by the defendant's counsel that as the plaintiffs did not institute their suit within seven years after the death of Mrs. King, their mother, they were barred by the statute of limitations of 1819. To this proposition the court responded in substance that this question has been determined adversely to the proposition of the counsel for the defendant in another branch of this same case, and, as this court understands the decision, as the wife had no right to sue during coverture, and if there were issue born of the marriage, the husband became tenant by the curtesy, and the heirs of the wife had no right to enter, and consequently could not sue until after the death of the husband, Mr. King, and, therefore, the statute of limitations did not commence running until after his death, and if the suit was brought within three years from that time the plaintiffs are not barred.

The counsel for the defendant further insisted that in civil causes the jury were the judges of the law and the facts, and that they were at liberty to disregard the opinion of the supreme court or the laws given them in charge by the court, and determine it for themselves; although they would in general pay respect to the opinion of the court as to the law, yet they might determine the law for themselves in disregarding the opinion of the court. To which proposition the court charged in substance that in civil causes the jury were not the judges of the law; that it was the duty of the court to expound and explain the law, and the province of the jury was to determine the facts. The proposition contended for would be of dangerous tendency, and, in the judgment of the court, not permitted by the laws of this State.

It is further insisted by the counsel for the defendant that you are authorized to presume a deed of conveyance either from George Gillespie or Jane King and her husband, or an elder and better grant from the State, from the adverse possession of twenty years or more. On this point the court instructed the jury as follows: It is as a general proposition true, that when a person has been in the undisturbed possession of land for twenty years or more, claiming it adversely, that from such long-continued possession upon the principles of public policy, and for the security and peace of society, juries are authorized to presume either a deed or grant; yet this general principle has its exceptions and limitations, and as I understand the opinion of our supreme court from the record before me, this case is one of them. The reason of the law is probably this: that as the legal existence of the wife is merged in that of the husband during the coverture, the laches or neglect of the husband shall not operate to the prejudice of the wife.

It is further insisted by the counsel for the defendant that if William King was tenant by the curtesy of all the land sold, as he had only a life estate, and made an absolute deed with general warranty, that was a forfeiture of his life estate, and so, on the death of Mrs. King, descended to her heirs, and there was no impediment to sue in the way; and if within seven years thereafter, while there was an adverse possession, they did not sue, they are barred by the statute of limitations.

On this point the court charged the jury that the deed of W. King, although purporting to convey an estate in fee only, operated as a conveyance of his interest in the land. That the old law of forfeiture, as it once existed in England, is not in force in this State, where the...