McLemore v. Memphis & C.R. Co.

• Decision Date: 13 June 1902
• Citation: 69 S.W. 338,111 Tenn. 639
• Parties: McLEMORE et al. v. MEMPHIS & C. R. CO. et al.
• Court: Tennessee Supreme Court

69 S.W. 338

111 Tenn. 639

McLEMORE et al. v. MEMPHIS & C. R. CO. et al.

Supreme Court of Tennessee.

June 13, 1902

Appeal from chancery court, Shelby county; F. H. Heiskell Chancellor.

Suit to recover real estate by John C. McLemore and others against the Memphis & Charleston Railroad Company and others. From a decree for defendants, complainants appeal. Affirmed.

Randolph & Randolph and Carroll, McKellar & Bullington, for appellants.

C. H Poston, F. P. Poston, and Wright & Wright, for appellees.

BEARD J.

This suit was instituted by the heirs of John C. McLemore to recover possession of a strip of ground, running east and west through the city of Memphis from a point near the Mississippi river, 2 3/8 miles long and 100 feet wide, to the line of the Memphis & Charleston Railroad, and known in this record as "Broadway." The prayer of the bill is for possession, for rents and profits, and general relief including prayer for preliminary injunction preventing the various defendants from further occupying the ground for right of way purposes, and from interfering with complainants' possession.

In 1834, John C. McLemore was the owner of large tracts of land in Shelby county, Tenn., one of which extended from the Mississippi river eastwardly nearly 2 1/2 miles to what was known as Solomon Rozelle's west boundary line, and through which this strip, 100 feet wide, known as Broadway extends. On July 15, 1834, McLemore conveyed the property, embracing within its boundaries Broadway, as well as certain other lands, by mortgage, to William and Stokely Donelson, to secure certain enumerated debts, and among other things provided: "That the said John C. McLemore reserves personally to himself the power, and it is hereby reserved to him accordingly, in as full a manner as if this mortgage were not executed, at any time before the foreclosure of his equity of redemption and sale of said mortgaged premises under decree of court, to sell or contract to sell all or any of the lands or lots aforesaid, on such terms as he may deem expedient, for the purpose of paying and satisfying the debts and claims aforesaid, or such of them, and giving such preference, as he may think right and proper, and upon such sale to be made by him as aforesaid, and the receipt of the purchase money by the said John C., to make and execute conveyances accordingly, discharged of this trust." On June 13, 1840, William and Stokely Donelson reconveyed and quitclaimed to John C. McLemore 208 acres of the land embraced in the mortgage, and upon which was afterwards situated the town of Ft. Pickering, and which also included the western end of Broadway. On June 17, 1840, McLemore conveyed this 208-acre tract, released by the Donelsons, as above stated, to the La Grange & Memphis Railroad Company, for the consideration of $25,000, but subject to certain conditions, reservations, and restrictions, among which may be noted the following: The railroad company agreed to construct and build, within a reasonable time, a lateral railroad connecting with the La Grange & Memphis Railroad at or near the western boundary of Solomon Rozelle's land, at a point where the railroad diverged toward Memphis; and running thence west over the lands of McLemore to a point, within the 208-acre tract, at or near the south boundary and near the river, to be selected by the company. And the deed then recites: "And for this purpose the said McLemore grants to the said company the right of way through any of his lands over which the said lateral road may pass." This recitation relates solely to the remaining portion of Broadway east of the 208-acre tract. The deed also provided that the 208-acre tract was to be plotted into town lots by the railroad company. In laying off the town, convenient depot grounds were to be reserved for the railroad. Certain spaces were to be set apart and dedicated as public promenades, a male and female academy, a tavern, and for certain church purposes. An auction sale of lots was to be held at such time as should be convenient, and, after the auction sale of lots, the railroad company was to sell from time to time lots in the town site at private sale. The proceeds of the sale of all lots were to be equally divided between McLemore and the railroad company, and at the end of five years the lots remaining unsold were to be equally divided between them. This 208-acre tract was bounded on the west by the Mississippi river and on the east by Bayou Gayoso; and, in accordance with the terms of this deed, the tract was plotted as a town site by the railroad company, the streets ranging in width from 65 to 80 feet, with the exception of the one known as "Broadway." Toward the center of the tract, one entire block, 400 by 300 feet, was set apart, and designated on the map as the depot. West from this block to the river was a street 100 feet wide, and designated "Broadway," and the same street was continued east of this block to Bayou Gayoso, 100 feet wide, and upon this end of the street, and on its center line, was designated a railroad track. Between this depot block and Bayou Gayoso on the east, lots were made to front on either side of the street or railroad line, many of them not having any other method of egress. The purpose of McLemore and the railroad company was to make Ft. Pickering a rival town to Memphis, which was then distant about one mile north.

Many of the lots were sold, considerable excitement was manifested and some business houses were erected. Some grading was done upon the branch line of railroad, extending from near the center of this 208-acre tract to the La Grange & Memphis Railroad, near Solomon Rozelle's west boundary line. The right of way east of Bayou Gayoso was a continuation of Broadway eastwardly through the lands of McLemore embraced in the mortgage to the Donelsons. The railroad company, however, became involved financially, judgments being rendered against it as early as 1842, and executions were soon thereafter levied upon its property. No work other that some grading was ever attempted by this company upon the right of way; and, certainly as early as 1851, it became apparent that this company could never construct this branch line of road, since in January of that year it undertook to sell and convey all of its property of every kind to the Memphis & Charleston Railroad Company, and no effort to construct any line of railroad was thereafter undertaken by it. Among other things conveyed in that deed was "the whole bed of all the road belonging to said party of the first part (La Grange & Memphis Railroad Company), together with its right of way on said road, and all the rights, privileges, immunities, and appurtenances thereunto belonging, or in any wise appertaining," and "including all its real estate at Ft. Pickering." Within a very limited period after the effort was made to establish Ft. Pickering as a commercial town, it became apparent that the scheme would be a failure. Without success to the town, the lateral railroad would not be needed; and this is no doubt the explanation of its abandonment. It is probable that the failure of the town of Ft. Pickering to prosper as contemplated caused a change in the plans of McLemore and the further indulgence of his creditors, who commenced proceedings to foreclose their mortgages, as hereinafter stated. Early in 1842, McLemore executed a second mortgage upon the same property mortgaged to the Donelsons, excluding the 208-acre tract above mentioned, to Willoughby Williams and Oliver B. Hayes, to secure certain debts therein set out; and in September, 1842, McLemore executed a third mortgage, upon the same property, to Samuel I. Hayes, to secure certain debts therein set out; and thereafter, on October 7, 1842, William and Stokely Donelson and the other mortgagees, under the mortgages above referred to, filed their bill in the chancery court held at Franklin, Tenn., against John C. McLemore, seeking a foreclosure of all three of the mortgages, and requiring McLemore to state in his answer what part of the lands had been sold by him under the reservation contained in the first mortgage to the Donelsons. On the same day, John C. McLemore filed his answer, and among other lands mentioned as having been sold by him was the following: "The item about 600 acres, part of grant No. 19,060, embraces the sale of lots from twenty acres down to small sums, and also includes the 208 acres sold to the railroad company, a more particular description of which, as well as the land undisposed of, will be given hereafter if required. He cannot at this time give a full and accurate description thereof, but will furnish the same to the court or its commissioners when deemed necessary." Thereupon the cause was heard at the October term, 1842, and the lands mentioned in the pleadings were directed to be sold. and F. P. Stanton, Charles D. McLean, Marcus B. Winchester, and Jeptha Fowlkes were appointed commissioners to sell the lands through which the eastern end of Broadway runs, as well as certain other lands not necessary to be mentioned. The commissioners made a report to the succeeding term of the court, in which they stated that they had divided the lands through which the eastern end of Broadway runs into four tracts, excluding roads, streets, and sales previously made by McLemore; and that Willoughby Williams had become the purchaser of all four of the tracts, the first containing 441 acres, the second 205 acres, the third 346 acres, and the fourth 232 1/2 acres. This report was accompanied by a plat, and made a part of the record, showing the exact boundaries of the four different tracts sold. This plat, however, has been lost, and has never been supplied. The report of the commissioners was approved,...