Minor v. Belk

• Decision Date: 21 February 1962
• Citation: 360 S.W.2d 477,50 Tenn.App. 213
• Parties: Arthur R. MINOR and Wife, Madge Minor, Appellants, v. C. L. BELK, Ruby R. Belk, and Paul K. LeDuke, Trustee, Appellees. 50 Tenn.App. 213, 360 S.W.2d 477
• Court: Tennessee Court of Appeals

Page 477

360 S.W.2d 477

Arthur R. MINOR and Wife, Madge Minor, Appellants, v. C. L. BELK, Ruby R. Belk, and Paul K. LeDuke, Trustee Appellees.

50 Tenn.App. 213, 360 S.W.2d 477

Court of Appeals of Tennessee, Western Section.

Feb. 21, 1962.

Certiorari Denied by Supreme Court Sept. 7, 1962.

Rehearing on Denial of Writ of Certiorari Denied Oct. 4,

1962.

[50 TENNAPP 214] Ricco Gatti, Jr., Rubert & Ewing, and William J. Ling, Memphis, for appellants.

[50 TENNAPP 215] Clyde P. West, Memphis, for C. L. Belk and Wife, Ruby R. Belk.

Benjamin Goodman, Memphis, for A. B. Murchison and Wife, Jennie Minor Murchison.

BEJACH, Judge.

This cause involves a suit by Arthur R. Minor and wife, Madge Minor, against C. L. Belk and wife, Ruby R. Belk, and Paul K. LeDuke, trustee, under provisions of a trust deed encumbering defendants' property, to require defendants to remove encroachments of said defendants from the land of complainants. For convenience, the parties will be styled as in the lower court, complainants and defendants. The suit started as one to settle a boundary dispute; but, after numerous amendments to the original bill and to the answer which was converted into a cross bill, the suit was changed to one in the nature of an ejectment suit. This was entirely proper, as both complainants and defendants deraign their titles from a common source, namely, James Madison Minor, who owned a 90 acre tract of land referred to as 'the James M. Minor 90 acres'. As a result of the amendments, defendants' grantors, A. B. Murchison and wife, Jennie Minor Murchison, were made parties. Several other parties, not now material to this litigation, were also added. All of the lands of both complainants and defendants constitute parts of said James M. Minor 90 acres. The 90 acre tract in question was part of the 'Jacob Tipton 150 acres' and was conveyed to James M. Minor by deed dated November 4, 1908, which is recorded in Book 437, page 65, Register's Office, Shelby County, Tennessee. The deed to James M. Minor, in addition to other identification of the land conveyed, includes the following phrase: 'including in this conveyance also [50 TENNAPP 216] all the land enclosed or set off by the fences marking or supposed to mark the boundaries of said tract of 90 acres'. In this deed, also, the southwest corner of the 90 acres is fixed at the southeast corner of the 'Thomas Hickman 640 acres', and same is described as the 'east side of the Thomas Hickman 640 acres'. It appears that the southeast corner of the Thomas Hickman 640 acres and the east side of same are the southeast corner, and the eastern boundary of Lots 1, 2, and 3 of the James Overton Subdivision, which was created out of same, by Plat recorded January 29, 1869, in Plat Book J, page 12, Register's Office of Shelby County, Tennessee. The 90 acre tract of James M. Minor, who died in 1932, was devised by his will to eight sons and daughters, one of whom was complainant Arthur R. Minor; and another of whom was Jennie Minor Murchison, one of defendants' grantors. In the settlement of the James M. Minor estate, conplainant Arthur R. Minor received a deed to 12 acres, the western part of which, adjoining the land of defendants, he still owns. A correction deed, recorded in Record Book 2799, page 133, Register's Office of Shelby County, Tenn., describes the property conveyed to him, as follows:

'BEGINNING at a point in the north line of the Hindman Ferry Road now also known as Raleigh-Frazer Road, at a stake 100 feet east of the southwest corner of the aforesaid J. M. Minor Estate Tract of 90 acres; thence eastwardly with the north line of the said Hindman Ferry Road or Raleigh-Frazer Road, 252.5 feet; thence northwardly parallel with the west line of the aforesaid J. M. Minor estate tract of 90 acres 2009 feet, more or less, to the north line of the aforesaid 90 acre estate tract; thence westwardly with the north line of the aforesaid [50 TENNAPP 217] estate tract 352.5 feet to the west line of the said estate tract; thence southwardly with the west line of said estate tract 702.2 feet to the north line of the Murchinson 3 acre tract; thence eastwardly parallel with the north line of the Hindman-Ferry Road 100 feet to the northeast corner of the aforesaid Murchinson 3 acre tract; thence southwardly parallel with the west line of the J. M. Minor estate tract 498.05 feet; thense eastwardly parallel with the north line of the Hindman-Ferry Road 208.75 feet; thence southwardly parallel with the west line of the said J. M. Minor Estate Tract 208.75 feet; thence westwardly parallel with the north line of Hindman Ferry Road 208.75 feet; thence southwardly parallel with the west line of said J. M. Minor Estate Tract 600 feet to the point of BEGINNING.'

Jennie Minor Murchison and A. B. Murchison, her husband, also still still own a tract of 1 acre adjoining on the east side the land which they conveyed to defendants. The 3 acre tract of land, now owned by defendants, was, in the settlement of the James M. Minor estate, conveyed to Ben T. Minor, a son of James M. Minor, who sold same to William H. Ivie on April 14, 1938. Ivie, who is now deceased, conveyed same June 9, 1938 to Allie Minor Thomas, who on May 9, 1941 conveyed it to A. B. Murchison and wife, Jennie Minor Murchison. By deed dated June 5, 1950, recorded in Record Book 2553, page 636, Register's Office of Shelby County, A. B. Murchison and Jennie Minor Murchison, his wife, conveyed same to C. L. Belk and wife, Ruby R. Belk. In this deed, defendants' land is described as follows:

'Three acres of land on the north side of the Hindman Ferry Road in the Second Civil District of [50 TENNAPP 218] Shelby County, Tennessee, and being a part of the 90 acres, more or less, of land conveyed to J. M. Minor now deceased, by warranty deed of record in Book 437, page 65 of the Registers Office of Shelby County, Tennessee, aforesaid 3 acres being further described as:

'Beginning at a stake in the southwest corner of the aforesaid J. M. Minor estate tract, thence eastwardly with the north line of the Hindman Ferry Road 100 feet, thence northwardly parallel with the west line of said J. M. Minor estate tract 1306.8 feet, thence westwardly parallel with the north line of the said Hindman Ferry Road 100 feet, thence southwardly with the west line of the said J. M. Minor estate tract 1306.8 feet to the point of beginning, and being the same property conveyed by warranty deed dated May 9, 1941 from Mrs. Allie Minor Thomas to first parties hereinof record in Book 1668 page 584 in said Register's Office.'

Defendants purchased said three acres through William H. Ivie, a real estate agent, who had formerly owned same. According to the testimony of defendant C. L. Belk, Ivie pointed out to him as the western boundary of same, an old fence row, evidenced by bits of wire embedded in a line of trees. After purchasing the 3 acre tract, defendant Belk, assuming that the old fence line was his western boundary, undertook to measure off 100 feet eastwardly from same, and built a fence there. He also built a house and a pumphouse on the eastern part of the land thus measured off by him. According to complainants, all of the pump and pumphouse and part of the residence, are located on complainant's land. At [50 TENNAPP 219] the time defendant measured the land and built his fence and other improvements, no survey had been made by either complainant or defendants; but, even before a survey was made, according to the testimony of complainant, defendant Belk admitted that the fence, which is built in an eliptical pattern, encroached on complainant's property, and agreed to remove same at complainant's request. On or about February 10, 1955, complainant gave to Person Homes, Inc., a Tennessee corporation, an option to purchase all of his land, which option was made irrevocable on or about May 17, 1955. In connection with this option and the exercise of same, Person Homes, Inc. caused a survey to be made by the Pickering Engineering Co. of Memphis, Tennessee, which survey showed that defendants had enclosed within their eastern fence a strip of complainant's land, which at the Frayser-Raleigh Road, formerly known as the Hindman Ferry Road, is 30 feet wide. At the northern end of same, the strip is 43 feet wide, and at its widest point, near the middle, it is 64.6 feet wide.

After demand for possession of this strip of land, along with a demand that defendants remove their improvements from same had been refused by defendants, complainants instituted this suit. After a hearing on oral proof, which lasted from February 15, 1961 to February 21, 1961, the Chancellor ruled that defendants' western boundary is the old fence line shown on the survey by Pickering Engineering Co., dated November 28, 1955. He dismissed both the original bill as amended, and the cross bill filed by defendants. From the decree entered March 2, 1961, we quote as follows:

'From all of which the Court finds that complainants' bill, and amended and supplemental bill, are not [50 TENNAPP 220] sustained by the proof. That the west boundary line of the J. M. Minor Estate Tract referred to in the deed from A. B. Murchison and wife Jennie Minor Murchison to C. L. Belk and wife Ruby R. Belk, of record in Book 2553, page 636 of the Registers Office of Shelby County, Tennessee, is the old fence line which was set out in the survey by Pickering Engineering Co., dated November 28, 1955.'

Complainants duly excepted to the Chancellor's decree, prayed, and have perfected their appeal to this Court. A bill of exceptions embodying the testimony adduced at the hearing was seasonably filed and made part of the record.

In this Court, complainants, as appellants, have filed six assignments of error, which are as follows:

'ASSIGNMENTS OF ERROR

I

'That the Chancellor erred in holding as follows:

'That the west boundary line of the J. M. Minor estate tract, referred to in the deed from A. B. Murchison and...