Napier's Lessee v. Simpson

• Decision Date: 30 June 1809
• Citation: 1 Tenn. 448
• Parties: NAPIER'S LESSEE v. SIMPSON.
• Court: Tennessee Circuit Court

1 Tenn. 448

NAPIER'S LESSEE

v.SIMPSON.

Superior Court of Law and Equity of Tennessee.

June, 1809.

The plaintiff claimed under a military grant for 274 acres, No. 2085, dated May the 20th, 1793. The entry was made in the name of George Hooks, December the 20th, 1785, on Barton's Creek, about one mile below the lower meat-house made by Deason and Williams, to include a spring and beach marked W B I R and also under a sheriff's deed for taxes. The defendant claimed by deed from William Cochran dated August the 15th, 1709; two grants issued to Cochran of 640 acres each, dated on the 12th of November, 1791, bottomed on entries made on the 30th of November, 1790. There was a spring which was left out of Hook's tract about thirteen poles, where trees were found marked thus: W B R. Whether the last was intended for the letters I R, joined together, the surveyor, Col. Humphreys, could not tell, but looked as if intended for the letter R. It was proved that plaintiff claimed the spring where the defendant lived on the west side of the creek. On the part of the plaintiff it was proved that the defendant lived within the lines of Hooks as surveyed, and, as the grant to Hooks was the youngest, it was necessary to identify the location. The plaintiff produced two witnesses, the one his brother and the other a relation, who lately came to this country from the State of Georgia. By the first it was proved that he saw such marks as are described in Hook's entry, at a spring within the tract on the east side of the creek, and not far from it. He first saw those marks about two years ago.

The other witness proved that he was first at this spring a few days ago, when he saw such marks, and, by both witnesses, the marks appeared to be old.

The defendant identified his claim, and proved by persons living in the neighborhood that they never heard of the plaintiff claiming the spring now proved. It was also proved that there were three springs below Deason's meat-house spring; viz., the one now claimed by the plaintiff, which was about half a mile below. The spring where Col. Napier lived is about one mile and a quarter below, and the spring where the defendant lives, which is between a half and three-quarters of a mile below Deason's meat-house spring, called for in the entry. It was also proved that he settled on the land purchased of Cochran in March, 1799,--the witness being present when he built his house. Cochran was then present, and he then understood from both Cochran and the defendant that the purchase was made, though no deed was executed. It was also said by one of the witnesses that he believed part of the land which the defendant claimed was within the bounds claimed by the plaintiff. The writ issued in this case on the 2d of April, 1806, and the defendant relied on seven years' possession as a bar.

Dickinson, for the plaintiff argued, on the ground of locality, that the spring proved on the east side of the creek was the one called for in the entry. The statute of limitations does not apply under the Act of 1797, c. 43, sec. 4. The defendant settled on this land as a purchaser, not as a tenant. A parol lease may be good as affording a possession under the statute, but, as a purchaser, a person can only claim from the date of his deed; there can be no purchase of land except by deed, and the possession of the defendant, until he procured a deed, can not avail him. There was not seven years between the date of the deed and the commencement of this action, though there was from the time the defendant took possession. If the defendant took possession as a purchaser, his claim was void, as such purchase until the deed was without any specific limit or boundary. It can not be pretended that the defendant took possession as a lessee; it is otherwise proved, and there can not be a parol sale of land, though there may be a parol lease, which creates a legal right. The situation of the plaintiff and defendant should be reciprocal. To enable the defendant to avail himself of seven years' possession he should have a legal title, as the plaintiff could not bring an action to save the bar until he had a legal title. Thus, in the case of entries, possession does not avail any thing unless accompanied by a grant or legal title. The plaintiff can not be barred on another ground; by law, the owner of land sold for taxes is allowed twelve months after sale to redeem. Here, during the twelve months in which no suit could be brought, this land was in abeyance. It was uncertain who would own it, the original owner or purchaser. In such a state of things it would be unreasonable that the statute should run. The defendant has not shown when that part of his clearing or cultivation, which interferes with us, took place. Taking possession of land, not within the limits of Hook's grant could have no effect.

Stewart and Grundy, e contra.

The entry of the plaintiff on the face of it is well enough, but when taken in connection with the situation of the country in which it was made, is void for uncertainty. Three springs have been proved, any one of which might as well answer the description as another. The survey of Hooks, under which the plaintiff claims, ought not to have extended higher up than one mile from the meat-house spring. Supposing the spring claimed to be the one, had Hook's land been surveyed in that manner, it could not have interfered; nor could it have interfered had it been surveyed in a square, putting the spring in the centre, which seems agreeable to modern decisions. But a spring is an obscure call, therefore the survey ought to have adhered to the distance of one mile, otherwise it would be, if the spring were a call highly notorious; then the distance could not mislead. The spring in this case is the locative call. The entry, though not vague on the face of it, is bad in fact three springs have been proved as lying below the meat-house spring, from the distance of a half to that of one and a quarter miles. The plaintiff claims the spring at the distance of half a mile below the meat-house spring. He has just as much right to claim either of the other two. If the spring where Col. Napier lives was the spring they ought to have surveyed there; it is not enough to say that they might have included the spring where Col....