Round Mountain Lumber & Coal Co. v. Bass

• Decision Date: 22 January 1917
• Citation: 191 S.W. 341,136 Tenn. 687
• Parties: ROUND MOUNTAIN LUMBER & COAL CO. v. BASS ET AL.
• Court: Tennessee Supreme Court

191 S.W. 341

136 Tenn. 687

ROUND MOUNTAIN LUMBER & COAL CO. v. BASS ET AL.

Supreme Court of Tennessee.

January 22, 1917

Appeal from Chancery Court, Scott County; Hugh G. Kyle, Chancellor.

Forcible entry and detainer by the Round Mountain Lumber & Coal Company against William Bass and others. Decree for complainant, and defendants appeal. Affirmed.

NEIL C.J.

The complainant brought an action of forcible entry and detainer against the defendants in the chancery court of Scott county. The bill describes a consolidated body, composed of many previously distinct tracts of land, but all embraced in one deed, and under one general boundary, both in the conveyance by complainant's immediate vendor, and the conveyance to the latter by his own vendor. The allegation was, in substance, that the defendants had entered upon this land and constructed a building and were taking the rents. The consolidated tract embraces about 12,000 acres. The defendants answered, disclaiming as to all of the land except one tract of 200 acres embraced in the general boundary, and known in the record as the Allen Hughett tract. They admitted that they had entered upon this, and denied that complainants had any possession of it at the time they (the defendants) made their entry. They also claimed title to this land as heirs at law of Allen Hughett, or as the tenants of such heirs.

It will contribute to a clear understanding of the controversy if we pause here and fully develop defendants' claim of title since the settlement of that matter will have, as we think, a material bearing upon the relevancy of a considerable part of the evidence offered in support of complainant's possession.

It appears that on the 22d day of January, 1871, Allen Hughett received a deed from the tax collector of Scott county purporting to convey to him, as below stated, the 200 acres. This deed recited a judgment rendered in the circuit court of that county in favor of the state on the 11th day of April 1866, for $4.34 1/4 "for taxes, costs, and charges, due and unpaid for the year 1865 against a tract of land of which Carlinda Bowling is the reputed owner," describing the 200 acres above mentioned; that an order of sale was issued on this judgment to E. Jeffers, the former tax collector of the county, on the 20th of April, 1866; that after advertising as required by law Jeffers sold the land publicly at the courthouse door on July 2, 1866, to John Hughett for the amount due, he being the highest and best bidder; that on the 22d of January, 1871, John Hughett assigned his bid to Allen Hughett; that "therefore I, John Thompson, tax collector in and for said county, and as the successor of E. Jeffers, former tax collector as aforesaid, in consequence of the premises, and for the consideration of the said sum of $4.31 1/4, do hereby transfer and convey the said tract of land above described to the said Allen Hughett and his heirs and assigns forever in as full and ample a manner as I as tax collector am authorized and required to do by law, but no further or otherwise." The deed was signed and executed by both John Thompson, the incumbent, and by E. Jeffers, his predecessor.

Assuming the validity of this deed, or assuming that it was at least color of title, Allen Hughett held possession of the land by himself and his tenants for more than seven years. After that time he abandoned the possession, and subsequently died.

It is contended by the defendants, who are his heirs, or the tenants of his heirs, that, having acquired title by seven years' adverse possession, the subsequent abandonment of the possession by Allen Hughett did not annul the title so acquired.

We have no knowledge of any case exactly in point in this state, but, on principle, the conclusion is sound. The land having been previously granted by the state to other persons, seven years' adverse continuous possession under color of title would pass title, or toll the true title, operating just as if a valid deed had been made, and the subsequent relinquishment of possession could not devest the title. There are numerous cases in other jurisdictions that fully sustain this conclusion. Schall v. Williams Valley R. Co., 35 Pa. 191, 203-206; School District v. Benson, 31 Me. 381, 52 Am. Dec. 618; Austin v. Bailey, 37 Vt. 219, 224, 225, 86 Am. Dec. 703; Summerfield v. White, 54 W.Va. 311, 322, 323, 46 S.E. 154; Branch v. Baker, 70 Tex. 190, 7 S.W. 808; Parham v. Dedman, 66 Ark. 26, 29, 30, 48 S.W. 673; Tennessee C., I. & W. R. Co. v. Linn, 123 Ala. 112, 26 So. 245, 82 Am. St. Rep. 108; Sage v. Rudnick, 67 Minn. 362, 69 N.W. 1096; Allen v. Mansfield, 82 Mo. 688; Martin v. Martin, 76 Neb. 335, 107 N.W. 580, 124 Am. St. Rep. 815, 14 Ann. Cas. 511; I. C. R. R. Co. v. Wakefield, 173 Ill. 564, 569, 50 N.E. 1002; Carroll v. Rabberman, 240 Ill. 450, 452, 88 N.E. 995; Riggs v. Riley, 113 Ind. 208, 213, 214, 15 N.E. 253. Our own case of Phy v. Hatfield, 122 Tenn. 694, 126 S.W. 105, 135 Am. St. Rep. 888, 19 Ann. Cas. 374, holds that a title once acquired cannot be lost by abandonment. This is in accord with an intimation of the court in the earlier case of Boles v. Smith, 1 Shan. Cas. 149, 152.

Still assuming that Allen Hughett acquired title to the tract before he abandoned possession of it, defendants insist that it was essential that complainant should have secured an actual possession on the special tract, the 200 acres, as distinguished from a possession upon some other part of the consolidated tract, in order to hold the status of one in possession of the particular tract, and to enable them to proceed against an intruder in an action of forcible or unlawful entry and detainer; that a possession upon some other part of the consolidated boundary would not be tantamount to, or could not be effective as, a possession of the particular tract itself.

The complainants controvert the point of law, and rely upon Lieberman v. Clark, 6 Cates (114 Tenn.) 117, 85 S.W. 258, 69 L. R. A. 732. That case, it is true, reaffirms the well-recognized principle that where there is an actual possession, pedis possessio, on any part of a tract of land, under a paper defining boundaries, that possession is extended by construction of law to every part of, and throughout the boundaries expressed in the paper, spoken of in the authorities as virtual possession, or effectual possession, and that such possession is of a higher grade than the general constructive possession that attends upon title or is incident to title to land where there is no actual possession upon any part of it. But the language used by the court must, as in all other cases, be understood in the light of the facts set out in the opinion. There was no fact stated in that case indicating the existence of a conflicting title, or claim of title as to any part of the land. The complainants in that case were in actual possession of a part of the land by having a tenant on it, under an instrument describing the whole tract, which the court held made a virtual or effectual possession of all. While complainant was so in possession the defendant entered, and began to cut and remove timber. The court held that complainant, having possession of all of the land, and so of all of the timber growing on it, could maintain an action of replevin for the timber removed without proving title to the land. That case was correctly decided, and the principles stated in the opinion are sound, but it has no direct bearing on the special phase of the controversy we are now considering. It did not present the case of an interference, or of interlapping conveyances or grants. The principles applicable to that subject had been long settled in our state in numerous decisions of this court, and we entertained no purpose to unsettle them.

A case exactly in point, as applicable to the present controversy, is Elliott v. Coal & Coke Co., 109 Tenn. 745, 71 S.W. 749.

The complainant in that case, having consolidated under one deed all of his lands, consisting of several distinct, but contiguous, tracts, claimed that a possession anywhere upon such consolidated holding would extend to every tract embraced, though other people owned grants to land lying within, or partly within, the general boundary. The court refused the contention, and held in that case, which was ejectment, that there must be an actual possession on some part of the special tract or parcel in dispute. The general rule long recognized and supported by numerous cases is, of course, that where there are interlapping grants or conveyances there must be an actual possession on the interlap or disputed ground in order to start an adverse holding in respect thereto. Napier v. Simpson, 1 Tenn. 448; Talbot v. McGavock, 1 Yerg. (9 Tenn.) 269; Hightower v. Smith, 7 Yerg. (15 Tenn.) 500; Smith v. McCall's Heirs, 2 Humph. (21 Tenn.) 163, 165; Stewart v. Harris, 9 Humph. (28 Tenn.) 714, 715; Tilghman v. Baird, 2 Sneed (34 Tenn.) 196, 199; Waddle v. Stuart, 4 Sneed (36 Tenn.) 534; Creech v. Jones, 5 Sneed (37 Tenn.) 631; Snoddy v. Kreutch, 3 Head (40 Tenn.) 302, 304; Foster v. Grizzle & Hutchins, 1 Cold. (41 Tenn.) 534; Boles v. Smith, 1 Shan. Cas. 149, 152; Gainus v. Bowman, 10 Heisk. (57 Tenn.) 602; Hunter v. Bills, 3 Shan. Cas. 97; Coal Creek Mining Co. v. Heck, 15 Lea (83 Tenn.) 514; Byrd v. Phillips, 12 Cates (120 Tenn.) 14, 111 S.W. 1109; Wright v. Hurst, 14 Cates (122 Tenn.) 662, 127 S.W. 701.

These authorities run from our very earliest down to those of a very recent date.

The point in Elliott v. Coal & Coke Co. is that the consolidation of several tracts under one deed does not change the rule as to existing rights or claims. And manifestly so; otherwise the claimant of a small tract in a large general boundary embracing thousands of acres and...