Sampson's Heirs v. Chester's Heirs
| Decision Date | 01 April 1904 |
| Citation | 91 S.W. 43 |
| Parties | SAMPSON'S HEIRS v. CHESTER'S HEIRS. |
| Court | Tennessee Supreme Court |
Appeal from Chancery court, Dyer County.
Ejectment by the Sampson heirs against the Chester heirs. From a judgment sustaining a demurrer to the complaint, complainants appeal. Affirmed.
This is an action of ejectment to try title to vacate land.
There was a demurrer in the court below, which was sustained, and complainants were denied any relief, and have appealed.
The court is unanimously of opinion that the decree of the chancellor should be affirmed, and it is done, with costs.
While the several members of the court arrive at the same result they do so upon somewhat different grounds. The majority is of opinion that the entries upon which both the complainants' and defendants' grants are based are invalid and void--the defendants' entries, because made at a date when there was no hiatus and no authority under the law to make such entries; and the complainants' are invalid because the complainants did not, within the life of any extension act, perfect the same by a grant. The matter therefore turns upon which has the older grant, the complainants or defendants, without regard to the entries and there can be no question but that the defendants have the older grant.
It is held that an entry is not indispensably necessary to the validity of a grant. Craig's Lessee v. Vance, 1 Overt. 182.
The conflict being, then, narrowed down between two grants neither supported by a live and valid entry, the court will give effect to the older upon the theory that it passed all the right of the state to the grantees in that grant, and a subsequent grant would be of no avail to pass any title.
The decree of the court below is affirmed, with costs.
This is an action of ejectment brought by the heirs of Isaac Sampson against the heirs of Robt. I. Chester.
The complainants claim 1,316 5/8 acres of land under seven separate grants as follows:
No 17,303, dated July 17, 1900, based upon entry No. 113, which was an extension entry for 199 acres, made on the 20th day of July, 1840, by virtue of a one-acre entry, No. 117, in the name of Jno. W. Rogers. This said entry was assigned to said Sampson and surveyed for him on the 25th day of November, 1841.
17,304, dated July 17, 1900, based upon an extension entry, No. 118, July 20, 1840, in the name of Geo. C. Hatch, for 199 acres by virtue of a one-acre entry. This was assigned to said Sampson and surveyed for him November 25, 1841.
17,305, dated July 17, 1900, based upon an extension entry for 198 acres May 23, 1840, made in the name of Lucy W. North, by virtue of a two-acre entry. This was assigned to said Sampson and surveyed for him November 25, 1841.
17,306, dated July 17, 1900, based upon an extension entry for 198 acres, made in the name of Jas. Smith on May 23, 1840, by virtue of a two-acre entry. This was assigned to said Sampson and surveyed for him November 26, 1841.
17,308, dated July 17, 1900, based upon an extension entry for 198 acres, made in the name of Jacob C. Fisher on the 23d day of May, 1840, by virtue of a two-acre entry. This was assigned to said Sampson and surveyed for him on the 26th day of November, 1841.
17,309, dated July 17, 1900, based on an extension entry for 140 5/8 acres, made in the name of Etson Eaves on the 20th day of July, 1840, by virtue of a one-acre entry. This was assigned to said Sampson and surveyed for him November 28, 1841.
17,310, dated July 17, 1900, based upon an extension entry for 184 acres, made by Enoch P. Earle, December 2, 1841, by virtue of a one-acre entry. This was assigned to said Sampson and surveyed for him on December 6, 1841.
All these several entries were made by the original enterers, under and by virtue of the occupant law of 1840, Acts 1839-40, p. 144, c. 62; Whitney's Land Law, p. 280.
The defendants in this case, who are the heirs of the late Robert I. Chester and those who hold under them, claim the said land covered by the above grants under and by virtue of a grant for 2,000 acres No. 5,119, dated July 22, 1846, based on entry No. 450, dated June 2, 1843, of land issued to the said Robert I. Chester, as assignee of Sam'l J. Hayes.
The bill shows that these are wild bottom lands, and they have never been actually occupied, and avers that the complainants, having the older entries, though the younger grant, are entitled to recover said land. The bill charges further, by way of amendment, that the title which was obtained by the said Robert I. Chester on his junior entries inured to the benefit of the original entries, and that he and his heirs under him hold the said title in trust for the benefit of the holders of the original enterers or their assigns, and prays that the title be divested out of them and vested in the complainants.
The defendants interposed five grounds of demurrer to the bill, the first three of which were overruled by the court, and there was no appeal. The fourth and fifth, which were sustained by the court, are as follows:
(4) "That said bill shows on its face that the complainants are seeking to eject the defendants from lands, when the title of the defendants thereto and therein is superior to that of complainants, in that the grants exhibited and relied upon by the complainants were issued without authority of law; the bill showing that the grants were issued in July, 1900, to the complainants, as the heirs of Isaac Sampson, deceased, on extension entries made in 1840.
(5) "That the said bill shows on its face that the ancestor of the complainants, Isaac Sampson, had abandoned the entries on which said grants, exhibited by the complainants, are based, and took no steps to perfect the title in said lands in his lifetime."
From the action of the court sustaining the above grounds of demurrer, and dismissing complainants' bill, complainants appealed, and assign the following errors:
First. The court erred in holding that the defendants had the better title to the land sued for.
Second. The court erred in holding that the entries on which complainants' grants are based had been abandoned by the complainants.
Third. The court erred in holding that complainants' grants were issued without authority of law.
The several extension entries in this case were based upon a small entry, which, it appears, but not very definitely, was founded upon a warrant from the state of North Carolina, and were made under the provisions of Acts 1839--40, p. 144, c. 62, § 2, compiled in Whitney's Land Law, on page 280, which is as follows:
"Where any person is now or hereafter may become the owner by deed, grant, entry or occupant reservation of a less quantity than 200 acres of land, the owner or owners thereof may enlarge the same to any quantity not exceeding 200 acres, provided always that they do not interfere with any occupant settler and that no person shall be entitled to the benefit of this section who may be at the time he may wish to make such enlargement the owner of 200 acres of land."
The title of this act recites that "it is for the benefit of the occupant settlers south and west of the congressional reservation line"; and in that limit the lands in controversy lie.
Complainants, having the older entries, though the younger grants, must prevail, unless it appears that their entries were abandoned, or the grants to them were unauthorized, unwarranted, and invalid.
It is said that, grants to the complainants having issued in 1900, the court cannot look behind them, but must accept them as final and conclusive evidence of their validity and of complainants' rights thereunder.
But it is evident that the mere issuance of a grant by the Governor and Secretary of State is not conclusive of its validity in every instance. And it has been held that entries and grants may be questioned and declared void wherever there is a want of property in the state at the time they issue, as when a grant issues for land already validly granted, or when there is a want of power in the officers appointed by the government to receive the entries or to issue the grants apparent on the face of the papers or as a matter of law. Polk's Lessee v. Windel, 2 Overt. 433, Fed. Cas. No. 11,251; McLemore v. Wright, 2 Yerg. 326; Crutchfield v. Hammock, 4 Humph. 204; Roach v. Boyd, 1 Sneed, 134; Curle v. Barrel, 2 Sneed, 65; Woodfolk's Lessee v. Nall, 2 Sneed, 678; Fowler v. Nixon, 7 Heisk. 725; Moss v. Gibbs, 10 Heisk. 284; Calloway v. Hopkins, 11 Heisk. 353.
It is a rule well settled and not now questioned that a complainant in ejectment must recover, if at all, upon the strength and perfectness of his own title, and not upon any supposed defect in that of the defendants. Garrett v. Belmont Land Co., 94 Tenn. 459, 29 S.W. 726; King v. Coleman, 98 Tenn. 570, 40 S.W. 1082; Lowry v. Whitehead, 103 Tenn. 397, 53 S.W. 731.
And it is from this standpoint that we proceed to examine the present controversy.
It is insisted that complainants' title in this case is defective because their entries were abandoned before grants issued, and that this must be presumed from great lapse of time, and because there was no power in the officers of the government to issue the grants as was done on the 17th day of July, 1900.
These questions can more satisfactorily be treated together than separately.
It has been held by this court that a title to land will not be presumed to be abandoned for mere lapse of time, but there must be some affirmative act to constitute, and positive proof to establish, abandonment, and that the burden of proof is upon the party claiming the abandonment to prove it.
This was so held in Woods v. Bonner, 89 Tenn. 411, 18 S.W. 67, and Carsons v. ...
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