Sheafer v. Mitchell

• Court: Tennessee Supreme Court
• Writing for the Court: CURTIN, Special Judge.
• Citation: Sheafer v. Mitchell, 71 S.W. 86, 109 Tenn. 181 (Tenn. 1902)
• Decision Date: 15 November 1902
• Parties: SHEAFER et al. v. MITCHELL et al.

71 S.W. 86

109 Tenn. 181

SHEAFER et al. v. MITCHELL et al.

Supreme Court of Tennessee.

November 15, 1902

Syllabus by the Court.

1. R. & J. made a special entry, but did not obtain their grant until after two hiatuses intervened. E. & F. made two younger entries on same land, and obtained two grants before said hiatuses. Held, that E. & F., claiming under junior entries and senior grants issued before, have superior title to R. & J., claiming under senior entry and junior grant issued after, the hiatuses. Cases cited and approved Williamson v. Throop, 11 Humph. 265; Blevins v Crew, 3 Sneed, 152; Gass v. Waterhouse (Tenn. Ch App.) 61 S.W. 452; Cowan v. Hatcher (Tenn. Ch App.) 48 S.W. 328. Cited and distinguished: Tipton v. Sanders, 2 Head, 690; Sampson v. Taylor, 1 Sneed, 600; Henegar v. Matthews, 14 S.W. 554, 88 Tenn. 132.

2. A tax deed, to be valid under Acts 1835, c. 15, should recite: (a) The consideration paid; (b) a sufficient description of the lands; (c) the judgment upon which the sale was made; (d) the date of judgment and court where rendered; (e) the fact of legal notice having been given; and (f) sale of property, and date thereof. Where such recitals appear, they constitute prima facie evidence of such facts, and the deed is valid evidence of title in any court of law or equity; and it is immaterial whether the sheriff who made the sale or his successor (13 years thereafter) executed the deed. Acts cited and construed: Acts 1801, c. 8; 1809, c. 84; 1835, c. 15; 1843-44, c. 92; 1847-48, c. 147; 1849-50, c. 102. Cases cited and approved: Bates v. Sullivan, 3 Head, 633; Tharp v. Hart, 2 Sneed, 572; Polk v. Mitchell, 4 S. W. 221, 85 Tenn. 634. Cited and distinguished: Allen v. Moss, 2 Tenn. Cas. 317.

3. Where a deed describes land as the "Shady Tract" merely, but refers for particular description to other deeds of record containing accurate description of same, it is not void for insufficient description, but is a valid conveyance. Authorities cited and approved: 2 Pingrey, Real Prop. § 1375; 4 Am. & Eng. Enc. Law (2d Ed.) 759.

4. It is not necessary to show in the face of the deed that the several tracts of land described therein were separately sold. The fact that the sale was made in bulk, and not separately, might be set up in defense on the trial, where the deed is not clear as to how the sale was made, but the fact that it does not so recite would not avoid it if the statutory prerequisites are recited. Cases cited and approved: Brien v. Creighton, 2 Tenn. Cas. 211.

5. The validity of a tax deed must be determined by the law in force at time of sale; and, if executed by virtue of such sale, and valid under that law, it cannot be effected by subsequent legislation. Cases cited and approved: Tracy v. Reed (C. C.) 38 F. 69, 2 L. R. A. 778, 779; Richardson v. Marshall Co., 45 S.W. 440, 100 Tenn. 352; Douglass v. Pike Co., 101 U.S. 677, 25 L.Ed. 968; Taylor v. Ypsilanti, 105 U.S. 60, 26 L.Ed. 1008.

6. After long lapse of time (35 years in the present case) every reasonable presumption should be indulged to uphold a tax deed; and especially is this so where the original proprietors, or their privies, have asserted no title, although numerous subsequent conveyances have been made. Cases cited: Childress v. Harrison, 1 Baxt. 411; Gonzales v. Ross, 7 Sup. Ct. 705, 120 U.S. 605, 30 L.Ed. 801; Dodge v. Briggs (C. C.) 27 F. 160; Orton v. Noonan, 25 Wis. 672; Thomas v. Stickle, 32 Iowa, 71; Howard v. Stevenson, 11 Mo.App. 410; Gage v. Bailey, 102 Ill. 11. Code cited: Shannon's Code,§ 3762.

7. Tax deeds are void: (a) Where several tracts of land are sold as a whole, and not separately; (b) where the law authorizing such sales is not strictly followed, the proceeding being purely statutory; and (c) where the record offered to support the deed varies materially from its recitals. Authorities cited and approved: Cooley, Tax'n, 476; Downing v. Stephens, 1 Baxt. 456; Sampson v. Marr, 7 Baxt. 490; Blackw. Tax Titles, 380; Crishman v. Johnson (Colo. Sup.) 47 P. 296, 58 Am. St. Rep. 224; Barnes v. Boardman (Mass.) 21 N.E. 308, 3 L. R. A. 787; Polk v. Mitchell, 2 S. W. 221, 85 Tenn. 634; Ballard v. Scruggs, 18 S.W. 259, 90 Tenn. 585, 25 Am. St. Rep. 703.

8. Query: If void, can a defendant, who is a stranger to the title in an ejectment suit, rely upon this defense to defeat complainants' suit, as he could rely upon any other outstanding title? Authorities cited: Freem. Ex'ns, 985; Lamm v. Railway Co. (Minn.) 47 N.W. 455, 10 L. R. A. 269; Harlan v. Harlan, 14 Lea, 115.

9. The presumption of law is in favor of the exercise of power; and, if there be both a legal and an illegal mode of exercising same, the legal method is presumed to have been adopted, in the absence of proof to the contrary. Cases cited and approved: Marshall v. Stephens, 8 Humph. 159, 47 Am. Dec. 601; Wilburn v. Spofford, 4 Sneed, 704; Murdock v. Leath, 10 Heisk. 188; Crisman v. Johnson (Colo. Sup.) 47 P. 296, 58 Am. St. Rep. 224.

10. Where the lower court decides a case correctly, but upon an erroneous theory of the law, the supreme court will affirm the holding, but base its decision upon the correct theory; and where questions of law, not fact, are involved, it is not necessary for all parties to appeal in order to invoke the application of the rule. If one side appeals, it brings up for consideration all questions of law governing the matters in controversy. Cases cited and approved: Butler v. Kinzie, 15 S.W. 1068, 90 Tenn. 31; Loftis v. Loftis, 28 S.W. 1091, 94 Tenn. 237.

11. The revisors of the Code of 1858 were authorized "to revise and digest" existing statutes, and the supreme court, construing the Code in doubtful cases, will presume that this was done, and that it was not intended to alter or change them. Case cited and approved: Bates v. Sullivan, 3 Head, 633.

Appeal from chancery court, Johnson county; John P. Smith, Chancellor.

Suit by Walter S. Sheafer and others against James S. Mitchell and others. From a judgment for defendants, plaintiffs appeal. Reversed.

C. J. St. John, Shields & Mountcastle, and Webb, McClung & Baker, for appellants.

Jenkins, Wilson & Cole and Pickle & Turner, for appellees.

CURTIN Special Judge.

This is an ejectment bill, filed in the chancery court of Johnson county, to recover 200 acres of land, and for an injunction to stay waste. The complainants' title is founded upon two grants issued by the state of Tennessee for 5,000 acres each. Grant No. 21,601 was issued to Wm. Ewing May 13, 1838, founded on an entry made October 4, 1830; and grant No. 21,614, issued May 21, 1838, to John H. Fulton, based on an entry made October 4, 1830. The 200-acre tract in controversy lies partly upon each of these 5,000-acre tracts, and the complainants deraign title from the Ewing and Fulton grants. The defendant Mitchell claims the land by virtue of an entry made January 27, 1826, and a grant issued thereon to Asa Reece and B. W. Jenkins April 26, 1861, and deraignment of title thereunder. Mitchell purchased the land October 7, 1898, and his deed was duly acknowledged and registered October 12, 1898. The complainants also rely upon adverse possession under color of title for more than seven years. But the court of chancery appeals find as a fact that complainants' possession has not been for a longer period than six years; that they had made leases on the lands some fourteen years before the institution of this suit, though actual possession under these leases is not shown. This finding of fact eliminates the question of possession. One of the links in the complainants' chain of title is a tax deed from Isaac S. Shoun, sheriff, to Wm. King, dated November 6, 1866, which was acknowledged and registered November 8, 1866, and was executed in pursuance of a sale or sales of the lands therein described made on the first Monday in July, 1853, by Jas. W. Wright, then sheriff and revenue collector of Johnson county, for taxes due for the year 1852; so that the deed for the lands was not executed by the sheriff who made the sale, but by his successor, some 13 years thereafter. This deed conveys to Wm. King 10 separate tracts of land, consisting in the aggregate of 50,000 acres, and therefore upon the validity of this conveyance the title to all of these lands may depend; but, as already stated, there are only 200 acres actually involved in this litigation.

The defendant contends that he has the superior title; and further insists that the sheriff's deed upon which complainants rely is absolutely void, for the reasons: (1) That it recites a judgment variant from that which is produced in evidence to support it; (2) that the record offered to support the deed shows that judgments for back taxes were entered against 10 separate tracts of land "for the sum annexed to each, being the amount of taxes thereon for the year 1852," and the court ordered the sale of said tracts as the law directs, but that the sheriff as shown by the face of the deed, made the sale in bulk, or sold all of the tracts in one parcel or as a whole, and that such a sale is void; (3) that the venditioni exponas is not in evidence to support it, and the only evidence of its contents are the recitals of the sheriff's deed, and these indicate that it did not pursue the judgment; (4) that the deed does not recite that said land was "duly reported"; and (5) that the recitals of a sheriff's deed, made by a successor in office 13 years after the sale, do not afford prima facie evidence of the facts recited therein, and especially, it is said, is this the case when the record offered in support of the deed contradicts its recitals; and he claims the recitals must be established dehors the record. The further insistence is that the defendant's title is superior to that...