Smith v. Cross

• Decision Date: 18 November 1911
• Citation: 140 S.W. 1060,125 Tenn. 159
• Parties: SMITH et al. v. CROSS et al.
• Court: Tennessee Supreme Court

140 S.W. 1060

125 Tenn. 159

SMITH et al. v. CROSS et al.

Supreme Court of Tennessee.

November 18, 1911

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

Ejectment by J. T. Smith and others against C. Cross and others. Decree for complainants as to a part of defendants, and from part of the decree complainants appeal, and defendants against whom the decree was rendered also appeal. Affirmed.

Will D Wright, J. W. Scott, and W. C. Smith, for complainants.

E. G Foster, D. C. Young, and R. Jones, for defendants.

NEIL J.

This was an ejectment bill filed in the chancery court of Scott county to recover about 250 acres of land. There are numerous defendants who claim through intermediate conveyances from one Richard Smith, the father of the complainants. The latter claim through their mother. The chancellor rendered his decree in favor of the complainants as to some of the defendants, and denied relief as to others; the difference in results as to the respective parties depending upon facts peculiar to the several conveyances. The complainants did not appeal from any portion of the decree adverse to them except that part which fixed the beginning corner, and the western boundary line of the 250-acre tract 27 poles and 15 links further eastward than they contended the location should be. Upon this latter subject the complainants appealed and assigned error. All the defendants against whom adverse decrees were rendered appealed and assigned errors.

There are certain questions which affect the rights of all of the complainants and defendants respectively, outside of the boundary question above mentioned. This latter we shall lay wholly out of view until we dispose of the main controversy.

The general questions above referred to relate to the following facts:

On the 20th day of May, 1836, Josiah Terry procured a grant from the state for the 250 acres in controversy. On the 11th day of September, 1860, he conveyed this land to Harmon Terry, Miles Terry, Jasper Terry, and Elizabeth Terry, the children of his son Martin Terry. The nominal consideration expressed in this deed was $500; but it appears that the real consideration was the support and maintenance of Josiah Terry and his wife during the rest of their lives. After a time Martin Terry grew tired of the bargain and desired to remove to some land he owned in a portion of Scott county, called "The Wilderness," a few miles distant from the 250 acres. In order that he might be relieved of the burden, he induced his sister, Rachel Smith, the wife of the above-mentioned Richard Smith, to undertake the care of his father and mother, and as part of the agreement, to take title to the land. This was agreed to. A deed was made purporting to convey the land to Rachel Smith, and signed by Josiah Terry, Martin Terry, and the children to whom it had been conveyed by Josiah Terry, although the latter were minors. This deed purported to convey an estate in fee. This was in 1862. Rachel Smith and her husband entered upon the land and held possession of it from 1862 to 1891, when Rachel died. Richard Smith continued in possession of the land until his death in 1902. During the lifetime of Richard and Rachel Smith they conveyed parts of the tract, and there is no controversy as to these. After the death of Rachel Smith, her surviving husband, Richard Smith, conveyed the residue of the land to various persons, some of whom still hold the land so conveyed. Other vendees conveyed to other parties still, and these to others. The present holders are the defendants herein.

The complainants do not insist that the deed which Rachel Smith obtained, as above stated, conveyed to her any title, but claim that it was good as an assurance of title. It is the theory of complainants that when Rachel Smith and her husband remained upon this land adversely for more than seven years, indeed about 18 years prior to her death, she acquired title, and that when she died her husband was tenant by the curtesy, and that his subsequent sales were good for his lifetime; that they could not sue his vendees until after his death; that the present suit was brought within seven years after that time; and that therefore no statute of limitations has run against them. Most of the complainants likewise are married women, and were such at and before their mother's death and have so remained since, and they claim that in no event could the statute run against them. There were nine of the children, but only seven of them sued, and the chancellor gave relief only as to a seven-ninths undivided interes.

The general defenses offered as to the whole case may be thus stated:

1. It is insisted that the deed from Josiah Terry and others was not good as an assurance of title because in the body of the deed Martin Terry, the father of four of the vendors, purported to act as their agent when the evidence shows that, although the fact did not appear on the face of the deed, they were minors and could constitute no one their agent for such purpose; also, that the deed purports to have been signed and acknowledged by the children in person, when the evidence, now offered, shows that neither of them could read or write, and they were so young they could not have intelligently acknowledged the instrument. From these facts it is argued that the deed was fraudulent as to the minors, and so known to Rachel Smith at the time of its execution, and therefore the statute of limitations could not run in her favor or in favor of her heirs at law, citing Waterhouse v. Martin, Peck, 392, 409. Although the facts are as above indicated, and the deed was void as to the minors, yet it purported on its face to convey an estate in fee, and was an assurance of title. Therefore the statute would run, since the law is that if the instrument purports to convey an estate in fee, and adverse possession be taken and held thereunder, the statute of limitations will run in favor of such possession, even though the deed be in fact void. Vance v. Johnson, 10 Humph. 214; Clark v. Chase, 5 Sneed, 636; Thurston v. University, 4 Lea, 513, and cases cited; Nelson v. Trigg, 4 Lea, 701, and cases cited; Hubbard v. Godfrey, 100 Tenn. 150, 47 S.W. 81. This is true even though the deed be forged. Clark v. Chase, supra. The case of Waterhouse v. Martin, has been overruled, on the point referred to, by subsequent cases. Love v. Shields, 3 Yerg. 408 (involving a void tax deed, known to be void by the conveyee at the time he took it); Goodloe v. Pope, 3 Shan. Cas. 634 (a champertous deed); Gray v. Darby, Mart. & Y. 396; Blantire v. Whitaker, 11 Humph. 313, 317, 318; Clark v. Chase, supra; Hunter v. O'Neal, 4 Baxt. 494; Ramsey v. Quillen, 5 Lea, 184; McBee v. Bearden, 7 Lea, 731; Boro v. Hidell, 122 Tenn. 80, 99, 120 S.W. 961, 135 Am. St. Rep. 857--all involving cases of fraudulent conveyances. In Love v. Shields, the case of Waterhouse v. Martin was referred to by book and page, although the style was not given. The rule stated in Love v. Shields, Clark v. Chase, and other cases is that the statute made no such exception, and the court should not and could not make it. What has been stated upon the law point is sufficient; but we add that we do not believe Rachel Smith was consciously guilty of any fraud. We are convinced that she and the family, including her father, brother, and husband believed they were making a lawful substitution of Rachel for her brother Martin, in the care of the old people, and that by the deed she was but receiving reasonable compensation for the anticipated service. The purpose of the adults was to effect a rescission of the former deed and the substitution of a new party to the contract, the sister for the brother. They dealt with the rights of the minors, it is true, in a manner unwarranted by law; and the latter could have recovered the land if they had sued in time. The youngest is now, however, more than 50 years old, and the statute of limitations has long since run as to them.

2. In order to state the next defense it is necessary to recite a fact not previously mentioned. On the 17th day of June, 1867, Richard Smith procured from the state a grant for 600 acres of land, which the defendants claim entirely covers the 250 acres. They insist that from the date of that grant the possession of Richard Smith was for himself, and not in right of his wife; also, that under the Constitution of 1870, Sched. 4, the running of the statute was suspended from May 6, 1861, to January 1, 1867, and this time could not be counted; that, leaving out this period, there was only that from January 1, 1867, to June 16, 1867, for the statute to run in favor of Rachel Smith; and that on the latter date it began to run in favor of Richard Smith under his 600 acre grant. Hence there was only 6 months and 16 days of adverse possession in favor of Rachel Smith. Conceding that the statute did not begin to operate until January 1, 1867, although Rachel and Richard Smith went into possession in 1862, its running would not be stopped by Richard Smith's procurement of the grant of June 16, 1867, in his own name. When the title, or assurance of title, is in the wife, the joint possession of the husband and wife inures to the benefit of the wife. Templeton v. Twitty, 88 Tenn. 595, 14 S.W. 435; Woodruff v. Roysden, 105 Tenn. 491, 58 S.W. 1066, 80 Am. St. Rep. 905.

The legal presumption is that the possession is with the legal title. Welcker v. Staples, 88 Tenn. 49, 51, 12 S.W 340, 17 Am. St. Rep. 869; McLemore v. Durivage, 92 Tenn. 482, 492, 22 S.W. 207; Foster v. Jordan, 2 Swan, 476, 480, 481. It can make no difference that the husband is the head of the family, claims the property as his own, and apparently controls it as such; if the wife reside with him,...