Springfield v. Stamper
| Decision Date | 14 July 1948 |
| Citation | 214 S.W.2d 345 |
| Parties | SPRINGFIELD v. STAMPER. |
| Court | Tennessee Supreme Court |
Forcible entry and detainer action by Eva P. Stamper against Charlie Springfield. From a judgment for defendant in the general sessions court, the plaintiff appealed to the circuit court. From a judgment of the circuit court for the plaintiff, the defendant appeals in error.
Judgment of circuit court reversed and action dismissed.
Wagner & Wagner, or Chattanooga, for plaintiff in error.
Schoolfield & Graham, of Chattanooga, for defendant in error.
This suit was commenced by forcible detainer warrant issuing from the Court of General Sessions of Hamilton County, Tennessee, the plaintiff (defendant-in-error) seeking possession of a tract of land situated in or near the town of Daisy, in the Third Civil District of Hamilton County. There was a judgment for the defendant (plaintiff-in-error) in the General Sessions Court and the plaintiff appealed to the Circuit Court, where the case was heard before the trial judge, without the intervention of a jury, and judgment was there entered in favor of the plaintiff and for the possession of the property described. Defendant's motion for a new trial having been overruled, an appeal in the nature of a writ of error was prayed, granted and perfected to this Court.
The proof shows that title to the subject property devolves from one Mack Windham, the son of a slave, who died in December 1930. As was frequently the case in the early days of the South, Mack received his surname from the Windham family who had owned his mother and father, and down through the years he remained in the same community in which he was born, acquired property and maintained a good relationship with his neighbors, both white and colored. He had no children but left his widow, Lizzie Windham, surviving. The latter died December 21, 1946. It is shown, without contradiction, that Mack had two brothers, John and Wilson, who predeceased him, leaving no children surviving; but the evidence is in conflict as to other relationships. Proof was adduced on behalf of the plaintiff to show that he also had two sisters, Sophia and Mamie Windham; that the former married a Condrey, and had three children born to her, neither of whom left issue surviving, and that they all predeceased Mack Windham; that Mamie married Starling Patterson, and had two children, one, a girl, who died before Mack, and the other a son, by the name of Floyd, the father of the plaintiff. The claim that Mack Windham had a sister, the grandmother of the plaintiff, or any sister for that matter, is disputed by the defendant. Several residents of the community in which Windham lived, long time acquaintances of the family, testified that they had never known or heard of the sisters or either of them.
The defendant, as one of the heirs of his mother, Frances Springfield, asserts the right of possession in approximately three acres of the premises here involved by virtue of a deed executed to the latter on the 2nd day of September, 1933, by Elizabeth (Lizzie) Windham, and by virtue of continuous possession thereof by the said Frances Springfield and her heirs since the date of said conveyance. Said defendant further asserts the right of possession to the entire tract here involved under a written instrument of conveyance to him dated October 1, 1946, signed by the said Lizzie Windham and in form and context as follows:
Our consideration is first directed to those assignments of error which relate to the form of action pursued by the plaintiff and the basis therefor as reflected by the pleadings and proof, it being insisted on behalf of the defendant that unlawful detainer does not lie under the facts of the case.
Section 9253 of the Code of Tennessee, pertaining to forcible entry and detainer actions, provides, "The warrant need not set forth the particular species of entry or detainer, and any defect therein, or in any of the proceedings, may be amended as other process and pleadings in court." In Westmoreland v. Farmer, 7 Tenn.App. 385, the Court said, "* * * We think that any of the species of the actions of entry of detainer may be prosecuted under the one form of the warrant set out by statute, Shannon's Code, 5098, but if the party does not follow the form prescribed, which is comprehensive, but brings one of the particular actions of entry or detainer defined by the statute, then by all the rules of pleading he is confined to that particular action and must make out his case." Code Section 9247 provides "Unlawful detainer.—Unlawful detainer is where the defendant enters by contract, either as tenant or as assignee of a tenant, or as personal representative of a tenant, or as subtenant, or by collusion with a tenant, and, in either case, willfully and without force, holds over the possession from the landlord, or the assignee of the remainder or reversion." The warrant issued in this case fails to charge unlawful entry but does include the word "forcible". On the other hand, the proof is confined to the theory of entry by contract and unlawful detainer without force. We think it manifest that the plaintiff below proceeded under and is confined to an action of unlawful detainer; hence, entry under...
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