Tennessee Coal, Iron & R. Co. v. McDowell

• Decision Date: 19 July 1898
• Citation: Tennessee Coal, Iron & R. Co. v. McDowell, 47 S.W. 153, 100 Tenn. 565 (Tenn. 1898)
• Parties: TENNESSEE COAL, IRON & R. CO. v. McDOWELL et al.
• Court: Tennessee Supreme Court

47 S.W. 153

100 Tenn. 565

TENNESSEE COAL, IRON & R. CO. v. McDOWELL et al.

Supreme Court of Tennessee.

July 19, 1898

Appeal from chancery court, Grundy county; Thomas M. McConnell Chancellor.

Bill by the Tennessee Coal, Iron & Railroad Company against M. H McDowell and others. A decree dismissing the bill was reversed by the court of chancery appeals, and certain defendants appeal. Affirmed.

J. B Ferguson, T. C. Lind, A. B. Woodard, and Granbery & Marks for appellants.

A. T. Bell, W. D. Spears, and Steger, Washington & Jackson, for appellee railroad company.

McALISTER J.

This is an ejectment bill filed in the chancery court of Grundy county to establish complainant's title to a tract of land comprising about 160 acres, and to remove a cloud from said title. The chancellor dismissed the bill. On appeal the court of chancery appeals reversed the decree of the chancellor, and pronounced a decree in favor of complainant for the lands in controversy. Defendants McDowell and Ferguson appealed, and have assigned errors. Complainant, the Tennessee Coal, Iron & Railroad Company, derives its title from grant No. 5,087, issued by the state of Tennessee to S B. Barrell, April 25, 1837, for 5,000 acres. This grant was based upon an entry duly made by S. B. Barrell on November 24, 1836. Defendants McDowell and Ferguson derive their title from a grant issued by the state of Tennessee to Stephen Kilgore, Jr., March 1, 1856, for 160 acres. It is conceded by counsel that this 160-acre tract granted to Kilgore was comprised within the boundaries of the 5,000-acre grant issued to S. B. Barrell. The claim of defendants is that, notwithstanding the senior entry and grant of this land to Barrell, that they and their predecessors in title had been in possession of the 160-acre tract by actual inclosures for more than seven years prior to the institution of this suit, and that, therefore, their title is superior, under the first section of the act of 1819. The court of chancery appeals find that defendants are estopped to assert title to the land on account of certain acts in pais on the part of Stephen Kilgore, Jr., their predecessor in title, and the original grantee of this 160-acre tract. The first assignment of error on behalf of defendants is that the facts found by the court of chancery appeals would not, as a matter of law, have estopped Kilgore to claim title to the land in controversy, and hence his privies and successors in title are not estopped. The specific objection made to the decree of the court of chancery appeals is that it does not find that complainant company was misled, or that its title was acquired upon the faith of any conduct or representations made by the said Stephen Kilgore, Jr. On this point the court of chancery appeals, through Judge Wilson, finds, viz.: "It is, moreover, clear, when the representatives of the Barrell interests came to survey out the Barrell lands, and convey them to the complainant, *** they did survey and include in its transfer to the complainant company all of the Kilgore grant aforesaid, except the fifty-odd acres embraced in what is known as the 'Kilgore improvements.' We think, also, the weight of the evidence shows that Kilgore recognized the right of the representatives of Barrell to convey all of said grant outside of his improvements to the complainant. We think, also, that after the conveyance was made to complainant, Kilgore stood by and recognized its rights. He (Kilgore) permitted it to take a transfer from the representatives of the Barrell interests, He permitted it to cut off timber, and all the valuable timber, up to his improvements. He permitted it to sell lots and parcels of land up to and adjoining his improvements, and it appears that he gave in his lands for taxes as embracing only his improvements. We think, under the authorities, as well as sound reason, that when he, without asserting his title, permitted the representatives of the Barrells to sell this land to complainant, permitted it to go into possession, as far as it could take possession of such land, and sell it off, without taking any steps to assert his rights, he thereby estopped himself from asserting any title. It may be very true," says that court, "that, assuming his (Kilgore's) title to be perfect, he would not be estopped as against Barrell, to assert his title because of a parol agreement to surrender all of his grant except that embraced in his improvements. But we apprehend that a different question is presented, if the facts show that he stood by and permitted the representatives of Barrell to sell and convey the land outside of his improvements to the complainant, without asserting his claim and title to the same. It is also true" (still quoting from Judge Wilson's opinion) "as argued by couns...