Treece v. American Ass'n

• Decision Date: 18 May 1903
• Docket Number: 1,148.
• Citation: 122 F. 598
• Parties: TREECE et al. v. AMERICAN ASSOCIATION, Limited, et al.
• Court: U.S. Court of Appeals — Sixth Circuit

122 F. 598

TREECE et al. v. AMERICAN ASSOCIATION, Limited, et al.

No. 1,148.

United States Court of Appeals, Sixth Circuit.

May 18, 1903

Jerome Templeton, for plaintiffs in error.

Jesse L. Rogers and G. W. Montgomery, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and WANTY, District Judge.

LURTON Circuit Judge.

1. The plaintiff deraigned title from a grant to one S. C. Davis. The defendant claimed title under a tax sale and deed purporting to convey the title of said Davis to one J. N Treece, the ancestor of the defendant A. N. Treece, and by descent from said J. N. Treece. The land in question was assessed for the state and county taxes of 1872. The revenue collector reported the taxes as due and unpaid to the May term, 1873, of the circuit court for the county of Claiborne and at that term there was a judgment of condemnation, and an order of sale issued to the said revenue collector, who, in his deed, recites that in obedience to said order of sale 'said land was advertised for sale as required by law,' and that he sold same at public sale on the first Monday of July, 1873, and that J. N. Treece became the purchaser. The proceedings under which this sale was made were such as had been authorized by the Code of 1858, c. 5 art. 4; the proceeding therein authorized having, before said condemnation and sale, been repealed by the act of 1873, p 168, c. 118, passed March 25, 1873, which provided a different method of procedure to be observed by the collector in making all tax sales. The Supreme Court of Tennessee has construed the act of 1873 as absolutely repealing the former provisions in regard to delinquent taxes, and to make it imperative that all tax sales after the act of 1873 took effect should be made according to the requirements of that act. McRee v. McLemore's Heirs, 8 Heisk. 440; In re Powell, Tax Collector, 8 Heisk. 444. The tax sale not having been made in accordance with the provisions of the act of 1873, p. 168, c. 118, which was the only statutory provision in force authorizing the sale of lands for delinquent taxes at the date of the proceedings under which the Davis land was sold, the deed by the collector to J. N. Treece was absolutely void, and there was no error in the instruction of the court to that effect.

2. The tax deed being null and void, the plaintiff's title is confessedly good, unless the defendant has had an actual adverse possession for the full period of seven years, claiming and holding under some assurance of title purporting to convey the fee. Shannon's Code of Tennessee, Sec. 4456. The tax deed to J. N. Treece, the ancestor of plaintiff in error, though void as an instrument conveying the Davis title, is nevertheless an assurance of title under the Tennessee statute of limitations. East Tenn. Iron & Coal Co. v. Wiggin, 15 C.C.A. 510, 68 F. 446; Hunter v. O'Neal, 4 Baxt. 494; Love's Lessee v. Shields, 3 Yerg. 405; Sharp v. Van Winkle, 12 Lea, 15, 19. A possession held under such an assurance of title operates to extend the possession to the boundaries as defined by it. The defendants relied upon an adverse possession within the boundaries of the tax deed for a time sufficient to defeat a recovery. To make out this defense, they relied upon an alleged adverse possession held for J. N. Treece and continued under A. N. Treece by one Wm. Watson. There was evidence tending to show that Watson was the grantee under a junior grant which interlapped to a small extent upon the older grant to S. C. Davis, and that Watson took possession of the land inside this interlap in 1860, and lived upon and cultivated same continuously for many years, claiming and holding under his grant, so that when the Davis land was sold for taxes in 1873, and bought by J. N. Treece, the Watson grant had become the only legal title, so far as same interlapped with the Davis grant. There was also evidence tending to show that while Watson had his western and northern lines run when he took possession, and had endeavored to place his fence upon his boundary line, by accident his fence was placed so as to include, possibly, 10 or 15 acres outside the lines of his grant, and within that part of the Davis grant not included by the interlap. There was also evidence tending to show that Watson, without any intention to take, claim, or hold any land outside his own grant, continued from 1860 to cultivate the land so inclosed down to some time between 1875 and 1879; supposing all the time that he was within the lines of his own title. There was also evidence tending to show that, after J. N. Treece acquired the tax title to the Davis grant, he discovered that Watson's fences included land not inside his grant, and that Watson, upon being so advised by Treece, agreed to hold for Treece, and his tenant. The full evidence is not set out in the bill of exceptions, and it is not distinctly stated what was the precise agreement between Watson and Treece as to whether he was to hold only the land inclosed, within his own fields for Treece, or to hold the land included in Treece's tax deed for him, and as his tenant. There was very grave conflict as to whether Watson ever, in fact, made any agreement with J. N. Treece of any kind, and much evidence tending to show that down to the date of Watson's sale of his land, in 1886, he claimed all of the land inside his inclosures as land actually included inside his own grant. Both J. N. Treece and Wm. Watson were dead when this suit was started. The question is as to whether the court erred in its charge in respect to the effect of this subsequent holding under the alleged agreement between Watson and Treece.

That Watson's accidental and unintentional possession of a strip of the Davis grant did not operate to start the statute against Davis, or give him any possessory right, however long such accidental possession might last, seems to be settled by the most recent of the Tennessee decisions upon this subject. Kirkman v. Brown, 93 Tenn. 476, 27 S.W. 709. The prior case of Erck v. Church, 87 Tenn. 575, 11 S.W 794, 4 L.R.A. 641, announced quite a contrary rule, and is not referred to in Kirkman v. Brown. Being, however, a question of strictly local law, we deem it our duty to follow Kirkman v. Brown, as the most recent announcement. If the operation of the statute is dependent upon what Judge Dickinson, in Erck v. Church, called the 'mental status' of the trespasser, it is not strange that a change of 'mental status' will render the possession adverse, even without notice to the owner of the land to be affected. But this case does not involve a consideration of the consequence of a discovery by such accidental occupier that he had overstepped his line, if he should thereafter continue in possession with the secret purpose of barring the true owner. Watson and Davis did not occupy the relation of landlord and tenant as a consequence of the unintentional occupation of a strip of the Davis land. Although, under the Tennessee cases, Watson's accidental occupation did not start the running of the statute of limitations, he was nevertheless a trespasser, however accidental and unintentional his occupancy. When Treece took his...