Walker v. Fox

• Decision Date: 14 October 1886
• Parties: WALKER v. FOX and others.
• Court: Tennessee Supreme Court

2 S.W. 98

85 Tenn. 154

WALKER v. FOX and others.

Supreme Court of Tennessee.

October 14, 1886

Appeal from chancery court, Rhea county.

Bill in chancery to restrain trespass and waste. Decree for plaintiff. Defendants appealed. The facts are sufficiently stated in the opinion.

T. M Burkett and C. D. Clark, for complainants. Oal Allen and Clift & Bates, for respondents.

LURTON J.

The bill alleges that complainant is the "legal" and "lawful" owner of a tract of 1,000 acres of mountain land, in Rhea county; that he holds some by virtue of an entry made June 2, 1871, and grant to himself from the state dated July 21, 1873. He charges that he has been in the actual and continual possession, under his entry and grant, of the whole of said tract of land, from the date of his entry to the filing of his bill, May 17, 1881. He charges that the defendants have unlawfully entered upon said land, and, with a large force, are engaged in cutting the timber, and peeling the tan-bark; that they have already cut and peeled large quantities of tan-bark, and are about to haul the same away. He charges, upon information and belief, that this entry has been made by virtue of "some pretended claim of right under some pretended title to said premises, thereby creating a cloud upon orator's title to said premises, to his great damage, in rendering his land unsalable, and embarrassing him in its use by lease or otherwise." The defendants are called to answer under oath, and exhibit "whatever papers, writings, or other muniments of title they pretended to claim under." The defendants are charged with being insolvent, and financially irresponsible for the damages which must accrue, if permitted to continue their waste. The bill concludes with a prayer for an injunction to restrain further trespass, and to restrain the removal of the tan-bark cut and piled upon the premises; for a reference to ascertain damages; for a receiver to take charge and make sale of the bark, and hold proceeds subject to this litigation; that, upon final hearing, to be given judgment for his damages; that proceeds of tan-bark be applied to payment of his claim; and that the injunction against further trespass or waste be made perpetual; and winds up with usual prayer for general relief. An injunction was issued as prayed for.

The defendants answer, and deny that complainant is the "lawful" or "legal" owner of said land or that he has any title to said land whatever. They deny that complainant ever had any actual possession, and especially deny that he ever had any possession whatever of the land claimed by them. They, by metes and bounds, describe the lands which they claim within the lines claimed by complainant, and say that the land upon which they have entered are parts of a tract of 5,000 acres, entered April 1, 1830, by Anderson Skillen and Joseph G. Smith, and that same was granted by the state to said Skillen and Smith, September 30, 1833, and that they hold same by a regular chain of conveyance from said Skillen and Smith. They claim to have been in the actual adverse possession of the lands so claimed by them for many years. They deny that they have entered upon or cut tan-bark from any lands in possession of complainant, or owned by them; aver that they are upon their own lands, and within the boundaries of the lands claimed by themselves; and that they entered same rightfully, as their own property, and have a legal right to be upon same, and to cut timber and bark; and again deny that complainant has any title to said lands so claimed by him, or any possession thereof. They insist that the grant to complainant is fraudulent and void, in so far as it covers their lands, because "the state had parted with the title to said property prior to complainant's entry and grant;" and that complainant knew said lands had been previously granted to other parties at the time he made his entry and obtained his grant. They deny insolvency or irresponsibility for damages.

The proof upon the question of possession shows that complainant, about the time of his entry, did inclose some two or three acres of land within the lines of his grant. He supposed this inclosure to be within the lines claimed by the defendants under the Skillen and Smith grant. This, however, turned out, as we are satisfied, to be a mistake. The line of the Skillen and Smith grant being subsequently run, and, as we are satisfied from the weight of proof, correctly, excluded this little patch. Upon ascertaining this fact, complainant, about one year before filing this bill, extended his fence so as to include about one-half acre of the lands in dispute. This is the only actual possession, if it can be deemed one at all, of the open and notorious character required by law, which complainant had of the disputed land at any time before this suit was begun. On the other hand, we find that, some five years before bill filed, the defendants had a tenant named Richey within the lines of the disputed titles, and that Richey was holding under a lease from defendants. Richey, and those to whom he assigned, have, for several years, been holding under defendants. This holding is not, however, shown to have been sufficiently long or continuous to vest title in defendants under the statutes. Then the title of neither complainant nor defendants has been in anywise affected by the running of the statute of seven years.

Upon an inquiry into the legal titles of the representative litigants, we find that complainant holds under a grant to himself from the state of Tennessee, dated July 21, 1873. At the time this grant issued, that part of the land in dispute had been entered in 1830, by Skillen and Smith, granted to them by grant dated September 30, 1833. The record further shows that in September, 1834, Skillen, by deed duly executed, conveyed his interest in said grant to his co-tenant, J. G. Smith. On July, 1835, Joseph G. Smith conveyed this land to one Joseph Evans. In 1849 a sheriff's deed was executed to Charles Fox, the ancestor of defendants, purporting to convey the same lands; the deed reciting a judgment against Skillen and Smith, Joseph Evans and others, levy on this land, sale, etc. This deed is not supported by any record, and is defective in its recitals, and, as a link in the chain of title under which defendants claim, is bad.

This recital leaves the legal title in Joseph Evans, or his heirs at law. The sheriff's deed being unsupported, it does not operate as a valid conveyance to the ancestor of defendants. Manifestly, however, defendants are not naked trespassers. While they have not such a title as will enable them to maintain ejectment, yet we find them in possession, claiming under an assurance of title purporting to convey an estate in fee. If the bill of complaint be treated as an ejectment bill, as his honor, the chancellor, did, then can the complainant recover the lands which are in the occupation of de...