Warwick v. Underwood
| Decision Date | 30 September 1859 |
| Citation | 40 Tenn. 238 |
| Parties | WILLIS WARWICK v. WASHINGTON UNDERWOOD. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM ANDERSON.
This cause was tried before Judge Brown, and a verdict and judgment were rendered for the plaintiff. The defendant appealed.
Crozier & Reese, Maynard & Washburn, for the plaintiff in error; Trigg, Hall and Armstrong, for the defendant in error.
This was an action of trespass to his freehold, brought by Underwood against Warwick, in which he recovered a small amount of damages. The main contest was upon the title--that being the principal issue in the case, and the object of the suit.
The case is not fully presented to us, neither as to the facts proved, nor the charge of the court, but it was only intended by the parties to state enough in the bill of exceptions to raise two questions of law upon the charge of the court.
The two parties owned adjoining tracts of land, and the question of difficulty in the case was, on which side of the dividing line between them the spring near said line, and where the trespass was committed by Warwick, was located. It was proved by the surveyor, and perhaps the fact is not controverted, if the line be run according to the trees called for as corners in Warwick's title papers, and along the foot of the ridge as designated in the deeds, the spring would fall on Underwood's side, and that would support the verdict. Warwick bought of Johnson, he of Long, and Long of Pritchard. Warwick adduced proof tending to show that there was a marked line varying from the calls of his deed, but in reasonable conformity to them, which was shown to him when he bought, and to his vendor before him, to which they claimed and by which the spring would be thrown on his side of the line. The court was requested to charge, that if this state of facts was established to the satisfaction of the jury, they should find for the defendant. But the court refused, and charged “that if the defendant's deed called for the foot of the ridge, he would be controlled by that, unless it was shown that Underwood and those he held under, had recognized that line,” so marked and claimed by Warwick and his vendors. There is no error in this. The calls in the deed for natural objects would certainly have to prevail, although a different line had been marked and claimed, unless it had been acknowledged or acquiesced in by conterminous claimants, when there was no actual possession. It is not a question of remarking, but the change of a line by the acts and understanding of one side, without the concurrence of the other. This cannot be done.
The other question is in relation to the effect of a former trial and judgment between the same parties, with their position as parties reversed. In that suit, brought by Warwick against Underwood for trespass, at or near the same place, it was determined that the spring was on his side of the line, upon an issue on the plea of liberum tenementum, and he recovered damages.
It is insisted that this judgment was conclusive upon the title, and operated as an estoppel upon Underwood, and must defeat his present action. Upon that point the court charged, “that if the spring in controversy in this case was described in the declaration in the former suit, the judgment in that cause would be conclusive that the title was in Warwick; but that if the spring was not in the boundary described in the declaration, that the judgment in that case would not be a bar to this.”
This instruction is as it was requested by Warwick's counsel, except the words in italics. To that qualification, exceptions are taken by plaintiff in error. The title papers used in the former and present cases are the same, and so is the place of the trespass.
The court was right in holding the former judgment conclusive upon the same parties as to the title that was put in issue and tried in that suit as well as this, and the place of the trespass the same. This is well...
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White v. Bradley Cnty. Gov't
...as all the other prerequisites have been met, see Creech v. Addington , 281 S.W.3d 363, 376 n.15 (Tenn. 2009) (quoting Warwick v. Underwood , 40 Tenn. 238, 241 (1859) ); Moulton v. Ford Motor Co. , 533 S.W.2d 295, 296 (Tenn. 1976), unless the parties have engaged in extrinsic fraud or collu......
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White v. Bradley Cnty. Gov't
...all the other prerequisites have been met, see Creech v. Addington, 281 S.W.3d 363, 376 n.15 (Tenn. 2009) (quoting Warwick v. Underwood, 40 Tenn. 238, 241 (1859)); Moulton v. Ford Motor Co., 533 S.W.2d 295, 296 (Tenn. 1976), unless the parties have engaged in extrinsic fraud or collusion, N......
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Young v. State
...approval the following from Moulton v. Ford Motor Co., 533 S. W. 2d 295, 296 (Tenn. 1976): The words of Justice Caruthers in Warwick v. Underwood, 40 Tenn. 238, decided over a century ago, have continuing ". . . It is not material on this point whether the finding of the jury was right or n......
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Whitley v. Reeves
...and relieve society from the expense and annoyance of interminable litigation about the same matter.' Caruthers, J., Warwick v. Underwood, 40 Tenn. 238, 241. Petitioners assert that the Chancellor erred in sustaining the plea of res judicata, because 'of the changed conditions since the hea......