Earnest v. Little River Land & Lumber Co.

109 Tenn. 427

• Court: Tennessee Supreme Court
• Decided: September 15, 1902
• Status: Published

Opinions

Mr. Chief Justice Beard

delivered the opinion of the Court.

This is an ejectment bill filed to recover a large-bodv of land lying in Sevier county. Several matters of minor importance were presented at the bar, but, confessedly, as the case involves one controlling or determinative question, to avoid confusion we will state only so much of the record, and that in a condensed form, as bears on this question.

The State issued three series or classes of grants,, which interlap so as to cover the lands in controversy, at different dates and to different persons. The older-grants were issued in the year 1838 to grantees who-are not parties to this suit, and, who, so far as is disclosed, are not setting up title under their grants. The intermediate grants are conterminous, and were issued to the ancestor of the present complainants in the year 1841, and the junior grants at a still later date.

The complainants claim under the intermediate grants, and the defendants under the ' later grants. But, in addition to this claim, the defendants rely on the fact that before the institution of this suit, they had themselves, and through their privies, held continuous, exclusive, adverse, and peaceable possession of these lands within the interlap of these-grants for the full term of seven years, and under an-assurance- of title purporting to convey an estate in-fee.

As against parties claiming under the grants first in the order of issuance, it is conceded that the defendants, by this adverse holding, have obtained the superior title, bnt the contention of complainants is that such holding has not been operative against them; to the contrary, that the removal or extinguishment, as they say, of the first grants, by this adverse possession, has vitalized or infused title into their intermediate grants, by virtue of which they have both the right of property and the right to the possession of these lands as against defendants. In other words, the defendants insist that, under the first section of the act of 1819, the effect of this adverse holding is to invest them with an “indefeasible title in fee,” good against all the world. On the other hand, the complainants contend that this possession of defendants has extinguished the first or superior grants, and at the same time set at large the intermediate grants under which they claim, and they - are now the muni-ments of the true title, enforceable against the defendants and all others. Is such claim maintainable on principle or authority?

We think it may be safely asserted that, if an individual OAvner in fee, for a valuable consideration, should make and deliver a deed conveying to a purchaser, without reservation, a tract of land, such Avriting would take out of the owner all estate, and vest it in the vendee. So, the registration laAvs out of the way, a second and third deed from the vendor to other parties, in AAdiich he undertook to convey to them the same property, would be waste paper, in no way affecting the title or estate of the first conveyee. But a very different condition would be brought about, should the third grantee go into possession of the land, and hold it adversely for the term of seven years; Then, under the first section of the act of 1819, he would secure what, up to the moment of the expiration of this term, the first grantee had, an estate in fee, good and indefeasible, not only against the first grantee, but against all invaders of his rights, including, of course, the intermediate grantee. In such a case no one would claim that the loss of estate by the first inured to the benefit of the second, as against him, whose assurance of title had ripened into an indefeasible title. If this be true, then there must be found some intelligent and.well-defined distinction between private and public grants, to give a different effect to an adverse holding under the last of a series of grants of the same property from the State. Such distinction, at least, is not found in patents for public lands issued by an officer acting under authority of the statutes of the United States.' In such case the “patent carries the fee, and is the best title known to a court of law.” Bagnell v. Broderick, 13 Pet., 450 (10 L. Ed., 235), It is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles, until set aside or annulled, unless it is absolutely void on its face. Hooper v. Scheimer, 23 (16 L. Ed., 452) ; Johnson v. Towsley, 13 Wall., 72 (20 L. Ed., 485) ; Gibson v. Chouteau, 13 Wall., 92 (20 L. Ed., 534). We can conceive of no reason, and none is suggested at the bar, why the same is not true as to grants issued by the State. The title to the land is primarily in the State. It is there absolutely and indefeasibly, save by its own act. Ultimately it sees proper to part with a portion of its domain, over which it is lord paramount, and does do so by the issuance and delivery of a grant in which the property is confirmed to the grantee, without limitation or condition. Held by the State, it was a fee simple absolute, and such an estate passes by the terms of the instrument to its grantee. Nothing remains in the State to be afterwards disposed of. The estate in the land is gone, and there is nothing left upon which a subsequent grant can operate. It is true, there are exceptional cases in which this rule will not control, such as when a younger grant is made to relate to an older special entry, but the present is not one of those cases. This rule is applied uniformly in controversies between parties claiming land under successive grants, where the statute of limitations is out of the way. In such a controversy, the claimant under the older grant will always succeed, upon the ground that by it the State had parted with all estate in the land. It is true that it has been found that the State has often issued a number of grants to the same land; but this was without warrant of law, and Ras resulted either from carelessness upon the part of the officials of the State, from incorrect surveys, or possibly other canses. The courts have been burdened with litigation growing out of the multiplication of grants, but nowhere has it ever been intimated that there were two or more titles to the same land, which might be parceled out in a series of grants. There is but one “good and indefeasible title,” as is said hv Judge Lurton, in Coal Co. v. Wiggins, 15 C. C. A., 510 (68 Fed., 449), and this title passes to the first grantee, “and as it is impossible,” says Judge Reese in Crutsinger v. Catron, 10 Humph., 27, “that there shall be a good, subsisting legal title in two different persons, claiming in different rights to the same land,” we think it clear that, as the State has nothing left to dispose of, subsequent grantees obtain nothing.

Leaving, however, these general considerations, which seem to dispose of the present controversy, inasmuch as it would follow that the intermediate grantees took nothing covered by the first grants, we return to the specific question, did the adverse holding by the defendánts of the property located within the interlap of all the grants, as hereinbefore set out, serve to draw to them or vest in them the absolute title to this property, which they can maintain against every comer, or did it simply extinguish the rights of the first grantee or grantees, and leave them exposed to the substantive rights and the aggressive attacks of complainants, under the cover of their intermediate-grants?

This brings ns to an examination of the first section of the act of 1819, which, in substance, is carried into-Shannon’s Code, secs. 4456-4458, and reads as follows:'

' “Sec. 4456. Any person, having had by himself or those through whom he claims, seven years’ adverse-possession of any lands, tenements, or hereditaments, granted by this State, or the State of North Carolina,, holding by conveyance, devise, grant, or other assurance of title, purporting to convey an estate in fee,, without any claim by action at law, or in equity, commenced within that time and effectually prosecuted-against him, is vested with a good and indefeasible-title in fee to the lands described in his assurances-of title.

“Sec. 4457. And on the other hand, any person and those claiming under him, neglecting for the said term of seven years to avail themselves of the benefit of any title, legal or equitable, by action at law, or in' equity, effectually prosecuted against the person in possession, as in the foregoing section, are forever barr.ed.

“Sec. 4458. No person, or any one claiming under him shall have any action at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action has accrued.”

The conditions that lead to the passage of this celebrated act are recorded in the opinions of the courts of that day. Barton’s Lessee v. Shall, Peck, 218; Wallace v. Hannum, 1 Humph, 449 (34 Am. Dec., 659); and Dyche v. Gass’ Lessee, 3 Yerg, 401. But nowhere are they more graphically portrayed than in the preamble to the act itself, which is in these words, “Whereas many disputes have arisen with regard to the proper construction of the statute of limitations, and the time seems fast approaching, when the titles to land will become so jierplexed that no man will know from whom to take or buy land,” and to remedy these evils this legislation was enacted. The act is drawn with great precision in the use of terms, and, even if it was not a part of the judicial history of the State that it was drafted by an eminent lawyer, itself would give evidence of the work of a master hand. What, then, was meant by the provision that a party holding “by himself, or those through whom he claims, adversely under an assurance of title purporting to convey an estate in fee, without any claim by action at law, or in equity,” commenced within seven years, is vested with a good and indefeasible title in fee to the land described in his assurance of title?” The eminent author of this act, as well as the legislature and the courts of that day, well knew the technical meaning of the term “title in fee.” They were well aware that it defined a full and absolute-estate, beyond and outside of which there was no other interest, or even shadow of right. So, when the act vested the adverse holder with such a title, it clothed him with, an estate which Avas good, not only against him who had been the owner, but against the whole world — a title in AAdiich was blended actual possession, the right of possession, and the right of property. 4 Kent, Comm., 580. It was an “indefeasible” title in fee or estate, AAdth which its owner could repel all attacks upon, and expel all invaders from, its possession. This title, thus vested by operation of law, from whence did it come? Not from the State, because the State had already parted with its interest. Not from any subsequent grantee of the same land, for he had none. It seems to ns, from no other source than him — the first grantee — Avhose laches had lost AAdiat the diligence of the adverse possessor had acquired.

By operation of this statutory provision, the estate or title AAdiich was in the first taker until the last moment of the seven-years’ adverse holding was divested out of him, and at the same instant vested in the adverse holder or possessor. Thus it is that the grant or deed of the original OAvner becomes an empty shell, without any element of force or life, and the estate in the land, having passed from him, thereafter vests in the adverse possessor, and in him is “good and indefeasible.” In other words, “the statute takes- away the title of the real owner, and transfers it, not in form indeed, but in legal effect, to the adverse occupant,” and thus clothes him Avith a “perfect title.” 3 Washb., Real Prop., 163-165.

An examination of our cases, Ave think, will disclose, witli one exception, that this has been the uniform construction of this act. We refer on this point particularly to Wallace v. Hannum, supra; Waterhouse v. Martin, Peck, 393; Norris v. Ellis, 7 Humph., 464; Belote v. White, 2 Head, 712; Hopkins’ Hews v. Calloway, 7 Cold., 46.

In Wallace v. Hannum, 1 Humph., 450 (34 Am. Dec., 659), Judge Green states his understanding of this section as follows: “In order that a party shall be protected, who has held possession of land for seven years, die must claim the same by some assurance of title which purports to convey an estate in fee simple. In such case it not only protects his possession, but in express words it confers on him the title. He shall have a good and indefeasible title in fee simple.”

In Belote v. White, 2 Head, 712, Judge Wright says: “The act of 1819 bars equitable as well as legal titles, and operates as an extin-guishment of the same, and invests the possessor of the same with a perfect title in fee simple. Whenever the equitable owner is sui juris, and can sue, but omits to do so for seven years, the entire title and fee are by the statute placed in the possessor. And this is so, though the legal title be in a trustee, and whether he be capable of suing or not.”

In Norris v. Ellis, 7 Humph., 464, Judge Reese bears this testimony as to the proper construction of the act of 1819: “The titles which are perfected by the bar. of the statute, and which draw to them the better title, are thus enumerated in the first section of the act, Avhich purports to convey to the possessor, or those for whom he claims, an estate of inheritance.”

So, in Hopkins’ Heirs v. Calloway, 7 Cold., 46, Judge Andrews says of the proper construction of this act: “Under the operation of the first section, an adverse possession of seven years under a deed, grant, or other assurance of title, purporting to convey a fee, not only bars the remedy of the party out of possession, but vests the possessor with an absolute estate in fee simple.”

The effect, as we understand these cases, of such adverse holding, is, as Judge Reese expresses it in Norris v. Ellis, supra, that there is drawn to such holder the “better title,” or, as tersely put by Judge Haywood inWaterhouse v. Martin, supra, “The adverse possessor acquires what his adversary loses.”

It would hardly seem necessary, yet, to prevent all possible misinterpretation of our holding, it is not improper to say that, while it happens in the present case the defendants connect with the grantees of the' thii’d class, this was not essential to their successful defense under the first section of the act of 1819. For it is too well settled to admit of doubt, or to require at this late day an array of cases in support, that, to give the adverse holder the benefit of this section, it is only necessary that he be in possession of granted land, and under an assurance of title purporting to convey an estate in fee, without regard to the source of such assurance.

But it is said that we have decided otherwise in the case of Coal Creek Consol. Coal Co. v. East Tennessee Iron & Coal Co., 105 Tenn.,564 (59 S. W.,634), and the rule of stare decisis is invoked. The opinion in that case was delivered at the September term, 1900, of this court, and is' therefore of too recent date to have become a rule of property in the State. That being so, the doctrine of stare decisis is not so inflexible as to require us to adhere to it, when upon further examination we discover error in the conclusions announced. We will not stop to inquire what, if any, are the distinguishing features between that and the present case, but will content ourselves with saying that, in whatever respect it may conflict with our present holding, it is overruled.