Hanes v. Peck's Lessee

8 Tenn. 556

• Court: Tennessee Supreme Court
• Decided: July 15, 1827
• Status: Published

Opinion

Crabb, J.

delivered the opinion of the Court. The defendant in error brought an action of ejectment for a tract of land which he particularly described in his declaration. The plaintiff in error was permitted to defend in the room and stead of the casual ejector, and pleaded the general issue. The cause was tried in the Circuit Court of Knox County, at August term, 1825, and a verdict and judgment rendered in favor of the plaintiff. Hanes appealed to this Court.

Upon the trial below the lessor of the plaintiff produced a grant for part of the land in dispute, dated in 1815. A bill of exceptions not professing to set out all the evidence in the cause, informs us, among other things, that “ the defendant having proved that he and those under whom he claimed had for more than thirty years been in the peaceable and uninterrupted possession and enjoyment of the land sued for in this action,” the Court was requested to charge the jury that if they believed the land covered by plaintiff’s title was not also covered by the grants produced on the part of the defendant, that then, from the length of possession, a grant to Hanes or those under whom he claimed might be presumed. But the Court charged the jury that if they believed the grant of the plaintiff covered the land in dispute, and that it was not also covered by the grants under which defendant claimed, and which were produced, read, and relied upon by him; and also that he was in possession of any cleared or improved land within the limits of the plaintiff’s grant at the commencement of [2813 the action, plaintiff was entitled to recove]1, and that, from length of possession in this State, a grant was not to be presumed to have issued.”

The single question argued at the bar is, whether the Circuit Court expressed a correct opinion to the jury on the doctrine of presumption.

The species of presumption of which we are now to speak results from the combined operation of possession and lapse of time. Possession of itself is, from the nature of men and things, an indicium, of ownership. If all other persons, save the possessor, acquiesce in the possession, the acquiescence tends more strongly to prove property in him ; and in proportion to the continuance of the possession on the one hand, and of the acquiescence on the other, do the probabilities increase that he who is thus permitted to use and enjoy has a right to use and enjoy, and in the same proportion do the probabilities increase that any adverse claim which may be set up is without foundation.

When the uninterrupted enjoyment has.been continued for a long time, the mind is strongly carried by the very statement of the fact to the conclusion that the claim of him who possesses had a just and legal origin, and by the mere statement of the same fact we are induced to suspect the justice and legality of an adverse claim. “ Tempus,” too, “ est edax rerum.” He who half or quarter of a century ago was abundantly able to exhibit his evidence of ownership, may be unable to do so now. His witnesses are dead, or have removed to distant countries, or have forgotten the facts; bis deeds, bis writings, bis title papers are destroyed, or lost, or defaced.

From considerations such as these has been deduced the rule of law that long-continued uninterrupted possession shall he left to a jury as a ground upon which they may pi’esume that deeds, grants, records, writings, facts, &c. which cannot now be produced or proved had formerly a legal existence. It is a rule founded upon and accordant with the law of nature. Vattel’s Law of Nature, &c. hook 2, Ch. 11, § 141.

It is a rule adopted into the municipal code upon the [232] ground of public policy. Chelmer v. Bradley, 1 Jac and Walker’s Rep. 63; Ricard v. Williams, 7 Wheaton’s Rep. 109; and see 5 John. Ch. Rep. 545.

No principle of our jurisprudence was more firmly fixed by English precedents at the time of our Revolution.

In Bedle v. Beard, 12 Rep. 5, it was resolved, says Lord Coke, “by Lord Ellsmore, with the principal judges, and upon consideration of precedents, that although by anything that can now be shown the impropriation is defective, yet it shall now be intended, in respect to the ancient and continued possession, that there was a lawful grant of the king to the said Humphrey, who granted in fee so that he might lawfully grant it to the said priory. Omnia praesumuntur so emniter esse acta. And all shall be presumed to be done which might make the ancient impropriation good. For tem-pus est edax rerum, and records, and letters patent, and other writings, either consume or are lost or embezzled, and God forbid that ancient grants and acts should be drawn in question, although they cannot be shown, which at first was necessary to the perfection of the thing,” &c.

What was presumed in that case was a grant of an advowson from the king. The case of Crimes v. Smith, same hook, page 4, is to the same effect.

In an anonymous case reported in 1 Ventress, 257, the Court said, “ they would presume a surrender to support a recovery suffered a long time since, the possession having gone accordingly.”

In the Mayor of Hull v. Horner, Cowper’s Rep. 102, a grant from the crown of certain duties was presumed on account of the long-continued enjoyment of the right. Many other cases, which might be referred to, decided both before and subsequent to our Revolution, show conclusively that the rule above laid down was an established principle of the English law. See Goodtitle on the demise of Bridges v. Duke of Chandos, 2 Burr. Rep. 1065, in which, although the determination was against the presumption, on account of the particular circumstances of that case, yet the doctrine is sanctioned by Lord Mansfield and his associates.

[238] In Goodtitle on the demise of Parker v. Baldwin, Lord Ellenborough said, “ the courts were in the daily habit of presuming grants from the crown, as of markets and the like, upon an uninterrupted enjoyment of twenty years. See also Barwick v. Thompson, 7 Term Rep. 488.

In other States of the Union, and in the Supreme Court of the United States, numerous adjudications have occurred, which, though not to be regarded as precedents, or binding authorities on this Court, serve to confirm and illustrate the doctrine, as received by us, from our English ancestors. 3 John. Cases, 118; 3 John. Rep. 269; 4 John. Ch. Rep. 1 and 294; 10 John. Rep. 380; 2 Hen. and Mun. 370; 1 Bay’s Rep. 26; 2 Haywood’s Rep. 26; 5 Cranch’s Rep. 262. See also the opinion of the Supreme Court of the United States in the case of Ricard v. Williams, (ubi supra) in which Mr. Justice Story, page 109, says, “ there is no difference in the doctrine, whether the grant relate to corporeal or incorporeal hereditaments; a grant of land may be as well presumed as a grant of a fishery, or of common, or of a way. Presumptions of this kind are adopted from the general infirmity of human nature, the difficulty of preserving muniments of title, and the public policy of supporting long and uninterrupted possession.”

Without pretending to enumerate all the cases, in which the principle we advance has been adopted, we may venture to affirm that in no reported case, of high respectability, has its truth been questioned.

When we turn our eyes to the legislative provisions, judicial determinations, civil, political, and social institutions, — the habits, feelings, and interests of our own particular community, ever changing in its character and composition, by successive influx and effiux of population, we can discover no circumstances or considerations, by which we can be led to conclusions different from those at which we have arrived, by a view of the English decisions, and those of our sister States.

There is as pressing necessity for adherence to the doctrine of presumption here, as there can be in any other government. The same inconveniences, the same injurious [234] consequences will result from uncertainty as to the ownership of real estate; peace and repose are not less desirable here than elsewhere, and never-ending litigation as much to be deprecated.

The case of Winton v. Rodgers (2 Tenn. Rep. 185) was cited by counsel for the purpose of showing that the doctrine of presumption has been repudiated by the courts of this State. We are satisfied that the learned judge who delivered the opinion of the Court in that case had no such intention. This question did not arise; no length of possession or other circumstances appeared in the case on which to bottom a presumption. See Bridges v. Duke of Chandos, (ubi supra,) the defendant there was a mere intruder. The general expressions used by the judge must be interpreted with a view to the facts before him ; and we venture to assert, that he was not thinking of the question now presented. It is sufficiently apparent, from other judicial opinions of that gentleman, and the Court of which he was a member, that there was an entire coincidence of sentiment between them and ourselves,

Judge Overton, delivering the opinion of the Court in the case of Gwathney v. Stump, says, “presumption and. prescription must be resorted to, for the peace, orderj and happiness of society. As against the State, where, by the principles of the common law, no time runs, twenty years were prescribed by the courts as a proper time for the creation of this presumption in case of a grant for’ land, which is the strongest instance of a presumption,” &c. 2 Tenn. Rep. 313.

It is contended that a potent argument against the applicability of this principle here arises from the fact that our title papers are all required to be registered once, and grants from North Carolina twice, first in .the secretary’s office, and again in the county where the land lies, thus increasing the prospect of their preservation to such an extent as to render a resort to the rule in question unnecessary and inexpedient.

This objection admits of several sufficient answers. In the first place the assertion is not often supported by the [235] fact that grants from North Carolina are twice registered. True the acts of Assembly contemplate this double registration, but it is well known that in many instances' the legislative provision was not complied with; and courts of justice have never considered a compliance with them necessary to the validity of a grant. 1 Tenn. Rep. 376. Besides if the courts were to sanction the idea that the registration of deeds, grants, &c. would disenable them to presume, for the pi'otection of ancient possessions, they would at once sap the very foundation of the rule; for, in practice, it has been applied both in England and the American States, to deeds required to be registered, grants, and indeed to all sorts of records. Patents are required to be recorded, but the officers may have neglected their duty; they may not have recorded them, or the records may have been defaced or destroyed. The possibility leaves ground enough for the presumption, in favor of the peace of society, when no bad consequences can result, comparable with the evils that would otherwise ensue.

But again, the necessity for presumption does not always spring from the probability that the whole grant, deed, &c. has been lost, &c., which once had a legal existence. It may arise, for instance, from the probability that a deed, grant, &c. cannot now be shown to cover a piece of land, which it might once have been shown to cover. The landmarks are destroyed. Proof cannot now be produced. Take the very case mentioned at the bar; a grant, professing on its face to dispose of 640 acres of land, calls to run the number of poles necessary to include that quantity, but in fact the marked lines extended further to marked corners, and included 700 or 1,000 acres; all will agree that the grantee would have a good title for all the land included within those lines and corners. Pie sold and conveyed the excess beyond the distance called for in his grant, to a third person ; that third person, or his sub-purchasers, have remained in possession for twenty or thirty or forty years; they have cleared fields, built houses, or, if you please, laid off a town on the land; the trees are cut down, among them the lines and corners; they cannot [236] be proved; the witnesses are gone; the land may once not have been worth fifty cents per acre ; it may now command as many dollars, or as many hundred dollars. Should a grantee of yesterday cast a wishful eye on the houses, stables, bams, orchards, meadows, or town lots of the innocent purchasers, or their still more innocent descendants, what doctrine so convenient with which to resist the ill-timed claim, and give quiet, and confidence to the possessors, as the doctrine of presumption ?

The court, in such a case, would say, with the Supreme Court of New York, “The fact is presumed for the purpose, and from a principle of quieting the possession; and not because the Court really think a grant has been made.” M’Donald v. M’Neal 10 John. Rep. 380; 12 Vesey’s Rep. 266, 267.

In such a case length of possession supplies the place of testimony; presumption is substituted for belief. We believe when the fact is proved; we presume in the absence of proof.

Another objection deserves notice. It is said that Hanes, by producing and relying upon grants, under which he claimed, repelled the idea of there being other grants; and disentitled himself to ask the Court and jury to presume. It is true, that to authorize-a court to presume, the nature of the possession, and the facts proved, must not be inconsistent with the desired presumption. But we consider the circumstance of the possessor, producing a grant for contiguous lands, and manifesting by his acts, that he has a long time been impressed with the belief that it did in fact cover the spot in controversy, instead of weakening the presumption of the existence and loss of the grant actually covering it, as tending to strengthen, or at least as being entirely consistent with such supposition. It may be that the possessor has been lulled into supposed security by a mistaken confidence that one grant covered him, until, by means of time and accident, that which actually did protect has been lost or destroyed. Supposing that the grant produced actually covered adjacent land, that very fact renders it probable that he would wish, and did also appropriate the [237] land in question. Supposing that the grant produced cannot be shown to cover any land, the fact of its existence and of the possessor having claimed this land under it, is at least consistent with the supposition we are asked to make ; namely, that the calls in the grant were once such as to include him, but that they have been altered or defaced in the lapse of time, or that the claimant had once another grant which really covered him.

Indulgent to tbe weakness of our nature, as a matter of public policy, to promote the repose of society, and to put down litigation, courts intend the existence of facts, when it is unreasonable to expect evidence of them'.

Let the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.

Judgment reversed.