Richardson v. Schwoon

3 Tenn. App. 512, 1925 Tenn. App. LEXIS 122
CourtCourt of Appeals of Tennessee
DecidedDecember 19, 1925
StatusPublished
Cited by6 cases

This text of 3 Tenn. App. 512 (Richardson v. Schwoon) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Schwoon, 3 Tenn. App. 512, 1925 Tenn. App. LEXIS 122 (Tenn. Ct. App. 1925).

Opinions

DeWITT, J.

In this cause the complainants have appealed from the decree of the Chancellor dismissing their.bill. It was a bill of ejectment to recover a tract of land in Grundy county included within the boundaries of a larger tract granted by the State of T.en- *514 nessee on January 6, 1837, to Samuel Edmundson by grant number 4937, based on entry number 4355, dated December 30, 1836, in the name of Stephen M. Griswold. The land involved in this cause is described as follows:

“Situated in the 2nd Civil District of Grundy county, Tennessee, on the waters of Big Creek, being all that portion of the Samuel-Edmundson grant No. 4937, which is more fully described as follows: ‘Beginning on a spotted oak, at the forks of the Tracy City-Altamont road where the old road left said road leading in the direction of where W. A. Gris-wold’s saw mill on Big Creek is located, running thence south with W. A. Griswold’s line to where it strikes the north boundary line of the Jesse Wooten tract; thence east with the north boundary of said Wooten’s tract to a hickory and chestnut on the Tracy City and Chattanooga road on the hill near the bridge, the northeast corner of said Wooten tract'; then south with the east boundary line of said Wooten tract until it strikes the center of Big Creek; thence with the center of Big Creek southwardly up said creek until it reaches the south boundary of the Samuel Edmundson grant No. 4937; thence east with the south boundary line of said Edmundson grant No. 4937, to the southeast corner of said grant; thence north with the east boundary line of said grant No. 4937 to the northeast corner of said grant; thence west on the north boundary line of grant No. 4937 crossing the gulf of Big Creek to John Northcut’s line at his corner, a double chestnut stump ; then with said Northcut’s line southwestwardly to the road leading from the Chattanooga and Altamont road to the old Griswold saw mill; thence with the center of said road to the beginning, being the same land that was conveyed by Stephen M. Griswold to W. A. Griswold, and by W. A. Griswold to J. W. Hudson and by J. W. Hudson to the New York and New Orleans Coal & Iron Co., embracing about 2,500 acres of land.”

. The complainants rely, first, upon said grant No. 4937, to which they deraign title insisting that it relates back to a special entry, and therefore, that if it overlaps upon grant No. 4935, to which defendants’ claim of title is deraigned, it is superior thereto as a source of title; second, upon the lack of such overlap; and third; upon adverse possession by W. A. Griswold of said tract of land, especially of any interlap between the two grants.

The defendants deny that the complainants have any title superior to theirs. They deraign their title to grant No. 4935, issued by the State of Tennessee, on January 6, 1837. to Samuel Edmund-son, based on entry No. 4328, dated December 7, 1836, in the name of Elisha Anderson. They insist that this is the *515 older and superior grant, as it relates back to an older entry; and that entry number 4355 upon wbicb the other grant is based is not special. Defendants also plead and rely upon adverse possession for more than seven years, under registered assurance of title, of any interlap that may exist between the two grants — averring also that the possessions under which complainants claim were abandoned if they ever did cover the land herein involved. Defendants deny that complainants have a valid claim of title, without reference to the title of defendants. They also deny that grant No. 4937 overlaps upon grant No. 4935 because of certain words of exclusion in grant No. 4937. They insist that' even if this is not true, they have the superior title to any interlap. They deny that the possession of Griswold, under which complainants claim, included any land within the boundaries of grant No. 4935. The record is voluminous, including conflicting maps and testimony of surveyors contradicting each other.

The Chancellor held that entry No. 4355 is not special and therefore, that grant No. 4937, upon which it is based, is not the superior source of title; that the complainants had not carried the burden of proof as to the location and possession of the lands; that there is an interlap because' the southwest corner of grant No. 4935 is at a certain pine tree as claimed by defendants, and therefore, their deeds cover and embrace the land in question; that the possession by Griswold inside of the “pasture field” is not shown by that clear and positive proof that is required to establish adverse possession. All of the issues are presented by appropriate assignments of error and will be treated fully but not seriatim.

Grants Nos. 4935 and 4937 were issued on the same day; but, as entry No. 4328, upon the defendants’ grant is based, is the older entry, complainants seek to apply the rule that a grant based on a younger entry that is special takes priority over a grant based on an older entry that is vague. This requires a determination whether or not entry No. 4355 is a special entry. This entry is as; follows:

“Stephen M. Griswold enters five thousand acres of land in Grundy county, Tennessee, on the headwaters of Collins River, beginning on a black oak standing on the bluff of Piney Creek,, and on the old Indian Trace; running southward by crossing the Jasper Road; thence, eastwardly, then northwardly; thence westwardly to the beginning, including the piney thicket and mill seat, platting out all valid entries within said bounds.”

In McEwen v. Coal & Land Co., 125 Tenn., 703, it was said that an entry, to be special, must in some part of it contain a reference to some thing or natural mai’k from which, either singly or together, the land can be ascertained with reasonable industry by these, ac *516 quainted in its neighborhood; that it must' be special in its description, and if it is defective to this respect, it( cannot be aided by extrinsic proof — citing Barnet v. Russell, 2 Tenn., 20; Barnes v. Sellers, 2 Sneed, 33; Berry v. Wagner, 5 Lea, 564. It was said that one of the chief objects of specialty in entries is to notify subsequent enterers of the locality appropriated by the first entry.

In Simms v. Dickson, 3 Tenn., 140, it was said that a special entry is one which so describes the objects for which it calls as to afford a subsequent locator a reasonable opportunity of finding the land located.

In McEwen v. Coal & Land Co., supra, an entry was held not to be special which described the land as “on Cumberland Mountain, on the headwaters of Collins River, beginning- on a black oak standing on the bluff of the right hand fork of Collins River; then meandering said bluff eastwardly crossing Little Laurel, thence northwardly; thence westwardly; thence southwardly to the beginning, platting out all prior claims.”

In Barnes v. Sellers; 2 Sneed, 35, an entry was held not to be special, the descriptive words being as follows:

“Beginning at a beech tree on the county line south of Baines Branch, running east, thence north and west for complement. ’ ’

The defect was the uncertainty as to location of the beech tree, the.point where it was located not being indicated with sufficient certainty.

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Bluebook (online)
3 Tenn. App. 512, 1925 Tenn. App. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-schwoon-tennctapp-1925.