The certificate of probate of a deed in Tennessee did not say
that the witness swore that the grantor acknowledged it on the day
of its date. But as the certificate
Page 62 U. S. 494
said that the grantor acknowledged it for the purposes therein
contained, the probate is covered by an act passed in 1846.
Where a grant conveyed the legal title in 1842, and innocent
purchasers paid for the property and took legal conveyances for it
with an honest belief that they were dealing for and acquiring a
legal title from the true owner, a claimant of the equity of the
patent cannot set it up to overthrow the purchase.
There was nothing in the case to cause suspicion in the minds of
these purchasers. Three letters were added in the patent to the
original name of the patentee. But the register did this in the
course of his official duty, and, as this Court believes, honestly;
if the purchasers had gone into the inquiry, the presumption would
have been that the register did his duty.
These innocent purchasers might properly buy up an outstanding
title.
Where a person was in possession, this was sufficient notice to
a claimant of an adverse title, and whether the deed under which
this person claimed was registered or not was of no importance to
the claimant.
The act of limitations of the State of Tennessee protects
persons in possession of land under the following circumstances
1. They must have had seven years' possession of land granted by
the state.
2. They must have held or claimed the land by virtue of a deed
of conveyance or other assurance purporting to convey an estate in
fee simple.
3. No claim by suit in law or equity, effectually prosecuted,
should have been set up or made to said lands within that time.
Under the second head, an unregistered deed is sufficient to
constitute the bar. The deed, when recorded, related back to its
date.
The possession of several persons in succession claiming under
the same title was the same possession, and the evidence shows that
the persons claiming under the statute were in possession for the
required period of time.
Courts of justice lend a very unwilling ear to statements of
what dead men have said.
The allegation that the possession was fraudulent, under a
fraudulent grant and fraudulent deed, is not sustained by the
evidence. Whether the deed which purported to convey an estate in
fee simple was void or not is immaterial, as the act of limitation
intended to protect possession held under such deeds. The adverse
possession was notice to everybody of the existence of the
claim.
This was a bill filed by Lea for the purposes stated in the
opinion of the Court, where the facts of the case are also
given.
Page 62 U. S. 495
The points made by the counsel are noticed and commented on in
the opinion of the court.
MR. JUSTICE CATRON delivered the opinion of the Court.
There stood on the record book an entry for 80 acres in the name
of William P. Lea, No. 5,446, dated April 5, 1842.
A patent issued, founded on this entry, dated 21st August, 1842,
No. 5,744.
This patent is in the name of William Park Lea. It was signed by
the governor, countersigned by the secretary of state, and sealed
with the great seal of the state.
As originally filled up, it was in the name of William P. Lea,
and was altered to William Park Lea, by adding the letters "ark" to
the P. This was done by the register of the land office, whose duty
it was to prepare the patent for the signatures of the governor and
secretary, and the act of affixing the great seal to it, which gave
it validity as against the state, divested her title, and vested it
in the grantee on the patent thus executed being delivered to
him.
William Park Lea and William Pinkney Lea wrote their names
alike, William P. Lea, the latter always, and the former
frequently, although he often signed his name William Park Lea. The
register added the letters "ark" to the middle name, to distinguish
between them, as both had entered lands in the entry taker's
office, and confusion prevailed as to who was the proper owner.
This is the effect of the register's evidence. In filling up grants
Nos. 6,260, 6,258, and 5,764, they were made out in the name of
William Park Lea, but the register scraped out the letters "ark"
and issued the patents in the name of William P. Lea, because the
lands had been entered by William Pinkney Lea.
No. 5,764 of these patents was filled up on the same day, 21
August, 1842, that the one (No. 5,744) here in dispute was filled
up, and the letters "ark" added to the letter P; the other two
(Nos. 6,260 and 6,258) were filled up December 8, 1842. Five other
patents were filled up properly in the name of William P. Lea. This
was all done in the latter six months of 1842, and the grants were
founded on entries made
Page 62 U. S. 496
in April of that year, in the Ocoee land office. The respective
claimants were related to each other, and familiarly known to the
register. The entries had all been made and were recorded in the
name "William P. Lea."
That this was honestly done by the register is not open to
dispute. He has given a deposition in great detail, and accounts
for his course of proceeding entirely to our satisfaction so far as
his integrity is concerned.
This patent (No. 5,744) the bill seeks to have reformed so as to
stand in the name of William P. Lea, the complainant, and to be
used in an action of ejectment pending in the court below by the
complainant against the respondents, and secondly, if said grant
shall be found to have been issued to the person not entitled to
the land, that then the court will divest the title of the
respondents and vest it in the complainant, so that he may use the
decree on the trial of his action of ejectment.
3. The bill also prays that the court may remove impending
clouds from the complainant's title by declaring all the alleged
titles of the respondents, or either of them, void and direct the
possession of said lands to be surrendered to the complainant,
together with a prayer for further and general relief.
To the relief sought, among other defenses, set up in their
answers, the respondents rely on the fact that they claim under one
John Davis, who purchased from William Park Lea, and took title by
a deed in fee with a general warranty of title for the land in
dispute, and that Davis, their vendor, purchased and paid for the
land to said William Park Lea without any notice or knowledge that
the complainant had any equity in the land, or set up claim
thereto.
This deed is produced, dated June 18, 1846, and appears to have
been duly executed by William Park Lea, and the consideration money
was paid to him by John Davis. It is not pretended that John Davis
had any notice of the complainant's claim when the deed was
executed; the complainant had then no knowledge himself that he had
any interest in the land.
One objection to this deed is that it was not duly proved, and
could not be lawfully registered according to the laws of
Page 62 U. S. 497
Tennessee. In the certificate of probate of Elias Davis, one of
the subscribing witnesses, the clerk does not say the witness swore
that the grantor acknowledged the same on the day it bears date.
The other witness so proves. Now as the deed shows the date, and
the certificate of probate says the grantor acknowledged it for the
purposes therein contained, the probate is covered by the
provisions of the act of 1846, ch. 78, Nicholson's statute laws,
242.
Caldwell, Keith & Mastin, purchased from John Davis in the
year 1852, paid the purchase money, $6,000, and took a deed in fee
simple, with a covenant of general warranty of title for the land
in dispute, and they also rely on the plea that they were
bona
fide purchasers of the legal title, or what purported to be
so, and this allegation is established by the proof unless it be
true that the letters "ark," crowded after the letter P, in William
Park Lea's name, at the various places that this alteration is
found in the patent, was sufficient to put the purchasers on
inquiry. Now if they had inquired of the register, he could only
have told them that he put the letters there in the course of his
official duty, but when, he could not say, this being what he
proves here. Then the presumption comes in that, as a public
officer, the register did his duty, and he who impeaches the act as
illegal must prove the allegation. On this assumption, the register
filled up the patent as it is now found, before the governor signed
it, and the seal of state was attached -- that is to say, when the
patent bears date.
Then again, all the incipient steps authorizing the register to
issue the grant, the governor to sign it, and the secretary to
attach the great seal, are presumed as having been regular; nor was
the purchaser required to look behind the patent.
Bagnell v.
Broderick, 13 Pet. 448.
The bill of necessity admits that the legal title was vested in
William Park Lea by the grant as it now stands, as on any other
assumption the complainant would have his remedy at law and must be
turned out of court. The title has thus stood since 1842; important
rights have grown up under it with which a court of equity cannot
interfere, on general principles of justice. 1 Story's Com. on
equity, sec. 64, c. 64, d.
Page 62 U. S. 498
We mean to say that if the equity conferred by the entry was in
William Pinkney Lea, and the patent issued in the name of William
Park Lea, and the Mining Company, or those under whom they claim,
have innocently and ignorantly purchased and paid for the property,
and took legal conveyances for it, with an honest belief that they
were dealing for and acquiring a legal title from the true owner,
then the complainant cannot be heard to set up his equity behind
the grant to overthrow the purchase. 1 Story's Eq. 454. And so the
respondents, the Mining Company, might buy in the legal title of
William Park Lea after they had notice, if they were innocent
purchasers, holding under John Davis and Mastin, Keith &
Caldwell. 1 Story Eq., s. 411.
But it is insisted that the deed from Lea to Davis was not
registered, and fraudulently concealed from the complainant, so
that he could not proceed to assert his rights. Davis had
possession of the land when he took William Park Lea's deed,
claiming for himself, and adversely to all others, and he so
continued in possession till he sold the land in December, 1852.
This adverse possession was in itself notice that he held the land
under a title, the character of which the complainant was bound to
ascertain.
Landis v.
Brant, 10 How. 375
Furthermore, Caldwell, Keith & Mastin purchased from Davis
in December, 1852; they caused the deed from William Park Lea to
Davis, and the one from the latter to them, to be duly registered,
without having any knowledge of the complainant's claim and without
the existence of any circumstance to put them on inquiry respecting
it. They were clearly
bona fide purchasers of a legal
title, that the complainant cannot assail in equity.
2. The respondents rely on the act of limitations of the State
of Tennessee as a protection to their title and possession. The act
declares
"That where any person shall have had seven years' possession of
any lands which have been granted by this state, holding or
claiming the same by virtue of a deed of conveyance or other
assurance, purporting to convey an estate in fee simple, and no
claim by suit in law or equity, effectually
Page 62 U. S. 499
prosecuted, shall have been set up or made to said lands within
the aforesaid time, then and in that case the person or persons,
their heirs or assigns, so holding possession shall be entitled to
keep and hold possession of such quantity of land as shall be
specified and described in his deed &c., in preference to and
against all and all manner of person or persons whatever."
By the settled construction of the foregoing act, an
unregistered deed is a sufficient title on which the bar can be
founded, and when John Davis' deed from William Park Lea was
recorded, it related to its date, and was good to draw the better
title to it by force of the statute.
The possessions of John Davis and Caldwell, Keith & Mastin
made one possession, and if the two were continuous for the whole
term of seven years, then the bar was formed, and the defense
complete. This brings us to the fact of actual possession held by
Davis, for after he sold to Caldwell, Keith & Mastin, no one
disputes their actual possession.
Davis purchased the improvements on the land from Wallace, 25th
February, 1842, for the sum of forty dollars; and by the agreement,
Wallace was to hold under Davis and occupy the premises for three
years, which Wallace proves he did. He then left the place, and
Wilson Abercrombie went into possession under Davis, and occupied
the cabin one year. It being in the midst of a small field which
was annually cultivated in grain crops, Davis removed the cabin
beyond the field, and put it up again on the forty-acre lot, and
Abercrombie occupied it another year. He was succeeded by Bailey
McCoy as tenant of the cabin under Davis; McCoy occupied it for a
year or more. Wallace's field could not have included more than
some three acres, and had an orchard of peach trees on it. After
the cabin was removed, Davis enlarged the field, and extended it
across the southern line of the forty-acre lot, and also enlarged
it, from time to time, by small clearings at the other end, which
were made for turnip patches, until the field included about twelve
acres, and which was annually cultivated by Davis, whose residence
was within a few hundred yards of the field, on the adjoining
section of land. This field
Page 62 U. S. 500
was obviously an important part of his plantation. That portion
of the twelve-acre field lying on the forty-acre lot embraced, when
this suit was brought, about five acres. Mann, the county surveyor,
who run the lines of the forty-acre lot, in September, 1855, so
states. He proves that the debris and ground plan of the cabin
Wallace built and occupied were quite apparent; that the peach
trees were there, and that the old and worn land was plainly
distinguishable from that more recently cleared up, and which was
on its different sides.
To overcome the evidence of continued possession on the part of
Davis, two witnesses were produced by the complainant, to-wit:
Crawford Braswell and Jesse Shubird. The former swears that he
resided in Ducktown from June, 1845, to October, 1850; that he knew
John Davis, and the place Wallace improved.
"I at one time says he purposed purchasing that eighty acres
where the Wallace improvement was. Davis told me that he had only
the occupant of Luther Wallace; that he did not own the land, and
that he had moved the improvements off to another place; and,
having asked him who owned the land, he stated it was entered by a
man by the name of Lea. He stated he had moved off the house and
fruit trees, and I think he also named the time."
Says he thinks the conversation took place in July, 1848.
In answer to another question, the witness says:
"Mr. Davis showed me where he had moved the house from, and I
understood he had moved all the improvements off that place, and
the stock was running on the land that had been enclosed, and, if
any of the fencing was left, I did not notice it. The place was
grown up very much with bushes. There might have been some rotten
rails scattered where the fence was put, lying among the bushes and
saplings."
This is represented also as having taken place in July, 1848,
and the witness swears that, in the succeeding August, Davis showed
him where the Wallace house had stood. He was interrogated, on the
part of the complainant, as follows:
"Please state whether or not you afterwards heard John Davis set
up claim to the Wallace eighty-acre tract, and if so, state when it
was, and fully what he said to you on the subject. "
Page 62 U. S. 501
"
Answer. In the winter of 1849, there was a man there
from Bradley County, looking at Davis' land, and talking of buying
him out. I happened at Davis' at the time, and he requested me not
to mention the conversation to any person, that had passed between
us, about the land; that if he sold his land to that man, he should
sell the Wallace place also."
"
Question by same. Please state whether that was the
first time you heard him assume to own the eighty-acre Wallace
tract."
"
Answer. He did not profess to own it then, but said he
should sell it with the balance, if he sold at all."
"
Interrogatory by same. State whether or not John Davis
had the Luther Wallace place enclosed at any time, and if so, state
when he had it done."
"
Answer. If he had it enclosed at any time, it was
since I left that country."
To the cross-interrogatories, the witness stated:
"Do you say there was no land on the Wallace tract enclosed and
in cultivation during the years 1848, 1849, and 1850?"
"
Answer. None in 1848, and none afterwards that I know
of."
"Are you acquainted with the boundaries of the Wallace land, and
can you say, positively, that there was no land on said tract in
cultivation during the aforesaid years?"
"
Answer. I was not acquainted with the lines of the
tract, and, if there was any in cultivation on the tract, I did not
know it."
"Can you then say positively that no part of the field, about
where the old Wallace house stood, was in cultivation during the
time mentioned?"
"
Answer. No part of it was in cultivation during the
time I lived there."
"In your answer to complainant's sixth question, you say he John
Davis stated that Lea had entered the land. State where that
conversation took place, when, and if any person was present, give
the name or names."
"
Answer. This conversation took place at Davis' mill,
in the month of July, 1848, and there was no person present."
"In your answer to complainant's third question, you say that
John Davis told you he had only the occupant right, which he
Page 62 U. S. 502
had purchased from Wallace, and that he did not own the land;
state exactly what he told you, and at what time."
"
Answer. In the month of July, 1848, he made the
statements I have made in that answer, that he had only bought the
improvements from Wallace, and that he did not own the land, and
would not sell it, and make a title to it."
Shubird swears that he went to Ducktown to reside in 1848, and
lived there about three years; says he knew John Davis, and the
Luther Wallace improvement.
The succeeding questions propounded for the complainant, and the
answers to them, will best present the material statements of this
witness:
"State whether or not the Luther Wallace improvement was moved
from the place where he first put it up, and if so, state who had
it moved, and where it was moved to."
"
Answer. The houses, fencing, and peach trees, were
moved from the place they were first put on the Luther Wallace
place. They were moved by John Davis, and put on his own land."
"How far were these improvements taken from where Luther Wallace
had put them up?"
"
Answer. I can't exactly say, but suppose a half mile
or three-quarters."
"Please state why John Davis removed these improvements. Tell
all you may have heard John Davis say on that subject."
"
Answer. He John Davis stated to me that the reason he
moved them was that he was afraid he would lose his labor, as he
had understood a man by the name of Lea had entered the land, and
stated that he did not own the land."
"State whether or not you ever heard John Davis claim the land
where the Luther Wallace improvement was, at any time while you
lived with him."
"
Answer. The Luther Wallace place is now called Copper
Hill. I think in about the year 1849, after the copper property
came into notice, John Davis set up a claim, and said it."
"Do you know whether or not the Luther Wallace improvement or
property was left vacant and turned out at the time Davis removed
the fencing &c., away? And if so, state how long it was left
vacant. "
Page 62 U. S. 503
"
Answer. The property was left vacant -- how long I
can't say, but until Davis set up his claim; he then commenced
fixing up the fencing again."
On cross-examination, the witness states that he went to
Ducktown in March, 1848; that the Wallace house had been removed
before; nor was there any enclosed land on the Copper Hill tract
when he went there.
He is then further interrogated, and answers:
"How can you say, then, as in your answer to complainant's third
interrogatory, that the house, fencing, and peach trees, were
removed by John Davis, and put upon his own land?"
"
Answer. I heard John Davis say so."
"At what time did Davis tell you this, and how did he happen to
speak to you on this subject?"
"
Answer. Shortly after I went there -- I can't say
exactly what time -- John Davis and myself, after passing through
his farm, passed upon the vacant place of Luther Wallace. He
mentioned the subject himself, and told what I have heretofore
stated."
"On which side of Davis' mill creek was the improvement of which
you have been speaking situated?"
"
Answer. It was situated on the left hand when going up
the creek."
"Was there not, at that time, a small field enclosed between the
mill creek and the Copper Hill?"
"
Answer. Not to my knowledge, as I don't know whether
there was or not, as I know nothing about it, only as Davis told me
that he had taken all off."
"Was there any person present when this conversation occurred
between you and Davis? If so, state who it was."
"
Answer. There was no person present."
If the evidence of these two witnesses be true, then there was
no continuous adverse holding, and the question is whether it is
entitled to credit. Braswell swears that the entire improvements
were removed, including the fruit trees, and that the land where
the Wallace improvement had been made was grown up and overrun with
bushes and saplings; that this was the condition of the place in
1848. Shubird proves the same, with the exception that he says
nothing as
Page 62 U. S. 504
respects the undergrowth. So far as conversations with John
Davis are given, they may be dismissed, with the remark, that he
had obtained William Park Lea's deed for the land in June, 1846,
and was not at all likely to carefully disavow all title, and say
the land belonged to one Lea.
In 1856, when these depositions were taken, John Davis was dead,
and courts of justice lend a very unwilling ear to statements of
what dead men had said.
Many witnesses have been examined to prove that Braswell and
Shubird are not entitled to credit on oath as witnesses, and many
prove the reverse. That they are men of no substantial worth, and
of little respectability, is manifest enough, and confidence in
their integrity is certainly impaired. But in this case, as in most
others, the integrity of the witnesses is easily ascertained. If
the land was grown up in bushes and saplings in 1848, it must have
been thrown out as a waste place six or eight years before that
time. Davis purchased Wallace's possession in February, 1842.
Wallace remained there three years by agreement with Davis. Then
Abercrombie came in, and occupied the house one year whilst it
stood in the field. It was then removed beyond the field, and had
no connection with it. Davis himself took possession of the cleared
land, and cultivated it. It was rented by Davis to Dugger either in
1849 or 1850, and he raised a crop on it. The orchard was there
then, and continued there till 1855, after this suit was brought,
as Mann, the county surveyor, proves, who traced the lines of the
Copper Hill tract, and examined the cleared land in the twelve-acre
field, and especially that part north of the southern line of the
forty-acre lot. Mann states that the marks of the old house built
by Wallace were plainly visible, and so was the old worn land
cleared by Wall. and that the peach trees were there. Substantially
the same facts are proved by nearly all of the witnesses examined
on part of the respondents. It is the most familiar fact in the
cause.
That the Wallace field and orchard were constantly under fence
from the time Davis purchased of Wallace, and certainly never
abandoned nor overrun with brushwood and saplings, is fully
established.
Page 62 U. S. 505
And our opinion is that when Braswell and Shubird deposed to the
reverse, they stated what was untrue.
The complainant in his amended bill does not controvert the fact
that adverse possession, for more than seven years, had been holden
of the land in dispute, but relies on the following allegations to
avoid the bar, to-wit:
"Your orator shows the defendants, in their answers on file,
charge that the said John Davis and those claiming under him had
seven years' peaceable, uninterrupted, adverse possession of the
land in dispute, previously to the filing of the original bill, and
previous to the suit at law; as to which facts no answer is asked
herein from defendants; but if any such possession existed, your
orator charges, and which charge your orator does require to be
answered, that it was a fraudulent possession, under a fraudulent
grant and fraudulent deed, the registration of which was postponed
until within about the last two years; that the possession of your
orator's grant, first by the said William Park Lea, and then by the
said John Davis, was fraudulently concealed from him by them; that
he never had any knowledge or information thereof until about the
time stated in his original bill, and within the last twelve
months; and that, as his cause of action was thus fraudulently
concealed, the statute of limitations cannot apply."
These allegations are specially denied by the answer of the
respondents, except as to the fact that the deed from William Park
Lea to John Davis was not registered, which is admitted. Of the
other allegations there is no proof, and of course they are not in
the case.
Whether Lea had title or not at the time he conveyed to Davis is
altogether immaterial, as the Tennessee act of limitation intended
to protect and confirm void deeds purporting to convey an estate in
fee simple, where seven years' adverse possession had been held
under them. Nor was Davis bound to register his deed from Lea;
between them, as grantor and grantee, it was valid without
registration. Neither can the complainant be heard to say that he
had no notice of the fact that Davis claimed title to the land. His
possession and adverse holding was notice to the world, as will be
seen by the case of
Landis v. Brant, above cited.
Page 62 U. S. 506
On the two grounds above stated, we order that the decree of
the circuit court dismissing the bill be affirmed.
MR. JUSTICE DANIEL dissenting:
In the case of
Lea v. Copper Mine Company, it is my
opinion that the company, as a corporation, could neither plead nor
be impleaded in a court of the United States.