# FILED
October 22, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk JOYCE BER RYHILL and ) CARTINA BERR YHILL, ) ) Plaintiffs/App ellants, ) ) VS. ) ) RON G. SWINEA and wife, ) WILLIE JO SW INEA, ) Appeal No. ) 01-A-01-9702- CH-00082 Defendants/Appellees

/Third- ) Party Plaintiffs/Appellan ts, ) Lawrence Chancery ) No. 6243-93 W ILLIAM TUCKER; RANDY TUCKER ) and wife, DONNA E. TUCKER; ) CLELAND EZELL

and wife, ) SHIRLEY EZ ELL, ) ) Defendants/Appellees

/Third- ) Party Plaintiffs, ) ) MARGIE L. NEW TON, ) ) Third-Party

Defendant. )
COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F LAWRENCE COUN TY AT LAWRENCEBURG, TENNESSEE THE HONORABLE JAMES L. WEATHERFORD, JU DGE

RANDY H ILLHOUSE 327 West Gaines Street P. O. Box 787 Lawrenceburg, Tennessee 38464 Attorney for Plaintiffs/Appella nts CHARLES W . HOLT, JR. P. O. Box 357 Lawrenceburg, Tennessee 38464 Attorney for Defendants/Appellees PAUL PLANT P. O. Box 399 Lawrenceburg, Tennessee 38464 Attorney for Defendant

REVERSED AN D REMAND ED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J. 

## O P I N I O N- 2 - The parties to t his boundary line dispu te all ac knowledg ed that the deeds to their respective propertiesdescribed thei r common boundary as a straight lin e, b ut they differed as to the correc

t placement of that l ine. After heari ng all the proo f, the trial court ordered a new survey to establ ish a bounda ry line whose bearings chang ed in mi d-cour se, g ivi ng eac h of the p artie s some of what they claimed. We reverse the order of t he tr ial co urt, beca use we can find no evidence in the record to support it.
I. The Origins of the Dispute

All the properties in dispu te arederiv ed from a tract of Law rence County land totaling 25 3 acres, w hich had been ow ned by Mr. W.T . Baker. In 1945, Mr. Baker conveye d the southern 113 a cres of this combined property to his son, Calvin Baker. The norther n boundary of the p roperty conveyed aw ay was described as running from a pointon the railr oad in a strai ght line nor th 76° west

214 poles to the western boundary. Thr ough a seri es of transaction s, includinga 1961 sale to Waymon Berryhi ll and Bill y G. Mabr y, this pr

operty eventually dev

olved to the plaintiffs, Joyce Berry hill and her daughter, Car tina Berry hill.

In 1965 , Mr. Baker sold his remaining property, in a deed which described it as “consisting of 140 acres, more or less.” The southern boun daryline of this property contained essentially the same descri ption as the nor thern line of

the property previously

conveyed to Calvin Bake r. The re al estat e passe d throu gh several han ds before becoming the p roperty of Marjorie Lynch Newton and her h usband i n 1972. The Newtons built a house and estab lished a peach and apple orchar d on the prop erty.- 3 - The Newtons d ivorced, and in 1990 Mr. Newton quitclaimed his interest in th e prope rty to his f ormer wif e. In 199 2, Ms. Newto n divided the land into eigh t tracts, which were sold at aucti on. The defendants in thi s case are thepurchasers of fou r trac ts whic h adj oin t he Be rryhil l prop erty.

The parties ag ree on the begi nning point at the railr oad. An old fence begins at that point and extends abo ut 2000 feet no rt h-wes tward in a straight line before turning al most due south. The N ewtons had bui lt a driveway that extended about 800 feet along the northern side of that fence. The Berry hills conten d that the line follows that fence, and continues in a straight line from where the fence turns, and they produced evidence th at the line is marked by a series of blaz es on a line of old trees.

The defenda nts (or thei r predecessor , Ms. New ton) had instal led a single strand barbed w ire fence, begi nning at the ag reed upon point on the railroad, but following a more southerly angle, and they

claimed all the land north of this new fence. The Berry hills subs equently sued to establi sh the correc t boundary l ine.

At t rial the defendants

argued that t he true propert y line was an even older fence (n o long er in existence) that ha d encl osed a cattle lane us ed by W.T. Baker. Though they were able to produce photograph s at trial of pieces o f an ol d style of web wi re fencing that could be found along the edge of the old cattle lane, they did not produce any evi dence that the fence i n question corresponded to any of the descriptio ns in the deeds. Instead, they reli ed upon a survey of the property that had been commissioned by Ms. N ewton after the sale of her property. The defendants also filed a third party claim against Ms. New ton, for breach of warranty of title, in the event that the Berryhi lls prevailed on their claim.- 4 - Aft erheari ng tes timo ny fro m the part ies, thei r neig hbo rs an d two surveyors, the trial court ordered t hat an independent sur veyor be appointed to establish a a new boundary line, “BEGINNING at a pointimmediately adjacent to the d rive and following the fence immediately adjacent to the d rive to a point where the fence turns in a s outherly di rection; th ence fro m that point in a

straight line to a poi nt 217 feet south o f the northwest

corner of

the Berry hill proper

ty as show n on the survey of J.T.Dixon.”

The boundary l ine establis hed by the court’s order

ran from the rai lroad with the old fence to the point where it turned sou th; then the lin e ran at a different angle to a point 217 feet s outh of the point where the extensi on of the old fence line intersected the wester n edge of the proper ty. The p laintiffs appealled, as di d the defendants Ron G. Sw inea and his w ife, Willie Jo Swinea.
II. The Cleg horn Surv ey

We can find no evidence in the record to support the boundary ordered bythe trial court. The parti es insist t hat all their deed s indicate a str

aight line bou nda ry. The s urve ys r elied upon by both parties a gree as to t he starting point of that boundary. They only disagree a s to its pr

oper bearing

.
Perhaps the most revealing testimony in this case was that of Mr. Eddie Cleghorn, who surv

eyed t he Newton property . Mr. Cl eghorn first assumed that the fence line woul d be the boundary . But when he ran the fence li ne out, he discovered that the ac reageof the N ewto n prope rty woul d come up short of the amount called for in the origi nal deed from Mr. Baker. He then had a discussion with the auctioneer, John Marion “S keets” Eskr idge, from w hich he un dersto od that Mr. Es kridge had gotten permis sion from the Berr yhills to run the li ne further south.- 5 - Mr. Cleghorn subsequently drafted a survey which indicated a southern boundary for the Newt on property with a bear ing of North 74 degrees 06' 03" West. The deeds Ms. Newton issued to the defe ndants all recited this b earing. H ow ever, all the deeds in both the Newton’ s and the Berry hill’s c hains of title r ecited a beari ng of North 76 deg rees 0' 0" W est. Joyce Berryhi ll testified t hat she never agreed that the line belong ed where M r. Clegho rn attempted to pl ace it.

On direct, M r. Clegho rn testified as follows: Q. W ould you have i ssue d your surve y, if you had some other unders tanding or ag reement? A. No, sir. Q. Why not? A. It just wouldn’t be goo d business practice.

His testimony on this poin t was further clarified under cross-examination: Q. Did I unde rsta nd you , tha t you wo uld n ot ha ve marked this as the south boundary line unless

you had understood that my

clients ag reed to it? A. Right. Q. The reason for that i s there’s j ust nothing t o indicate that t his is the s outh boundary l ine? A. Right.

III. The Dixon Surv

ey

After they became aware of the Cleg horn survey of the N ewton prop erty, the plain tiffs hi red ano ther l icens ed sur veyor, M r. J. T. Dixon, t o survey their ow n land. Mr. Dixon found that the fence row had a true north bear ing ofNorth 76 deg rees 0'0" West. He testified that heand hi s cre w found old ha cks an d blaz es alo ng thesame- 6 -

line afte r the fen ce turned, all the way to the western boundary of the Berryhill property.

Mr. Dixon al so checked on the records of the adjoining properties, going backto Mr. Baker, and discovered a 1963 land line agreement between Mr. Baker and M r. Meiers, w ho owned the pr operty to t he north and w est of Mr. Baker’s tract. H e testified th at i n straight ening the li ne between thei r respecti ve propert ies, the agreementhad taken about eig hteen acres off the north sideof the Baker farm, and he suggested that this accounted for the shortfall in acreage on the Newton property that Mr. Cleghorn discovered. Interestingly, the boundary he drew gave the Berryhills about 114 acres, onl y slig htly more t han had been gran ted by W.T. Baker in the 1945 deed to his son.

On cross-examination, the defendants’ attorney managed to bri ng out
some discrepanci es between thecalls in the deed and the boundaries described in the survey . In particul ar, the norther n boundary l ine was 160 feet l onger in thesurvey than was cal led for in the deed (4,191 feet). M r. Dixon admitted that the bearing of the line would have to be turned shar ply to the s outh in order for it to clos e at t h e distance call ed for in the deed.

Neithe r the j udge ’s ord er no r his s tate men ts at trial indic ate h ow h e arrived at the deci sion to ord er an othe r surve y to es tabl ish a new bo und ary. Apparently he found credible evidence on bo th sides, and we are tempted to speculate that he found Mr. D ixon’s t estimony as to the correc t bea rin g of the boundary to be persua s ive, but was disturbed by the contradic

tory test imony as to blazesand marks on the trees west of the fence line. Several wi tnesses, incl uding Mr. Cleghorn and Mr. Eskridge, testified that they could no t find any such marks.- 7 - In any case, it is cle ar th at th e tria l cou rt did not f ind t he su rvey dra wn byMr. Cleg horn to accurately reflec t the boundaries called for in the deeds, as the l ine he or dere d dra wn nowh ere f ollo ws tha t surve y.

IV. The Role of the Chancellor
Though the chancery

court h as ju risdicti on to determine a bo undary li ne, Tenn. Code Ann. § 16-11 -106, it is the duty of the c hancellor touphold the boundaries described in th e de ed, if at all possible. If the description found in the deed is so inconsistent

that some its calls m ust be rejected, t hen there is an established or der of precedence to be followed between different calls, subject only to the considerati on that the controll ing call should be the one most consistent w ith the intent ion of the grantor.

This orde r of p rece den ce is d escri bed as fo llows in City of Johnson City v. State, 202 Tenn. 318, 304 S.W.2d 317 (1957), q uoting 16 AmJur § 262: “In the event that

two or more of the descr iptive el ements used conflict w ith or are inconsistent with the others, resort is first to be had to natural objects or l andmarks, nex t to artifici al marks, then to adjacent boundari es, and then to cour ses and distances, unless it app ears that mist akes exist in respect to the cal ls, in w hic h ev ent a n in fe rio r means of locatio n may control a higher one. That rule should be ad opted which is most consistent with the intent of the grant.” 202 Tenn. at 323, 304 S.W.2d at 320.

Monuments and landmarks do not figure pro minently i n the present case, except for the2000 foot fence, whi ch is not menti oned in the d eeds of e ither part y. The deeds indicat e a straig ht line boundary with a bear ing of North 76 degrees 0' 0" West between the portion of the pr operty Mr . Baker conveyed to his son, and th e portion he retained. The fenceline ad opted as the boundary by Mr. Dix on had the correct bearing. Neither the l ine defined by the Cleghor n survey

nor the one order

ed by the judg e followed the deed.- 8 - T he cons istency be tween the amount of acreage conveyed to the Be rryhills’ predecessor and the amount enclos ed by the Di xon survey is anothe r argumentfor that survey’s accuracy. The discrepancy first discovered by Mr. Cleghorn between the ac reage reci ted in the Newton deed and the acreag e north of the Berryhi lls’ fence li ne can be expl ained by the 1 963 boundary l ine set t lement between Mr . Baker and his neighbor to the north.

The discrepancy

between thelength of the nor thern boundary

called for in the Berry hills’ de ed, and it s length as measured in the D ixon surv ey amounts to between 3% and 4% o f the deed a mount. The proof show ed that the easter n onethird of the propert y was rel atively level and was mostly cleared fields , while the western portion was w ooded and hilly . A discrep ancy of this mag nitude is not surprisin g, given t he difficulties i nherentin measurement over uneven g round. In any case, we wo uld find it hard to believe that the origi nal grantor intended for the l ength of this line to control over its bearing, when that bearing is measure d from , and determines the bound ary of, the more productive portion of the pr operty.

For all these reaso ns, we find that the corr ect boundary line may be determined w ith reference to the Dixon survey , and we reverse the t rial court

. V. The Third Party Complaint

The Court granted the motion to dismiss the third party complain t against Mar

gie L. New

ton, stating “The Court finds the mo tion to be w ell taken, i t being the opinion of the court that the sale was

in gross and not by the acre ; and there being no evidence nor allegat ion of any misrepresentat ion or fraud of any kind on behalf of the ThirdPar ty Defendant or her agents, th at the Third-Party Complain t would not l ie.”- 9 - The co urt apparently

concluded that t he defendants knew what they
were bargaining for, and that sinc e they rece ived it, they should not be hear d t o complain if upon sur

vey the acreage was less than t hey believed it to be.

The deed s tothe f our defen dant s se t out the b ound ari es of the lan d conveyed, and nowhere do they state the acreage involved. The price is a recited as
a lump sum rather

than a per acre price. It thus app ear s that the tri al court was correct in characteri zing the sale as one i n gross r

ather than by

the acreage.
However, the defendan ts/third-party plaintiffs argue that th eir claim against Ms. New

ton rests upon an entirely different footing, and w e agree. T he warranty deeds she iss ued all recite a sou thern boundary with a bear ing of North 74 degrees 06' 03" West. The deeds further g o on to state, i n fairly s tandard languag e:

“. . . I am law

fully seiz ed and possessed of sa id lan d in Fee Simple, have a good right to convey i t, and the same is unincumbered. And I do further covenant and bin d myself, my heirs and representati ves, to warrant and forever defend the title to said la nd to the said [names of defendants], their heirs a n d assigns, against the lawful claims of all persons whomever.

The defendants contend that the action of the trial court had the effe ct of evictin g them from a portion of the lan d granted to t hem in the deed, thus creating
a cause of action for breac h of warranty

. They further c laim that if it should be found that they have not been evicted, then they still have a claim against Ms. Newton for breach of covenan t of seisen.

Black’s Law Dic

tionary ( Fourth Ed. 1951) defines covenant of warranty
as “[a]n assurance by the g rantor of an estate that t he grantee s hall e njoy the sa me without interrupti on by

virtue o f paramount title.” Covenant of

seisin is defined as “[a]n
assurance to the purchaser that the gra ntor has the very estatein quantity and quality which he purports to convey.”- 10 - This court has stated in much the same languagethat:

“ We recognize that it is establi shed law that if the purcha ser has not been evic

ted, in the absence of fraud or ins olven cy, he can have noremedy for a br each of warranty. (Citations omitted). “However, the rule is

differen t as to a covenant of seisin. A covenant of seisen is an assurance to th e purchaser

that the sell er has the very estate, in quantity and quali ty, which thedeed purports t o convey , it i s a pe rsonal covenant

preaesenti,and, if not true, is breached the instant it is made, and an immediate course of action ac crues to the vendee for its breac h without an d before evict ion.” (Ci tations omitted). Thompson v

. Thomas , 499 S.W.2d 901, 903 (Tenn. App. 1973).

In view of the fact that Ms. Newton co nveyed to the defendants propert y that she had did not have the right t o dispose of, it a ppears that the defendant s have at the very

least a cause of action against her for breach of the covenant of sei sin, and that the trial court erre d in dismiss ing their third party

complaint. It also appears that the court is

ob l iged to exercise its equitable powers to reform the def endants’ deeds.

VI.

The ord er o f t he trial c ourt is rev ersed. Remand thi s cause to the Chancery Court of Lawrence County for furth er p roceedings consistent with this opinion. Tax t he costs on appeal to the appellees

.

_____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:- 11 -

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE