Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-03-23

Opinions o3 aaAe Supreme cenrt OF the STATE
of Senncssees delivered as Kns1 vile, ~
september Term, Is5s.
White e. Lavsnasr-

White g Lavsnasr-
This was an aegi5o Of tresaass. ia ths ci,,u;,
uft Of Morgan. which the Iills 70 the laad trs
passed upon, 6as Pat in issue Ani tke aue-l;rD
IS, E5ich party hal tee Superior tile z.eveader
tbs lisBtf in the action. derived bis title Inser
3, AM Levi Trewaitt. for w hundred terss bear
iag da b ,f February, 1888. Iounded On an entry
made q n March, 1926 The supposed tiiie II
Whit, ihe defendant, was derived as fellows: One
Jams McCiis oek msds entry Of fifty ac,ss. On
Ibe . ! o. Jdnutfy, 1926, which was suSseyed on
I 23I Of May Of the lme year, bnl uron which no
grant vas ever issued This entry vsss .evisd upon
and soil by tie SasTif, to satisfy j dg mt
/ agsinst ssit AcCintcck on the l6 OF July, 1897
aud instead Of transferring the plat and certificate
of eurvey made upon said entry % the purchaser
as prescribed by law. the Sheriff made deed OF
conveyance for. said fifty acres OF laud 10 the pur
chaser. ia the ord nary form OF conveying graated
lsni wi ut any refsrenoetO the entry Toe entry CT
We u viii be observed, IS some two CT three unoafhs
prior iB da'e 10 the eniTy WEIGH TreRhlt's grant
I is founded Tee gren- Of TreEhit oYsrie sps ibe
/ MsCdat5ek Ea,ry. thereby producing an inlerfsr
encc OF several scres. Aud for "a alleged tfespass
within she lmiis Of this Interference, this aclien
was brought
The proof establishes eoninHlus actual posses
sies, uader the Ssetf's deed, Ct part Of TIE land
withiR tiia a clialoek eairF. since 1888, esrioi
o. more thaa twsaty yesrz. 5ef0rethe csnsaence-
mens of this tuit. But, this actual pssse .sioa ii
not exeud to any psrs Of he aaa within The limits
Of the itterfgrsnce. Onthe oh hand il Is proved
that ,h-re has Been ike unhr0kea asiual posses
sion, under the TreWhitt giant, since 1853. but
within tae part covered by tbs McClintosk entry.
SO tEas in isct there has been actual po session
oa either side, within the interference. On this
stale OF fac,s. il IS insisted for White tba having
the elder entry FOR the land il dispnte Shirh is
ALLEGED, transferred 10 him by the Sheriff SALE
and having held possession for more than twenty
years; the presumption Of a grant arises in bis ia
nj .faff.r sN., ell
AID thereby has become invested the superior
tile TO the laud Tas conclusion IS lot tensbe for
several reas0rs
n The first place: II the existence of graot, By
pTes1mp.IOn Of law, were TO be admitted. aud that
It related TO the dafe OF the McClintock entry, sii
ss the presumed grant could, at mosi, have no
greater effect than actual grant, 1t would not
stitute the better title, u9less il shown that
the eniry 10 which it related, q special entry
Whether the McClintoek entry was special We need
not stop to inquire, in our view of The whole case
Ii It be eOnsedet for the purpose OF this decisOn
without any authoritative Determination ofthe point
that the 5hsr IFS deed to the purchaser was in
law, equivalent 10 trsn,fer Of the plot aBd eerti6
cate OF surrey made upon the enry, in the mode
prescribed BY the statute; stil the purchaser only
bseaue invested thereby with the mere equitable !
right 10 procure grant for the land in hIs oWn
name-the leg title still remaining in the State
The Sherfs deed, could, at most operate only as
assignment, in law, Of the entry, aad define the /
extent of the claim. IL could not be regarded as /
even colrr Of tiile-ihe land not having been then
granted by the State. Aud it would have required 4
a e9ntinaed adverse possession for seven years. 10
have given the purchaser even q possessing right
with the boundaries Of such deed,
der the second section of the act Of 1919. Within
the period Of seven years, his possession musi per-
haps, be regarded limited his actual Enclosures
But If the contrary Otbis be conceded, and the puF
chaser be considered as having had possession
commensurate with The boundaries of the Sheriff
deed, and if it be admitted, furthermore, that, ia
tine abseHes Of any adverse possession the presump
tion of grant would have al aehed aad c0mmsneed /
to opera in his favor, in 1888, 70 he fai extent
of the bogodari OF the deed: yet II is clear that
the legal effect CT he sdbsequsnt graat TO frevbiJ
in 1898 ami possession Unuer it, was iuslsaiiy 10
arrest snd cut of such presumption in favor or the
pgrehaser, TO the extent THAI the land cyvered BY
the MeCilntoek entry taken By the gTaat 10
TreWhit So far as an interference existed be-
tive The grant to TreEhitt sLd McChEIOek entry,
there could not be al The same tiue constructive
possession IN each Of 'he opposing claimaDus The
legal eisi1 pOs session. 10 dgment Ct Law, was in
The party having the iegsliite IL follows. there
fore, that By the ssual possession taken uDdsr ths
TreWhitt grant in lS35 the grantee became invest
ed With the legal or constructive possession OF the
entire tract Of land described in The grani. Aud
from this it results, that the supposed prior coz
tuetive possession CT the purchaser Of the Nc
1liutook entry-if such Constructive possession
could have EXISTED, upon the facts ofthis cass-wls
excluded and ceased 10 exist, from the dste Of the
laintif possession under the grant in 1888 Anl
he possession-whicb is the sole foundation of the
presumption Of grsnt-having thus ceased to ex~
st, the presumption was necessarily destroyed.
Fhe same concusion might perhaps De arrived a.,
lpon a different principle; but deem il upneses-
Iary 20 pursue the discussion further. Toe jldZ
nsnt for the pliniif is OOrTect aud it will be af
irmed SlcKIvNsY.
A true copy. Test, C. w. Nielsen, Clerk