Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-25


We Law out of view in this case the defense of an
innocent purchaser up for the defendant because
his answer fails TO make the ayerment required in
such cases by the rule of chancery pleading. But
still we can see no ground upon which compliments
are to have relief. If we assume that John .Purdy
the ancestor of the complainants-not only To-
Gated this land, but afterwards went and had il
surveyed and granted, which is denied In the an
swer and unsustained by any proof and which as
sumption suppose TO be necessary to enttle him
to a locative Iuterest-It is exceedingly difficult to
get over the lapse of time from the year lS24-the
date of the location. and when the services must
have been rendered-to 1859, when the bill was
iled-a period of thirty four years-during four
teen of which Purdy was himself alive, and we
take it, in the immediate neighborhood of the land.
No excuse is offered pretended in the bill or the
evidence for this delay. Such lapse of time fur
nshes proof of the satisfaction of the claim, If it
ever had valid existence; and especially ought this
to be So when the land has gone into purchasers
hands and Gilchrist the grantee is not made party
or examined as to this demand.
But aside from this view of the case, we think
the claim is barred by the second section of the act
Of limitations of 1919, oh. %. Whatever may have
been the nature of the trust between Purdy, the To-
Gator, and Gilchrist the grantor, there can be no
doubt that to the defendant Moore the purchaser
from Gilchrist the interest OF the locator to part
Of the lands located is not express, but implied
trust and therefore, subject TO the statute of hm
lauOns and lapse Of time. This was held IN Robert
son ct ais Aud ct ais, Yer. 406. In order for
TINS section of the to operate it was not neCessa
ry Tor the defendant to be in actual possession of
TINS land, lnasmuch the compliments if they had
cause OF actonat all, Untitled to SELL independ-
emit OF possession Dunlap VS. Gibbs, Yer. 94-gS;
HeaI vs. East tennessee College, Yer. l9S-2O2
Brown VS.. johnson, Hum. 26I-263: 2 Meig,s Die
1928, Therefore, whether Moore took actual NOS
session under his purchase, not, and the answer
is silent and the without proof as to this mat
ter Still a cause Of suit to dyest the title of the
N.,ff -
in his lifetime and TO his heirs, the complainant
after his death, as to Moore the purchaser in 1876
when he took the deed Of Gilchrist to the
1cLole tract and upon the authority of Neal
vs. the East Tennessee College and other
cases above cited complainants barred.
The statute of limitations and lapse of fine are re-
lied on in the answer: and the failure OF complain
ants to sue within seven years after the defendant
had taken the deed from Gilchrist and become in
vested with the legal title to the entire tract must be
held fatal to their case.
Complainants are not saved by disabilities. In
fancy. at the death of their father will do. The
particular disability relied on must be in existence
az the time the cause of action GccT1teS-here the
time when Moore took the deed of Gichrist-and
must continue so as TO save prevent the bar. AS
10 this the bill is silent and is the proof 4 dis
ability such as coverture, arising after Moore took
the deed can be of no avail. And such disabilities
as are relied on, well their continuance, must
be proved, and not to be presumed. Yer. 1851.
Though the answer admits that cOmplainantS
are the heirs Of Purdy, the alleged locator, it is
silent as to disabilities, and before stated so is
the bill and have no proof upon the subject ex-
cept that made by Mrs Purdy, the widow of the To-
Gator and which only establishes the infancy of com
planants at the death of their father in 1888 and
which we have seen can be Of no service to them
But we apprehend she is an incompetent witness4
because of her right to dover in the event Of a
cOvery by cOmplainants, at whose instance she was
examined and so the case stands altogether without
evidence of disabilities, at any period
The decree of the chancellor, Diminishing the bll,
must therefore, be affirmed. WRIGHT.
Test; NJ d. WEIGH, Clerk.