Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-04-03
DECISIONS or THE SUPREME COURT
OFFICIAL.
Opfnfons OF the Supreme Court Of tn e
State Of Temnessees AT Jackson April


opinions Of the supreme Court Of the
State Of Eemnessees al JacksOnS April
Phillips vs.. sampson.
This was an action of unlawful detaner brought
bv sampson W. Phllips-the tenant OF Henry w
Conner-on the 18th Of September, 1850, to recover
possession Of tract Of land, lying in Dyer county
containing 595 acres The plaintiff recovered, and
the defendant prosecuted an appeal in to this
Court
It appears from the record that Sampson and one
III. w. Conner both claim title to the land under one
Henry Rutherford. The latter conveyed to James
Conner, on the 18th of September, 1875, and he TO
Henry W. Conner, on the 18th day of April 1884.
Sampson claims under deed dated 25th Of January.
1883,
1t is proved by Phillips witness for plaintiff that
in the year 1893 Sampson put tenant in possession
Of part OF said land who remained thereon till the
close OF the year Is4l, when the witness rented
from Sampson, and held possession under him up to
the close Of the year IS45 Soon after witness left
one PettyjOhn went into possession, who told wit
ness that he had rented from Sampson; but after
wards said he had not rented either from Sampson
Conner. Phillips further stated that in the latter
part Of the year lS4S before Christmas, PettyJohn
quit the place: and his wagon shat carried out his
property, moved in the defendant Phillips, who
still continues in possession
Miller, the agent Of Conner, (who is resident Of
Charleston, South Carona,) proved that at the end
Of the year 1876, first Of l64T, he, the agent
Of Conner, rented Pettyjohn-who was then in pos
sesson-for the years IS47 and 1915 and at the end
of the year lS4S, he rented to the defendant Phil
lips who went into possession when PettylOhn left
The plaintiff produced and read to the jury, 4
paper eXec1ted by Pettyjohn Of which the following
copy: ION or before the first day of January,
1919, do promise to deliver to Col Isaac SAMPSON
the place where l now live, which / have had pos
session Of for the last three years This 18th No
vember 1913, up to that time under him.
JOIN 7. PETTYJoHN.'
The Court among other things, said to the jury,
that if PettyjOhn went the land by virtue OF a
renting from sampson, and continued to rent from
him until the end of the year 1S48 and Sampson
had knowledge that he had been renting Of Con-
ners agent, and he then moved to let defend
ant-in that event. plaintiff ought to recover in this
action 1t would be such collision as would place
defendant in attitude that he could not resist
! plaintiffs claim.
This case is very imperfectly presented III the
proof, yet enough appears to show, that the judg-
menJ is against the law and evidence; and it would
seem, from what we see of the title equally against
the right and justice Of the case
The title Of Conner dates back upwards Of sixty
years, and the proof establishes actual posses
sion under it-though not Of the exact spot con-
trOversy-for more than thirty years; while the
conveyance to Sampson whichis prilG fdcie fraudu-
/ lent and invalid, goes back only to 1888; under
which there has been no possession, except for the
short period before stated and that by apparently
wrongful intrusion upon the prior existing posses
| sion Of Conner.
This aspect of the case demands that the plaintiff
case should be clearly made out TO support the re-
/ coYery in his favor.
1t is true, as general proposition, that the title
cannot be inquired into in this form OF action The
gst Of the action is the alleged wrongful entry,
detainer; that IS the issue properly involved; and
not the state Of the title, o. which of two con-
ictng titles is the valid better title Yet is
admissible in this action TO look to the title for some
! purposes; as to define boundaries in an action
! brought by a mere intruder against the rightfGl
| owner of the land; so, when the claimant by fraud
! induced another TO take lease, or to enter under
him. upon false representation as to his title; and
consequently, the contract is vitiated by fraud-see
| Shultz vs. Elliott, II Hum. 1856. In such cases
and others that might be stated, the title may be
looked 10 in the determination of this question
whether the case made out constitutes, in law, q
| wronful entry or detainer
The case before US, however, turns rather upon
the facts, for the present. The fact is distinctly
proved by Miller, that from the first Of the year
lS47 period Of more than three years, before the
commencement Of this suit, the possession Of the
premises was held for Conner; and in opposition 70
this proof there is no admissible evidence in the
record. The paper produced by Sampson, and al
lowed 70 90 to the jury executed by Pettyjohn was
not admissible evidence against COnueT, or his ten
ant The paper is discredited upon its face. 1t has
the appearance very much Of having been manufac-
tured for the purpose of this suit purports to be
a mere declaration made by PettyjOhn, when quit
| ting the premises, or probably after his removal
that he had held possession for the three preceding
| years, under Sampson and surrendered possession
to him or the first Of January, lS49. If this paper
were to be supposed genuine, still, Conner as his
agent had 70 connection with iT-as to him it Is the
| exparte. hearsay declaration Of PettyJohn; and
ought not have been received.
Except this paper, there is not the color of evil
dence in the record that Pettyjohn preferred TO
/ hold under Sampson, for the years 1871 and 1913.
And. therefore, upon this paper alone the hypOthe-
sis of the Judge in that portion Of the charge above
! quoted must have been barred there Is nothing
else in the record TO which it be referred. The
legal proposition of the Judge, if admitted III the
! abstract to be correct was calculated to mislead
the Jury. The objection is, that it implicitly PecOg-
nzes the fact stated in said paper legal evidence
! for the consideration of the jury.
Pettyjohn is an admissible witness, and ought to
have been called, though his credtabllIty Is perhaps
impaired by the statement of the witness Phillips,
and very seriously damaged by the execution Of the
paper above referred to.
If the possession was held for Conner for three
years before the commencement Of this suit, the
action must fail.
There is no legal evidence in the record Of col
lusive atonement by PettyjOhn to Corners agent or
tenant; but if the fact So It would avail
the plaintiff in action nothing if he had knowledge
Of it, and acquiesced. Without going into other
questions for the present the judgment must be re-
versed. for the reasons before stated.
MCKINNEY.