Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-11-03
DECISIONS. cr THE sUraRmE COURT
oRF7CIAL.
Opinions of tIss uprenae COurt Of the stat.
Of Tennesseos at Knoxville, September
Term, 1860.



This was an action Of trespass The freehold or
right of soil was put in issue. Verdict and judy (
ment against the plaintiff and an appeal in error
Both parties derive title from the same source; 1
grant for fifty acres to Thomas Lloyd issued 29tli
May, 1928
There is admitted error in the calls Of the
grant The third corner of the grant is a white
oak. and on the face of the grant, the call ia from
that white oak, South l49 poles 10 the beginning
which is post oak; thus dividing the tract which
IS in the general form of parallelogram into two
parts by diagonal line.
The entry of fifty acres was actually surveyed
and the boundaries marked preparatory to the is
suance Of the grant, From the white oak at the
third corner to the true boundary is to black oak
marked as the fourth corner and thence to the post
oak, the beginning corner
Yates the defendant, claims title to the entire
tract of fifty acres under purchase made by him
at public auction, of that and other lands Of Thomas
Lloyd the grantee, sold by Robert Lloyd, his execu-
TOR, under power in the will, on the 10Th of May
1905 and deed from the executor, in pursuance OF
the sale, executed to him on the ID of September
1888, which deed substantially pursues the calls Of
the grant and contains the same erroneous call
from the white oak'' directly to the post oak
This call, for some reason not explained, is twice
repeated IN describing the boundaries, and by the
last call this line purports to run with the closing
line of said fifty acre tractr On the 18th of March
1859, Lloyd, the executor upon tne assumption that
the sale to Yates was only to the line before men
toned, that is. from the post oak the white oak,
sold and conveyed by quit claim deed, so much Of
said hfty acre tract contained in the triangle
cd the opposite side of said line to the plaintiff
Dyer.
For supposed trespass by cutting timber within
the limits of Dyer's conveyance this suit
brought
Before executing the deed Yates. Lovd procured
surveyor to the line from the post-oak to the
white-oak The surveyor was positively directed
by Lloyd, TO run straight line from the one point
to the other insisting that Yates had purchased
further, and that, that the proper boundary of
the conveyance to be made to him. Yates was pres
ent at the running Of the line or al least part OF the
line and denied that line from the white-oak the
postoak was the boundary and insisted that he had
purchased the whole ffty-acre tract.
The proof is clear, that the surveyor merely
traced line by the compass from the post-oak to
the white without having marked any trees or
| erected any monuments of boundary, or changed in
any respect the original boundaries of the fly acre
tract or done anything more than merely run an
| imaginary line FROM one point to the other.
The record presents two inquiries for our CON
| sideration.
The first is purely question of fact. What land
was actually sold and purchased, according to the
mutual agreement and understanding of the parties
at the time of the contract On this point there
direct conflict IN the proof On the side it is
proved by several witnesses that the executor pub
Gcly announced, at the time of the sale that there
was dispute as to the boundary of the fifty acre
tract and that he would only sell the line from the
| pOst-Oak TO the white-oak.
This proof is directly and positively contradicted
by greater number of witnesses on the other side
who state expressly, that the executor proclaimed
publicly that he selling all the land belonging
to the testator at his death, and that the disputed
line, spoken of by the executor, was the big sur
yey line and had no reference to the fifty acre
| tract whatever. This is the effect Of the proof.
And in view of all the facts it seems us that the
jury justified in the conclusion that the entire
tract was sold TO Yates.
No reason is assigned, and we can imagine none.
why the executor should have refused to sell the
land on the day of public sale, for the reason that
there dispute to the boundary, and yet, in
so short time afterwards, have made the sale to
Dyer.
There really never was any dispute to the cor
rect boundaries of the fifty tract these lines
had all been plainly marked at the time OF the orig
inal survey and this fact was well known to the
executor, at the time of the sale to Yates. The
error In the grant not materials though 1t calls
literally pursuit did not take 10 all the land covered
by the entry and appropriated by actual survey,
and marking Of the lines and corners yet in legal
contemplation it did rot the land and vast the
grantee with legal title TO the same fully as if
the calls had exactly cOnformed to the entry and
survey because upon the facts stated the law cor
rected the erroneous call, and supplied the proper
calls without any correction in point of fact.
The next question is were the boundaries of the
grant altered or in any way effected by the call
ed survey made, at the instance OF the executor,
preceding the execution of the conveyance to Yates
There is doubt but that il the intention of
the executor by the pretended surrey and the deed
made in pursuance thereof TO limit Yates from the
line from the postoak to the White-Oak this is suf
GENTLY apparent. But if-aud the jury have es-
tabished the entire tract sold to Yates, it is
very clear that the intention of the executor his
exparte acts could have the effect of thus restrict
ing Yates purchase unless in point, both of law and
fact, new boundary had been fixed by the convey
ance different from the boundary OF the grant This,
if the conveyance had been excepted BY Yates,
might perhaps have bound him.
But was any such new boundary fixed by the
deed? We think not. There is no magic in the
mere fact of the surveyors having trayersed the
distance from one corner to another, by the dlrec-
ton of his compass without leaving single trace
upon the ground This was neither the renaFking
of supposed previously existing line nor the ae-
tual establishment of new and different line from
that called for in the grant. The act simply
nugatory.
The lines and boundaries of the grant were left
intact And whatever may have been the purpose
or intention of Lloyd, the calls of the deed were
made to conform to the calls OF the grant, and of
course, whatever the law adjudges to be the bouR-
daries Of the grant, must also be the boundaries of
the deed. We do not mean to say that boundary
line may not Jet be established, by simply marking
tree at each terminus of the line without any in
termediate marks for we hSve held that this may
be done, and that new boundary may be thus es-
tabhshed, which Will control pre-eXlstlng bOun-
dairy, if assented to and acted upon mutually by the
parties. But here no new corners were made and
it is manifest that Yates so far from asserting to
any thing that was done by Lloyd, with the view of
altering the boundaries wholly dissented from it,
and cannot therefore be held concluded.
We hold consequently that the conveyance to
Yates we'll the grant the entire tract of
fifty acres and that Dyer has no title to any part of
the same.
Judgment affirmed: MCKINNEY.
A true copy. Attest: c. w. NELSON Clerk