Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-06


state of Tennessee at Nashville, De.
ccInber Terms 1850.
Smith ys. Lee.
This was an act of ejectment brought by Lee
against Smith The plaintiff recovered part of the
land sued for; and the defendant appealed 10
error
The question is upon the statute OF limitations,
and it arises on this state of facts:
The plaintiff claims, under grant for ga acres,
bearing date December 18th, 1888. At the date OF
the entry and grant under which plaintiff claims,
and for several years preceding, the Defendant
Smith was residing upon and had enclosed and IN
cultivation part of the land included in the entry
and grant of the plaintiff and he has continued
to reside upon and cultivate the same ever since
In November, 1916, the defendant Smith obtained
a grant for 135 acres, which not only covers ms
preyious Improvement, but extends beyond and
covers considerable portion'of unimprovea land.
within the bounds of the prior grant to the
plaintiff.
The two grants covering, in part, the same land,
and the defendant having remained IN possession OF
his previous improvement upon the land ior per
iod of more than years, from the date OF his
grant before the commencement OF the present
suit claiming to hold adversely all the land within
the boundaries of his grant and the plaintiff hav-
ing had no actual possession of the land within the
limits of the interference. The question IS, Wheth-
or or not the defendant by operation of the statute
of limitations has acquired the better title to all the
land embraced within the conflict?
The Circuit Judge following the case OF Wells
va Hare l Humph l63 instructed the jury that
the statute of limitations did not apply to this case
And this instruction was unQuestionably correct
II Is true that since the decision of Kelley vs..
Hare the rule of the commonlaw that, In eJectment
the defendant must be shown TO have been IN pos
session of the premises at the time OF the acton
was commenced, has been so far changed BY the act
of 1872 ch I52, Sec 2, as that person claiming
legal title to land, though not In possession HIM
self against another having legal title to the same
land is subject to be sued In eJectment, upon tne
naked ground of his adverse claim. See LaDgford
Vs. Love, 3 Sneed, 3OS.
But this enactment has no reference to or DeIr-
inO upon the statute of limitations.
The principle upon which the statute OF lnnlta-
tons is based is not that the party seeking the bene-
fit of it, has merely set up an adverse claim To tine
land for the period requiI ed to form the oar put
that such adverse claim has been accompanied WIN "a
an actual possession thereof in exclusion OF and IN
hostility 70 the claimant 1t is the invasion OF the
owners rights by actual, visible possession OF
the land with intent to claim 1t against the owner,
that lays the only proper foundation Tor the opera
ton of the statute.
a mere claim of title, unSccompanied by adyers
nossession gives right action against such claim
ant the statute of limitations therefore attaches IN
his favor by the mere force of such adverse claim
| is utterly destitute Of foundation IN law
This principle being established, 1t ls clear tha'
| the statute has no application this case.
| The entry and grant under which the plaintiff
| claims were utterly void, by the act OF 1924, eh
= sec G. so far as they intertered with or included
anv norton of Smiths occupant Improvements, on
the ground of failure to give him the thirty days
| nrevious notice, required by that act
Tho fleet as respects both parties, was precisely
tbe same as if Smiths enclosures had been express
| lv excluded by the calls OF plalntlhs entry aho
grant. In legal contemplation, Smiths occupant
| improvements still remained vacant, until suDse
| nv himself,
And after his entry and grant, as before, MS con-
timing in the possession of his previous improve
| nonts was lawful and certainly no invasion OF the
rights of the plaintiff. .,,...,
;tbin the limits of his enclosures as they existed
at the date or the plaintiff entry, there cOud De n'
roseibe conflict of right or of possession oetweeI
narties for by the operation OF the act OF 1874 h'
plaintiff had no claim Of title or right OF posses
sion To apy of the land within such enclosures AM
onnnotion was perfectly consistent with the plain
In this view of the case, it is obvious that Smitl
had no possession of any portion OF te iano cover
ed nv both grants, for to the extent oil MS preNeX
isting improvement the plalnun grant WAS All eon
temnlation of law, nonentlty.
Tp have brought himself within the operation o
| tho nrincinIe contended for, the defendant mus
have enlarged his enclosures, or have taken actua
nossession of some portion OF the land common u
be the grants outside of his former Improvement
| this
vas;on OF the plaintiffs rights. Ne actual posses
sion within the limits which the law had affixed 4
his prior grant. .,..; >
his former improvement after obtaining his grant
had the effect, in law, to give him possession, a
against the plaintiff to the extent OF the boundarle
of bia Grant has no other foundation than the fal
lacious assumption that the plaintiffs grant wa
wild for the defendant occupant improvement, wne
the statute declares it q nuAty upon no otne
l al mi fha nnfpn n
arts nossession was of part of the land, common
TO both grants This reasoning is sbsurd; No iega
effect can be predcated of that winch is oy tne iaV
itself declared to be nullity. Nor is the defsndan
10 he permtted at his election, to treat 1t as van
for some purpose, and void for Others
There is some testimony in the record, as 70 SUI
seouent improvements and enclosures, made D
both parties within the interference between Tn
grants but it is too vague and confused as TO tn
time when made, and the attendant circumstance
| TO raise any distinct legal question.
Judgment affirmed. MchiNSSh'
correct copy. ]. P. CLARK, Clerk