Year: 1861

IGnn98See Ues


cember Term, 1850.


Rester vs. Grizzle and Hutchins.


This is an action of ejectmentto to recover tract of
land in Cannon county, in which verdict aud judg-
ment were rendered against the plaintiff and he ap-
peals to this Court. He deraigns his title to the
land in dispute as follows grant from the State
to William Bates and William Cummings, dated the
10th of May, 1887, and deed to himself from said
Bates for part of the grant dated the 9th of June
1910. This grant called for 5000 acres less 1852
of older and better titles included within its
boundaries but excluded from its legal operation
And the deed was conveyance of 1850 acres off
the North end of the grant. He insisted that this
deed carried the moiety of Cummings well as the
moety of Bates in the 1850 acres, and 10 establish
this, read title bond from Bates to Cummings for
other lands not embrace wi h this q an . ID wri
ting endorsed upon the back thereof signed, but
not sealed, by both Bates and Cummings. dated the
18th of June 1910, to the effect that Bates had sold
of the tracts within the bond for patent right
to make shingles likewise q 5000 acre tract that
was not embraced within the bond, and it was then
declared that he authorized to sell the same
the best advantage for them both and give said
Cummings half of the profits. This 5000 acres is
not described in the endorsement and 1t nowhere ap
pears to be the tract contained within the above
grant.


The title of the defandants was made out as fol-
lOws; grant from the State to William Cap
shaw for 200 acres of land dated, 9Th of Decem~
Der, 1889; proof that one William Morris had in
lS41 purchased part of this grant grant
from the State to said Morris for 290 acres
dated the 9th of December Is4s, which included
that part of the Capshaw grant purchased;
deed from Morris to one Jacobs, dated the 4th OF
August lS49 for this 200 acres deed for the same
land from Jacobs to George Grizzle, dated 1lth of
March. 1850, and also deed from George TO the
defendant, James Grizzle for the same land, dated
the 24th of January, 1857. 1t was admitted by the
defendants that the deed from Bates the plaintiff
covered the land in dispute, and that defendants
IN possession and claimed title to said land at
the commencement of the suit on the 23d of Jauua
ry, 1857. The disputed land as we understand the
testimony is not within the Capshaw grant, but EeS
entirely South of it. and within the grant to Morris.
The residence, improvements and enclosures of
defendant Grizzle, are entirely within that part of
his tract embraced by the Capshaw grant-there
teng no residence, occupation or enclosure on the
disputed land, except two three acres, that de-
fendant Hutchns had put there, and which had been
in cultivation, some three four years. This part
of the tract defendant GriZzle in 1851 1852 sold
to Hutchins; and when the suit was brought he
took it bacx. In 1S4l, Norris took possession of
that part of the land acquired by the purchase un-
der the Capshaw grant, and living there in IS45
when he made the entry upon which the grant in
his name was founded; whether he or Jacobs or
George Grizzle lived there subsequently does not
appear The possession Of denfendant, James Griz-
ze, began in 1852, and has been continued ever
since. One of the objects of Morris, in making the
entry and obtaining the grant, was to perfect his
title to the Capshaw grant, which, for cause,
he feared might prove defective and after the issu
ance of the grant to him, he and those holding un-
der him, including defendant, Grizzle, claimed un
der both titles to the extent Of the boundaries of the
grant to Morris.


In Is49 there was house within the grant to
Morris, but without the Capshaw grant, called the
Julia House, that a woman by the name of
Julia Romenis lived n that Norris built this house
for her and claimed the same; but before 1851 it
was burned down, and shortly thereafter there was
a part OF the body of house put up at the same
place. which defendant, Grizzle, sometimes used as
hog-pen, in which to feed his stock hogs. Others
also used it for the same purpose. 1t was between
quarter and half mile from where he lived; there
was no ground enclosed there, there had been
fence but all gone; that defendant Grizzle had
cut board and other timber on the land outside of
the Capshaw grant ever since he had gone there to
live, and that Norris under whom he held had done
the same thing from the time his grant issued; that
the said land outside the Capshaw grant and about
the julia house was not suited to the ordinary pur-
poses and cultivation, and Improvement the same
being hilly, rocky and valuable only for its timber;
that defendant Grizze had not only used to feed
his hogs already stated but at another place on
said land outside of the Capshaw grant he had and
kept up sugar camp for several years. Neither
the plaintiff those under whom he deraigns title,
ever were in actual possession of any part of the
land covered by the grant to Morris.


Upon these facts the Circuit Judge instructed the
jury in substance that if the defendants and those
under whom they claim, under their title, had
held the uninterrupted actual adverse possession
of a part of the land embraced within the
grant of Morris, for more than seven years
before the commencement of this suit, claiming
to the extent OF the boundaries of said grant, and
adversely to all Others such possession under said
grant, would give them title to the land described
therein by operation of the statute of limitations,
although there may have been no actual possession
outside of the Capshaw grant that if the posses
sir al nd fhou no
protection would be afforded beyond its bounda>
ries but if the possession under this grant was
abandoned when the grant to Morris issued, or if
the possession was coDOinty under both grants for
seven years and of the character stated it would
operate to vest the title under the grant to Morris
to the extent of its boundaries though there may
have been no actual possession outside of the Cap
shaw grant.


THIS instruction is erroneous. 1t has always been
held that to give party the benefit of the statue
of limitation, he must show an actual possession
of some part of the land in dispute Possession
outside of the conflict does rot displace the con-
structiye possession of the true owner which the
law attaches to him IN virtue of his better title In
this the statute did not begin to protect
the defendants until the actual possession was ex-
tended beyond the Capshaw grant to the land in
dispute We need only cite Stewart vs.. Harris,
Hum IA. III. We lay out of view the entries
upon which the several grants are founded because
they not in the record, that we may Judge of
their legal effect. and the grants can, therefore,
have no relation beyond their dates. This makes
the plaintiffs title superior TO that derived under
both the grants to Capshaw and Morris. But this
is immateria since the Capshaw grant does not con-
fict with the title of the plaintiff; and whetherit be
superior inferior possession under it, or which
does not go beyond its boundaries, can be Of
vice to the defendants


If the Judges charge were free Of error it would
be difficult to maintain the finding of the jury upon
the facts There does not appear to have been such
continuity of possession. either within withou t
the Capshaw grant, as would from the bar under
the statute of limitations. In this respect the proof
is defective.


There was no error in holding that the deed from
Bates to the plaintiff only carried his moiety Of the
1850 acres and not that of Cummings.


The judgment must be reversed and the cause
o1aJ Co. J.