Earnest v. Little River Land & Lumber Co.

DISSENTING OPINION.

Mr. Justice Wilkes

delivered the following dissenting opinion.

I earnestly, but respectfully dissent from the views of the majority in this case. The holding is contrary to that in Coal Creek Consol. Coal Co. v. East Tennessee Iron & Coal Co., 105 Tenn., 563 (59 S. W., 634), which, was the unanimous opinion of the whole court in a case where the questions considered were directly involved. It is now proposed to overrule that case by an opinion concurred in by a bare majority of three; Justice Neil being incompetent, though prob-' ably holding the view of the majority.

The present case is reported by the court of chancery appeals to be distinguishable from the Coal Creek *440case in important particulars. This is conceded by counsel for defendants in their brief, and it is argued that because of these differences the Coal Creek case is not controlling or applicable. One of the differences pointed out is that in the Coal Creek case there was no adverse possession as to the intermediate grant of complainant, while in this case the possession is adverse to the. intermediate as well as to the original grant. Such a difference is vital, and probably would, even under the holding in the Coal Creek case, have forced this court to a different conclusion in that case. While, therefore, the correctness of the decision of this court in the Coal Creek case does not properly arise in the present case, as the majority have seen proper to overrule it, I desire to say that, in my opinion, it was correctly decided, and is hot successfully impeached in this case, nor can it be, upon its controlling features. The Coal Creek case received the most mature consideration when it was before the court. Every feature now argued was then most carefully examined and unanimously agreed to. No new authorities have been presented; no new arguments have been made, and the same counsel have relied substantially upon the same printed briefs and oral arguments.

I only desire to consider two features passed on by the majority, but, in my opinion, not necessarily involved in the present case. The first is whether the original title is tolled and brought to the support of the title of the adverse holder under color of title. Before entering upon the consideration of this feature; *441I only desire to say that the expression “toll the title” is not properly used hy counsel to express their meaning. To “toll a title” does not mean to draw that title to another. Bouvier defines the term “toll” as follows: “To bar, defeat, or take away, as to toll an entry into lands is to deny or take away the right of entry.” 2 Bouv. Law Diet., p. 598. In its proper legal sense, the original title is tolled — that is, it is defeated and taken away; hut it is not tolled in the sense of being kept alive and drawn to the adverse-holder. The fundamental error of the majority, in my opinion, is in maintaining that the adverse holding must be coupled to the original title, and derive its indefeasibility therefrom. To strengthen this view, they rely upon the general statement that there can be hut one true title, and, since the original title is assumed to be the true title, it must he brought to the support of the adverse title, so as to make it appear that the adverse holder is in of right, whereas he is in simply by force of the statute, not as of right in as a disseizer, and not as a holder of the true title. It would seem to be a work of supererogation to cite authorities to such a proposition, if it were not for the opinion of the majority holding to the contrary..

In 1 Cyc. Law & Proc., 1083, the doctrine is thus laid down: “Whenever this defense [of adverse possession] is set up, the idea of right is excluded; otherwise the statute of limitations would he of but little use for protecting those who could not otherwise *442show an indefeasible title to the land citing Smith v. Burtis, 9 Johns., 174; Pillow v. Roberts, 13 How. 472 (14 L. Ed., 228). The effect of adverse holding under color of title is a disseizin of the prior estate; that is, in the language of Mr. Preston: “It takes the seizin or estate from one man, and places it in another. . . . It is the commencement of a new title, producing that change by which the estate (not the title) is taken from the rightful owner and placed in the wrongdoer. As soon as a disseisin is committed, the title consists of two divisions — First, the title under the (new) estate and seisin; and, second, the title under the former ownership.” 2 Prest Abst., 284; 3 Washb. Real Prop. (3 Ed.) 118; Tied. Real prop., sec. 693.

“Disseizin” and “ouster” mean very much the same thing as “adverse possession.” Id. Disseizin is always a wrongful dispossession; i. e., it is never supported by a good title. Tied., Real Prop., sec. 694. This court has already commented upon the expression found in 3 Washb., Real Prop., 163-165. Coal Creek Consol. Coal Co. v. East Tennessee Iron & Coal Co., 105 Tenn., 574 (59 S. W., 634). In addition to what was then said as the view of the court, I desire to add that the statement of Mr. Washburne is supported by no authority, and none is cited. Mr. Tiede-man, commenting on it, says: “Mr. Washburne says that the operation of the statute takes away the title of the true owner, and transfers it, not in form, indeed, but in legal effect, to the adverse occupant.” *443And be adds: “Tbe statute may have tbe effect of destroying tbe title of tbe owner altogether and for all purposes, but it can not be said to transfer it to tbe disseizor. His title is acquired by adverse possession, and it is only made perfect by rendering tbe rightful owner powerless to defeat it, either by entry dr ejectment. Tbe only real value of this distinction lies in tbe settlement of a question arising under tbe subject of title by abandonment.”

Considering our own cases, it is conceded that tbe adverse bolder under color of title must show that tbe land held has been granted by tbe State to some one, because the statute so provides; and, from the very reason of tbe law, there can be no adverse bolding of land which tbe State has never granted, but it is not required that the adverse bolder must connect himself with tbe original grant, or that it can bring any further support to bis title under tbe adverse bolding.

It was long a controverted question in this State whether tbe adverse bolder must connect himself with tbe original grant, but tbe question has been settled ever since tbe case of Gray v. Darby’s Lessee, Mart. & Y., 396-426, decided in 1825 by Judge Catron, which terminated a long and spirited controversy. See note of Judge Cooper, page 426, Mart. & Y., and note to Weatherhead v. Bledsoe’s Heirs’ Lessee, 2 Tenn., 352.

A perfect system and network of decisions hás been built up on this bolding, contrary to that of tbe majority, and in accord with tbe bolding of Judgé *444Catron in Gray v. Darby’s Lessee. The cases are too numerous to mention. Thus, a voidable deed, a void deed, a fraudulent deed, a forged deed, a sheriff’s deed based on a void tax sale, a deed under a void decree, an unregistered deed, a decree for partition, an entry, a title by decent cast, and a title by devise bave all been held to be an assurance of title, which, coupled with adverse possession, will confer an indefeasible title. And yet in none of these cases is it necessary or practicable to connect the title of the adverse holder with the original grant, or that the latter be brought to the support of the title of the adverse holder. If the original title or grant must be brought to the adverse title, then all the intermediate links must be brought, also, so that the result is, that the adverse holder makes his title indefeasible by showing a chain of conveyances from the State, and not by operation of the statute; and the act is therefore of no force of virtue, and has no practical effect. The true holding is that the title gained by adverse possession, coupled with the color of title, becomes indefeasible, because it extinguishes the original title, and substitutes for it a new one created by the statute. As this new titie derives its indefeasibility under the law from an adverse possession, it is only indefeasible as to the title to which the possession has been adverse. That the original title is extinguished is held by a vast array of cases in Tennessee and elsewhere, and that it is kept alive and brought to the support of the adverse *445title is held in none, except in á dictum in Norris v. Ellis, 7 Humph., 464. In Belote v. White, 2 Head, 712, cited by the majority, it is said: “The act of 1819 bars equitable as well as legal titles, and operates as an extinguishment of the same, and invests the possessor with a perfect title in fee simple.” That the act operates to “extinguish” the origina] title is expressly held by many authorities. Wood, Lim. Act, 499, 563; Cooley, Const. Lim., 365; Trim v. McPherson, 7 Cold., 18; Belote v. White, 2 Head, 712; McClung v. Sneed, 3 Head, 222; Hanks v. Folsom, 11 Lea, 562; Leffingwell v. Warren, 2 Black, 599-605 (17 L. Ed., 261) ; Bicknell v. Comstock, 113 U. S., 149 (5 Sup. Ct., 399 28 L. Ed., 962); Coal Co., v. Wiggins, 15 C. C. A., 510 (68 Fed. 449 (opinion by Lurton, J.) — all referring to the operation of the statute as an extin-guishment of the original title, in express language and. terms.

To repeat: The substance of virtually all the cases is that the adverse title becomes indefeasible by force of the statute alone, and because it extinguishes the original title, and not because it draws that title to its support, or derives any aid from it. The majority opinion relies upon expressions used in Wallace v. Hannum, 1 Humph., 443 (34 Am. Dec., 659); Hopkins’ Heirs v. Calloway, 7 Cold., 46; Waterhouse v. Martin, Peck, 393; Norris v. Ellis, 7 Humph., 464. All these cases, and the expressions used in them, were thoroughly considered in the Coal Creek case, *446and were then explained as having a meaning different from that now ascribed to them,'except, perhaps, the case of Norris v. Ellis, 7 Humph., 464. The-language used by Judge Reese in the latter case was. mere dictum, as the case, involved was one of adverse-possession only, and not of adverse possession with color of title; and the language used in regard to the-latter class of cases Avas not, perhaps, intended to be-exact, but,- if so, Avas, and only could be, dictum.

The majority opinion asks the question, “Where-does this indefeasible title or fee come from?” and. ansAvers it, “Not from the State, because the State had already parted with its interest, but from no other-source than from the first grantee, Avhose laches had lost what the diligence of the adverse possessor had acquired.” And yet nothing is better settled than that the adverse possessor does' not derive his title-from the original grantee, but adversely to him, and-only because of his open, continued and notorious-holding adversely to him.

It is important that there should - be stability in the holding of the court, whether that holding has-become a rule of property or not; and, when a holding-is overruled, it should be for sound reasonings or newly discovered authorities, and never unless a question is directly and unavoidably involved.

The second determinative proposition is involved' in more of doubt and question then that already considered. Counsel for the defendants state the case-*447thus: Three grants Avere issued by the State for the same land,— the older one, to A.; the second one, to B.; the third one, to C. Complainants claim under the second or B, grant; defendants, under the third or C. grant. The insistence is that- the first grant to A. passes the entire title and interest of the State to A., and the subsequent grants to B. and C., passed no interest whatever and were void, and neither party could recover, because neither has any title. Grant A. is not before the court. The holding of the majority is, in substance, that a second grant or a second deed has no vitality and is absolutely void. I am of opinion that a grant or deed regular upon its face is prima facie valid, and its validity must be shoAvn and not presumed. It is evident that a second grant is not without-some potentiality. When it issues upon an older entry, it carries the title, even as against the first .grant; and yet, under the opinion of the majority, it must necessarily be void, because the first grant had deprived the State of any power to make a second one, .and had divested it of all estate and title in the land. Concede that the first grant does divest all interest in the land out of the State; it does so only when that .grant is valid and regular and sufficient to convey the title. The majority opinion assumes this validity, regularity, and sufficiency simply from the fact that it is prior in point of time, while, in my opinion, such validity, regularity, and sufficiency are not presumed against another grant regular upon its face, and it *448becomes superior to the second only after being brought into contest with it and prevailing over it,— in other words, by being shown to be valid. So, also,. by analogy, a second deed becomes superior title if it is first registered; and yet, on the theory of the majority, it must be absolutely void, because the grantee, after he had conveyed by the first deed, could not make a second one, and had nothing to convey. The majority dispose of this feature by simply saying there are exceptions, but they give no explanation how in these exceptional cases title could remain in the State or grantee sufficient to authorize a second deed.

By Acts 1777, ch. 1, sec. 11, it is provided that every grant must be registered in the county where the land lies, within twelve months after issuance, or it shall be void. If a grantee should refuse to register his grant or take possession and ownership of his land, and should abandon it and leave the State, as thousands have done, must it forever remain unappropriated, because, forsooth, the State can not make a second giant, even when the first was abandoned? It may be said that it is a condition subsequent that the grant shall be void, of which the State alone can take advantage. Grant this. Does not the State take this advantage when it issued the second grant? If the first grant is irregular and defective; can not the State issue a second one that is regular and valid?

In case of a deed, a vendor for full value parts with all his title, and does it in good faith. His vendee *449fails to register it. and the vendor makes a second deed to an innocent purchaser, which is first registered, and becomes the true title; and yet all the title had passed by the first deed out of the grantor, and nothing could, in the opinion of the majority, pass by the second. Now, the original grantees under the first grant are not before the court. Whether they are now setting up any claim to the land, does not appear. So far as this record shows, they never took under the grant, or, if they did, they do not now claim, and the legitimate presumption of law and fact is they have long since abandoned any claim they have, because of the invalidity of their grant, or for other reasons. The holding of the majority is, in effect, that the defendants may set up this first original title as one outstanding, in order to defeat complainants. And if it is prior in point of time, it is prior in point of right, without regard to whether it is regular or irregular, while the proper position is that it must be tested' before it can be said to be good.

The authorities all hold that an outstanding title which has been abandoned, defeated, reverted, barred, or extinguished can not be set up as a defense by defendants. Peck v. Carmichael, 9 Yerg., 328; Dickinson’s Lessee v. Collins, 1 Swan, 519; Howard v. Mas-sengale, 13 Lea, 577; Jackson v. Hudson, 3 Johns., 375; Jackson v. Todd, 6 Johns., 257; Greenleaf v. Brith, 6 Pet., 302 (8 L. Ed., 406); Humble v. Spears, 8 Baxt., 159; Crutsinger v. Catron, 10 Humph., 24.

*450Now it appears from the record that, in an eject-mient suit brought heretofore by the first against the ¡second and third titles, it was defeated before this ¡suit was brought, so that the original title is decreed 'to be barred and defeated. How, then, can it be 'brought to the support of defendant’s title? It is ¡upon the idea of abandonment or extinguishment that the whole theory is based, that by virtue of adverse possession and the statute of limitations, Avhether with or without color of title, the inferior becomes the superior title, in the one case as offering a defense, and :in the other of conferring a new title. But it is only 'where the possession is adverse, and notoriously so, that it meets the requirements of the statute; and, while a possession may be adverse as to all titles, it does not always follow that it is so. To illustrate the fallacy of the holding of the majority, we suppose A. ¡has color of title to 100 acres, with adverse possession -on ten acres. B. has adverse possession of ten acres-within thq same 100-acre boundary. Now, it is evident A. can not recover B.’s ten acres, because he has mot held adversely to him, but, on the contrary, B. ibas held adversely to A. and is protected by the second section of the statute. What would be the effect if B. had also held under color of title, as well as A., ¡we do not stop to consider. Every grant by the State Is presumably and prima facie valid, and its invalidity unust appear before it can be rejected, and this invalidity only appears after a contest, unless void on its face.