Wood v. Sewanee Coal, Coke & Land Co. ( 1912 )

Me. Justice Green

delivered the opinion of tlwitSSSl,)

This is an ejectment suit, decided in favor of deftend-: ant below, and appealed by complainants to this court The complainants claim under entry No. 4273, of daté* September 5, 1836, and grant No. 8069, of date Septem-j her 29, 1840. The complainants’ entry was surveyed September 6, 1836.

Defendant relies on grant No. 5100, of date April 25, 1837, founded on an entry made December 8, 1836.

Defendant, therefore, has. the older grant, but the' younger entry, and complainants claim that their entry is special. Complainants’ entry is'as follows:

írR. L. Stubblefield enters forty-five hundred acres of land in Warren county on the waters of Collius river, beginning on a survey on the southwest corner of John W. Ford 5,000-acre survey, and running south and west for complement, excluding A. Higginbotham 500-acre survey, and Jno. Nunley’s 1'60-acre survey, and other legal claims, if any. Sept. 5, 1836.

“Joseph McEwen, Lo.”

The first contention of complainants is that this entry became special by reason of. the survey made September 6, 1836, some months before defendant’s grant was issued.

This contention has been presented with much force and ability. This question, however, has been fully considered by this court, and after mature deliberation determined to the contrary, in McEwen v. Coal & Land Co., 125 Tenn., 694, 148 S. W., 222.

Complainants’ second proposition is that the entry under which they claim is special, because it calls for the southwest corner of John- W. Ford’s 5,000-acre sur-yey. The proof does not sustain- the contention that the John W. Ford survey was a well-known tract of land, or that the southwest corner thereof was a well-known corner, at the inception of the conflicting title in 1836.

The proof offered by complainants relates to a much later period of time. In fact, in the brief for complainants, learned counsel frankly confess their inability to procure testimony relating to these matters existing at a time so remote.

Inasmuch, however, as neither the Ford entry, survey, nor grant is introduced, complainants insist it should be presumed, in the absence of all evidence, that the locative corner mentioned was one well known m the neighborhood. They rely on those cases in which, obiter, it is said there is a presumption that entries are special until introduced in evidence, and that calls in an entry to adjoin or begin on .a former entry are prima facie good, as the entry called for will - be presumed special, unless produced. Coal Co. v. Scott, 121 Tenn., 88, 114 S. W., 930; Talbot v. McGavock, 1 Yerg., 262; Wallen v. Campbell, 2 Tenn. (2 Overt.), 320.

If such a presumption be granted to exist as to the specialty of entries not in evidence, it could not avail complainants here. The reference in the entry under which complainants claim is not to another entry,.but to a survey.

If a survey of a particular entry does not make ■ it .special, much less could a call in that entry for another •survey render it special. It is merely a question -of notoriety. In the case of McEwen v. Coal & Land Co., supra, it was held that a survey did not make the first entry special or notorious, so as to warn the subsequent •enterer; that is to say, a survey is not a matter of notoriety, and a call in an entry for a survey possesses no specialty.

In view of what has been said, it is manifest that the complainants have failed to make out their chain of title, and the decree of the chancellor dismissing their bill must be affirmed.