Richardson v. Schwoon , 1925 Tenn. App. LEXIS 122 ( 1925 )

In this cause the complainants have appealed from the decree of the Chancellor dismissing their bill. It was a bill of ejectment to recover a tract of land in Grundy county included within the boundaries of a larger tract granted by the State of Tennessee on January 6, 1837, to Samuel Edmundson by grant number 4937, based on entry number 4355, dated December 30, 1836, in the name of Stephen M. Griswold. The land involved in this cause is described as follows:

"Situated in the 2nd Civil District of Grundy county, Tennessee, on the waters of Big Creek, being all that portion of the Samuel Edmundson grant No. 4937, which is more fully described as follows: ``Beginning on a spotted oak at the forks of the Tracy City-Altamont road where the old road left said road leading in the direction of where W.A. Griswold's saw mill on Big Creek is located, running thence south with W.A. Griswold's line to where it strikes the north boundary line of the Jesse Wooten tract; thence east with the north boundary of said Wooten's tract to a hickory and chestnut on the Tracy City and Chattanooga road on the hill near the bridge, the northeast corner of said Wooten tract; then south with the east boundary line of said Wooten tract until it strikes the center of Big Creek; thence with the center of Big Creek southwardly up said creek until it reaches the south boundary of the Samuel Edmundson grant No. 4937; thence east with the south boundary line of said Edmundson grant No. 4937, to the southeast corner of said grant; thence north with the east boundary line of said grant No. 4937 to the northeast corner of said grant; thence west on the north boundary line of grant No. 4937 crossing the gulf of Big Creek to John Northcut's line at his corner, a double chestnut stump; then with said Northcut's line southwestwardly to the road leading from the Chattanooga and Altamont road to the old Griswold saw mill; thence with the center of said road to the beginning, being the same land that was conveyed by Stephen M. Griswold to W.A. Griswold, and by W.A. Griswold to J.W. Hudson and by J.W. Hudson to the New York and New Orleans Coal Iron Co., embracing about 2,500 acres of land."

The complainants rely, first, upon said grant No. 4937, to which they deraign title insisting that it relates back to a special entry, and therefore, that if it overlaps upon grant No. 4935, to which defendants' claim of title is deraigned, it is superior thereto as a source of title; second, upon the lack of such overlap; and third; upon adverse possession by W.A. Griswold of said tract of land, especially of any interlap between the two grants.

The defendants deny that the complainants have any title superior to theirs. They deraign their title to grant No. 4935, issued by the State of Tennessee, on January 6, 1837. to Samuel Edmundson, based on entry No. 4328, dated December 7, 1836, in the name of Elisha Anderson. They insist that this is the older and superior grant, as it relates back to an older entry; and that entry number 4355 upon which the other grant is based is not special. Defendants also plead and rely upon adverse possession for more than seven years, under registered assurance of title, of any interlap that may exist between the two grants — averring also that the possessions under which complainants claim were abandoned if they ever did cover the land herein involved. Defendants deny that complainants have a valid claim of title, without reference to the title of defendants. They also deny that grant No. 4937 overlaps upon grant No. 4935 because of certain words of exclusion in grant No. 4937. They insist that even if this is not true, they have the superior title to any interlap. They deny that the possession of Griswold, under which complainants claim, included any land within the boundaries of grant No. 4935. The record is voluminous, including conflicting maps and testimony of surveyors contradicting each other.

The Chancellor held that entry No. 4355 is not special and therefore, that grant No. 4937, upon which it is based, is not the superior source of title; that the complainants had not carried the burden of proof as to the location and possession of the lands; that there is an interlap because the southwest corner of grant No. 4935 is at a certain pine tree as claimed by defendants, and therefore, their deeds cover and embrace the land in question; that the possession by Griswold inside of the "pasture field" is not shown by that clear and positive proof that is required to establish adverse possession. All of the issues are presented by appropriate assignments of error and will be treated fully but not seriatim.

Grants Nos. 4935 and 4937 were issued on the same day; but, as entry No. 4328, upon the defendants' grant is based, is the older entry, complainants seek to apply the rule that a grant based on a younger entry that is special takes priority over a grant based on an older entry that is vague. This requires a determination whether or not entry No. 4355 is a special entry. This entry is as follows:

"Stephen M. Griswold enters five thousand acres of land in Grundy county, Tennessee, on the headwaters of Collins River, beginning on a black oak standing on the bluff of Piney Creek, and on the old Indian Trace; running southward by crossing the Jasper Road; thence, eastwardly, then northwardly; thence westwardly to the beginning, including the piney thicket and mill seat, platting out all valid entries within said bounds."

In McEwen v. Coal Land Co., 125 Tenn. 703, it was said that an entry, to be special, must in some part of it contain a reference to some thing or natural mark from which, either singly or together, the land can be ascertained with reasonable industry by these acquainted in its neighborhood; that it must be special in its description, and if it is defective to this respect, it cannot be aided by extrinsic proof — citing Barnet v. Russell, 2 Tenn. 20; Barnes v. Sellers, 2 Sneed, 33; Berry v. Wagner, 5 Lea, 564. It was said that one of the chief objects of specialty in entries is to notify subsequent enterers of the locality appropriated by the first entry.

In Simms v. Dickson, 3 Tenn. 140, it was said that a special entry is one which so describes the objects for which it calls as to afford a subsequent locator a reasonable opportunity of finding the land located.

In McEwen v. Coal Land Co., supra, an entry was held not to be special which described the land as "on Cumberland Mountain, on the headwaters of Collins River, beginning on a black oak standing on the bluff of the right hand fork of Collins River; then meandering said bluff eastwardly crossing Little Laurel, thence northwardly; thence westwardly; thence southwardly to the beginning, platting out all prior claims."

In Barnes v. Sellers, 2 Sneed, 35, an entry was held not to be special, the descriptive words being as follows:

"Beginning at a beech tree on the county line south of Baines Branch, running east, thence north and west for complement."

The defect was the uncertainty as to location of the beech tree, the point where it was located not being indicated with sufficient certainty. The call for a tree not designated by some mark or description is in itself indefinite, unless perhaps, it were made to appear that there was no other tree, or trees, of same kind in the locality, clearly pointed out by other calls. The entry not designating the land to be appropriated with the requisite certainty was held to be vague and indefinite.

In Reid v. Dodson, 1 Tenn. 412, it was held that whether an entry be special or not depends upon the entry itself and cannot be made better or worse by parol proof of what the enterer intended; that it is a matter of law, not of evidence; that the ground of all proof respecting the calls of an entry must be laid in the entry; that the entry must show the place called for, and parol or other proof will be received to show that the place in its situation, name, etc., agrees with the calls of the entry; but where an entry is vague and uncertain proof cannot make it good.

If the evidence adduced would identify the objects mentioned in the entry so that by their very notoriety and distinctiveness the land could be identified according to the description in the entry, then it would be special. In such case, the entry would have to contain locative calls capable of being shown by proof to be so distinctive that a subsequent enterer would be bound to take notice of the land described. A vague entry is one that contains no such special call that a majority of those acquainted in its neighborhood at its day could by reasonable industry find it; and special entry is the reverse. Smith v. Craig, 2 Tenn. 287.

Tested by the aforesaid rules we cannot conclude that the entry in question is a special entry. The old Indian Trace may have run for miles along the bluff of Piney Creek. There might have been hundreds of black oaks standing on this bluff and on the Indian Trace. Evidence might show that there was a black oak so located, but in order to make this entry special, it would have to be shown that there was only one black oak standing on the bluff of Piney Creek and on the old Indian Trace. Nor can the reference to the Piney thicket and mill site be considered as calling for objects that were notorious and distinctive. There might be many piney thickets and mill sites. In fact, this description might fit many tracts of land in that region. This entry is not special on its face and no proof has been adduced which would make it special. This is an indefinite entry; but it is insisted that the burden of the complainants claiming under it to show that the land can be located thereby is met by the official plat and survey which show the objects called for, and which are sufficient in the absence of evidence to the contrary to raise the presumption that such objects existed and were well known in the neighborhood. This insistence is based upon headnote 34 to the case of Southern Coal Iron Co. v. Schwoon, 145 Tenn. 199. The text of the opinion in that case contains the following:

"The plat and certificate of the survey constitute a public record, available, not as conclusive of the specialty of the entry, but where the plat shows the object called for as being located within the entry as called for, and the survey refers to the objects mentioned, the court will upon this evidence presume the facts as stated by him to be true, and place the burden of disproving the specialty qualities of the entry upon the parties imposing it."

That was said with reference to an indefinite entry.

In McEwen v. Coal Co., 145 Tenn. 694, with reference to a vague entry, it was said, that an entry could not be made to possess the qualities of specialty by the survey. The foregoing excerpt from the Schwoon case is probably based on the holding in Wallen v. Campbell, 2 Tenn. 322, that the law presumes that entries standing indifferent as to specialty on their face, may be rendered as available by proof; that when the surveyor in his plat calls for the specialties of the entry it is presumptive evidence of the sufficiency of such evidence and consequently throws the onus probandi on the party opposing the validity of the entry. But the plat accompanying the survey of the Griswold entry under consideration here, does not show any of the objects mentioned in the entry. Hence, the entry is not helped with reference to any specialty features by the survey. From the language above quoted from both cases, it seems that for this rule of evidence to apply it is necessary for the plat to show the objects.

In Southern Coal Iron Co. v. Schwoon, supra, an entry, quite similar to the entry in question here, was held to be vague, it being as follows:

"Hevelow Forester enters 100 acres of land in Warren county, Tennessee, on the Tarkiln branch waters of Collins River on Cumberland Mountains, beginning on a white oak near the path that Hill cut out on said mountain, and also near the bluff of the gulf, running thence southwardly, thence eastwardly for complement."

The Supreme Court held that this entry was vague and not susceptible of proof.

The next question presented is whether or not the complainants have shown a valid and regular chain of title from grant No. 4937 down to them. The conveyances attacked by the defendants are two tax deeds and a deed from the Clerk and Master. The first tax deed was executed on August 1, 1861, by S.J. Christian, tax collector, purporting to convey the land covered by grant No. 4937 to Stephen P. Tipton. The second tax deed was executed on December 19, 1861, by John Dugan, revenue collector, purporting to convey said land to Stephen P. Tipton. Testing these deeds by the statutes as to assessment of lands for taxation and sales of such lands for payment of taxes thereon when delinquent, in force at that time, we find that they contain all the essential elements of valid tax deeds, except that the second deed executed in 1861 recites that the judgment for satisfaction of which the land was sold was rendered by the circuit court in 1864. Section 627 of the Code of 1858 provided that to make the sale valid and communicate good title to the purchaser, it should be sufficient that the land lay in the county in which it had been reported for non-payment of the taxes thereon, and is sufficiently described; that it had been duly reported; that an order of sale had been awarded, and that the sale had been duly advertised. All of these requirements are clearly set forth in these deeds. The deeds recite the consideration paid; sufficient descriptions of the land; the judgments upon which the sales were made; the dates of the judgments and where rendered; the fact of legal notice having been given; the sales of the property and the dates thereof. After the lapse of over sixty years it is reasonable to presume that at least the first of these deeds was valid. We hold that it was a valid conveyance. Sheafer v. Mitchell, 109 Tenn. 181.

The incongruity of dates in the second deed might render it defective, although the date, 1864, might be a mere clerical error. As to this, we need not decide because both deeds were made to the same person and the first deed does not show any irregularity on its face. The second deed recites that the judgment and order of sale came into the hands of the sureties of the deceased collector of public revenue in the year 1858 and that they sold the land after giving the notice required by law; but the deed was executed by the successor in office of the deceased collector of the public revenue. The statute then in force provided that the collector should make the sale. It did not authorize the sureties of the collector to exercise any of the powers conferred upon the collector. Section 640 of the Code of 1858 authorized any of the successors of the collectors selling the land to make a deed to the purchaser.

However, as aforesaid, the deed of S.J. Christian, collector, conveying the same land, passed the title of Samuel Edmundson to this tract of five thousand acres.

Under Chapter 334 of the Acts of 1907, Shannon's Code, sec. 5572a2, we are bound to hold and construe the recitals of this deed as prima-facie evidence of the facts therein recited, in so far as such facts relate to the execution of the power of the officer executing the deed. Hill v. Moore, 121 Tenn. 182; Camp v. Riddle, 128 Tenn. 294.

It was therefore, not necessary for the complainants to support this deed by any certified copy of the record authorizing the sale of the land and the execution of the deed. The defendants undertook to show that this land was not properly assessed and sold for taxes, but the certificate of the county court clerk relating thereto does not identify this assessment on which the land was sold. It simply shows — "Samuel Edmundson, grant 5,000 acres." But, this might have referred to some other five-thousand-acre tract in the name of Samuel Edmundson, and there were several of that sort. These sales were in execution of judgments of the circuit court, a court of general jurisdiction, proceeding according to the course of the common law, and they are not subject to be impeached collaterally where a want of jurisdiction is not apparent upon the face of the record. Reinhardt v. Nealis, 101 Tenn. 169.

It is insisted that these tax deeds were illegally registered because they were acknowledged before the chairman of the county court, who had no authority to take acknowledgments. Both of them were registered in the year 1862. No distinction is made between a void acknowledgment and a defective acknowledgment, under section 3761 of Shannon's Code, in applying the presumption that a deed has been registered upon lawful authority where it has been registered twenty years or more. All inquiry upon the subject of probate is cut off. The presumption becomes absolute and conclusive after twenty years from date of registration. This is held in a long line of cases beginning with Mathewson v. Spencer, 3 Sneed, 513.

In Kobbe v. Land Co., 117 Tenn. 315, it was held that registration for twenty years cures an unauthorized, null and void probate; that the single fact of registration for twenty years protects the deed with absolute and indisputable verity.

The next conveyance was a deed of Sanders, Clark and Master, to S.M. Griswold, conveying this tract of five thousand acres by virtue of a decree of the chancery court of Grundy county at the March term, 1866, in a suit for partition among the heirs of Stephen P. Tipton. The deed recites the cause, the decree in which it was rendered ordering the sale, the fact of the sale at public outcry after advertisement, as required by law, the payment of the consideration by S.M. Griswold, and the authority to execute the deed. It was registered in 1889. It was acknowledged by the clerk and master before the President of the commissioners court of Grundy county. While there was no authority vested in such officer to take acknowledgments of instruments for registration, the same presumption under section 3761 of Shannon's Code is to be applied, as the instrument has been registered for more than twenty years prior to the filing of the bill in this cause. There is no evidence offered to impeach the recitals of this deed and therefore, under Shannon's Code, sec. 5572a2, the presumption that the clerk and master had the power to execute the deed is conclusive.

No further attack is made upon the chain of title of the complainants to whatever interest they derived under grant No. 4937 and the conveyances subsequent thereto. The assignment of error made by complainants as to the validity of their chain of title from grant No. 4937 is well taken, but this concludes merely the question of the regularity of their chain of title and is not decisive of the issues of this case. Although grant No. 4935, under which the defendants claim, being the older grant, is the superior source of title to any interlap between it and grant No. 4937, it must now be determined whether or not there is such interlap; for if not, the complainants must prevail and the issue as to possession is immaterial. Any possession relied on by either complainants or defendants must have been on an interlap on land common to both grants to be effective to toll the title. Wright v. Hurst, 122 Tenn. 670; Elliott v. Cumb. Coal Coke Co., 109 Tenn. 745; Lumber and Coal Co. v. Bass, 136 Tenn. 696.

The solution of the question as to any interference between the two grants depends upon the location of the western boundary line of grant No. 4935, for the location of the eastern line of complainant's grant No. 4937 is clearly shown to be a line running north and south, which they claim to be also the western line of grant No. 4935, and which is about 260 poles east of a line which the defendants claim to be the western line of said grant. It is true that defendants claim that partly within this disputed territory is a tract of three hundred acres entered by Wilson and Dial in 1826, by special entry, and therefore, excluded from grant No. 4937 by the clause, "platting out six hundred eighty acres of older title." Thus they seek to carry the burden of establishing the existence and location of the excluded land in claiming adversely to the grant and showing that as to such particular territory the grant never did operate as a conveyance of color of title to the excluded land. Iron Coal Co. v. Schwoon,124 Tenn. 209; Bowman v. Bowman, 3 Head., 48; Fowler v. Nixon, 7 Heisk., 719; Bleidorn v. Pilot Mountain C. M. Co., 89 Tenn. 212, 15 S.W. 737; Wright v. Hurst, 122 Tenn. 656, 127 S.W. 701, 135 Am. St. Rep., 869. But this contention is immaterial and in vain if there is no interference between these two grants for then it would avail nothing to the defendants. If it were material, there is no evidence other than the entry and the grant that this was an exclusion referred to in the grant, so that the conclusion would be based upon a mere inference. This is not sufficient as carrying the burden. Complainants claim title to the land described in their bill (including this three hundred acres) through a deed of Stephen M. Griswold to W.A. Griswold, executed in 1869, and also a deed between the same parties conveying the three hundred acres and a tract of twenty-five acres, executed in 1867; and by adverse possession under these deeds, as will hereinafter appear. This possession was from 1869 to 1889, was open, obvious, notorious and continuous. It consisted of a residence, barn and a woodland pasture field enclosed by a rail fence. It existed for some years prior to 1869 largely upon that part of the whole tract covered by the three hundred-acre tract, but under color of title for only two years; in other words, from 1867 to 1869. Title by adverse possession thus had not been perfected to the three hundred-acre tract when the deed to the larger tract embracing it was executed. The rule that a continuation of possession of a smaller tract under a prior source or color of title would not be a possession under a later color of title to the larger tract embracing it, would not apply. Under that rule title by possession for seven years must be perfected in order that possession may be deemed to apply only to the smaller tract, so that an invasion of the larger tract outside of the smaller tract would be necessary. See, Smith v. Lea, 1 Cold., 549; Coal Creek Mining Co. v. Ross, 12 Lea, 9; Bon Air Coal Co. v. Parks, 94 Tenn. 270; Lumber Coal Co. v. Bass,136 Tenn. 696. The title of W.A. Griswold acquired by such adverse possession extended to the boundaries of the tract conveyed to him in 1869 and passed through mesne conveyance to the complainants, excepting any part included within any interlap with grant No. 4935. The defendants in their answer disclaim title to any of the land except what they say is included within an interlap.

In the investigation of the issue as to an interlap, we have been partly aided by the testimony of surveyors and by maps prepared by them, but these are hopelessly in conflict. These we take into consideration together with parol evidence as to marked lines and corners, locations and natural objects, and various entries, surveys, grants and deeds to lands in the locality. We have prepared a map showing the locations of the various lines and corners contended for and we append it as a part of this opinion. This is an elaborate and complicated problem, but by adhering to well-settled rules of law and weighing carefully the conflicting evidence, we will endeavor to reach a correct solution. The object is, as aforesaid, to determine the true location of the western boundary line of grant No. 4935. The calls of this grant are as follows:

"Beginning on a hickory, the northeast corner of a survey of 5,000 acres in the name of Stephen M. Griswold, running north 920 poles to a gum; thence west 920 poles to a stake; then south 920 poles to a pine; then east with said Griswold's line 920 poles to the beginning, including and platting out 290 acres of older claim."

The "survey of 5,000 acres in the name of Stephen M. Griswold" lies immediately south of and adjoining grant No. 4935. It is known as grant No. 4934, dated January 6, 1837, based upon entry by Griswold, dated October 10, 1835. The calls of this grant are as follows:

"Beginning on the beginning corner of his, Griswold's one hundred [one thousand] acre survey, a pine on the Turpentine Branch, (No. of his entry 3165), running south, crossing Rains Creek at 560 poles, in all 908 poles, to a hickory; thence east 908 poles to a hickory, thence north crossing Eastley's Road at 260 poles, Rock House Fork of Falls Creek at 580 poles, in all 908 poles to a hickory; then west passing said Griswold's corner of his 720 acre survey by virtue of said entry No. 3165 and on with his line in all 908 poles to the beginning."

The location of grant No. 4935 depends upon the northern line and northern corners of grant No. 4934, for the beginning corner of grant No. 4935 is the northeast corner of grant No. 4934. The location of this corner is important, especially because the line running west from it will strike the beginning corner of grant No. 4934, a pine tree which is the key to the whole problem. It is to be determined by the true location of this pine. Complainants insist that this pine stood on Turpentine Branch at a point 60 poles south of a point about 260 poles east of the place where stood a pine which defendants claim was the pine referred to, the southwest corner of a tract entered in 1836 by Stephen M. Griswold as 1,000 acres but surveyed to contain seven hundred twenty acres — by entry No. 3165. The location of this seven hundred twenty-acre tract is thus involved in this inquiry. The line from the northeast corner of grant No. 4934 to Turpentine Branch is shown to be of the length called for in the grant — 908 poles — but in order to fix the pine claimed by the defendants as the northwest, or beginning corner, it is necessary to extend the north and south lines of both grants to about 1100 poles. Of course, this may be done if the pine tree relied on by defendants is the true beginning point, for, of course, calls for natural or permanent objects in an entry, survey or conveyance will control other and conflicting calls. When natural or artificial objects are called for as special and locative, then they control course and distance. Under this rule, when a call is manifestly false or mistaken, it must be rejected. Simms v. Baker, Cooke, 146; Whitside v. Singleton, Meigs, 207; Disney v. Coal Creek Co., 11 Lea, 611; Bleidorn v. Pilot Mountain C. M. Co., 89 Tenn. 165.

The common corner of grant No. 4934 and grant No. 4935 on their western line is a pine. The common corner on their eastern line is a hickory. These are the two corners in dispute. Taking the point on Turpentine Branch as the beginning corner of grant No. 4934 as claimed by the complainants the evidence shows clearly that the calls fairly conform to the natural objects mentioned in the grant. From that point southward, according to all the witnesses, the line crosses Rains Creek at about 560 poles. From the pine corner relied on by defendants the distance to Rains Creek is 815 poles. At a distance of 919 poles from the first-named point on Turpentine Branch the surveyors found a hickory marked as a southwest corner, the marks being on the east side and the north side. Along this line they found some old marks as far as Rains Creek, but these may be the marks of the west line of the Gillie grant for 2.000 acres, which lies within the boundaries of grant No. 4934. From the southwest corner, the hickory, the line eastward was marked. From the southwest corner northward the line crosses the old Chattanooga Road at 260 poles. This is called in the grant the "Eastley Road." The line then crosses Rock House Creek at 577 poles, it being given in the grant as 580 poles. At a point 6 poles west of Fall Creek the surveyors found three marked lines coming together, as a corner, from the east, west and north. This point is 60 poles south and about 15 poles west from the other point claimed by the defendants as the northeast corner of Grant No. 4934. From this point where the three lines come together the line running westward reaches the beginning point near Turpentine Creek at about the distance given in the grant. There is some doubt whether or not the marks on this line were made as marks of what are known as "Colony lots," laid off fifty or more years ago. We may look to adjoining grants as tending to show the boundaries of a grant in question — not that they may be considered as conclusive. Polk v. Robertson, 1 Tenn. 456.

The hickory, which was evidently the southeast corner of grant No. 4935 and the northeast corner of grant No. 4934, is designated in another grant to James Tate as its beginning point, a hickory on the bank of Fall Creek. This grant lies east of and adjoining grant No. 4934. It is also designated in entry No. 4347 by Meriday P. Tate as the beginning point of a tract of 5,000 acres described in said entry lying just east of grant No. 4935 and just north of the James Tate tract aforesaid. It is described in said entry as "a hickory on the bank of Fall Creek the beginning corner of a 5,000 acre entry claimed by Griswold, it being also the corner of another 5,000 acre tract surveyed for Griswold, running east 900 poles to a hickory, crossing Fall Creek at 6 poles." It is shown in the testimony to be a well known and established corner. From where this hickory stood, as claimed by defendants, the lines run north and west, and this would indicate the location of the eastern and southern boundaries of grant No. 4935. The line running east from the hickory corner claimed by complainants as the northeast corner of grant No. 4934 is a well-marked line. It is evidently the line between the two Tate grants. It reaches the natural objects mentioned in these grants at the distances therein given.

As to the true location of the western line of grant No. 4934 we may look to the recitals of a grant for 400 acres issued in 1841 to Henry T. Spong. The location of this tract is not in dispute. Its eastern line is the line claimed by the complainants as the western line of grant No. 4934. This Spong grant calls for the line of Griswold's 5,000 acre survey as its eastern line in two places.

From the hickory, the common corner of grants Nos. 4934 and 4935 on their eastern line, as fixed by complainants, there is a marked line running northward to a gum which is marked as a corner. From this tree westward the line is marked a part of the way. The testimony as to marks on the line running northward from the alleged corner on Turpentine Branch is so conflicting that we cannot reach a satisfactory conclusion. There is some testimony that it is a marked line. The line claimed by defendants as the western boundary of grant No. 4935 is well marked, but this is also the line of three other grants, two of them in part. There is no evidence that there are any marks on the line running from the pine claimed by the defendants southward as the western line of grant No. 4934. There is testimony that there are no such marks. There is testimony that there are no marks along the south boundary line of grant No. 4935 as designated by the defendants; but if there are marks along this line they may be marks showing the south line of what is known as the Haight grant which runs along this line.

The line relied on by the complainants as the location of the "pine on Turpentine Branch" is but a few poles away from that stream. The pine corner claimed by defendants as the corner is on a level place on a ridge nearly half a mile from the main Turpentine Branch and at least 150 yards from the source of one of its small tributaries. It appears that water falling on the ground at this place might flow toward this tributary if in sufficient quantity to flow at all. It is to be noted that the recital is, "on Turpentine Branch," not "on the waters of Turpentine Branch," which would easily permit of a much greater distance of location.

In view of this evidence — the marked lines and corners, the calls conforming reasonably to natural objects, the recitals in contemporary grants to adjoining lands; comparing the calls in the grants with the natural objects on the ground; giving proper weight and due importance to the marks along the lines — we would readily conclude that the southwest corner of grant No. 4935, the northwest corner of grant No. 4934, and the southwest corner of entry No. 3165, the seven hundred twenty-acre tract, is the point claimed by the complainants. But we must consider carefully and dispose of the evidences relied on by the defendants to sustain their contention that the true corner is the pine which indisputably stood in the line claimed by them as the western boundary of grant No. 4935, near the forks of the Chattanooga and Colony roads. It is evident from the recitals in certain entries, grants and deeds that this pine was regarded by Stephen M. Griswold himself and others as the true southwest corner of grant No. 4935; and there is much parol testimony that it has long been so regarded. This evidence produces a sharp and almost irreconcilable conflict with the evidence for the other location. The conflict is, at least, a conflict between natural objects as to the true location. We do not undervalue the finding of the Court of Civil Appeals in the unreported case of Ellis Sparks et al. v. Sam Werner, September Term, 1912, opinion by Mr. Justice Hall, the writ of certiorari being later denied by the Supreme Court. The land in controversy in that cause is the land lying between the western line of the aforesaid Haight grant (claimed by defendants to be also the western line of grant No. 4935) and the line claimed by complainants in this cause as the western line of grant No. 4935. In that cause the complainants deraigned title to the Haight grant. The defendants claiming under grant No. 4935 insisted that grant No. 4935, being the older grant, was the superior source of title. The complainants insisted that although this might be true, the western line of grant No. 4935 was only 920 poles from its eastern line, and they made the very insistence that is made in this case that the north and south lines of grant No. 4935 could not be extended to the line running north of the pine tree. Following a discussion of the issues herein involved the court found that the pine situated in the said forks of the roads was the same pine referred to in grant No. 4935 as its southwest corner; and that this being true, the northern and southern boundary lines of grant No. 4935 must be extended the necessary number of poles to reach this natural object called for in said grant, as well as the marked lines of said grant. But an examination of the opinion in that cause shows that the court did not have before it the facts hereinbefore recited as to the location of grant No. 4934. So that not only is this a suit between other and different parties, but it is presented upon a vast amount of other and additional facts. We therefore, deem it proper to consider and determine this issue independently of any former decision.

The proper explanation of defendants' contention is by reference to entry No. 3165 by S.M. Griswold for one thousand acres, dated October 2, 1836, and surveyed as seven hundred twenty acres — for the reason that certain other entries and certain grants call for the beginning corner of this entry as their beginning corners. This entry and the entries upon which grants Nos. 4934, 4935 and 4937 were based were surveyed by the same surveyor, A. Higginbotham.

The description in the survey of entry No. 3165 is as follows:

"Seven hundred and twenty acres of land, situated in said county on the waters of Collins River on Cumberland Mountain on a creek known as the Turpentine Branch near the Tar road, beginning on a pine tree and running north 240 poles to a pine; then east 480 poles to a hickory; then south 240 poles to a hickory; then west 480 poles to the beginning."

It is significant that the surveyor of these entries, in designating the pine, the beginning corner of entry No. 4041, upon which grant No. 4934 is based, and the beginning corner of entry No. 3165, designated it as a pine on Turpentine Branch. These entries were made and surveyed within a few weeks of each other. It is not likely that this surveyor, being familiar with these natural objects and lines, would create confusion in his descriptions. It is true that grant No. 5318 to Stephen Haight, dated June 30, 1837, designated as its beginning corner "a pine on the waters of Big Creek of Collins River the beginning corner of a 1,000 acre entry in the name of Stephen M. Griswold, and running north crossing Big Creek;" that this line of the Haight grant is conceded to be the line running north from the pine relied on by defendants. The entry upon which this grant is based is not in the record, nor is the survey; so that we do not know who surveyed this grant. It overlaps upon nearly all of grant No. 4935, and we presume that it was not surveyed by Higginbotham. This is the first reference to that pine as the corner of entry No. 3165 for seven hundred twenty acres. It is possible that in the Haight grant it was by mistake described as the beginning corner of that entry. After this time certain other grants and certain deeds described this line relied on by defendants as the beginning corner of entry No. 3165. It is so described in grant No. 10432 issued to Wiley P. Griswold in 1849 for 3,000 acres beginning at a hickory on the northeast side of the Altamont and Chattanooga road, running thence north 45 degrees east 12 poles to a pine, the beginning corner of a 1,000 acre entry in the name of Stephen M. Griswold. The eastern line of this grant is the western line of the Haight grant and it runs due north of the said pine. An entry of a tract of 445 acres by Stephen M. Griswold made in 1851 designated as its beginning point, a dead pine the beginning corner of Stephen M. Griswold's 1,000 acre survey, running thence south 45 degrees west 12 poles to a hickory, the beginning corner of Wiley P. Griswold's 3,000 acre survey. This was another designation of that pine as the southwest corner of entry No. 3165.

In 1853 Stephen M. Griswold conveyed to George E. Freeman this 445 acre tract, Grant No. 10,920, describing it as beginning on a dead pine, the beginning corner of Stephen M. Griswold's 1,000 acre survey, running thence south 45 degrees west 12 poles to a hickory, the beginning corner of Wiley P. Griswold's 3,000 acre survey.

In 1856 George E. Freeman conveyed to John H. Freeman a part of this tract describing it as beginning at a hickory, the beginning corner of an entry in the name of Wiley P. Griswold, running thence south 4 chains and 17 links to a stake in the Chattanooga road. This was the exact distance from the hickory to the road. But the Wiley P. Griswold 3,000 acre tract and the Stephen M. Griswold 445 acre tract were surveyed by a surveyor named William Armstrong. Nevertheless, Stephen M. Griswold, who entered the tract covered by grant No. 4934 accepted a description of his 445 acre tract containing a recital that the beginning corner of his entry No. 3165 was at this pine; and he made this same recital in his deed to George E. Freeman.

There is much parol evidence that for a great many years this pine relied on by defendants was regarded as the southwest corner of grant No. 4935; that even Stephen M. Griswold pointed it out as said corner. But it is very significant that there are no marks on the line running south of it; that taking that as the corner, the description of grant No. 4934 does not fit in with the natural objects called for in the said grant. If a call is for a natural object with a description of its location, and more than one place answers such description, the true place will be determined according to the calls which it answers. Den v. Ezel, 4 Hey, 162.

The safest way to ascertain boundaries is to compare the grants with the marks and natural objects on the ground. Payton v. Dixon, Peck, 148; Bowman v. Cox, Peck, 364; Funa v. Manning, 11 Humph., 313; Disney v. Mining Mfg. Co., 11 Lea, 611. The law presumes an actual survey where a grant issues, and on trials in ejectment, the grant is conclusive evidence of the fact. Garner v. Norris, 1 Yerg., 62.

A line run according to course and distance may call for natural objects though called for as limiting objects, if such line is traced by the compass and actually marked and fixed by the survey as the boundary, and so proved. Massengill v. Broyles, 4 Humph., 205. The proper method for ascertaining the boundaries of a grant is to find if possible the lines which the surveyor surveyed on the ground. McNairy v. Hightower, 2 Tenn. 302. The rule is general that the boundaries of a grant as actually surveyed, are the limits of the grantee's right, and will control calls for the unascertained boundaries of an existing survey. Staub v. Hampton, 117 Tenn. 706. When the succeeding calls are as readily ascertained as the first, and are as little liable to mistake they are all equal with and controlled by the first. 9 C.J., 164 and cases cited.

In Funa v. Manning, 11 Humph., 311, it was said:

"The calls of a grant serve as a description of the land, by which we are able to ascertain its precise locality. If those calls harmonize, and all correspond with the objects on the ground, the description is perfect. But it often happens that mistakes occur, and that one or more of the calls of a grant, are repugnant to the other calls. When this shall occur, the dictate of common sense (and such is the rule of law), is to hold that directory calls, and calls for course and distance, yield to locative calls, and calls for natural objects and marked trees. The principle is, that the calls which are most certain, about which there is less probability of mistake or inaccuracy are to prevail. For as a great Judge has said, ``a grant shall not perish, if we can spell out its meaning.'"

Applying these principles to the foregoing facts, we must conclude that the designation of the corner of entry No. 3165 as 12 poles northeast of hickory, the beginning corner of the Wiley P. Griswold 3,000-acre tract, in the later entries, grants and deeds, was a mistake. To hold otherwise, would be to disregard the clear and plain locations of the corners and lines of grant No. 4934 as expressed in the grant. The reference in said grant to the pine on Turpentine Branch as its beginning corner as well as the beginning corner of entry No. 3165 is in itself consistent. Although no pine is shown to stand at that corner, it is easily possible that one stood there nearly ninety years ago when these entries were made. The pine is a common growth in that region. We are, therefore, of the opinion and so find that the beginning corner of grant No. 4934 and the southwest corner of grant No. 4935 is at that point on or near Turpentine Branch contended for by the complainants and there is no interlap between grant No. 4937 and grant No. 4935.

In order to dispose of all of the assignments of error, we must determine the question of title by adverse possession by W.A. Griswold of the land constituting what would have been the interlap if the contention of the defendants had been sustained. This depends upon the extent eastwardly of a certain pasture lot around the house of Griswold and along the Chattanooga road. About the year 1861, W.A. Griswold built and occupied a house east of the road and west of the supposed interlap. He lived there until 1889 when he sold to J.W. Hudson the tract described in the bill in this cause, which was conveyed to him by Stephen M. Griswold in 1869. In 1867 W.A. Griswold acquired by deed from Stephen M. Griswold and Ramsey two tracts within this larger tract, being for twenty-five acres and three hundred acres respectively, which had been entered and surveyed for Wilson and Dial in 1826, but no grant therefor was issued. As hereinbefore determined, W.A. Griswold, acquired title to these lands under these deeds and held possession under the same as color of title. The only question is whether or not the pasture lot extended over beyond the supposed west line of grant No. 4935 and upon the supposed interlap. It is true that in the deed of Griswold to Hudson in 1889, relied on as a link in complainants' chain of title, the grantor retained the surface right in five hundred acres reciting that it was to include his home place and all the improvements thereon, and that there is no record of any conveyance by W.A. Griswold of this five hundred acres so as to pass the title down to complainants. One witness for complainants testified that this tract so reserved did not go beyond the supposed west boundary line of grant No. 4935. But this question is not material for the reason that Griswold had already perfected his title by possession to the land outside of the five hundred acres and his deed had passed title to all but the land reserved; and therefore, the same proposition is before us, that if the pasture field extended over on the supposed interlap, his deed passed title to the interlap unless the title so acquired by adverse possession was later destroyed by the adverse possession under which the defendants claim.

The burden is upon the complainants to show the character, location and extent of the possession relied upon by them. Dyche v. Gass, 3 Yerg., 397; Iron Co. v. Lawson, 35 S.W. 456; Fuller v. Jackson, 62 S.W. 274; Irvine v. McRee, 2 Humph., 554.

One seeking to show title by adverse possession has the burden to make out by clear, strong and positive testimony such adverse possession as will bar the real title. Coal Co. v. Coppinger,95 Tenn. 526; Jones v. Coal Creek Min. Co., 133 Tenn. 183.

Sometime after W.A. Griswold built his house, he built a rail fence enclosing the woods east and southeast of his house, running on its southwestern side along the Tracy City road. It enclosed a tract variously estimated in this record to comprise from twenty to one hundred acres. There is some evidence that this enclosure was made first before the Civil War; that it was burned and rebuilt in 1868; that two or three years thereafter, it was burned again. Griswold's son testifies that it was rebuilt in 1872 and remained an enclosure for the pasturage of stock for twenty-five or thirty-five years. Witnesses, who have always lived in the neighborhood, testified that many times it was broken in places, showing gaps, and remained so for considerable time. The enclosure was used as a pasture but never cleared. The fence was destroyed by fire twenty-five or thirty years ago and never rebuilt; but the proof does not show that whatever title was acquired under it was abandoned. See Hornsby v. Davis (Chy. App.), 36 S.W. 163.

In order to place any part of this pasture within the interlap, it would be necessary to demonstrate that it extended eastwardly nearly to the point where the old Griswold mill road came into the old Turpentine road. It is evident that the fence came southeastwardly as far as the forks of the Tracy City road, and the old Turpentine road. Norman Griswold, a son of W.A. Griswold, says that from this point it extended along the Turpentine road about 75 yards, then turned northwardly and went around the enclosure. This would hardly place the pasture over on the interlap. Another witness, Mr. John Scruggs, an aged man, says that it extended east on the Colony road about a half mile. No other witness has such a recollection. The Colony road leads off from the Tracy City road at a point northwest of the junction with the Turpentine road and runs mainly south of the Turpentine road.

John McClure and B.C. Grayson, the surveyors, placed the eastern line of the fence over on the interlap. Grayson's testimony is largely hearsay. He found some old rails lying on the ground but he does not say that any of them were on the interlap. Mr. J.M. Givens knew the place well while the fence was standing, and while he approved the map made by Grayson, he does not definitely say that the fence extended over on the interlap. A.C. Alexander, the clerk and master, and a surveyor, says that Grayson placed the pasture field too far south. He says that possibly five to eight acres of the field are within the interlap, but finally admits that this is mere guess work. J.W. Lockhart, an aged man who knew the fence well, having worked for Griswold, testified that to the best of his recollection, the fence did not extend as far as the Turpentine road. McClure does not point out the line further than to approve the map made by Grayson. Scott Fults says that it was 400 or 500 yards from the forks of the Tracy City and Turpentine roads to where the fence extended; that there is no sign of this old fence to be seen anywhere along the old Turpentine road. Andrew Fults testifies that it was 315 steps from the Turpentine road along the Griswold mill road to where the northeast corner of the fence stood. This would indicate that that corner was west of the interlap. These two witnesses have lived in that neighborhood all of their lives.

In view of the conflicting nature of this testimony and the doubts raised as to the certainty of knowledge on the part of complainants' witnesses as to the exact location; in view of the strictness of the rule that one claiming title by adverse possession must show such possession by clear and strong and convincing evidence; we must conclude that the Chancellor was correct in holding that the complainants had not carried the burden sufficiently to prevail over the defendants.

The defendants claim title to the supposed interlap, not only by superior record title, but also by adverse possession. As we understand their proposition, it is that even if the complainants acquired title by adverse possession, that title has been destroyed by adverse possession on the part of defendants or those whom they derived title. It is true, that like any other title, a title acquired by adverse possession may be tolled by adverse possession. 2 C.J., 255.

In the year 1882 Frederick Schwoon, Sr., through whom defendants claim by devise, purchased the land covered by grant No. 4935 with the exception of certain tracts therein which had been sold or were covered by older entries. Within the interlap in question he had three houses — (1) the Sparks house built in 1907 in a cleared tract of five or six acres. The house was kept locked continuously and open and continuous ownership or possession was exercised for about ten years; (2) The Counts or Werner house. This was a log house and barn surrounded by rail fence and maintained from 1907 to 1920; (3) a wire fence enclosure of about one acre south of these possessions. On this a house was erected about 1909 and stood for about two years when it was burned. In August or September, 1914, a wire fence attached to trees was placed around the enclosure. Little, if any of it, was cleared but a part of it was plowed and sown in oats one year and another in turnips. It seems to have been vacant for a period of two or three years. The date of the placing of the wire fence is taken according to the testimony of the witness, who says that he erected it at the time mentioned.

The evidence shows that the Sparks and Counts possessions were upon a tract of about one hundred twenty-seven acres, known as the Saunders Dykes tract within the boundaries of grant No. 4935. Saunders Dykes acquired this tract under two deeds in 1856. Frederick Schwoon, Sr., purchased it by deed on June 8, 1914. The possessions on this smaller tract must be deemed to have operated only to the limits thereof, although Schwoon already had color of title to the larger tract surrounding it. This could not be taken as any evidence of intent to claim title to the boundaries of the larger tract. For this purpose it would be necessary to maintain possession upon the larger tract outside of the smaller tract. The actual possession of one tract of land is not a sufficiently open and notorious possession of an adjoining tract, which is not acquired, to give the owner notice of the adverse claim thereto. This is the same principle applied where title to the larger tract was acquired after the acquisition of title to a smaller tract within it, upon which possession had been held. We must presume that the possessions upon the Dykes tract were solely under the deed of 1914 as color of title and extended only to the limits of the Dykes tract. Smith v. Lee, 1 Cold., 351; Bleidorn v. Pilot Mountain Co., 89 Tenn. 166, 15 S.W. 737; Sullivan v. Davidson (Chy. App.), 43 S.W. 42.

We are of the opinion that defendants' title to the Dykes tract, so far as it overlaps upon the land described in the bill, must prevail over that of complainants. This title was perfected by adverse possession of Schwoon and his predecessors in title for the requisite period of seven years under color of title; but it extends no further than the boundaries of the said Dykes tract. We are further of the opinion that the possession of the lot enclosed by wire fence by defendants, outside the Dykes tract but within the supposed interlap, has not been sufficiently substantial and continuous to toll the title. It is not only not clear that there has been an open and notorious physical possession, but also, not clear that it has been continuous for the period of seven years prior to June 15, 1921, the date of the filing of the bill in this cause. It is rather of the nature of an illusory possession like that described in Daniel v. Coal Iron Co., 132 Tenn. 509. The evidence indicates that between the burning of the house and the erection of the fence so much time elapsed that it could not be considered as a mere temporary break in possession which would not destroy the continuity thereof.

[EDITORS' NOTE: PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.]

In view of all of the foregoing facts and the rules applicable thereto, we are of the opinion that the Chancellor was in error in dismissing the bill and his decree is reversed except as to the Dykes tract in so far as it boundaries conflict with the boundaries of the land described in the bill; and as to said tract only, the bill is dismissed. A decree to that effect will be entered sustaining the bill and to that extent. The costs of this appeal, as well as the costs in the court below, will be adjudged against the defendants. The cause will be remanded to the chancery court of Grundy county for further proceedings not inconsistent with this opinion.