Ellege v. Cooke

McEaRLA-ND, J., delivered the opinion of the court. This action of ejectment was submitted to ihe circuit judge without a jury, and judgment rendered for the defendants. The written opinion of Judge Rose, embodying his finding of the facts and conclusions of law, was made the bill of exceptions, upon which alone the plaintiff appeals in error to this court. The controversy is between adjoining land owners in reference to an interlock covered by both titles. The judge finds in the first place, that, the question of possession being out of the way, the defendants have the older and superior title; second, that the plaintiff has not, either by himself or those under whom he claims, had twenty years’ possession of the disputed land; and third, he finds that the plaintiff purchased his tract from one Butler by title bond. Butler had a grant and held possession of the disputed land under it two years and four months. The plaintiff, after he purchased from Butler, went into possession of the disputed land under his title bond and held adversely for as much as seven years, when the enclosures were thrown down and the actual possession lost. After this the plaintiff obtained a deed from Butler, but had no actual possession of the disputed land after the dato of his deed. Still later, however, he sold part of the disputed land to one of the defendants, Cooke, by a title bond which was duly registered, and Cooke took possession. Emmet, one of the other defendants, obtained possession of another part of the disputed land, still hater, by an action of — 624 — ejectment, to which, however, the present plaintiff was not a party. Upon this state of facts the action of ejectment was brought; the other defendants, we presume, were either tenants of Emmet or Cooke. The judgment in favor of Cooke is correct, upon the ground that under our recent statute the plaintiff's title bond to him, duly registered, is a good defense as to the land therein described, which, we take it, embraces all the land claimed by Cooke. The question remaining is, as to the judgment in favor of Emmet. The defendant's title (aside from the question of possession) being superior, the plaintiff seeks to make out his title, by showing seven years' adverse possession, under the 1st section of the act of 1819, Code, sec. 2763. Luring all the time, however, that the plaintiff's actual possession continued, he held only a title bond; before he obtained a deed he had lost actual possession and never regained it. We take it to be clear that seven years' possession of granted land, under a title bond alone, will not make out a title under the 1st section of the act of 1819, although it would be valid as a defense under the 2d section. The language of the 1st section will admit of no doubt on this point. To make out such title the party must have had, by himself or those through whom he claims, seven years' adverse possession, “ holding by conveyance, devise, grant or other assurance of title purporting to convey an estate in fee,” or as it is usually expressed, color of title. A title bond does not fall within either of these terms; so it is clear — 625 — that, if nothing else appears than the seven years’ adverse possession of the plaintiff under his title bond, his title -would not be complete. It is argued, however, that this possession, in connection with the possession and color of title of the plaintiff’s vendor, Butler, is sufficient. That is to say, the possession of the plaintiff, while holding under his title bond, was the possession of Butler, his vendor, and as Butler had color of title the plaintiff’s possession would perfect his (Butler’s) title in seven years, and this title passed by the subsequent deed of Butler to the plaintiff. There can be no doubt that the possession of vendor and vendee may be connected, but it does not follow that when thus connected it will make out a title under the first section; it may only be a defense under the second section. Successive possessions of vendor and vendee, where there is privity between them, may, however, be connected to make out a title under the first section. Such is the language of the statute: “ Any person having, by himself or those under Avhom he claims, seven years adverse possession of any lands,” etc.; but this is coupled with the provision that the holding must be by ■conveyance, or some assurance purporting to convey the fee. So that the successive possessions, in order to make out a title, must each have been of a character to make out the title alone if of sufficient time; that is to say, each must have been under color of title. Successive possessions, each by deed or color of title, will be sufficient if together they make but seven years; but possession for part of the time under color of title — 626 — and the balance of the time by title bond, will not be. In other words, to make out a title in this mode, the adverse possession for seven years must have been under color of title for the entire period; otherwise it will only be a good defense under the second section. So that the question recurs, as the controlling one in the case, was the possession of the plaintiff, in law and in fact, the possession of his vendor, Butler, or was it his own possession? If the former, then it was a possession under color of title (that is, Butler’s grant); if the latter, it was not a possession under color of title, as the plaintiff himself held only a title bond. The argument for the plaintiff is, that while in possession under his title bond, he was the tenant at will of Butler, or occupied a quasi relation of that sort, so that Butler had the right to treat the possession as his, and thus to perfect his title. It is supposed that the case of Valentine v. Cooley, Meigs, 613, supports this view. That case, however, holds that a defendant may connect his possession under a deed with his previous possession under a parol purchase to make out a defense. This would be manifestly so, under the second section of the statute, to the extent of the actual possession. It is true Judge Greene says in that case, that while holding under the parol purchase the defendant was tenant at will of his vendor who held a deed, and therefore it was his possession. The distinction between a parol purchaser and one by title bond in this respect, will be hereafter. noticed. — 627 — We held, in the unreported case of Barnes v. Vickes, at Nashville, December term, 1874, that a - plaintiff could not make out his title by connecting his possession under a deed with his previous possession under a parol purchase, but in that ease the vendor of the plaintiff had no color of title to the undivided half of the land in dispute. The case of Valentine v. Cooley was not referred to, nor the distinction between the ■ cases pointed out, yet they are not in conflict. We return, however, to the question, whether the possession of the plaintiff in this case was the possession of his vendor, within the meaning of the first section of the act of 1819. There are authorities holding, or seeming to hold, that a purchaser by parol contract, who goes into possession, is tenant at will of his vendor. The first section of the original English- Statute of Frauds, in substance enacted that any attempt to create an estate in lands by livery of seizin only and without writing, should have effect only as a lease or an estate at will. See Sugden on Vendors, p. 51. And although this section is not re-enacted in our statute, yet persons in possession under a parol purchase have been said to be tenants at will of their vendor. But this court held, in Chilton v. Niblett, 3 Hum., 404, that such parol purchaser was not entitled to notice to quit, as he would be were he strictly tenant at will; he is only, said the court, for some purposes held quasi tenant at will. This is sometimes said to be upon the ground that the parol contract of sale is void. A purchaser in possession under a title bond would — 628 — not be in this attitude, as his contract of purchase is not void. Yet there are authorities holding that any one who enters under a contract of purchase is tenant at will of his vendor, or quasi tenant at will. This is upon the theory that the written contract for the purchase alone has no reference to the question of' possession, but the purchaser entering into possession does so either without authority, or upon parol authority,, which in either event makes him tenant at will of his. vendor, so that he cannot dispute the title of his vendor. Lewis v. Hawks, 23 Wallace. Tf the party entering into the possession in such case without express authority, must become the tenant of any one,, it would seem more reasonable to hold him the tenant of the true owner; but it is said in such cases, “the possession of the tenant must be referred either to a legal or adverse title; but as the entry is with the consent of the person entitled to the possession, it cannot be considered adverse, and as the agreement ■confers no legal title, the only alternative seems to be that the person in possession must by construction of law be considered tenant at will.” See 1 Greenleaf’s Cruise on Real Property, mar., p. 243. On the other hand, Mr. Sugden, in speaking of contracts of sale which may -be executed, says: “ If the purchaser was tenant at] will of the estate, the contract terminates the tenancy.” See p. 131. We will see hereafter the extent to which our own cases discuss the question of the possession of persons who are tenants by. construction of law. Conceding for the argument, that, as between vendor — 629 — and vendee, where no title passes, the latter, by construction of law, for some purposes stands in the attitude of tenant at will, or quasi tenant at will to the former, the question recurs, is this the character of possession contemplated by the first section of the act of 1819; that is to say, is the vendor’s title made perfect under this section, by a possession held for him, by one who is in possession in fact as purchaser, but who by construction of law is tenant at will, or quasi tenant at will of his vendor. ' In James v. Patterson’s lessee, 1 Swan, 309, it appeared that the defendant had gone into possession under a parol contract of purchase from .the plaintiff and held possession for seven years for himself. The circuit judge charged that the contract of sale was void in law, and the defendant was tenant at will, “and could not dispute the title of his landlord or set up the statute of limitations as a defense to the action, unless he had disclaimed his tenancy and set up to hold the land for himself, and the fact of his adverse holding must have been so notorious as to show the plaintiff that the defendant . was holding for himself.” This, said Judge' McKinney, delivering the opinion of the court, is erroneous in two respects: first, in assuming that the defendant, by reason of having gone into possession under a contract of purchase void in law, was thereby placed in the relation of tenant so as to be estopped to gainsay the title of Patterson; and second, in holding that the adverse possession must have been known to the plaintiff. The relation of one who enters into the possession — 630 — of land under a contract of purchase, though verbal, is in almost every respect unlike that between tenant and landlord. The former, in point of fact, enters to hold exclusively for himself; he is neither to render rent or other service, nor is he to restore possession of the premises to the seller; he is under none of the positive obligations of a tenant by actual contract. “ He owes no fealty to the seller, and in claiming to hold in opposition to him, or in refusing to surrender the possession to him, he is guilty of (no) breach of faith.” The court held, that the rule that a tenant could not dispute his landlord’s title, only applied to cases of tenancy by contract, and not to cases of tenancy or quasi tenancy by construction of law, which only existed in the absence of proof to the contrary. This court had previously held, in the case of Vance’s heirs v. Johnson, 10 Hum., 214, where it was decided that the widow of the mortgagor might attorn to adversary title. Judge McKinney further referred to the cases of Turner v. Granger, 5 Hum., and McKissick v. McKissick, 6 Hum., holding that the donee of slaves under a gift void for want of writing, obtained a good title by adverse possession under the statute of limitations; and concluded by holding that the defendant in the case before the court was protected by the second section of the statute, to the extent of his actual possession. In Gudger v. Barnes, 4 Heis., Judge Freeman cites and approves the language of Judge McKinney above alluded to, and adds, “so far, then, as possession under a title bond goes, it is a possession for himself and — 631 — adverse to tbe possession of tbe vendor,” so that if tbe possession be held seven years tbe party would be protected. Tbe same principle is stated by Judge Milligan, in Fain v. Headerick, 4 Cold. Now, upon these authorities, can it be held that a purchaser in possession under an executory contract? whether by parol or in writing, is holding the possession for his vendor so as to make out the latter’s title by the statute of limitations, against a superior title in a third party? The possession of the vendee in such case is not the possession of the vendor in fact; it is not his possession by a tenant holding for him by actual contract, but a tenancy or quasi tenancy for some purposes by construction of law. Is this the character of possession contemplated by the first section of the act of 1819 ? Let us see to what consequence this conclusion would lead us. The' possession of the purchaser continued for seven years under title bond, although in fact adverse to his vendor, is yet, according to the argument, by construction of law the possession of his vendor, who has a deed or color of title, and will therefore perfect the latter’s title against an otherwise superior title in another, and yet this same seven years’ possession of the purchaser will bar the right of the vendor to recover back the possession. "While the possession has been adverse and barred the vendor’s right to recover of the .purchaser by reason of the second section, it has at the same time perfected the vendor’s title under the first section. An argument that leads to such a result, to say the least of it, deserves careful scrutiny. Suppose a purchaser — 632 — makes separate purchases by title bonds of the' same land from two different vendors, neither having the title, but both having color of title, and goes into possession and holds for seven years for himself; at the end of that time, which of his vendors will have a perfect title? lie was not in fact the tenant of either; whose tenant would he be by construction of law? Not necessarily from the one from whom he first purchased, for, as we have seen, he. is not estopped to deny his title, and might well purchase and hold under another title. Again, as held in the two cases referred to, the vendee is not estopped to deny his vendor’s title, and as a consequence he may purchase in the superior title and hold under it. The result would be, that his possession would by construction of law be referred to his first vendor, and in seven yeai’s perfect his title against the otherwise superior title held by the vendee himself; in other words, the vendee’s own possession for seven years, would perfect the vendor’s title against the . superior title held by the vendee himself. The fact that in equity a ven-dee purchasing in a superior title as against the claim of the vendor for purchase money, can only be allowed a credit for the amount paid in purchase of the title, does not alter the principle that the vendee may thus fortify himself against a recovery of the land itself by the vendor. Again, another result of .the doctrine contended for, would be this: if it be sufficient in a case like this to show that the vendee claims under a vendor who has color of title, it would answer the purpose equally — 633 — well to show, that any one under whom the vendee claims, no matter how remote, has color of title, and the possession would, by construction of law, be referred to such person and his title protected; so that if there be a dozen persons who successively sell and buy from each other by title bond, through a period of time, no matter how long, if the last purchaser take and hold possession for seven years, the title would be perfected, provided it appear that any one of the number held a deed or other color of title. The theory of limitations as to land titles formerly was, that it only barred the remedy, but did not create a title. See Sugden on Vendors, p. 266. But with us it is different. The first section of the act of 1819 designates what is necessary to create a title by limitation. The second section relates to cases where the remedy of the true owner is barred only. As was held in Dyche v. Gass’ lessee, 3 Yer., this was intended to protect all possesions under title bond, or possessions other than that defined in the first section. The passage of the second section shows that possession under the first section, to make out a title, was intended to be an actual possession either by the party himself or his tenant. It is argued that the relation of vendor and vendee is similar to that of mortgagor and mortgagee, and that the latter’s possession is in all respects the possession of the former; but as shown by Judge McKinney, in Vance v. Johnson, 10 Hum., the relation of mortgagor and mortgagee is one, sui generis, and constitutes no safe analogy on the present question. Sir Thomas Plummer said: “ The — 634 — relations of vendor and purchaser, principal and agent, landlord and tenant, of debtor and creditor, trustee and cestui que trust, have all been applied to the relation of mortgagor and mortgagee. . . . The truth is, it is a relation perfectly anomalous and sui generis.”" See 2 Washburn on Neal Property, p. 160. It is further argued that the relation of trustee and cestui que trust exists between vendor and vendee. Eor some persons, and especially as respects purchase money unpaid and questions connected therewith, this may be true, but this does not affect the question as to the title or character of possession. There is no question of purchase money involved in the present case. Section 2768 of the Code was only intended to enact that the possession of the purchaser shall not be adverse to the claim of the vendor’s purchase money, and was doubtless intended to meet the case of Ray v. Goodman, which, however, was overruled by Gudger v. Barnes, without reference to the section. It must be borne in mind in considering this question, that the superior paper title is in the defendant, and that the effort is to defeat this title by the statute of limitations, and we are of opinion that the possession must be with the party who has the color of title, either by himself or his tenant, and not by a tenant who is merely such for some purposes by construction of law, and who in fact holds adversely and for himself. The whole question is, was the plaintiff’s possession during the time he held under the title bond of Butler, — 635 — his own possession or the possession of Butler? We cannot say that it was Butler’s possession for one purpose and his own possession for another. We are of opinion that the plaintiff was holding for himself, and his possession being under a title bond, it was not sufficient to vest him with a superior title, and that the judgment should be affirmed.