Choate v. Sewell

Me. Chief Justice Lansben delivered the opinion'of the Court. This is an action of ejectment. The chancellor dismissed the hill as it affected lands which were inclosed and occupied by defendants for more than seven years. Both sides have appealed. The case Avas a jury ease, and there were two jury trials; but at the third and last trial the parties agreed to waive the actual presence of a jury, and submit the case to the chancellor. He found the facts upon which defendants relied in defendants’ favor, and dismissed the bill as above stated. The first question to be determined is whether the case is triable de novo in this court. The complainant insists that the case is so triable by us notwithstanding Beatty v. Schenck, 127 Tenn., 63, 152 S. W., 1033, because of chapter 119, Acts of 1917. It is in — 489 — sisted .that this act of the legislature makes oral testimony in the chancery court the ordinary usage of that court, and for that reason Beatty v. Schenck, supra, is not controlling. Chapter 119, Acts of 1917, was not intended to and did not have the effect of changing the forms of proof in the chancery court. Upon its face it is only an exception to the usual forms of that court, and the exception is not given to either party as a matter of right; Oral testimony may he introduced in the various chancery courts of this State in open court “upon the agreement or consent of the phrties to such suit expressed in writing and filed in the cause to be so heard and tried.” It is only by consent of the parties' that a case in chancery can be heard on oral testimony, in nonjury cases, and we think such a provision in the statute does not affect the usual forms of hearing in the chancery court. Such forms are prescribed in section 6272 of Thompson’s Shannon’s Code. This section also contains the act of 1917, supra, and a reading of the entire section will show that the usual form of practice in the chancery court is to take the testimony of witnesses in writing. However, we are further of opinion that neither the act of 1917 nor the case of Beatty v. Schenck, supra, controls this case. This is a jury case, and there were actual trials before juries before the last trial. At the last trial the parties agreed to waive the actual presence of a jury and submit the case to the chancellor. The case Avas still a jury case, and the finding of fact by the chancellor has the same weight as the verdict of a jury. The ■ parties agreed to Avaive the jury, when entitled to one, and submit the facts to — 490 — the chancellor. Toomey v. Atyoe, 95 Tenn., 377-379, 32 S. W., 254. There is abundant evidence to support the finding of the chancellor and in fact there is no assignment of error to the effect that his findings are not supported by proof. He found that complainant by parol gift conveyed the land sued for to his daughter at the' time she intermarried with her co-complainant, Reagan; that they entered into possession as purchasers and for themselves in the year of 1900, and have remained in possession as such parol purchasers ever since, or for about seventeen years; that their possession of the land by inclosure for more than seven years under such parol gift has barred complainant’s right to maintain his suit to the extent of actual inclosures, but no further. He referred the case to the clerk and master and instructed him to clear proof and report how much of the land was inclosed and what part was not inclosed. The complainant has appealed from that part of the decree which held that he had given any part of • the land sued for to his daughter, Mrs. Reagan, absolutely; his contention being that he gave defendants the land, its use and possession, until he might need it, but reserved to himself the right to reclaim it at any time he saw proper. He also says that he agreed to pay the taxes on the land. But this is all a question of controverted evidence, the defendants saying that he gave his daughter the land absolutely, and that they entered into the possession of it as owners, and have improved it by building" houses, fences, etc., to the extent of more than $2,500, and have beautified it as a home, and have improved — 491 — the land in many material ways; all of which they claim to have done as the owners of the land and at the suggestion of complainant. The chancellor, accepted the defendants’ version of the case, and found the facts to he as stated by them. This is binding upon us as stated before, and his conclusion of fact is abundantly supported by the evidence. The defendants have appealed, and have assigned as error the action of the chancellor in holding that their possession had not barred the complainant’s remedy as to the uninclosed as well as the inclosed portions of the land. We have a number of cases which hold that the possession of a parol vendee is for himself, and that seven years of such possession will perfect a defense under the second section of the act of 1819, Thompson’s Shannon’s Code, section 4458. , Slatton v. Tenn. Coal & Iron Co., 109 Tenn., 424, 75 S. W., 926; King v. Coleman, 84 Tenn, 5471, 40 S. W., 1982; Vaughn v. Vaughn, 100 Tenn., 282, 45 S. W., 677; Philips v. Kimmonds, 94 Tenn., 565, 29 S. W., 965; City v. Manufacturing Co., 93 Tenn., 279, 24 S. W., 121, 42 Am. St. Rep., 919; Brakefield v. Anderson, 87 Tenn., 209, 10 S. W., 360; Inman v. Tucker, 138 Tenn., 529, 530, 198 S. W., 247; Ellege v. Cooke, 5 Lea, 622. The following cases have expressions in them which indicate that a parol vendee is limited in his defense to his actual inclosures: Cazassa v. Cazassa, 92 Tenn., 573, 22 S. W., 560, 20 L. R. A., 178, 36 Am. St. Rep., 112; Bailey v. Henry, 125 Tenn., 390, 143 S. W., 1124; Moore v. Burrow, 89 Tenn., 105, 17 S. W., 1035; Kittel v. Steger, 121 Tenn., 400, 117 S. W., 500; — 492 — Inman v. Tucker, supra. The point was apparently held in Haynes v. Jones, 2 Head, 372, and O’Neal v. Breecheen, 5 Baxt., 604. In the last two cases the holding is based npon the former holding of this court that a parol gift of land is void. Such is so stated in the two cases. This is no longer true in this State, and, the reason of the rule having failed, the rule- itself should fail. Brakefield v. Anderson, 87 Tenn., 211, 10 S. W., 360; King v. Coleman, 98 Tenn., 571, 40 S. W., 1082. It is accordingly held in a number of cases that the vendee in possession holds for himself, and not as tenant of the vendor, during the currency of the parol contract and until it is repudiated. Redmond v. Bowles, 5 Sneed, 551, 73 Am. Dec., 153; Sullivan v. Ivey, 2 Sneed, 487; Beard v. Bricker, 2 Swan., 50; James v. Patterson, 1 Swan., 309, 55 Am. Dec., 737; Fain v. Headrick, 4 Cold., 334. And see also Ellege v Cooke, supra, in which a thorough discussion of the question will he found. Section 4458 of Thompson’s Shannon’s Code is' as follows: “No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action has accrued.” Many cases are referred to under the notes in the Code following this section, and they show that almost every form of possession has been adjudicated by this court, except the one in controversy here. The right of a parol vendor, or donor, to repudiate the párol sale, or gift, accrues immediately upon making it. Where the parol vendee, or - donee, enters into possession with the knowledge of the parol vendor, or — 493 — donor, claiming adversely to him and all the world, the above-quoted statute applies. It applies to all of ■ the land embraced in the parol gift whether it ’ is under inclosure or not. The statute runs against the right of repudiation. Adverse possession between the parol vendee and a stranger to the title is. another question than adverse possession between the parol vendee and the parol vendor. The parol gift is voidable only and not void. The vendee is In' possession as a purchaser and adversely to the parol vendor. Such adverse possession for seven years extinguishes the right of the parol vendor to have as, action, either at law or in equity to repudiate his -conveyance of tho lands. This is the very language- if the statute and wo must give it such effect. The action of ejectment is a repudiation of the parol gift but the action must bo brought within the time limited by the statute. A question of estoppel is made against the complainant. It is said, and- the proof shows, that defendants entered into the lands sued for at the direct’ instance of complainant. The defendants had about $2,500 with which they expected to purchase a home, and they-diseased this question with the complainant. He advised them to take the land sued for and build a home upon it. They did this about the year 1900, and otherwise improved and beautified the place. We do not decide the question of estoppel, but. we hold that defendants, having entered’into possession for themselves, and as parol donees, are protected by the statute above quoted.- ■ The decree of the chancellor is modified in thq particulars pointed. ou,t, and is .affirmed.