Glen Mary Coal & Coke Co. v. Wolfe

DENISON, Circuit Judge (after stating'the facts as above). 1. We pass, without deciding, the question whether the court below, as a court of equity, had jurisdiction of this case in spite of the fact that defendant was in the actual adverse possession. Butterfield v. Miller (C. C. A. 6) 195 Fed. 200, 202, 115 C. C. A. 152. The parties have not raised this question. The recent statute (section 274a, Judicial Code [Act March 3, 1915, c. 90, 38 Stat. 956 (Comp: St. 1916, § 3 251a) ]) has made it unimportant in matters arising since the statute was passed, and we prefer to dispose of the case upon tire merits. [135] [1] 2. It is the statutory law in Tennessee that actual possession, under adverse claim and under a deed, held for more than 7 years, is a perfect bar against a superior paper title, and that this bar extends to the entire tract as described in the defendant’s deed. Shannon’s Code, § 4456; Earnest v. land Co., 109 Tenn. 427, 75 S. W. 1122; Mayse v. Lafferty, 1 Head (Tenn.) 60. It follows that the question to which most of the testimony has been directed—viz. whether the Gall line must he taken as the true south line of 1931—is wholly immaterial; defendant’s established, and, indeed, unquestioned, possession for more than 30 years is the end of the case, except for the question of estoppel by judgment. True, plaintiffs suggest a conflicting possession; but it is only by construction through actual possession outside of the overlap, while defendant had actual possession of the overlap itself, and lliis constructive possession,is insufficient. Byrd v. Phillips, 120 Tenn. 14, 23, 111 S.W. 1109. [2] 3. Plaintiffs at last rest upon the claim that the title was adjudicated by the Supreme Court decree. We are unable to find any sufficient basis for this claim. If Ibe decree had remained in the form in which it was drafted, it would still, in view of the opinion, have contained certain ambiguities as to its effect upon the parcel of land now involved, and the attending circumstances would have required that every ambiguity should be resolved against plaintiffs’ present claim. This was a very valuable parcel. It had been in the exclusive and undisturbed possession of the defendant for over 20 years. Neither party had taken any proof whatever regarding it, and the plaintiffs, in the court below, had made no claim to it. It is incredible that either party could have supposed that it was involved in the litigation, or would have deliberately contended that the decree ought to cover it. However, the paragraph inserted in the decree leaves no ambiguity. The proposed decree affirmed the action of the lower courts in favor of the Glen Mary Company as to all 4 of the parcels about which there bad been an actual controversy. Then, by a general phrase, it awarded 1o the plaintiffs all other lands within their boundaries. Thereupon this paragraph expressly provided that, as to the other lands claimed by the Glen Mary Company within these boundaries, it was not intended to make any adjudication whatever. It is not necessary to resort to the testimony of the counsel that this exception was intended to reach, also, parcels which were actually claimed, hut which he had not described and claimed in his answer; for we find that the parcel in dispute is one of those claimed in the answer. The claim under the head “Eleventh Traci” must refer to this parcel. This eleventh tract so claimed is described only as “being entry 1931”; but since the tract sued for was 1935, and since this reference to the eleventh tract could have no possible pertinence in the answer, unless it referred to something that might be within the boundaries sued for, and since no part of 1931 could possibly be in 1935, excepting through an overlap, actual or claimed, and since this overlap was the very thing which was claimed to give to defendant a part of the ideal 1935 under defendant’s deed to 1931, it is clear to a demonstration that this reference in the answer to the eleventh tract was intended to reach this very parcel, and to [136] present a claim that plaintiffs could not recover this parcel because it really belonged in 1931. Not only is this the natural, if not the inevitable, construction to be put upon this claim of title to the eleventh tract, after we know the conditions which make the situation intelligible, but to give it any other construction would be to make it meaningless and futile. With this construction, it is clear that the title to this parcel, as well as to all the other parcels claimed by the defendant, and which had not by earlier parts of the decree been awarded to the defendant, was left untouched by the decree, and the claim of res judicata must fail. [3] It .is said that to take this view of the later paragraph in the decree neutralizes what had, in the earlier paragraphs, been adjudged, and that, for this reason, such a construction cannot be right. To some extent this premise is true. So far as the general language of the decree awarded tO' plaintiffs all lands within the boundary not claimed by the defendant the Glen Mary Company, this general language remained operative; but the fact that the broad terms of the earlier part of the decree are inconsistent with specific provisions found later therein can cause no hesitation in giving to the specific provisions precise and full effect. The inevitable inference from the face of the decree in connection with the opinion and the pleadings would be that the draftsman of the decree, by mistake, made it too inclusive, and later corrected this mistake by apt words. This inference, which would be sufficiently supported by the record itself, is confirmed by the testimony showing that all these other parcels were, by agreement, withdrawn from the case in its early stages; that plaintiffs, in the lower courts, made no claim of title to them; that such claim of title was first urged in the Supreme Court, and by new counsel not familiar with the agreement; that the Supreme Court, in ignorance of the agreement, approved the claim of the new counsel; and that, as soon as this came to¡ the attention of the former counsel,, the blunder was corrected by the consent of everybody. The general phrasing of the earlier paragraph was allowed to stand for whatever benefit it might be to plaintiffs as against other defendants, but the Glen Mary Company fully protected itself by insertion of the amendment. . This view of the result of the litigation in the state court is made entirely consistent and natural by observing that the title to this 99-pole strip was not put in issue by the pleadings in that case, unless by that very eleventh paragraph of the answer which also serves to. take it out of the decree, and by the inference—which we think a fair one— that McBumey did not care to> litigate with the Glen Mary Company its claim of title to any of the tracts of which it was in possession, excepting as to those 4 tracts where there had been a severance of the coal in the ground from the surface fee, and where, therefore, he thought he might prevail against the statute of limitations; but on this, his only substantial theory, the Supreme Court held against him. The decree is reversed, and the record remanded, with instructions to dismiss the bill.