REEVE v. NORTH CAROLINA LAND & TIMBER CO. et al., 141 F. 821

LURTON, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The opinion of the Tennessee Supreme Court in Sampson’s Heirs v. Chester’s Heirs, though announced before this case was originally heard by this court, was unreported, and, being unknown to counsel, was not called to our attention. The question in that case arose between two Tennessee grants covering the same land.

The court held that both grants were based upon invalid entries; the complainants’ entry, because not carried into a grant during the life of any extension act, and the defendants, because junior to the complainants and not made during any hiatus. The court, in this situation of matters, held that an entry was not indispensably necessary to the validity of a grant, citing for this, Craig’s Lessee v. Vance, 1 Overt. 182, a case referred to and commented upon in former opinion of this court. Neither grant being based upon a valid entry, the court held that the state’s title passed under the older of the two grants.

Inasmuch as counsel for the defendant have very earnestly urged that the decision of the question of the validity of the grant based upon no entry or upon one which had expired was not necessarily involved, and is not, therefore, an authoritative opinion of the Tennessee court which we should follow, we have set out the opinion of the court elsewhere, as well as the dissenting opinion by Justice Wilkes.

The dissenting opinion makes it plain that a majority of the Tennessee court chose to place the opinion and decision, not upon the ground so strenuously urged by Justice Wilkes, that the complainants had failed to show a perfect legal title and could not recover, however weak the title-of the defendants, but upon the ground that, although the entries upon which both grants were based were void, that an entry was not essential to the validity of a grant and, therefore, the older of the two conflicting grants passed the state’s title.

This view of the decision is emphasized so strongly by the dissenting opinion that we cannot escape the conclusion that the Tennessee court has most positively decided that an older grant based upon an expired entry passes the legal title as against a younger grant based upon a younger entry made when there was no hiatus. It is true that the Tennessee court does not in express terms overrule Crutchfield v. Hammock, 4 Humph. 203, and the other cases following that, which are cited in the opinion of this court.

But it is impossible to reconcile the opinion with those cited by us, some of which are noticed in the dissent of Judge Wilkes, or with the

interpretation which we placed upon them, and this is made very evident by the whole tenor of the dissenting opinion. The question is one so peculiarly local in character, involving as it does the title to Tennessee land under the Tennessee statutory provisions concerning the granting of the state’s land, that we feel under the highest obligation to conform our decision to the ■construction of the Tennessee statute law as announced by the Tennessee Supreme Court in his latest authoritative conclusion.. The Burgner grant, the grant under which the complainant deraigns title, is the oldest grant.

It issued upon an expired entry. The West grant laps upon the Burgner grant. It is junior in date and issued upon a junior entry made at a time when the Burgner entry was a live entry. Under the decision in Sampson v. Chester, the Burgner entry when the Burgner grant issued was void, and under the same decision the West entry, so far as it conflicts with the Burgner entry, was also void, because made when there was no hiatus. The case is therefore governed by the decision in Sampson v. Chester. Neither entry is in evidence.

Neither was valid when carried into a grant, so far as the younger conflicted with the senior entry. But this does not affect the validity of the grant to Burgner. it ■carried the state’s title as of the date of -the grant, and the state had no title to grant when the West grant issued to the land covered by the Burgner grant. There can be no doubt but that if this case were being heard in the Supreme Court of Tennessee, the Burgner grant would be held a valid grant.

We shall therefore withdraw our former opinion, and hold that the complainants’ title under the Burgner grant is the superior title, and affirm the decree of the Circuit Court in so far as it held the Burgner grant to be superior to the extent that the one interfered with the other. The Circuit Court did not decide the extent of this interference, and gave the parties leave to try out this question of boundary in another suit if they shall be so advised. The assignments which go to the complainants’ deraignment of title under the Burgner grant have been considered.

We ■conclude that the Burgner land was sold and title passed under the levy, condemnation proceedings, and order of sale under the Sevier judgment. E. S. Mathews, executor of Alexander Mathews, redeemed from Sevier and obtained a good title under the Sevier proceedings. It is therefore unimportant whether his own levy and sale was regular or irregular. The description of land sold under the Sevier levy and condemnation proceedings was, in our judgment, sufficient. The identification was such as to give information to the owner, and such as would enable a purchaser to learn what land he had bought. Stephens v.

Taylor, 6 Lea, 307, 309. The levy of the Sevier execution is objected to because made by one J. G. Teller, who does not append to his signature upon his return the office held by him. That he was in fact a constable at the time appears from his designation as such just before and just after upon other process in same case, as well as from parol evidence that he was exercising the functions of a constable. That he assumed to be an officer and made a levy and return under a writ directed only to a lawful officer is enough, upon a collateral attack, to justify the presumption that he was such at date of his levy.

Keely v. Sanders, 99 U. S. 441, 447, 25 L. Ed. 327. There is nothing in the objection that the legal title at date of levy 1867 was not in Burgner, but in one Tilford as trustee under a mortgage made by Burgner in 1841. It is not satisfactorily shown that the land described in the trust deed is any part of the land now claimed by complainant.

Aside from that, the time which had elapsed between the making of-the trust deed to Tilford and the levy by Sevier was such as to justify a presumption that the debts secured thereby had been satisfied; in which event the title would revert to the grantor, the trust having been executed. That trust deed was made December 8, 1841. The levy was made May, 1867. Upon a collateral attack, and in absence of all evidence that any of the claims so secured were still unpaid, a presumption may be indulged in favor of the satisfaction of the deed. Thompson v. Thompson, 2 Head, 405.

After so gueat a lapse of time every reasonable presumption should be indulged in favor of the validity of the proceedings now attacked collaterally. Pope v. Couts et al., 16 Lea (Tenn.) 82; Sheafer v. Mitchell, 109 Tenn. 182, 71 S. W. 86. One link in complainant’s chain of title was a sheriff’s deed made April 30, 1890, to G. W. Tilford. Tilford at the time was dead.

Pending the litigation appellee, complainant below, filed a supplemental bill for the purpose of bringing into the case a curative sheriff’s deed, made pending the suit, for the same land, direct to complainant by direction of the executor of Tilford. Several objections are made to this deed. Tilford redeemed this land in 1869, from E. S. Mathews, executor, who had redeemed from Sevier, but took no deed from the sheriff. In April, 1890, the sheriff then in office and successor to the sheriff in office at date of Tilford’s redemption, made a deed to Tilford, not knowing t-hat Tilford was dead.

This sheriff’s deed was one of the links in the complainant’s title when this bill was filed. Being made to one who was dead the deed was ineffectual. Weihl v. Robertson, 97 Tenn. 458, 37 S. W. 274, 39 L. R. A. 423. To cure this defect, complainants procured a written direction from West, executor of Tilford, to the sheriff then in office, to make a deed direct to them, they having acquired Tilford’s equitable title.

This was done and another deed executed by the sheriff then in office, being the successor to the sheriff who made the sale under the condemnation procedings under the Sevier judgment referred to heretofore. This deed was made in 1903. The authority of Tilford’s executor to dispose of any interest Tilford may have had by virtue of his redemption of this land from Mathews is challenged upon the ground that Tilford had been dead 16 years and his estate wound up. But West had not resigned or been removed, and this asset remained to be administered.

He had ample power under Tilford’s will to sell and convey any part of Tilford’s estate, real and personal, and we see no reason for doubting the validity of his direction to the sheriff to make deed to the complainant company. It is next said that this sheriff’s deed was made 33 years after the execution sale of the land conveyed. The Tennessee Code (Shannon’s Code, § 4783), authorizes the sheriff who makes such sale to make deed to the purchaser or any one succeeding to the rights of such purchaser “at any time, either within or after the expiration of the two years allowed for redemption.”

Section 4785 of same Code provides that any sheriff in office may execute deeds for lands sold by former sheriff, and that such deed “shall be as valid as if executed by such former officer.” The statute prescribes no time within which a deed may be made by the successor of a sheriff or other officer who made a sale, and we see no reason for denying the power in this case. Sheafer v. Mitchell, 109 Tenn. 203, 71 S. W. 86, et seq. Finally, it is said that a complainant can not acquire a title pending his suit and bring it forward by supplemental bill. That is not this case.

The complainants had an imperfect but inchoate title when they brought this suit. They simply perfected the existing title by obtaining a valid sheriff’s deed in place of an invalid one which attempted to convey the same title. It was not error to permit a curative deed to be thus brought forward. Gibson’s Suits in Equity, 650; 2 Daniel Pl. & Pr. (4th Ed.) 1515 and 1516, and notes; Mutter v. Chanvel, 5 Rus. 42; Sadler v. Eovett, 1 Moll. 162; Jaques v. Hall, 3 Gray (Mass.) 194. The decree of the lower court must be affirmed.