1824. Walker [LOCAL LAW.] Den ex dem. WALKER V. TURNER. By the statute of limitations of Tennessee, of 1797, a possession of seven years is a protection, only when held under a grant, or under mesne conveyances which connect it with a grant. ▲ Sheriff's deed, which is void for want of jurisdiction in the Court under whose judgment the sale took place, is not such a conveyance as that a possession under it will be protected by the statute of limitations. V. Turner. Mr. Justice WASHINGTON delivered the opinion March 19th. of the Court. This was an ejectment brought in May, 1818, in the Circuit Court for the District of Tennessee, by the plaintiff in error, to recover possession of a lot of ground in the town of Nashville, distinguished in the plan of the town, as lot No. 85. Upon the trial of the cause, the plaintiff gave in evidence, a deed for the lot in controversy, from the commissioners of the town of Nashville to the lessor of the plaintiff, bearing date the 6th of August, 1790, and then proved the defendant to be in possession of the same at the time the suit was brought. The defendant then gave in evidence a record of the County Court of Davidson, in the State of Tennessee, by which it appears, that upon the complaint of Roger B. Sappington, administrator of Mark B. Sappington, deceased, to a Justice of the Peace for the said county, supported by his oath, that George Walker (the lessor of Walker V. Turner. 1824. the plaintiff) was justly indebted to him, as administrator aforesaid, as appears by the books of the said Mark, to the amount of 20 dollars and 25 cents, and that the said Walker was an inhabitant of another government, so that the ordinary process of law could not be served upon him, an attachment, bearing date the 24th of April, 1804, was awarded by the magistrate against the estate of the said Walker, which the officer was, by the said process, directed to secure, so as to be liable to further proceedings to be had before the said Justice, or some other Justice for the said county. The return upon the attachment was, that no personal property was to be found; and on the 26th of April, 1804, judgment was rendered by the magistrate in favour of the plaintiff for 20 dollars and 25 cents, and costs. These proceedings being carried into the County Court of Davidson, the cause was there docketted, and the defendant having appeared by attorney, a stay of six months, under the law, was entered on the docket. At the sessions of the Court, in October, 1804, the defendant entered special bail, and reprieved the property attached. The record then exhibits the following entry, viz. "On which attachment the said administrator obtained judgment before J. A. Parker, [who issued the attachment,] a Justice of the Peace, on the 26th of April, 1804; which proceedings being brought up to Davidson County Court, April sessions, 1804, and a stay of further proceedings ordered to the present sessions, (October, 1804,) at which sessions bail was entered, in order to Walker Turner. replevy the property attached; after which, and 1824. during the same sessions, the said Sappington moved the Court for an order to sell the property attached, whereupon the Court directed the Clerk to issue orders of sale to the Sheriff, to sell the property attached." The record proceeds to state, that, in pursuance of this judgment, orders of sale issued, returnable to the January sessions of 1805, but which did not appear to have been returned. The defendant then gave in evidence a deed, dated the 22d of July, 1809, from the Sheriff of Davidson county to Roger B. Sappington, for the lot in question, purchased by him at public auction, under process of the Court of said county, for non-payment of the taxes due upon the said lot. The defendant also gave in evidence a deed from the said Roger B. Sappington to Lemuel P. Turner, deceased, to whom the defendant was proved to be heir and devisee. He further proved, that shortly after the deed by the Sheriff to Roger B. Sappington, he (the grantee) exercised acts of ownership on the lot in question, by cutting trees, quarrying stones, &c. which he continued to do until he sold the lot to Turner, but that he never resided on the lot, or had any continued possession thereof, except as above stated. The next evidence given by the defendant, was a deed, dated the day of January, 1806, from the Sheriff of Davidson county to Roger B. Sappington, which, after reciting all the proceedings before mentioned, before the magistrate of Davidson county, and the Court of that county, in the suit of Sappington against Walker, the writ of Walker 1824. vend. expo. to sell the said lot, issued by the said County Court, and the purchase of the same by the said Sappington, as the highest bidder, at public auction, conveys the said lot to him. V. Turner. The defendant then proved, that in the year 1811 or 1812, Lemuel P. Turner commenced building a stone fence on this lot, which he was one or two years engaged in completing; that he commenced building a house on the lot, which he incessantly persevered in till it was finished, after which he removed into it, in 1812 or 1813. Upon the above evidence, set forth in a bill of exceptions to the opinion of the Court, the charge to the jury was, that the deed from the Sheriff of Davidson county to R. B. Sappington, under the judgment of Sappington's administrator against Walker, was sufficient, if the jury believed the facts to be as above stated, to vest the title of said Walker to said lot in Sappington the purchaser at the execution sale; that the tribunal that adjudicated, and from whom the execution issued, had jurisdiction of the subject matter, and that the parties, too, were in Court; that the deeds aforesaid were of such a colour or appearance of title as, connected with seven years peaceable and continued possession, by the persons claiming under them, and the grant to Walker, would protect the possession under the statute of limitations. The fact as to possession was left to the jury. The Judge further stated, that a party, to be protected by the statute, must have an adverse continued possession of the land in dispute, either by actually residing on it, or by having it enclosed with a stone fence, and that a possession, by such enclosing or fence, would be sufficient, without an actual residence on the land. This charge presents, for the consideration of the Court, the following questions: 1. Whether the deed from the Sheriff of Davidson county to Sappington, did vest in the latter a title to the land in question? 2. Whether, under the circumstances stated in the bill of exceptions, the possession of the defendant was protected by the statute of limitations of the State of Tennessee? 3. Whether the Court below was right in the statement made to the jury, as to what constitutes a possession to be protected by the act of limitations. 1. Whether the Sheriff's deed conveyed to Sappington a title to the land in controversy, depends upon the question, whether the sale was inade under the judgment of a tribunal having jurisdiction of the cause in which it was rendered. The judgment was rendered by a Justice of the Peace, upon an attachment issued by him against a non-resident, and returnable before himself; and the order for selling the property attached, was irrade by the County Court. It does not, however, appear by the return made upon the attachment, that the lot in dispute, or any other property of Walker, was attached; nor does it even appear, otherwise than by a recital in the deed from the Sheriff to Sappington, that any process issued from the County Court, which authorized the Sheriff to sell this lot. Evidence was given by 1824. Walker V. Turner. |