Coulson v. Walton

APPEAL from the circuit court of the United States for the district of West Tennessee.

The case is fully stated in the opinion of the court. It was argued by Mr Bell, for the appellant; and by Mr Key, for the appellee.

For the appellant it was contended, that, stripped of circumstances, the case is, that Payne held a title bond on Coulson, for six hundred and forty acres of land, dated in 1787.

In 1791, Isaac Coulson the obligee died, leaving John Coulson, the appellant, his heir. This bill was filed for a specific decree, in 1822, more than thirty years after the ancestor's death. To the bill, John Coulson, the heir, pleaded in bar the act of limitations of 1715, ch. 48, sec. 9, declaring, 'that creditors of any person deceased, shall make their claim within seven years after the death of such debtor, otherwise such creditor shall be for ever barred.'

It is insisted by the appellees, that the word creditor does not embrace Payne seeking the lands; but would, were he seeking damages. Had Payne attempted to enforce the bond at law against Coulson's administratrix, and to recover damages, the act of 1715 would have barred him. 3 Yerg. 9.

So, if the administratrix had been sued, had pleaded 'fully administered,' the damages had been found against her, but the plea for her: then a scire facias had been run to subject the lands in the hands of the heir, he could have pleaded the act, Mart. and Yerg. 360.

This is the only mode by which the heir can be reached in the state of Tennessee. The personal estate must be shown to have been exhausted, by the finding of the plea of 'fully administered;' and it can be shown in no other form. Mart. and Yerg. 360; 1 Yerg. 40, 287.

In 1801, ch. 6, the courts of equity of Tennessee were authorised to divest titles to lands by decrees; and enforce specific performance in this manner. Ever since, the common mode of enforcing contracts for lands, has been by specific decree against the obligor, or his heir.

In the same year, 1801, ch. 25, the statute of frauds was enacted, requiring agreements for lands to be in writing, and to be signed by the party to be charged therewith. The form of contract has almost uniformly been a title bond. Whether the obligee to such bond was a creditor, and his claim subject to be barred by the act of 1715, soon became a most important question; one of the most important, involving the protection of heirs by the lapse of time, presented to the courts of chancery.

In 1809, the supreme court of Tennessee was established, consisting then of two judges, and having conferred upon it original chancery jurisdiction. In 1813, the court consisted of Hugh L. White and John Overton, men, eminent in the distinguished class of ejectment lawyers of that day, who had the public confidence in a high degree, and especially in matters affecting titles to lands. What they settled by a concurrence of opinion, has not been questioned in the state courts of Tennessee, up to this time. This is asserted with a knowledge of its truth, that challenges contradiction. Before this court was brought the cause of Smith v. Hickman's Heirs, in 1813; a bill for a specific decree on a title bond. The title bond had been executed by Edwin Hickman, in 1789. The report, Cooke 330, shows it to have been a naked case. The act of 1715, ch. 48, sec. 9, was pleaded in bar, that the suit had not been brought within seven years after the ancestor's death. And on the most mature consideration, the court decided, judge Overton delivering the written opinion-'that it has been insisted that the complainant is not a creditor, on account of the demand not being of a pecuniary nature; but, as it is the duty of this court to examine this point, they feel satisfied that, as to that, he is within the act. All persons are considered creditors, that have demands originating from contracts or agreements.' The next year, 1814, Lewis v. Hickman's Heirs, came before the same judges, 2 Tenn. Rep. 317, when judge White delivered the opinion of the court to the same effect. These decisions have been followed in the state courts, with entire confidence of their correctness ever since. Cases in confirmation cannot be adduced, as no lawyer would present such a case: but to show the sense of the supreme court on the subject so late as 1832, a year after the cause before the court was decided below, we quote a passage from the opinion of the chief justice in Hooper v. Bryant, 3 Yerg. 9.

'In 1814, the cause of Lewis v. Hickman, 2 Tenn. Rep. 317, involved the question whether an heir or an administrator could defend himself by the plea of seven years, under the act of 1715, ch. 48, sec. 9. To a bill to enforce a title bond, Edwin Hickman's heirs and his administrator, relied upon the act of 1715, ch. 48, sec. 9, as a bar. The court went into an examination whether the act of 1715 was in force, it being insisted that the act of 1789, ch. 23, had repealed it. The court decided that both the acts were in force, and barred the complainant. This was the only point made in the cause by the record, and has been followed ever since.'

And in delivering the opinion of the court, in Peck v. Wheaton's Heirs, Martin and Yerger's Rep. 360, it is holden: 'We are moreover of opinion that the act of 1715, ch. 48, sec. 9, of seven years, will operate as a bar; and that that act is in force we consider one of the best established positions litigated in our courts;' and Peck's claim was pronounced barred, in accordance to the decisions of 1813 and 1814.

But the federal circuit court disregarded these decisions, for the reason in Smith's cause, that no particular tract of land was designated by the bond sued on, and no lien created; and therefore the demand was in effect for damages.

There is no such idea contained in the report of the case. The contract was made at a time, 1787, when no statute of frauds existed, or any writing was required; and when proof could have been introduced to show the tract of land intended to be conveyed. The courts of Tennessee, the legal profession, and the country, have not now, or have they ever had an idea, that the bond formed no lien and was not obligatory on Hickman's Heirs. The distinguished counsel who argued the cause, and the court so admitted: a new generation has grown up under the impression, governed by the report of the case; and as was holden by the supreme court of Tennessee in Hooper v. Bryant, 3 Yerg. 9, it is now too late to correct the error, if even error there be. It is the pride and pleasure of the courts of Tennessee, to follow and abide by the decisions of the supreme court of the United States when construing the laws of the union; as they have done us the honour of conforming to our decisions on our local statutes, especially the seven years act protecting possessions: and we earnestly insist, decisions of twenty years standing, whether made in mistake of the fact or the law, cannot now be overthrown without great and manifest danger to our titles; without letting in upon our country evils little foreseen at this distance from it, and by strangers to it. If parol agreements for lands, for warrants, and for locating, made previous to 1801, are let in against the heir, and the agreements are enforced in the federal courts, the litigation to enforce them may be appalling, especially in the western part of our state.

The only objection made to the decision of Lewis v. Hickman, in the court below, was that it did not appear whether the bill was filed to recover the land, or for damages.

In the state of Tennessee the heir cannot be sued for damages in any kind of proceeding. There is no direct mode in which he can be sued but for a specific decree to divest title. Further: no suit for damages is ever prosecuted with us in equity. There is no such jurisdiction.

It is idle to conceal it: if the decree below is affirmed, the two causes against Hickman's Heirs will be flatly overruled.

But some stress has been laid upon a loose and obscure expression of judge Haywood in Hagsard v. Mayfield, 5 Haywood 121. It was an action of ejectment. Mayfield died. His wife administered. A title bond was produced, and she, under the statute of Tennessee, made a deed; but not for the land described in the bond. The heir sued for the land, and the deed was declared void. The act of limitations of 1715, ch. 48, could not have, and did not have the remotest bearing on the cause. It is not possible to introduce it in the action of ejectment. But those acquainted with the legal ideas of that distinguished common lawyer, judge Haywood, well know what he meant. He was prosecuting a favourite theory, that equitable titles were not barred by the acts of limitation. That neither an entry or title bond was operated on by any statute, because courts of equity were not bound, and the remedy was open. And if the honourable court is curious to understand the paragraph referred to, and to see the plausibility that genius can confer upon error, they will read judge Haywood's dissenting opinion in Gaither and Frost's case, 3 Yerg. 208; but fearing our client's cause will be endangered from its masterly ability, we must insist, the court read the concurrent opinion, preceding, of the three other judges, overruling judge Haywood's; and which declares equitable titles equally with legal, subject to be barred.

The heir must be at repose some time, so that he may say of his fireside-this is mine. We, of Tennessee, afford the same protection, by the act of limitations of 1819 to all others: we declare that no suit in equity shall be brought, had or prosecuted but within seven years next after the cause of action come, accrued, or fallen; and all claims not sued within said seven years, shall be for ever barred. The courts have enforced the act to the letter. Dunlap v. Gibbs and M'Nairy, 4 Yerg.

The same act bars the ejectment in seven years, so that all stand on the same foot with the heir. The state of our titles originating in land warrants, required the protection; and the hundred thousand people drawn to our western district within the last ten years, and their almost entire exemption from litigation, bespeak the wisdom of our seven years policy, which we hope this honourable court will not disturb.

We apprehend it most difficult for the court to give specific relief on a title bond of thirty-four years standing, when sued upon; with the supposed obligor's name erased from it; after the death of the obligor, obligee and the witnesses; with the proof that no claim was set up under it by the obligee in his lifetime, he averring no writing existed between him and Isaac Coulson: But this rests on facts, which we feel it our duty to leave with the court.

Mr Key, in reply.

The facts show a possession of the land in controversy on the part of the appellee and those under whom he claims, since 1788. It was held under an agreement dated in 1787, to convey the title, if 100 pounds was not paid within the year. The money was not paid, and the obligee held the land till the death of the obligor in 1791, and after his death till ejectment was brought by his heir at law in 1814. On the recovery in ejectment the bill was filed to enjoin the issuing of a writ of possession and for relief; and the question is (and it seems to be now the only one insisted on in behalf of the appellant), is the statute of limitations a bar to the relief sought by the bill?

It is contended by the appellant, in the argument now submitted to the court, that this is settled by the Tennessee courts.

Smith v. Hickman, Cooke 330, is the first case relied on. All that this case proves (the bond being for no specific land) is, that a party having a bond for so much land may be considered a creditor under certain circumstances, within the meaning of the statute of limitations. The observations of the court below on this case require nothing further to be said as to the effect of this decision.

The case of Hooper v. Bryant, 3 Yerg. 1, has been mentioned. There is not a word in the opinion of the court touching the question; but the argument of the counsel in favour of the application of the statute to that case, pages 5, 6, very clearly shows that no such doctrine as the appellant contends for, is considered as settled in the courts of Tennessee. Thus he says: 'it is admitted that the act of limitations cannot be pleaded to an express and subsisting trust, as between trustees and cestui que trust. This rule only operates so long as the trust subsists between the parties.'

'When a trustee, who has trust property in his possession, dies, the trust is no longer a subsisting one: but if the trust property be specific or capable of being identified, &c., then it would not be assets in the hands of the executors, and the cestui que trust may follow it in the hands of the executor, and the act of limitations could not be pleaded where the trust property in specie is sought to be recovered. But if it is not specific, and therefore cannot be identified and followed, &c., it is then assets, &c. The cestui que trust in such cases becomes a general creditor,' &c., page 7. 'Where it is not capable of being identified, as the cestui que trust is then only a creditor, his claim, like that of all other creditors, will be barred, unless prosecuted within the time limited by law.'

This argument is in accordance with Smith v. Hickman, and shows the distinction between that case and this. Here the claim is for specific trust property, and therefore cestui que trust is not a creditor and the statute does not apply.

The next case relied on is Lewis v. Hickman, 2 Tenn. Rep. 317. The court below in their opinion have explained this case. There the land could not be had; it was held adversely; the bond had been given up for a defective deed, and the object of the bill was to set up the bond and relieve the plaintiff. It was therefore a claim for money; it was all the holder of the bond could get. It does not appear in the case that the obligor ever got a patent, or had the legal title to the land. It was not therefore, as here, the case of a party in possession, claiming the protection of equity against the legal title of the obligor.

Peck v. Wheaton's Heirs, Mart. and Yerg. 360, is cited. There the claim was plainly for a debt; and no doubt the statute was a bar.

3 Yerg. 208, is also mentioned; but seems to have no application to the question.

The case of Hagsard v. Mayfield, 5 Hay. 121, is not correctly understood by appellant. The heir was the defendant, not the plaintiff in the ejectment; and the judge decides against the legal title of the plaintiff, but admits his claim in equity, as not barred by the statute.

To show conclusively that no such doctrine as is contended for by appellant, is recognized in the Tennessee courts, the court is referred to the case of Cocke and Jack v. Maginnis, Mart. and Yerg. Rep. 361. It is there said, page 363, by the court, that 'the true rule is, that courts of equity will apply the statute of limitations to all cases, unless it be such as are predicated upon a naked trust, in which courts of equity alone have jurisdiction, and of which courts of law have no cognizance.' Is not this precisely such a case as the court here excepts from the operation of the statute? Payne is in possession of the land under the agreement for the legal title; and the heir at law has only the naked legal title, and this he held in trust for him who had the possession and the right to demand the legal title; no court of law could have cognizance of such a case. What remedy at law could Payne have? What could he claim as a creditor? The holding the legal title (Payne being in possession) could not be adverse so as to put him on making a claim upon the trustee, within the time limited by the statute; as long as the trustee suffered him to be in possession, it was a recognition of a subsisting trust.

The court is also referred to Armstrong's Heirs v. Campbell, 3 Yerg. 201. The marginal note at the head of the case, shows the points decided, and the opinion of the court, in pages 231 and 237, shows that such a trust as this is not barred by the statute.

In truth, the statute of limitations is attempted to be used in this case not to protect, but to disturb a long continued possession; the heir at law wields it, not to protect his fireside, but to invade another's. With a naked legal title, he seeks to dispossess the party who has been allowed to hold possession under an agreement for a title, that allowed possession, confessing the right of the possessor; and when equity is invoked to prevent this injustice, he objects that the cestui que trust is barred by the trustee's acquiescing in his possession, and delaying to question his right. It is not easy to conceive how the rejection of such a plea will overrule any doctrine of the courts of Tennessee, or disturb the repose of the possessors of lands.

Mr Justice M'LEAN delivered the opinion of the Court.