
    Hale v. Hord.
    1. Chancery Jurisdiction. Lost papers. The Code, sec. 3907, providing for supplying lost papers, does not take away from the Courts of Chancery their jurisdiction to grant relief in case of the loss of records at law.
    2. vSame. Will grant full relief. The record of a pending ejectment cause being lost — on a bill filed to supply the loss and for relief — the court will decree upon the title, and especially where no demurrer is interposed objecting to the jurisdiction to grant this relief.
    3. Grant. Description partly good, partly bad. A grant upon an entry made in Hawkins county, calling to begin on the Greene county line. but in fact beginning a half mile within Greene county, is not, for that reason, void as to the lands lying in Hawkins county, but valid.
    FROM KNOX.
    Appeal from Chancery Court at Rogersville, special January Term, 1872. H. C. Smith, Ch.
    James. T. Shields, for complainants said:
    The case stated by the bill is this: On July 5, 1839, the State of Tennessee granted to George Hall twenty-five hundred acres of land, lying in Hawkins county, the boundaries of which are set forth with particularity. In 1847 the said George Hale conveyed an undivided one-fourth of said land to James K. Neill as “natural guardian” of the children of Catharine D. Neill, who was a deceased daughter of the said George, and the remainder of the tract to his son, James Hale.
    On April 22, 1850, the said James reconveyed to said George. About the year 1856 or 1857 one Thos. Hord, claiming adversely to the title of said George, took possession of a portion of said tract, and in about one year afterward the said George and the said James K. Neill instituted an action of ejectment against him in the Circuit Court of said county, in which issue was joined, but the cause has never been tried in that court.
    The bill further states that the said Thomas Hord claimed to have a grant, or other color of title, to said land, but if in point of fact he had such, the grant of the said Hale was a much older and a superior title, and the plaintiffs in said action had a good right to recover, but that during the recent war were unintentionally and unavoidably lost or destroyed, and although the clerk’s office has been carefully and thoroughly searched for them, they cannot be found. It is, then, shown the parties to said action of ejectment are all dead, and that the complainants and defendants, as heirs at law, represent them respectively. It is charged that the papers of said cause having-been lost or destroyed, as aforesaid,' it becomes necessary for complainants to seek relief in equity; and the complicated and complex character of the title of the complainants rendering it difficult for a jury — so much so as to embarrass the remedy, under the statute requiring all the interests of the plaintiffs to be specifically found — to find a proper verdict, is stated as a further and additional ground for the interposition of a court of equity.
    The prayer of the bill is that the lost papers be supplied; that the complainant’s title to the property and right to its possession be declared; that they be, by proper process, placed in possession of the same, and the equities, between themselves be settled.
    The bill, as this statement shows, seeks relief on three grounds:
    1. The destruction and loss of the record in the suit at law.
    2. The remedy at law is not clear and unembarrassed because of the nature of the titles of the complainants.
    3. It is an ejectment bill, of which the court must take jurisdiction, unless there is a demurrer specifically to the jurisdiction of the court.
    To this bill the defendants filed a demurrer, and assigned three grounds of demurrer.
    1. The bill shows on its face that the said Thos. Hord, in his life-time, to-wit., in the year 1856 or 1857, took adverse possession of the land defendants claim under color of title. This is a complete bar to complainant's right of entry. The bill shows that this possession was taken during the- life-time of the said George Hale, the ancestor.
    We presume that when the venerable counsel who drew the demurrer raised this question, he had in his mind the ancient principle of the common law, that when a person acquires an estate in fee simple in land by descent, it is necessary that he should enter on the lands to gain a seizin in deed in order to transmit it to his heirs, without reflecting that it has always been doubted whether this rule ought to be maintained in this country, and that the Statute of Descents in our State, 1784, ch. 22, sec. 2, declaring that “ when any person shall die seized or possessed of, or having any right, title, or interest in and to any estate of inheritance in land, or other real estate in fee simple, and such person shall die intestate, his estate shall descend,” etc., completely abrogates the rule. Guión v. Burton, Meigs, 565; 4 Kent, 388.
    2. “The papers in the action at law would be as easily supplied at law as in chancery.” We quote the precise language of the demurrer.
    Grant this to be true — that under our statutes the lost record could be supplied at law, yet it can also be done in equity. The jurisdiction of the court of chancery to grant such relief is very ancient; there is nothing in the statutes that abrogates this jurisdiction, and the jurisdiction of the two courts is now concurrent, the principle that equitable jurisdiction is not changed or obliterated by the courts of law taking jurisdiction in cases in which they formerly had not jurisdiction, in the absence of an express legislative restriction, being .well established.
    The charge in the bill is (and such is the proof), that the entire papers and record of the action of ejectment were destroyed. We submit that a court of equity had jurisdiction to give relief against such an accident, and that although the court in which the suit was pending might have also, under our statutes, given similar relief (but feebly), yet the jurisdiction of the former court remains, and the complainants had already the right to elect in which court they would seek relief.
    It is true that in Graves v. Keaton, 3 Col., 12, decided at Jackson in 1866, Judge Hawkins says that to supply a lost paper in a cause, application must be made to the court in which the same is pending; and it may be that the same doctrine has been held in some other case. But granting that that case was correctly decided (which in fact we doubt), it is not a precedent against the principle for which we are now contending. In the case now before the court the whole record was destroyed, in the other ease only a paper, a part of the record only. It is certain]}' a more speedy and less expensive mode of supplying the loss of a single paper to apply to the court in which the cause is pending; but notwithstanding, does not the ancient jurisdiction of chancery remain? Be this as it may, we insist that in a case where the whole record is destroyed the question is clear.
    But independent of this ground of jurisdiction, and without reference to it, the prayer of the bill is for relief on the merits, on the ground that the complainants have title to the property. This is the legal effect of the charges and prayer, Therefore, if. there were no statements in the bill sufficient to bring the case within the jurisdiction of the court, and the bill presented simply a question of legal title, the defendants, under this demurrer, could not avail themselves of the exception to the jurisdiction, because such an exception must be clearly and distinctly taken. 5 Col., 240; 1 Heis., 74, 239; 3' Head, —.
    The demurrer, if it takes any exception, and it is submitted that it does not, simply states that lost papers can be supplied -in the one court as easily as in the other, and does not except to the jurisdiction because on the merits of the case there is an unembarrassed remedy at law, and that the remedy is legal and not equitable. The demurrer was disallowed by Chancellor Lucky, and the defendants required to answer; but, as will be seen, when the cause was tried before Chancellor Smith, he “ went back ” upon the record, sustained the demurrer — such was the substance of his action — and dismissed the bill.
    The answer does not controvert that the complainant’s title covers the land in dispute, admits that the defendant is in possession, and does not pretend that the defendant’s title is older or better than the complainant’s, further than is so done in these words, which we quote:
    “They deny that said Hale made the entry upon which his pretended grant was issued in Hawkins county, but as they are informed and believe, he made the entry in Greene county instead of Hawkins; and if said grant claims to be founded upon an entry made in Hawkins county, it is' a false and fraudulent claim, as these respondents will fully show.”
    The facts are as follows: The entry of George Hale was made in the entry taker’s office of Hawkins county February 22, 1827, and on its face so describes the land entered as to show that it is situated in Hawkins county. The grant, the recital of which shows the same facts, was issued July 5, 1839.
    William Burns proves that the grant to Hale covers the land in dispute, and that it lies in Hawkins county. William Hay also proves that the land in dispute lies in Hawkins county. But from the testimony of several witnesses it appears that in fact the beginning corner of the grant is a short distance over the line, and .in Greene county. This was clearly a mere mistake, and the intention was to begin on the county line, as is apparent on the face of the entry.
    The statement in the answer that the entry was made in Greene county, is shown to be false by the copy of the entry. The fact that a mistake was made in locating the beginning corner (which is not charged in the answer), and' that it was located over the county line, cannot vitiate the grant. If the allegation that the entry was made in Greene county were true, that fact could not have the effect to vitiate the grant. This grant so describes the land that it can be easily found and identified, and such a grant is valid, and will hold the land granted, although there may have been neither an entry or actual survey; and, therefore, if this entry were void, the grant would be good. Craig v. Nance, 1 Tenn., 182, 183; Smith v. Buchanan, 2 'Tenn., 305 — -'308. Besides, a grant may be good in part and bad in part. 10 Yer., 518. And as the entry was made in Hawkins county, the grant is good to the line of that county, and the proof clearly shows that the disputed land lies within that county.
    The defendants plead the statute of limitations of seven years. The bill charges that Hord took possession in the year 1856 or 1857, and that the action of ejectment was instituted in about one year afterward. The answer says it is true not only about 1856 or 1857 said Thomas Hord took possession of the land in controversy, but he took possession many years before, etc. And it is admitted that the action was brought in the life-time of Hord.
    Mary Venable, a witness for defendants, proves that Hord took possession in 1857. Daniel Venable, also a witness for defendants, proves that Hord’s possession commenced in the latter part of 1856, or between that and 1858. The action of ejectment was commenced soon afterward. Mr. Fulkerson proves that he moved to Rogersville from Tazewell in 1859, and has been practicing law in Rogersville ever since. He has given this case personal attention. He says the suit was brought about one year before he ivent to Rogersville, which would make the institution of the suit in 1858. Wm. Burns proves a survey of the land made about two years before the commencement of the war, and says that the action of ejectment had then been brought by George Hale against Hord for the land.
    From all which it appears that said Hord had not held possession for seven years before the action of ejectment was instituted, and this bill is but a continuance of that action. And there can be no question that the complainants are. entitled to the land in controversy. It is true the defendants hold under a grant, but it and the entry on which it is founded are both younger and inferior titles to those under which the complainants claim.
    The answer further denies the destruction of the record in the action of ejectment, but adds, if it was destroyed, it was done on purpose by complainants or their agent. The loss of the record is fully proved by Fulkerson, the attorney, and by Piper, the clerk of the court. The defendants did not attempt to prove the malignant charge that the destruction of the record was by the complainants themselves.
    By reference to the final decree, it will be seen that the Chancellor dismissed the bill on the ground “ that the complainants have not brought themselves ■within the rules of law setting up lost papers, and that they are uot entitled to any relief in a court of equity,” reversing the decree of his predecessor on the demurrer.
    C. W. Hall, for defendant.
   Nicholson, O. J.,

delivered the opinion of the court.

This bill was filed to supply and set up the record in an action of ejectment commenced in the Circuit Court of Hawkins in 1857 or 1858 by George Hale and James R. Neill against Thomas Hord, which record was lost or destroyed during the late war. The plaintiff and defendant in that suit having died, the complainants in this case are the heirs of George Hale and James K. Neill, and the defendants the heirs of Thomas Hord.

The bill alleges the entire loss or destruction of the record, sets out the title ' by which the complainants claim the land, prays that the lost record may be supplied and -set up, and that their title be declared and possession be awarded to them.

Defendants demurred to the bill, but their demurrer was overruled, and they were allowed to rely on their causes of demurrer in their answer. They then answered, denying that complainants have a valid title, but insisting that their grant is void, because based on an entry made in Green county and not in Hawkins county, relying upon a grant to Thomas Hord, and an adverse possession of more than seven years. They admit the bringing of the action of ejectment as charged, and that the same has never been tried, but deny that the papers in that case were lost, and if they were destroyed it was done on purpose by complainants or their agents.

The Chancellor being of opinion on the hearing that complainant's have not brought themselves within the rules of law setting up lost papers, and that they are not entitled to relief in equity, dismissed their bill, from which decree they have appealed.

The decree of the Chancellor seems to have been made either because he considered one of the causes of demurrer well taken, to-wit., that the papers in the action at law would be as easily supplied at law as in chancery,” or that the allegation in the bill as to the loss of the record was not sustained by the evidence. The decree cannot be sustained on either ground.

The demurrer admits the loss of the papers, and raises the question whether the statute prescribing the mode of supplying lost records had the effect of abrogating the original jurisdiction of * courts of equity to supply lost papers upon the ground of accident? It is true that in the case of Graves v. Keaton, 3 Col., the court, in construing sec. 3907 of the Code, say that “before any such lost record, or paper, or proceeding can be supplied, an application must be made to the court in which the action is pending, for that purpose.” This must be understood only as authorizing a party who wishes the benefit of a lost paper in a cause to apply to the court in which the cause is pending to have it supplied, and not as limiting and restricting the party to relief by application to that particular court. The language of the Code is that “any record,” i. e., if lost or mislaid, etc., “may be supplied upon application,” etc. This leaves the party to his election, either to apply to the court of law in which the case • is pending to have the lost paper supplied, or to resort to a court of equity for that purpose. The decree of the Chancellor, therefore, could not be sustained on the ground that the demurrer was well taken.

In the answer, however, defendants deny that the papers were lost, but insinuate that they were destroyed intentionally by complainants. This latter insinuation is wholly unsupported, by proof, and is, therefore, of no avail. The evidence of the Clerk of the Circuit Court, the custodian of the records, and of one of the attorneys concerned in the ejectment suit, leaves no room to doubt that the entire record was lost during the war. The decree, therefore, is not sustained by the proof.

It appears from the prayer of the bill that complainants not only sought to have the lost record supplied and set up, but they also asked to have their title established and possession given to them. It was, therefore, an ejectment bill, and was subject to demurrer for want of jurisdiction in the Chancery Court, nothing appearing to show that their remedy at law was so embarrassed as to make it proper for the interposition of a court of equity. But defendants failed to object to the jurisdiction of the Chancery Court by special demurrer, as required by the Code. None of the causes of demurrer assigned look to the want of jurisdiction in the Chancery Court on the ground that .the remedy of complainant was clear and. unembarrassed at law. The objection to the jurisdiction, therefore, must be taken to have been waived, and we are bound to try the cause on its merits. Besides, as the Chancery court had jurisdiction to set up the lost paper, it also had jurisdiction to go on and give full relief.

Complainants rely on a grant from the State of Tennessee, dated in 1839, based on an entry made in the entry - taker’s office of Hawkins county in 1827. This is an entry for five thousand acres on the south side of Holston river, in Hawkins county, beginning at the Greene county line, etc. The grant issued on the entry is for two thousand and five hundred acres, described as lying in Hawkins county, but it is shown by the evidence that the beginning corner of the grant is not on the Greene county line, but is about half a mile from the line running from that point across the Greene county line into Hawkins county, and including within its boundaries the land in Hawkins-county in dispute. The validity of the grant, especially as to the land embraced in it in Hawkins county, is not affected by the fact that the exact location of the Greene county line was mistaken by the surveyor in fixing the beginning corner. The entry shows that the beginning corner was intended to be on the Greene county line, and the grant shows that the land granted was supposed to be in Hawkins county. Whether complainant’s grant is valid as to the land situated in Greene county, it is not material to decide in this case. It is sufficient that, as to the land in Hawkins county, the grant is valid. The objection to complainant’s title on this ground is, therefore, not well taken. Defendants claim title under a •grant from the State to Thomas Hord, issued in 1858, and. set up an adverse possession from a date prior to the grant.

It is obvious that the title of complainants is superior to that of defendants, and must prevail unless defendants have made out their plea of seven years’ adverse possession. It is clear from the proof that defendant’s adverse possession commenced only about one or two years before the action of ejectment was commenced by the ancestor of complainants. That suit was pending, undisposed of, when the present bill was filed in February, 1867. This bill was intended by complainants to operate as a continuation of the suit at law, and the defendants have acquiesced in this transfer of the cause to the Chancery from the Circuit Court by failing to object to the jurisdiction of the Chancery Court. It follows that the defendants have failed to make out their defense of seven years’ adverse possession.

The result is, that the Chancellor’s decree is reversed, and a decree will be rendered in favor of complainant, with costs.  