
    Sequatchie & South Pittsburg Coal & Iron Co. et al. v. Tennessee Coal, Iron & Railway Company.
    
      (Nashville.
    
    December Term, 1914.)
    1. PUBLIC LANDS. Entries. “Checkerboard system.”
    Entries on lands based on the “checkerboard system,” that is, one entry built on another, and a third on the second, are valid. (Post, pp. 224, 225.)
    Case cited and approved: Coal Co. v. Scott, 121 Tenn., 88.
    2. EVIDENCE. Weight. Credibility of witness.
    Where, in a prior suit, the question determinative of title to the land in, controversy "was decided, the decision will not be disturbed on the testimony of a witness who contradicted his testimony in the first case, giving evidence to meet the court’s ruling. (Post, pp. 225-227.)
    Case cited and distinguished: McEwen v. Coal & Land Co., 125 Tenn., 694.
    3. PUBLIC LANDS. Grants. Special entry.
    That subsequent entries referred to an earlier entry, which, however, was not surveyed until after the subsequent entries, does not supply the requisite notoriety to render the first entry special, on the theory that its boundaries were well established. (Post, pp. 227-229.)
    Case cited and approved: Hitchcock v. Southern Iron & Timber Co., 38 S. W., 588.
    4. COURTS. Precedent. Stare decisis.
    While the principle of res judicata does not apply where the action is between different parties, the courts will under the doctrine of stare decisis, follow a prior decision adjudicating the title to the land in controversy. (Post, pp. 229, 230.)
    Cases cited and approved: Kolb v. Swann, 68 Md., 516; Railroad v. United States, 168 U. S., 1; De Beam v. Deposit Oo., 233 U. S., 32; Bienville Water Supply Co. v. Mobile, 186 U. S., 217; State v. Union Railway Co., 129 Tenn., 705.
    5. PUBLIC LANDS. Grants. Construction.
    Where land grants, after describing the property, closed with the words “excluding all prior legal claims,” such grants did not exclude an earlier grant which was not special, though it had been surveyed. (Post, pp. 230-232.)
    Case cited and distinguished: Bowman v. Bowman, 40 Tenn., 48.
    Cases cited and approved: Fowler v. Nixon, 54 Tenn., 719; Bleidorn v. Pilot Mountain Co., 89 Tenn., 211; Wright v. Hurst, 1122 Tenn., 656; Iron & Coal Co. v. Schwoon, 124 Tenn., 176; King v. Coleman, 98 Tenn., 561.
    6. PUBLIC LANDS. Grants. Filing of caveat.
    That the holder of a subsequent special grant did not file a caveat to test the validity of an earlier grant which was not special does not preclude a later attach; the caveat provided for by Acts 1806, ch. 2, and Acts 1825, ch. 22, not doing away with the action of ejectment. (Post, pp. 232-236.)
    Acts cited and construed: Acts 1806, ch. 2, secs. 16 and 17; Acts 1825, ch. 22.
    Cases cited and approved: Peck v. Eddington, 2 Tenn., 331; Gould v. Hoyle, 4 Tenn., 100; Bugg v. Norris’ Lessee, 12 Tenn., 326; Peeler v. Norris, 12 Tenn., 331; Heirs of Williamson v. Buch-annan, 2 Tenn., 278; McGavoek v. Shannon, 13 Tenn., 128; Vaughn v. Hatfield, 13 Tenn., 236; Williams v. Wilson, 8 Tenn., 248.
    7. ADVERSE POSSESSION. Exclusive possession. Necessity..
    Where defendants entered into peaceable possession of land, they could maintain as against the true owner, who also entered, proceedings in unlawful entry and detainer, and have him removed; hut, having failed to do so and acquiesced in the owner’s possession of another part of the premises, the possession of the parties must be deemed concurrent. (Post, pp. 236-241.)
    Cases cited and distinguished: Nowell v. Gray, 31 Tenn., 96; Waddle v. Stuart, 36 Tenn., 535; Creech v. Jones, 37 Tenn., 632.
    
      8. ADVERSE POSSESSION, Concurrent possession. Effect.
    Where, after defendant was in possession of a portion of a tract of land to which complainant had the legal title, complainant also entered and held possession for some years, his title gave him constructive possession of the entire tract, except that portion actually held hy defendant, and defendant’s possession could not, where it did not continue for the statutory period after complainant deserted the land, ripen into adverse title. (Post, pp. 236-241.)
    9. EQUITY. Proceedings. Introduction of documents.
    In equity, a deed which proves itself is admissible without notice, the matter being governed by the ancient chancery practice; neither the statute nor court rules having prescribed the practice. (Post, pp. 241-243.)
    Code cited and construed: Page 1777 (S.); secs. 6271-6281 (S.).
    Cases cited and approved: Pardee v. De Cala, 7 Paige, 132; Kellogg v. Wood, 4 Paige, 578; Barrow v. Rhinelander, 1 Johns Ch., 550; Consequa v. Panning, 2 Johns Ch., 481; Miller v. Avery, 2 Barb. Ch., 582.
    10.QUIETING TITLE. Recovery of land. Defenses..
    Proof that title to a portion of the land which complainant seeks to recover was subject to an outstanding title is a good defense. (Post, pp. 241-243.)
    PROM GRUNDY.
    Appeal from the Chancery Court of G-rnndy County. —Y. C. Allen, Chancellor.
    BROwn, Spurlock & Brown, for appellant.
    Chas. C. Moore, for appellee,
   Me. Chief Justice Neil

delivered the opinion of the Court.

The bill was filed in the chancery court of Grundy county to recover three tracts of land, 642 acres, 142 acres, and 190 acres, all lying inside defendant’s Mc-Ewen grant No. 7892, the first two tracts within complainant’s Samuel B. Barrell grant No. 5099, the last lying partly within the grant last mentioned, and partly within complainant’s Samuel B. Barrell grant No. 5090. The Barrell grants are the oldest, hut the McEwen grant purports to be based on an entry in the name of Church Lanier antedating the said Barrell grants, and if that entry was special within the meaning of that term in our land law, the McEwen grant will relate to it, and so override the Barrell grants. In order to determine the specialty of the Church Lanier entry reference will have to be made to a prior entry in the name of Peter Yeates, since, under what is known as the checkerboard system of entries in this State (Coal Co. v. Scott, 121 Tenn., 88, 114 S. W., 930), one entry may be built on another, and a third on the second, and so on through a series. It is claimed for the Church Lanier entry that it is so related to the Peter Yeates entry, and that the latter was special. If the Peter Yeates entry was not special, then the Church Lanier entry cannot be special.

Again: The defendant claims to have had seven years’ adverse possession of the lands before complainants’ bill was filed, and that it is therefore protected under the act of 1819.

It is also insisted for defendant that the title to part of the land is outstanding in a third party.

There are other questions related to the foregoing which will appear in the course of the opinion.

The chancellor decreed in favor of the complainants, and the defendant has appealed and assigned error.

One of the main questions to he determined in this case is whether the Peter Teates entry No. 4042 was special. The language of that entry is:

“Peters Teates enters 5,000 acres of land in Warren county, Tennessee, on Cumberland mountain on the headwaters of Collins river. Beginning on a black oak standing on the bluff of the right-hand fork of Collins river; thence meandering said bluff, eastwardly crossing Little Laurel; thence northwardly; thence westwardly; thence southwardly to the beginning, plotting out prior claims. ’ ’

This question was before the court in the case of John J. McEwen v. Thomas Coal & Land Co., 125 Tenn., 694, 148 S. W., 222, and fit was. there said:

“The call in the entry under consideration which, it • is claimed, points out the locality intended to be appropriated by it is ‘meandering said bluff eastwardly crossing Little Laurel. ’ It is argued that this call shows that the entry should cross Little Laurel where it pours over the bluff of the right-hand fork of Collins river, and it would therefore include a particular point of the Little Laurel and thus, locate the land. This conclusion, however, is predicated upon a false premise. The entry does not say that the survey should cross Little Laurel where it pours over the bluff of the west fork of Collins river. Little Laurel is a stream some sis or seven miles long, flowing through the Yates entry in a southerly direction, and pours over a bluff some 400 poles south of the southern boundary line of the entry according to the survey claimed by complainant. It is thus shown that the official surveyor did not understand the entry to have the meaning now ascribed to it. The survey of the other entries in the system, as shown by the map, Exhibit 1, supra, likewise shows that no one claiming an interest in this checkerboard system understood that the Yates entry was to cross Little Laurel upon its south line where it pours over the bluff. So, if this entry be treated as sufficiently special to admit of extrinsic evidence of the location of the objects called for, it is seen that the call for Little Laurel cannot refer to any particular point or spot of land. This call of the entry does not direct that Little Laurel be crossed where it flows over the bluff, nor, indeed, can it be gathered from it alone that the creek in fact flows over the bluff. We are therefore of opinion that the Yates entry is not special.”

It is insisted that in the present case evidence has-been brought before the court additional to that seen and read by the court in McEwen v. Thomas Coal & Land Co., supra, which would make it incumbent on the court to reach a different conclusion. The evidence is substantially the same in the two cases, on the subject in hand, except the testimony of Mr. Lanier, accompanied by a new map, showing that the bluff is more than 400 poles further north than shown by the Deakins map, Exhibit No. 1, to Deakins’ deposition, and reaching up into what is designated on the map as the Peter- Yeates entry, so that it appears from this new map filed by Mr. Lanier that Little Laurel pours over the bluff of the right-hand fork of Collins river at the place where the south line of the entry crosses the said Little Laurel, thus neatly meeting the conclusion of the court in the McEwen Case. This new'testimony, however, is opposed by the former testimony of Mr. Lanier, in which he certified to the correctness of the Deakins map, also by the testimony of the witnesses A. R. McKenzie, J. H. McKenzie, J. P. Baker, and J. D. Trueblood, who say that the Deakins’ map 4, No. 1, correctly locates the bluffs referred to as about 400 poles south of the south line of the entry as shown on the map. In this state of the evidence we cannot do otherwise than adhere to our former ruling. -

To show that the Peter Yeates entry had the requisite notoriety, we are referred to the fact that two or three other entries called for it before it was surveyed. Thus: The Peter Yeates entry was made October 10, 1835, but, according to the' record, not surveyed until October 19, 1836, yet the Elias Mayo entry, No. 4216, made May 16, 1836, called for the “southwest corner of the 5,000-acre tract of land entered in the name of Peter Yeates;” also Elias Mayo entry No. 4267, entered September 5, 1836, and surveyed September 5, 1836, read as follows:

“Beginning on Peter Yeates’ -south boundary line on a.hickory, white oak, and dogwood, and running east, passing said Yeates corner at 320 poles,” etc.

John Gross entry No. 4287, made September 22, 1836

“Beginning on a hickory on the east side of Little Laurel, and running with Peter Yeates’ line north,” etc.

If we had not before us the language of the entry showing it had no such calls or points, these references would show, as in the case of Hitchcock v. Southern Iron & Timber Co., 38 S. W., 588, that the Peter Yeates entry was notorious, and had such lines, and corners. From the references quoted, it seems to us that only two conclusions are possible; either the date of the survey of the Peter Yeates entry is erroneously given in the record, and in fact must have antedated the entries quoted as referring thereto, or there was some oral communication at the time between the parties concerned as to where the southeast corner was expected to be made, that is, on the hickory tree, because it is impossible that the particular references could be obtained from the language of the Peter Yeates entry:

“Beginning on a black oak standing on the bluff of the right-hand fork of Collins river; thence meandering said bluff eastwardly crossing Little Laurel; thence northwardly, thence westwardly, thence southwardly, to the beginning. ’ ’

The references quoted, therefore, cannot be held to add anything justifying a conclusion that the said Peter Yeates entry was special.

It was held in the McEwen Case, supra, that the survey would not give the entry the requisite notoriety to make it special, and we shall not reopen that question; therefore it is unnecessary to refer to those entries mentioned in the brief which called for the Peter Yeates entry after it was surveyed.

From what has been written, it is apparent that we have considered anew the question of the speciality of the Peter Yeates entry; but it is not to be inferred from, this fact that we concede that such a course was obligatory. We might have contented ourselves with the statement that the defendant had already had ample opportunity to be heard on this question, in the McEwen Case, since, even if that ease cannot be treated as strictly res adjudicaba on this question, for want of any of the technicalities applicable to that defense, still it not being made to clearly appear that the former decision was erroneous, the rule of stare decisis would apply. 2 Black on Judgments, section 603; Kolb v. Swann, 68 Md., 516, 13 Atl., 379; Southern Pac. R. R. v. United States, 168 U. S., 1, 18 Sup. Ct., 18, 42 L, Ed., 355; De Bearn v. Deposit Co., 233 U. S., 32, 34 Sup. Ct., 584, 58 L. Ed., 833; Bienville Water Supply Co. v. Mobile, 186 U. S., 217, 22 Sup. Ct., 820, 46 L. Ed., 1132. See, also, on the general question our own case, State v. Union Railway Co., 129 Tenn., 705, 168 S. W., 575. After having once passed on a vital question appertaining to the title claimed of a special tract of land, the court would always he averse to reopening the question where it had already had careful examination. Such was the position assumed by the court a year or two ago, when it was sought in an independent litigation to reopen the question as to the location of the Indian boundary line ascertained in the case of Hitchcock v. Southern Iron & Timber Co., supra. Such indisposition of the court would be very greatly strengthened by the fact that the party seeking' to reopen the question had been a party to the former litigation in which the point was settled.

It must therefore be held, as was held in tbe McEwen Case, that the Church Lanier entry, No. 4271, depending for specialty on the Peter Yeátes entry, through the checkerboard system of entries, was not special; hence the grant based on it could not relate to the entry; therefore such grant is inferior to the prior Parr ell grants.

Complainant claims under two Barrell grants, Nos. 5090 and 5099. The first of these closes its description with the words, “excluding all prior legal claims,” the second, with the words, “deducting all legal prior claims.” It is insisted by defendant that the Church Lanier entry, which it avers is a superior claim to these grants, whether special or not, wasi surveyed out by the county surveyor, and located on the ground, and that it was therefore “a prior legal claim” on April 25, 1837, when grants 5090 and 5099 were issued, and that it is so excluded by the exclusion clause in said grants. The words quoted from these grants, and similar words, have been uniformly held to exclude only legal claims; that is, special entries, or grants. Bowman v. Bowman, 3 Head (40 Tenn.), 48, 50; Fowler v. Nixon, 7 Heisk. (54 Tenn.), 719, 723; Bleidorn v. Pilot Mountain Co., 5 Pick. (89 Tenn.), 211, 15 S. W., 737; Wright v. Hurst, 122 Tenn., 656, 127 S. W., 701; Iron & Coal Co. v. Schwoon, 124 Tenn., 176, 209, 135 S. W., 785. There is no doubt possible as to the holding in the three last-cited cases, but it is said that in Bowman v. Bowman a survey was recognized as such prior legal claim. This is á mistaken view. It is true the court speaks of the land thought by one of the parties to have been excluded as “land previously granted, or held by prior legal surveys,’- having reference, by the last clause, it must be supposed, to surveys made as required by law, of special entries, since there was no warrant of law for the survey of a vague or void entry. The point is made clear by the following language near the close of the opinion.

‘ ‘ The question is one exclusively between the State and the grantee, with which a mere trespasser, or subsequent enterer, has nothing to do, . . . and if the State acquiesces, and allows the grant to stand, there can be no question but that, in a court of law, it must be regarded as investing the grantee with a legal title to all the land included by its boundaries, not shown to be held by a superior title. ’ ’

The relation of the survey to the entry, and of both to the grant, is shown in King v. Coleman, 98 Tenn., 561, 566-571, 40 S. W., 1082. And it was held in Mc-Eioen’s Case, supra, that a survey without an entry, that is, without a special entry, was futile.

It is insisted that the complainant’s predecessor in title, S. B. Barrell, should have filed a caveat, at the inception of his claim, since, as urged in the brief, the law at that time was that a subsequent enterer filed a caveat with the surveyor when he desired to procure a survey and grant of lands which had already been surveyed, when he claimed that the surveyor had located the previous entry improperly, or that the previous entry was not special, and in such case the surveyor summoned the previous enterer to appear at the next term of the county court, and litigate the right to the land, and that the effect of such caveat was to restrain the issuance of a grant to the prior enterer until the caveat proceeding had been decided.

The description thus given of the old action of caveat, while not inaccurate as far as it goes, yet is misleading, in the inference that such a proceeding was obligatory on one finding himself in the situation described. This proceeding was a simple one, and was begun and conducted in the manner shown in sections 16 and 17 of chapter 2, Acts of 1806; Whitney Land Laws of Tenn., pp. 125, 126, viz.:

“If any person shall obtain a survey of land to which another hath a claim, the person having such claim may enter a caveat to prevent his obtaining a grant, until the claim can be determined; sncb caveat shall he entered within three months at farthest, after the receipt of the plat and certificate of survey, at the principal surveyor’s office, expressing also, the nature of the right on which the plaintiff therein claims the land, and the quantity and part of said survey claimed, and shall take from the principal surveyor a certified copy thereof, which within thirty days thereafter, he shall deliver to the clerk of the court of the county in which the land, or any pant thereof lies, and shall moreover, take from the principal surveyor a certified copy of the s.urvey and plat, which, within thirty days from entering such caveat, he shall in like manner deliver to the clerk of the court where the suit shall he tried; and in case of failure in either instance the caveat shall he void.”
‘ ‘ The clerk of such court on receiving the same, shall enter such copy of the caveat in a hook to he kept by him for that purpose, and shall thereupon issue a sum mons directed to the sheriff of any county where the defendant may reside, reciting the cause for which such caveat is entered, and requiring the defendant to appear on the first day of the next succeeding county court, and defend his right; and on such process being returned, executed on the defendant, his agent or attorney, the court shall proceed to determine the right of the cause in a summary way, without pleadings in writing, by impaneling and swearing a jury for the finding such facts as are material to the cause, and are not agreed by the parties, and shall thereupon give judgment; a copy of which, judgment, if in favor of the defendant, being* delivered into the office of the principal surveyor within thirty days thereafter, shall vacate the said caveat; and if the said judgment he in favor of the plaintiff, upon delivering the same into the office of the principal surveyor within sixty days thereafter, he shall be entitled to a plat and certificate as in other cases; and' in any caveat where judgment shall be given for the defendant, the court shall award him his costs, and may compel the plaintiff in any caveat, if they think fit, to give security for costs, or on failure thereof may dismiss the suit; and in case the plaintiff in any caveat shall recover, the court shall award costs against the defendant.”

By chapter 22, Acts of 1825, leave was given to file the caveat in the circuit court as well as the county court. Section 2 of that act reads:

“In all eases of interference between entries made under the provisions of the aforesaid act, and betweén such entries and any older entries or grants made and issued under the laws of this State, either party shall have [the] liberty of filing a caveat thereto, as heretofore, subject to the same rules and regulations, and to be proceeded on and determined in the same way in which similar proceedings are decided and acted on, under existing laws in regard to caveats; and caveats may hereafter be filed either in the county or circuit courts.”

Apparently the original purpose of the section quoted was to settle contests merely between conflicting entries; bnt by construction the action grew into a means of trying title to land, or rather both title and equitable right, and in practice it was treated as the equivalent of a bill in equity. Peck v. Eddington, 2 Tenn. (2 Overt.), 331; Gould v. Hoyle, 3 Hayw. (4 Tenn.), 100; Bugg v. Norris’ Lessee, 4 Yerg. (12 Tenn.), 326; Peeler v. Norris, 4 Yerg. (12 Tenn.), 331. In Peck v. Eddington, the controversy turned on the validity of an arbitration. In Heirs, etc., of Williamson v. Buchanan, 2 Tenn. (2 Overt.), 278, it was instituted by one claiming under a grant, for the purpose of preventing another from obtaining a grant to the same land. In Gould v. Hoyle, supra, the subject of contest in this proceeding was a pre-emption right. McGavock v. Shannon, 5 Yerg. (13 Tenn.), 128 and Vaughn v. Hatfield, 5 Yerg. (13 Tenn.), 236, were typical contests between conflicting entries. In Williams v. Wilson, Mart. & Y. (8 Tenn.), 248, the caveat was filed by one who claimed that he was the owner of the land by grant from the State, and charged that notwithstanding this fact another had entered the same land, and would, unless restrained, obtain a grant thereon. The purpose was to assert the caveator’s title, and prevent the creating of a cloud thereon. It is obvious that all of the uses of the ancient caveat would now be served by a bill in equity drawn according to our modern practice. The advantages of the caveat were its adaptability to the times in which it was used, the pleadings being informal, and all of the equities arising out of the facts being; considered and determined without regard to technical forms of presentation, and the case, at first, being instituted in the nearest and the simplest tribunal, the county court. It was gradually developed by construction, as shown in Bugg v. Norris, supra, and Peeler v. Norris, supra. It probably was originated in analogy to the caveat proceeding in the ecclesiastical court of England to prevent the granting of administration pending the contest of a will. 4 Bac. Abridg., 51, 52. It never was obligatory or exclusive. It has no application to the present controversy. It has been long recognized, in cases too numerous to mention, that if there be two grants to land, the oldest grant must be treated as having conveyed the State’s title, unless the younger grant be based on a special entry antedating such prior grant, in which latter case the younger grant will relate to the entry, and convey the title. It has further been equally well recognized that the question of title to the land under such a state of facts may be tried in ejectment without reference to any prior caveat proceedings.

As to the defense of adverse possession. There is much conflict in the evidence on this subject, but after carefully weighing all of it, we find the following facts proven: On December 13, 1904, defendant completed a house on the interlap between its McEwen grant 7982 and complainants’ Barrell grant 5009, and put a tenant in charge of it who placed some of his goods in the house and occupied it two nights in the week, and when he was absent he left the door locked. This state of things continued up to the bringing of the present suit, more than seven years, and has since continned, the tenant claiming for the defendant nnder a lease covering the whole of the interlap. On the 14th of December, 1904, the complainant having previously placed some lnmber on the land for the purpose, proceeded to bnild npon the same interlap, at a point one-half a mile distant from defendant’s strnctnre, a house likewise. Some goods were placed in this house, and it was then closed and locked, with a chain and padlock, the lock having two keys, one kept by complainant’s agent Jackson Tate, and the other by its chief agent, A. R. McKenzie, under whose orders Jackson Tate was acting. From time to time, usually twice a month, Jackson Tate visited tíre place to see that the premises had not been disturbed, and also to keep the leaves swept away so as to protect the house from forest fires. This state of matters in respect of the complainants’ house continued until the fall of 1907, when some unknown person broke the chain, and thereupon defendant’s tenant and agent, Tim Tate, seeing the door open, put a new chain on the door, and locked it, thus taking possession of this house for the defendant. It does not appear from the evidence whether the goods left in the house still remained at the time last mentioned, but we assume they had been removed by the person who broke the lock. After Tim Tate thus took possession of the house for defendant he continued to hold it, up to the time it was burned during the year 1908. This action was brought February 20, 1913. At that time Tim Tate had been in possession of ■defendant’s house on the interlap eight years six months and seven days. Bnt complainants had, during two years and abont nine months of this period, been in possession of their honse on the interlap. So, if this created a concurrent possession, defendant’s exclusive adverse holding was reduced to less than seven years before action brought,- that is, to five years and nine months.

Was complainants’ possession of the interlap concurrent with defendant’s during the two years and nine months'? In our opinion it was. It is true that defendant went first into actual possession of the in-terlap, and therefore could have instituted proceedings in unlawful entry and detainer against complainants and had them removed from the land, although complainants were the owners’ of the superior title resting on the inter lap. Not pursuing this remedy, defendant must be held to have acquiesced in complainants’ possession of the house in question for the two years and nine months, and there was a true concurrent possession for that period. Complainants having the title, this drew to them the possession of all of the land covered by their grant, except that part of it covered by defendant’s inclosure, that is the defendant’s house and the ground covered by it.

The foregoing principles are. recognized and approved in Norvell v. Gray, 1 Swan (31 Tenn.), 96, 107, 108, Waddle v. Stuart, 4 Sneed (36 Tenn.), 535, and Creech v. Jones, 5 Sneed (37 Tenn.), 632. In the first of these cases it is said:

‘ ‘ But, in holding that an entry, as a remedy to regain seisin of an estate, by the mere act of the party, cannot have the effect, nnder the act of 1819', as at common law, we are not to be understood as intimating that an entry, by the rightful owner, upon lands adversely held, within seven years, if acquiesced in, will have no legal effect. Upon general principles we think it may have the effect to give such owner a legal seisin, at least to such part of the land as he may he able to acquire the peaceable and exclusive possession of; and as against a wrongful possessor — although he may he in under an invalid or inferior assurance, purporting to convey an estate in fee simple — we incline to the opinion that possibly such entry would give the owner seisin, as far forth as the wrongful possessor had not actual possession. Both having an actual possession and occupation of different parts of the same tract, and each claiming, an exclusive right, the one under a valid and the other under an invalid title, which shall be regarded as having the possession of such part of the tract as may not be actually occupied by either? "Will not the law, in such case, as in other cases of a mixed or concurrent possession, adjudge the seisin to he according to the title, as far as there exists no actual adverse .possession? But in the case put, it is clear that as such entry of the legal owner would he no ouster of the actual possession of the wrongdoer, it could not have the effect to neutralize such adverse possession, or to suspend the operation of the statute of limitations, as to the part actually occupied by tbe wrongful possessor.”

In Creech v. Jones it is said:

“But it is argued for tbe plaintiff in error that an entry upon tbe land covered by both grants, by tbe party having the elder and better title, within tbe period of seven years from tbe commencement of tbe adverse possession under tbe younger grant; will have tbe effect to neutralize such adverse possession and arrest tbe running of tbe statute of limitations.
“We are not prepared to assent to tbe correctness of this proposition in its full extent. We are of tbe opinion, as stated in Norvell v. Gray’s Lessee, 1 Swan, 96, 107, that a peaceable entry, in such case, by tbe right ful owner, would give him a legal seisin of all tbe land within tbe interference of which tbe younger grantee, or wrongful possessor bad not previously acquired tbe actual possession by inclosure, or other erections. But such entry would be no ouster of tbe actual possession of tbe wrongdoer, and could not therefore have tbe effect to neutralize tbe adverse possession, or to suspend tbe running of tbe statute, as to tbe part of tbe land actually occupied by tbe wrongdoer. This effect,, under tbe statute, could only be produced by a suit at law or in equity, effectually prosecuted. As far, however, as there was no actual adverse possession, tbe law would adjudge the possession to be in tbe party having tbe title; both parties having actual possession.”

It is certainly true, as clearly expressed in tlie cases cited, that the owner entering conld not he permitted, in the interest of the peace and good order of society, to distnrb the parts of the land on which the trespasser had located his actual possession; hut if he can peaceably make an entry on some other part of the land without a breach of the peace, he may do so. But, as previously intimated, inasmuch as the trespasser entering under color of title, and establishing an actual possession, has constructive possession to the extent of the boundaries of his color, he may remove the owner coming later by proceedings in unlawful entry and de-tainer, and so force him to his action of ejectment. If such action of unlawful entry and detainer be commenced within a reasonable time and prosecuted to a successful conclusion, the period of occupation so terminated cannot be counted as an interruption of the possession, but otherwise if the party be permitted to remain without such expulsion.

As to outstanding title. Defendant offered in the chancery court, on the hearing of the cause, a certified copy of a deed made by S. B. Barrell on the 21st of February, 1849, to William A. Bradley, conveying the lands described in grant No. 5993, covering a part of the land in controversy in the present case. On objection made by complainants the chancellor excluded the deed on the ground that this deed “had not been filed in the office of the clerk and master previous to the trial, and because tbe filing of tbe deed bad not been waived by tbe complainant.” Tbis was error.

Our chancery rules (Shan. Code, p. 1777 et seq.) do not reach tbe question, nor do onr Code provisions on tbe subject of chancery practice. Id., sections 6271-6281. We are remitted, therefore, to tbe old rules of English chancery practice. By these rules, while four days’ notice, by tbe service of an. order for tbe purpose, was required for tbe introduction of oral evidence at tbe bearing of exhibits in order to prevent surprise, no notice was required of tbe introduction of documents which proved themselves, by official certificates, .as deeds or tbe libe. In New York chancery practice, Chancellor Kent changed tbe four days’ notice into simply a reasonable notice, to be judged of by tbe court according to tbe circumstances of each offer to prove exhibits. Subsequently tbe seventy-fifth chancery rule of that State changed tbe time to ten days. However, as- we understand the cases, no change was made in tbe general rule of chancery practice that no notice need be given of tbe filing of documentary evidence that' needs not to be supported by oral evidence .at tbe bearing; and that rule was so construed as to permit tbe same liberty in respect of exhibits sufficiently described in tbe pleadings to put tbe opposite party on notice. We refer to tbe following cases in the New York Chancery Reports which refer to and discuss tbe English authorities, tbe'seventy-fifth New York chancery rule, and tbe application of each: Pardee v. De Cala, 7 Paige, 132, 4 N. Y. Ch., 95; Kellogg v. Wood, 4 Paige, 578, 607, 608, 3 N. Y. Ch., 568, 580; Barrow v. Rhinelander, 1 Johns. Ch., 550, 560, 1 N. Y. Ch., 242, 245; Consequa v. Fanning, 2 Johns. Ch., 481, 482-484, 1 N. Y. Ch., 457. The case of Miller v. Avery, 2 Barb. Ch., 582, 5 N. Y. Ch., 762, on the subject in hand was evidently decided under rule 75, previously referred to, which was introduced in 1830, or about that time, as appears from the text of Pardee v. De Cala, supra. That rule does not apply in this State,, and therefore the authority is not applicable.

The deed from Barrell to Bradley was sent up as part of the record, so that the court might correct the error of the chancellor if it should deem there was error in his ruling. So, doing what the chancellor should have done, we find that Samuel B. Barrell, complainants’ predecessor in title, conveyed to William A. Bradley, on the 21st day of February, 1849, all of the lands described in Barrell grant No. 5993, and the title to that land is outstanding, in the said Bradley, his heirs, or assigns. It follows that complainants cannot recover any of the land sued for which is covered by the grant last mentioned.

It results that the decree of the chancellor must be modified in the respect last mentioned, but in all other things will be affirmed.

The costs of this court, and of the court below, will be paid in the following proportions, viz.: One-tenth by complainants, and nine-tenths by defendant.

Questions raised in the case and not mentioned in the opinion were disposed of orally.  