No notations had been made of any payments on the debt due the Bank of Clarksville on the margin of the record of the mortgage securing same, as provided in Crawford & Moses' Digest, § 7382, and the debt and mortgage was barred by limitation.
Suit was filed by Carl Arrington in the Johnson Chancery Court to quiet his title and to cancel and remove as a cloud thereon the conveyance by Johnson and wife to the United Royalty Company. The United Royalty Company answered, first pleading the right to redeem and making tender of the sums paid by Arrington in procuring his title. Further answering, it set up the due date of the note from Hudson to the bank, the failure of the latter to make any notations of payment on the margin of the record, and alleged that the debt was barred by limitation, and that by reason thereof its title was prior and paramount to the title of Arrington.
On the pleadings and admitted facts, the court found the interest of the United Royalty Company in and to an undivided one-half interest in and to the oil and gas royalty to be prior and paramount to the title acquired by Carl Arrington, and, by its decree, quieted and confirmed the title of the United Royalty Company. Carl Arrington has appealed; and thus states his contention relative to the point in issue: "Is the interest which is referred to as a royalty interest; which passed to appellee under the royalty conveyance from Dan W. Johnson, an interest or estate in land, or is it personal property?" He contends that an answer to this question is necessary for the decision in the case; that this court should hold that it is personal property, and in that event he claims the statute of limitation would have no application.
On the part of the appellee, the contention is made that the question stated above was not raised, either in the pleadings or statement of facts, upon which the case was tried in the court below, but that the only defense presented in the lower court, and upon which the finding of the court and its decree was predicated, was the plea that the mortgage debt upon which appellant's title is founded was barred by limitation because of a failure to comply with the requirements of § 7382 of the Digest.
