Jourolman v. Massengill

Decision Date26 October 1887
PartiesJOUROLMAN, Trustee, and others v. MASSENGILL and another. [*]
CourtTennessee Supreme Court

Appeal from chancery court, Grainger county; C.J. ST. JOHN Chancellor.

Henderson & Jourolman, for complainants. J. T. & J. K. Shields, for respondents.

LURTON J.

Complainant Jourolman, claiming title under a sheriff's deed, brings this bill to recover possession of certain lands described in said deed. The property was sold as the property of defendant Massengill, to satisfy several judgments against him, and was purchased at execution sale by Jourolman, as trustee for the several execution creditors. The judgments, levies, and sale upon which the sheriff's deed depend, are all regular and complainant will be entitled to a decree provided the defendant Massengill had such title as was subject to levy and execution sale. Whatever interest Massengill has in said property, he took under the will of his father, Robert Massengill, who died in 1866. This will was duly admitted to probate, and the clauses bearing upon the title to the lands now in controversy are as follows "To my son, S. S. Massengill, I give all the remainder of my estate, both real and personal, charging him with the payment of all my just debts, and solemnly enjoining upon him to take care of and support his mother on the home farm, and to observe towards her in the future the same tenderness and affection which has so signally marked his conduct in the past. I also request of him that he will not sell the home tract of land, or any part thereof, but that he will keep it as a home for himself and those who are to come after him. I make no provision for my beloved wife, except that she shall reside in the old family mansion with my son Sterling feeling doubly confident that his kindness and generosity will amply supply all her wants."

On July 31, 1864, the testator made a codicil in these words: "My will is that all the property of every kind bequeathed to my son, S. S. Massengill, in the sixth clause of my will, be vested in Dr. John W. Thornburg, as trustee, for the use and benefit of my said son; and no part of the same is to be subject to execution, or other legal process, for any debt or liability he may have contracted, or may hereafter contract. Nor is he to sell the same, or any part thereof, but may use the rents and profits for his support and that of my wife, E. H. Massengill, but he shall have the right to dispose of the same by last will and testament." Dr. Thornburg resigned as trustee some years since, and defendant Branner was appointed in his room and stead.

The contention of complainants is that the trust attempted to be created by the codicil to the will of Robert Massengill is void, and that an absolute legal title in fee-simple vested in S. S. Massengill. In support of this proposition complainants contend that heretofore, in another litigation between W H. Turley, one of complainants, and these same defendants, such a decree was pronounced by this court as now constitutes an adjudication that the trusts of this will were void, and the lands subject to levy and sale; that W. H. Turley is one of the judgment creditors whose execution was levied upon this land, and one of the creditors for whom the land was purchased by Jourolman; and that, regardless of the validity of the sale made for other execution creditors, the title, by operation of the former adjudication, passed to complainant Jourolman as a purchaser under the sale to satisfy the judgment of said Turley.

The plea of res adjudicata, in equity, must be distinctly set out, either in the bill or answer, or by separate plea; without it is pleaded, it cannot be relied upon in the proof. Turley v. Turley, 1 Pickle, 251, 1 S.W. 891. When properly pleaded, it must then be proven. The bill does allege that W. H. Turley did file his original bill as a judgment creditor against Massengill and Branner, seeking a construction of the will of Robert Massengill, and to subject the interest of said Massengill to satisfaction of said judgment. It charges that the defendant answered and demurred in the same pleading, and the demurrer, coming on to be heard, was overruled by the chancellor; that an appeal to this court was allowed from the decree overruling the demurrer, and that the decree of the chancellor upon the demurrer was affirmed, the supreme court holding and decreeing "that the said Massengill took an estate under said will which was leviable by execution at law, and subject to the payment of his debts, and said cause was remanded for further proceedings." The bill does not state what further proceedings were had after the cause was remanded, but from the bill it is inferable that no decree was ever had upon the merits, for the complainants conclude their allegations upon the matter of the former decree by the statement that Turley, fearing that the description of the land he sought to subject to payment of his debts was too slight and indefinite to fix a superior lien upon it as against other creditors, sued out execution from the circuit court, and had the land levied upon and sold at sheriff's sale. It will be seen that the complainant does not set forth either the bill, demurrer, or decree, so that it may be seen that the same point was then in issue, but contents himself with stating what he deems the substance of the record. "Upon a plea of a former decree, so much of the former bill and answer must be set forth as is necessary to show that the same point was then in issue." Story, Eq. Pl. § 791. If, however, the pleader had filed the record upon which he relies as an exhibit to his bill, it would be a sufficient compliance. But there is no sort of conformity to this simple and manifestly reasonable rule of pleading, where a hearing upon the merits is sought to be avoided by a plea of former decree, and we are compelled to hold that the plea of res adjudicata is not well pleaded.

If these allegations are treated as sufficient to allow proof of a former decree, and reliance upon same as an adjudication, no such proof is made. The decree shows that upon the hearing the record in said cause of Turley v. Massengill was read, but the transcript contains only such part of said record as was made after the cause was remanded by this court. Neither the bill, nor demurrer, nor answer are parts of the transcript. The clerk by this decree was directed "to include in the transcript only such parts of the record in the case of Turley v. Massengill as were not included in former transcript of said cause now in supreme court." There is no agreement that said former transcript may be treated as a part of the present transcript, and without such agreement we cannot look to the other transcript. Section 3890, M. & V. Code, only makes a transcript in this court part of another, when a cause comes again to this court after being once remanded. This is not a second appeal in the case of Turley v. Massengill, and hence the transcript in that case cannot be looked to by us, or treated as a part of this record, same not being a part of the present transcript, and there being no agreement that it shall be so treated. That part of the record of the cause of Turley v. Massengill properly made a part of the present transcript shows nothing relating to this question, beyond a decree in these words: "In this cause the complainant dismisses his bill. It is therefore decreed that complainant's bill be dismissed. But it appearing to the court that complainant has obtained substantial relief under his bill it is decreed that the defendants S. S. Massengill and B. M. Branner pay all the costs of this cause for which an execution may issue."

This is the only decree either of the chancery court or supreme court before us, and just how the complainant had obtained substantial relief is not to be discovered. If we look to the answer of defendant Massengill to see if there is such admission as makes proof unnecessary, we find that while he admits the filing of a bill by said Turley, and that a demurrer was overruled by the chancellor, and, upon appeal being taken from the decree overruling demurrer to the supreme court, that the decree was affirmed and the cause remanded to the chancery court for further proceedings, yet the answer at the same time insists that the bill to which the demurrer was filed did not state fully the facts, and made many erroneous statements, nor does it admit or undertake to state the character of the demurrer. The most that we can learn from bill, answer, and evidence is that there was a litigation between one of the complainants and these defendants, which involved the title of S. S. Massengill under the will of Robert Massengill to the land now in controversy; that a demurrer was interposed by the defendant, which was overruled by the chancellor; and, upon special appeal from the decree upon the demurrer, that the supreme court affirmed the decree overruling demurrer, and remanded the cause for further proceedings; that Turley, instead of proceeding with that litigation and obtaining a final decree upon the merits, dismissed his bill and proceeded upon his execution at law. Ordinarily a decree of this court overruling a demurrer, and remanding a cause to be proceeded with, is not an adjudication of anything more than that there is sufficient equity upon the face of the bill to require an answer. Battle v. Street, 1 Pickle, 282, 2 S.W. 38. Certainly no such decree is either pleaded or proven as prevents us from determining this cause upon its merits.

This brings us to the question as to whether the interest of S. S Massengill in this land was a legal or an equitable estate. If the former, then it was subject to execution; if the latter, then it was not. ...

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