Phœnix Mut. Life Ins. Co. v. Kingston Bank & Trust Co.

• Decision Date: 18 January 1938
• Citation: 112 S.W.2d 381
• Court: Tennessee Supreme Court
• Parties: PHŒNIX MUT. LIFE INS. CO. et al. v. KINGSTON BANK & TRUST CO. et al.

Page 381

112 S.W.2d 381

PHŒNIX MUT. LIFE INS. CO. et al. v. KINGSTON BANK & TRUST CO. et al.

Supreme Court of Tennessee.

January 18, 1938.

Appeal from Chancery Court, Roane County; J. H. Wallace, Judge.

Suit by the Phoenix Mutual Life Insurance Company and others against the Kingston Bank & Trust Company and others to determine rights to certain lands formerly the property of one William Brown. From an adverse decree, the Kingston Bank & Trust Company appeals.

Affirmed.

Ayres, Broughton & Parkey, of Knoxville, for complainants and cross-defendants Phoenix Mut. Life Ins. Co. and Tom W. Mayberry, substitute trustee.

R. H. Ward, of Kingston, for defendant and cross-complainant Kingston Bank & Trust Co.

Hammond Fowler and J. Ralph Tedder, both of Rockwood, for cross-defendant L. E. Ford, receiver.

Martin Guthrie, of Harriman, for Wm. W. F. and Tommy Brown.

GREEN, Chief Justice.

This appeal presents a contest as to their rights in and to certain lands formerly the property of William Brown between Kingston Bank & Trust Company on the one hand and the Phoenix Mutual Life Insurance Company, First National Bank of Rockwood, and W. F. and Tommy Brown, children of William Brown, on the other. The Kingston Bank is a judgment creditor of Brown. The insurance company is the holder of a note for $25,000 secured by a first mortgage. The Rockwood Bank is the holder of a note secured by a second mortgage. The Brown children are grantees subject to both mortgages. The chancellor decided against the Kingston Bank.

In 1925, Brown, being the owner of a large body of land in a horseshoe bend of the Tennessee river, undertook to convey some 929 acres thereof in trust to secure a loan of $25,000 evidenced by the note for that sum now held by the Phoenix Mutual Life Insurance Company. There is no doubt upon the record that the parties to this transaction understood that this mortgage covered an acreage of that extent. That mortgage was duly recorded. The description of the land contained in this first mortgage was followed in the second mortgage and the same description was contained in Brown's deed to his children. The last two instruments were also duly recorded.

Some years after the registration of all these instruments, the Kingston Bank obtained a judgment against Brown and undertook to levy an execution on 480 acres of the land which the grantees of the several conveyances aforesaid contend are included therein. The Kingston Bank apparently contends that the description of the land in the three deeds is too indefinite and uncertain to give notice of the identity of the land intended to be conveyed and, at all events, that the description properly construed excludes the 480 acres which the bank seeks to reach.

To be sure a valid deed must designate the land intended to be conveyed with reasonable certainty. Sheid v. Stamps, 34 Tenn. 172, 173, 2 Sneed 172, 173. And the failure of a registered instrument to describe property intended to be conveyed leaves that property open to seizure by creditors of the grantor. Building & Loan Association v. Rodgers, 104 Tenn. 437, 58 S.W. 234.

The description of the land contained in the mortgage securing the insurance company's note is as follows:

"Situated in the Fourth (old 11th) Civil District, in the County of Roane, in the State of Tennessee, to-wit: A tract of land lying and being situate in the district, county and State aforesaid about five miles southeast from Rockwood, Tennessee, and bounded generally as follows: On the north by Tennessee River and DeArmond; on the east by Tennessee River and Brown; on the south by Tennessee River and McPherson; on the west by Tennessee River, and containing 929 acres, more or less, and being more particularly described by metes and bounds as follows:" (Then follows the description by metes and bounds containing numerous courses.) The description concludes in these words: "and being the same property conveyed to William Brown by B. M. Johnson by deed dated October 26, 1905, and which is of record in the Register's Office of Roane County, Tennessee, in Deed Book M, Series 3, page 460, and also the same property conveyed to the same William Brown by J. G. Crumbliss, Clerk and Master of the Chancery Court of Roane County, Tennessee, by deed dated October 26, 1905, and which is of record in the Register's Office of Roane County, Tennessee, in Deed Book M, Series 3, page 458."

The outside boundaries of the 929 acres intended to be conveyed are correctly stated in this description by references to adjacent owners and to the river. The courses and distances given are in some respects inaccurate. The references to deeds through which Brown obtained title to the 929 acres are incomplete, and upon this last imperfection the Kingston Bank largely relies.

Passing over the references to former deeds, the description of the land by references to adjacent owners and to the river is sufficient to identify it — to comply with the statute of frauds and also to put creditors on notice of the land intended to be conveyed. Also, there being inaccuracies in the metes and bounds, the rule is that in any description of large bodies of land, courses and distances yield to calls for natural objects and to calls for the lines of adjacent owners. Pritchard v. Rebori, 135 Tenn. 328, 186 S.W. 121.

A plat is sent up with the record showing the 929 acres and other lands of Brown in this bend of the river. According to this plat, the 929 acres is made up of eight smaller tracts of land. It is insisted that a tract of land containing less than 929 acres could have been laid out from the Brown lands bounded by the river and by the same adjacent owners; that a tract of more than 929 acres could have been laid out from the Brown lands bounded by the river and by the same adjacent owners.

This seems to be true, but the smaller tract would have contained much less than 929 acres and the larger tract would have contained much more than 929 acres. The acreage stated in the three deeds aforesaid —929 acres—identified the particular tract of land intended to be covered by these instruments. This matter was considered by the Court of Appeals and by this court in Bynum v. McDowell, 3 Tenn. App. 340, 351. In that case Judge Faw observed:

"The rule of law is well settled that the call for quantity may be resorted to for the purpose of making that certain which otherwise would be uncertain. Davis v. Hess, 103 Mo. 31, 36 . The number of acres named is sometimes the matter of description which locates and identifies the land. Carter v. Barnes, 26 Ill. 454; Harris v. Byers, 112 Miss. 651 ; Soukup v. Union Investment Co., 84 Iowa, 448 , 35 Am.St. Rep. 317; Wing v. Red (Tex.Civ.App.) 145 S.W. 301; Brodsky v. Nelson, 57 Wash. 671 ."

The quoted statement is well supported by the authorities cited.

So, omitting the references to previous deeds, the description of the land given in the two trust deeds and in Brown's deed to his children is adequate.

Referring again to the plat sent up with the record, showing the 929 acres to be made up of eight smaller tracts, it appears that the deed of B. M. Johnson to Brown and the deed of Crumbliss, clerk and master, to Brown, mentioned as Brown's sources of title to the 929 acres, only cover tracts 1, 2, 3, 4, 5, and 6. Brown obtained tracts 7 and 8 by deed of Crumbliss, clerk and master, to Brown and Qualls and by deed of Qualls of his interest to Brown.

The principal contention of the Kingston Bank is that reference to previous deeds is controlling in the description and that the description under consideration only embraced the land acquired directly by Brown from Johnson and from Crumbliss, clerk and master, and not the land...