Bank of Hendersonville v. Dozier

• Decision Date: 16 March 1940
• Parties: BANK OF HENDERSONVILLE v. DOZIER et al.
• Court: Tennessee Court of Appeals

142 S.W.2d 191

24 Tenn.App. 178

BANK OF HENDERSONVILLE v. DOZIER et al.

Court of Appeals of Tennessee, Middle Section.

March 16, 1940

Certiorari Denied by Supreme Court June 29, 1940.

Appeal from Chancery Court, Marshall County; T. L. Coleman, Circuit Judge (sitting by interchange with Lytle, Chancellor).

Suit by the Bank of Hendersonville against Mrs. Z. A. Dozier and others for declaration that certain trust deeds were void and for sale of land to satisfy judgment. From a decree granting relief sought in part, complainant and defendant Mrs. Caelera Dozier Stammer appeal.

Reversed in part and affirmed in part.

Thurman Thompson, of Lewisburg, for defendants.

FAW Presiding Judge.

This suit was brought in the Chancery Court of Marshall County, on November 2, 1938, by the Bank of Hendersonville, a Tennessee corporation, as complainant, against Mrs. Z. A. Dozier and Mrs. Caelera Dozier Stammer, both residents of Davidson County, Tennessee; J. Lee Moss, trustee, a resident of Marshall County, Tennessee, and the First National Bank, a corporation, with its offices and principal place of business in Marshall County, Tennessee, as defendants.

Alleging that it is a judgment-creditor of defendant Mrs. Z. A Dozier, the complainant sought by its bill to obtain a decree of the Chancery Court adjudging that certain trust deeds executed by defendant Mrs. Dozier to defendant J. Lee Moss trustee, and purporting to secure notes executed by defendant Mrs. Dozier to her daughter, the defendant Mrs. Stammer, were fraudulent and void, as against the complainant, and ordering a sale of the land described in said trust deeds to satisfy the aforesaid judgment of the complainant against defendant Mrs. Dozier.

Complainant Bank of Hendersonville and defendant Mrs. Stammer each prayed an appeal from the decree of the Chancery Court, and their respective appeals were granted and perfected. The parties will be designated herein as complainant and defendants as they appeared on the record below.

A premliminary statement, in chronological order, of the several transactions out of which this suit arose will simplify the task of stating the issues for decision here.

On July 24, 1935, J. P. Dozier, J. O. Dozier and defendant Mrs. Z. A Dozier executed a note to complainant Bank for money borrowed from complainant. The amount of said note does not appear in the record, except as indicated by the judgment thereafter rendered on same as hereinafter stated; but the amount of this note is now immaterial. The inference from the record is that defendant Mrs. Dozier appeared on said note as a joint maker thereof, but the proof is that, as between the makers of said note, defendant Mrs. Dozier was a surety for her son, J. P. Dozier, for whose benefit the money was borrowed.

On November 17, 1936, defendant Mrs. Dozier (a widow) conveyed, in trust with power of sale on default, to defendant J. Lee Moss, as trustee, two described tracts of land in Marshall County, Tennessee, containing approximately one hundred and fifty three acres, to secure a principal note of $5,500 due on or before five years after its date, and five "interest notes" for $330 each, due in one, two, three, four and five years, respectively, after their date, each of which notes (both for principal and interest) was of even date with said trust deed, and was payable to the order of "Miss Caelera Dozier". Said trust deed was registered on November 19, 1936, in the Register's Office of Marshall County, Tennessee, and re-registered in the same office on May 20, 1938.

On June 21, 1938, defendant Mrs. Z. A. Dozier conveyed in trust, with power of sale on default, to defendant J. Lee Moss, as trustee, two described tracts of land in Marshall County, Tennessee, containing approximately one hundred and fifty-three acres (and being the same two tracts of land described in the aforesaid trust deed of date November 17, 1936), to secure an indebtedness to "Mrs. Caelera Dozier Stammer" evidenced by the promissory note of Mrs. Z. A. Dozier for $5,500 of even date with said trust deed, with interest from its date, payable annually. Said last mentioned trust deed was registered on the day of its execution, viz: June 21, 1938, in the Register's Office of Marshall County, Tennessee.

On or about June 21, 1938, defendant Mrs. Stammer borrowed $1,500 from defendant First National Bank and executed her note for that sum to said Bank, and contemporaneously therewith delivered to said Bank, as collateral security for said loan, the aforesaid note of defendant Mrs. Dozier for $5,500 of date June 21, 1938, together with the trust deed securing same.

On October 14, 1938, complainant Bank of Hendersonville recovered a judgment on the aforesaid note of July 24, 1935, against Mrs. Z. A. Dozier (defendant herein), J. P. Dozier and J. O. Dozier, for $466.23 and $5.50 costs, in the Court of General Sessions of Davidson County, Tennessee, from which judgment there was no appeal, and execution thereon was duly issued on October 19, 1938, and was returned "no property found" by the Sheriff of Davidson County, Tennessee.

It appears from the pleadings and proof, without dispute, that "Miss Caelera Dozier", described in the aforesaid trust deed of date November 17, 1936, as the payee of the notes thereby secured, is the same person as "Mrs. Caelera Dozier Stammer" described in said trust deed of date June 21, 1938, as the payee of the notes thereby secured, and who, by the latter name, is made a defendant to the bill in this case.

Mrs. Stammer's undisputed explanation of the above-mentioned variance in her name is, in substance, that her maiden name was Caelera Dozier; that, at the time of the execution of both of the aforesaid trust deeds, her real name was, and it is now, Mrs. Caelera Dozier Stammer; that she has been separated from her "former husband" (Stammer) for many years; that "she is frequently called and referred to by her acquaintances by either name"; that she has no particular preference about the matter, and "answers to either name"; and that the draftsman of the trust deed of November 17, 1936, referred to her therein as "Miss Caelera Dozier", which (for the reasons above stated) was not unusual.

In its original bill, complainant Bank of Hendersonville set forth the aforesaid judgment of the Court of General Sessions against defendant Mrs. Dozier in favor of the complainant, rendered on October 14, 1936, founded on said note of July 24, 1935, and the execution by Mrs. Dozier of the aforesaid two trust deeds upon the two tracts of land in Marshall County, with the full description of the lands and of the debts which said trust deeds purported to secure, and complainant alleged that "both of said conveyances were made and contrived of fraud, covin, collusion and guile to the intent and purpose to delay, hinder and defraud the creditors of the said Mrs. Z. A. Dozier of their just and lawful debts; and especially to delay, hinder and defraud complainant of its said just debt"; that "the said Mrs. Caelera Dozier Stammer took said conveyances from her said codefendant well knowing the fraudulent purposes and character thereof, and with intent to aid the said Mrs. Z. A. Dozier, to hinder, delay and defraud her creditors, especially complainant, of their just debts"; that "said conveyances were collusively made, and that there is a secret agreement between the said defendants whereunder the said Mrs. Caelera Dozier Stammer is to hold the notes secured by said deeds of trust for the benefit of said Mrs. Z. A. Dozier."

Complainant further alleged in its original bill that Mrs. Z. A. Dozier, J. P. Dozier, and J. O. Dozier have no property subject to execution at law; that "defendant Mrs. Z. A. Dozier is an old lady with no income or means of paying for any mortgage on said property and that she has no other property except the two tracts of land" described in said two trust deeds.

It is further alleged in complainant's bill that the recitals in each of said two trust deeds that it was made to secure the sum of $5,500 owed by Mrs. Dozier to Mrs. Stammer were "absolutely false"; that "no cash at all was paid by the said Mrs.

Caelera Dozier Stammer to the said Mrs. Dozier, and especially was $11,000.00 not paid as recited in said deeds of trust"; "that said deeds of trust were mere devices in furtherance of the covin, collusion and fraud whereby the defendants were contriving to hinder and delay complainant"; that said described tracts of land were free and unincumbered at the time the said first deed of trust was executed and at the time complainant loaned said money to the said Mrs. Z. A. Dozier et als; and that "said two tracts of land are assessed for taxation in the Trustee's office in Marshall County, Tennessee, at the value of $4,000.00, and complainant is informed and therefore alleges that this is about the true value of said land."

It is further alleged in the bill that said first deed of trust was executed on November 17, 1936, but same was not at that time recorded and that it was not recorded at all until complainant was insisting that its debt be paid.

It is also alleged in the bill that the defendant First National Bank is holding all of said notes, described in both of said deeds of trust, both principal and interest, as collateral security for a loan made by the said Bank to the said Mrs. Caelera Dozier Stammer of date June ___, 1938, in the amount of about $1,500, same being due and payable twelve months after said date, and that defendant First National Bank is the holder of said two deeds of trust.

After the usual prayer for process and waiver of answers on oath the complainant prayed that it have a decree against the defendant Mrs. Z. A. Dozier for the amount due it...