Bryant v. Bank of Charleston

• Decision Date: 14 October 1901
• Citation: 64 S.W. 895,107 Tenn. 560
• Parties: BRYANT et al. v. BANK OF CHARLESTON.
• Court: Tennessee Supreme Court

64 S.W. 895

107 Tenn. 560

BRYANT et al. v. BANK OF CHARLESTON.

Supreme Court of Tennessee.

October 14, 1901

Appeal from chancery court, Bradley county; T. M. McConnell Chancellor.

Bill by J. L. Bryant and others against the Bank of Charleston. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

Smith & Traynor, for appellant.

John C Ramsey, for appellees.

BEARD J.

On the 23d of September, 1895, T. E. Bryant, who was the owner of a 95-acre tract of land lying in Bradley county, by a deed duly executed, acknowledged, and delivered, conveyed it to one C L. Carmack, and as a consideration for the same received from the grantee a payment in cash and his four promissory notes ma turing one, two, three, and four years after date. In this deed the wife of T. E. Bryant joined for the purpose of relinquishing all homestead right in the land conveyed. The present bill is filed by the complainants, who are the owners of these notes by assignment from the payee, T. E. Bryant against the Bank of Charleston, which, at the time of its filing, was proceeding to the execution of a decree for sale pronounced in a cause which it had successfully prosecuted against the vendee, Carmack. The claim of complainants is that these purchase-money notes were unpaid; that they were secured by an express lien retained in the face of the deed to Carmack; that the bank decree for sale was rested upon an attachment issuing out of the chancery court in a cause instituted against Carmack, and levied on this as his property, while it was yet subject to this unsatisfied lien; and the prayer of the bill was that their claim as preferential lien creditors be established by decree. The defense set up by the bank is that at the time of the delivery of the deed by the Bryants to Carmack the vendor failed to make any reservation of a lien to secure the payment of these notes, but that afterwards when Carmack, the vendee, fell into financial trouble, and the bank and other creditors were either pressing him or threatening to do so, these complainants and Carmack entered into a fraudulent agreement by which there was interpolated a clause reserving this express lien, and that without other or further acknowledgment upon the part of the grantors the deed, with this interpolation, was registered. Within a day or two after this was done, the bank filed its bill, and, suing out a writ of attachment, caused it to be levied on this property as that of their debtor, Carmack. The facts on the issue thus raised, as found by the court of chancery appeals, are that it was the distinct agreement between the vendor T. E. Bryant and the vendee, Carmack, at the time of the sale and purchase of this property, that the notes executed as a consideration therefor, and now held by these complainants, should be secured by a lien retained on the face of the deed, and the draftsman was directed to insert a stipulation to that effect, but failed to do so; that, upon the assumption that the deed was drawn as ordered, it was signed, acknowledged, and delivered by the makers to Carmack; that thereafter, upon Carmack becoming involved in business troubles, one of the parties interested in one of the notes was in some way prompted to an investigation with a view of ascertaining the condition of this deed, when it was discovered in the vendee's hands unrecorded, and lacking this important stipulation; that thereupon the holders of the notes and Carmack, agreeing that it was proper to write into the deed this omitted stipulation, took it to the draftsman, who, at the suggestion of Carmack and complainants, and upon the express authority of the vendor T. E. Bryant, interlined it therein; and that, thus altered, without any reacknowledgment, it was taken to the office of the register, and by him was duly noted for registration. That court further finds that this alteration was made in...