Butler v. Maury
| Citation | 29 Tenn. 420 |
| Parties | BUTLER v. MAURY. |
| Decision Date | 30 April 1850 |
| Court | Supreme Court of Tennessee |
OPINION TEXT STARTS HERE
This is a bill which was filed in the chancery court at Huntingdon. It was dismissed on demurrer by the presiding chancellor, Jones. The plaintiff appealed.
J. H. & A. Hawkins, for complainant. They cited 2 Story Eq. sec. 588, 589; 1 Paige Ch. Rep. 284; 2 Paige, 300;1 Tenn. 286;5 Johns. Ch. 228.
L. M. Jones, for the defendant. He cited the act of 1832, chap. 90; 4 Humph. 484;2 Humph. 115.
This bill, filed in chancery at Huntingdon, was dismissed on demurrer, and complainant has appealed to this court. The facts charged in the bill are briefly these: complainant agreed to purchase of Ramsy Henderson a lot of land No. 81, in Huntingdon, and two acres and one hundred and forty-nine poles of land in Carroll county; part of the purchase-money was paid and notes given for the balance, and Henderson executed his bond for title on payment thereof. The vendee took possession, and in March, 1846, completed said payment. At May term, 1846, of the circuit court of Carroll, Rockhill, Smith & Co. recovered judgment against said Henderson, on which execution issued to the sheriff of Carroll, in virtue whereof he sold the land in question at public auction to defendant.
The complainant's title bond had never been registered; but it is alleged that defendant, as an attorney at law, drew the title-bond, and that he also attested it as a witness, and, further, that he was also the attorney of Rockhill, Smith & Co. in the suit against said Henderson, and at the time he purchased at sheriff's sale had full notice of plaintiff's title, and that the purchase-money had been paid; that defendant, in virtue of his said purchase at sheriff's sale, is proceeding in ejectment to turn plaintiff out of possession.
Upon this state of facts, it is assumed for complainant that he has an equitable right to demand the legal title of defendant, because at the time of his purchase he had actual notice of complainant's previous purchase and payment.
The 12th section of the registry act of 1831, ch. 90, declares that all instruments not registered in conformity to that act “shall be null and void as to existing or subsequent creditors or bona fide purchasers without notice.” The creditors referred to are judgment creditors, as to whom it is expressly declared, that unregistered title shall be null and void. It follows, therefore, that the creditors of the vendor, in the present case, had the right to cause the land in question to be levied on and sold in satisfaction of their judgment, because as to them the title-bond not being registered, was null and void. The act of the defendant in causing this sale to be made was merely as their attorney and for their benefit.
If the creditors of the vendor had a right to a sale of the land, there can be no reason why the defendant as well as another might not purchase. To deny his right to purchase, would be so far to restrict the creditor's right to sell, because his right is, that property shall be sold to the highest bidder, to raise a fund for the payment of his debt. Nor do w...
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Frank v. Hicks
...as sustaining a different rule. Most of these cases have arisen under statutes different from ours, and which change the rule. In Butler v. Maury, 29 Tenn. 420, the lien of a creditor was preferred to an unregistered title bond. The statute provided that all instruments not registered in co......