Cole v. Windle
| Decision Date | 30 October 1970 |
| Citation | 62 Tenn.App. 392,463 S.W.2d 410 |
| Parties | J. E. COLE, Complainant-Appellant, v. Perry WINDLE, Defendant-Appellee. |
| Court | Tennessee Court of Appeals |
Cameron, Oakley & Jared, Cookeville, for complainant-appellant.
Officer & Officer, Livingston, Neal & Craven, Jamestown, for defendant-appellee.
Complainant-appellant, J. E. Cole, filed his original bill in this case on June 5, 1969, to dissolve a partnership and liquidate the partnership assets which consisted of a one-third undivided interest in a 270 acre tract of land near Livingston in Overton County, Tennessee.
Defendant-appellee, Perry Windle, filed an answer setting up several defenses, including a plea of res judicata, and relying upon several statutes of limitations. The defendant also filed a cross-bill alleging that the complainant's claim was a cloud upon his title and praying that said claim be removed as such.
The case was tried upon oral and documentary evidence, after which trial the case was taken under advisement and a decree was entered on January 19, 1970, dismissing the complainant's bill and sustaining the defendant's cross-bill.
This decree was entered pursuant to memorandum opinion filed December 17, 1969, which memorandum opinion contains the following language:
The business relationships between the parties which led to the instant litigation began about the year 1950 when the parties to this suit started buying timber land for the purpose of reselling it at a profit. Prior to purchase of the undivided interest in the tract of land which is the subject of the present controversy, the parties completed at least three other transactions which were handled in accordance with an agreement between them that the profits on such transactions would be divided equally between the two of them.
One of the first transactions was the purchase of a tract of timber land from the Jackson heirs. On that particular transaction the parties agreed that $2,500.00 was the amount which could be realized as a profit from a resale of the Jackson tract, whereupon it was agreed between the parties that the defendant would buy the complainant's interest and pay him a profit of $1,250.00, which transaction was consummated.
Thereafter, the parties purchased a timber contract from one Joe Maxwell for $5,000.00, which timber contract was later sold to Cookeville Planing Mills for $7,000.00, thus making a profit of $2,000.00 which was divided equally between the parties.
Another transaction concerned a tract of timber known as the Almonrode tract purchased by the parties for $1,000.00 and later resold for $2,000.00, the profits being divided equally between the parties, each of them receiving $500.00 profit.
In each of the foregoing three transactions the defendant furnished the money to purchase the property, but title thereto was initially taken in the name of complainant.
Prior to purchase of the property involved in the present litigation, the tract of 270 acres near Livingston in Overton County, Tennessee, was owned by some parties known as the Mitchell heirs, one of these parties being Mrs. Vella Mitchell who owned a one-third undivided interest which she inherited from her late husband, and the remaining two-thirds undivided interest was owned by Doctor E. W. Mitchell.
On November 4, 1951, the complainant purchased Mrs. Vella Mitchell's one-third undivided interest in said land for $13,319.15 and Mrs. Mitchell conveyed said one-third undivided interest to the complainant by deed dated November 5, 1951. The defendant furnished the entire amount of $13,319.15 to purchase this tract of land and, at that time, it was agreed between complainant and defendant that this property, like the other property which had been purchased by them for resale, would be sold and the profit divided equally between them.
However, there is a sharp dispute between the parties as to the period of time within which said one-third undivided interest in the Mitchell tract was to be sold.
There is also a sharp dispute between the parties as to whether or not the defendant was to be paid interest on the $13,319.15 purchase money before the profit on the transaction was determined and divided.
Shortly after the property was purchased from Mrs. Mitchell, complainant delivered the deed to the one-third undivided interest in said property to the defendant for safekeeping and the deed was not recorded at that time.
On April 17, 1959, complainant filed a partition suit against the defendant and Doctor E. W. Mitchell in the Chancery Court of Overton County by which he sought to have the entire tract of land of 270 acres sold for partition.
However, prior to the filing of this partition suit, some offers were made for the timber on the entire tract of land, but none of these offers were accepted, due to the fact that the defendant and Doctor Mitchell did not wish to sell said timber at that time.
Also some negotiations have been held between the complainant and defendant in an attempt to reach some agreement as to an amount by which one of the parties would sell to the other for an agreed price, based upon a buy or sell option. However, none of these negotiations ever led to an agreement between the parties and as a result thereof, this litigation and the partition suit filed on April 17, 1959, ensued.
Doctor Mitchell and the defendant, Windle, each filed separate answers to the bill filed by complainant in the partition suit on April 17, 1959, and in that former suit, the defendant, Windle, also filed a cross-bill alleging that the complainant's claim was a cloud upon his title and seeking to have it removed as such.
After the former suit was filed, the Honorable A.F. Officer, then Chancellor of the Chancery Court of Overton County, Tennessee, recused himself and it was agreed between counsel for all of the parties that the former suit be transferred to the Chancery Court of Warren County, Tennessee.
Said former suit was heard by the Honorable H. J. Garrett, Chancellor of the Chancery Court of Warren County, Tennessee, on August 14, 1959, as a result of which hearing Chancellor Garrett dismissed the complainant's bill with prejudice and also dismissed Windle's cross-bill without prejudice, by decree entered on September 23, 1959, which decree became final before the instant suit was filed.
It was this decree entered by Chancellor Garrett on September 23, 1959, which Chancellor Camp held, in his memorandum opinion, to be res judicata in the instant suit.
From Chancellor Camp's decree of January 19, 1970, the complainant, J. E. Cole, has prayed and perfected his appeal to this Court and filed four assignments of error.
The first assignment of error is to the effect that the Chancellor erred in holding that the defense of res judicata was applicable to the present cause.
This assignment requires us to carefully examine and scrutinize the pleadings and justiciable issues raised in the former suit filed by complainant against Windle and Doctor Mitchell on April 17, 1959.
Although none of the evidence which was heard in the former suit is before us, the pleadings and decrees therein have been filed in the instant suit and made a part of the bill of exceptions.
The original bill in that suit contains the following allegations:
(B. of E. pp. 145, 147 and 148).
The answer, which is made a part of the cross-bill filed by defendant, Perry Windle, in the former suit, contains the following averments.
'For the reasons hereinafter shown this defendant denies that complainant J. E. Cole is the owner of a one-third undivided interest in said lands as described in Paragraph I of complainant's bill, however, he admits that his codefendant, Dr. E. W. Mitchell, is the owner of a two-thirds undivided interest in said lands.'
'This defendant admits that he did furnish the sum of $13,319.15 with which to pay Mrs. Vella Mitchell for a one-third undivided interest in the lands sought to be sold in this cause, however, he denies that it was ever contemplated by either the complainant J. E. Cole or the defendant Perry Windle that complainant Cole would take any legal title to the lands. However, this defendant, perhaps Indiscretely did have the title or deed made to the complainant J. E. Cole, but it was specifically understood by both parties at the time of this transaction that the property, or interest in the property, was to belong to the...
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