Commerce Union Bank v. Weis
| Decision Date | 18 March 1944 |
| Citation | 181 S.W.2d 764,27 Tenn.App. 433 |
| Parties | COMMERCE UNION BANK v. WEIS et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court June 10, 1944.
Appeal from Chancery Court, Davidson County; William J. Wade Chancellor.
Suit by Commerce Union Bank, executor of George F. Weis, deceased against Mai E. Weis and others for instruction and direction in discharge of its duties as executor and for adjudicating rights of the parties in regard to certain mortgage note wherein named defendant filed a cross-bill. From a decree for defendants, plaintiff appeals.
Modified and, as modified, affirmed.
W. P. Cooper, of Nashville, for appellant.
J. G Lackey, of Nashville, for appellees.
George F. Weis died testate on August 23, 1941. Commerce Union Bank qualified as executor under his will on August 29, 1941. Prior to the death of George F. Weis, he and his wife purchased a house and lot in Nashville, Tennessee, for the consideration of $5,750. $650 of the purchase price was paid in cash by George F. Weis from his own personal funds. The balance of the purchase price was paid by George F. Weis and his wife, Mai E. Weis, borrowing $5,100 from Union Trust Company, Inc., of Nashville, Tennessee, the loan being represented by a note payable in monthly installments of $33.66 each. George F. Weis and Mai E. Weis signed this note of $5,100, and to secure the note they executed a deed of trust on the house and lot which they had purchased dated May 1, 1938, and recorded in Book 1089, page 49, Register's Office of Davidson County, Tennessee. The deed to the house and lot was made to Mai E. Weis only. Union Trust Company, Inc., transferred this note of $5,100 by regular assignment to Lincoln National Life Insurance Company, and this insurance company was the lawful owner and holder of the note at the time George F. Weis died and at the time the present suit was instituted.
A controversy arose between Mai E. Weis and the executor of her husband's estate in regard to the liabilities of these parties upon this note which was secured by the deed of trust upon the house and lot purchased and deeded to Mai E. Weis as aforesaid.
At the time of the death of George F. Weis there was a balance unpaid of $4,575.67 on the original note of $5,100. At the time the suit was tried and the decree entered in the Chancery Court Mrs. Mai E. Weis, the widow, had paid the sum of $828.78, principal and interest, on this note, since the death of her husband, which left a balance, at the time the decree was entered in the Chancery Court of $4,208.09.
The executor and the widow being unable to agree upon their respective rights and liabilities in regard to this note, the executor filed the present suit in which all the facts were set out and it prayed for instruction and direction by decree of the Court in the discharge of its duties; and also that the Court enter a decree adjudicating the rights and liabilities of the executor and the widow in regard to the note.
Mai E. Weis answered the bill and filed a cross bill in which she sought affirmative relief in accordance with her contentions. There is very little controversy about the facts. The widow contends that her husband, George F. Weis, was primarily liable on this note which was secured by a deed of trust on the home which they purchased and which was deeded to her; and that she was, in effect, a surety for her husband on this note. She, therefore, urges that the executor should be compelled to pay this note so that she may be relieved of all liability thereon, and the lien on her home be discharged.
The contention of the executor is fully expressed in the prayer of its bill which we quote:
The Chancellor held in favor of the contentions of the widow and decreed that the executor should pay the full balance due on this note at the time of the death of George F. Weis. From that decree the executor has appealed to this Court and assigned errors.
There are two determinative questions presented to us: 'First, what are the liabilities of the executor and the widow on the note in controversy; and, second, if the executor is compelled to pay any part or all of the note, will the executor be subrogated to the rights of the holder of the note and be entitled to foreclose the deed of trust on the widow's home which is held as security for the note and apply the proceeds of the sale to reimburse the executor for any amount which it might have to pay?
These questions will be determined in order.
After the husband paid the initial payment of $650 on the purchase price, he and his wife made the other monthly payments, until he died, out of a joint bank account which was made up of individual money belonging to the husband and to the wife in approximately equal amounts. Both of them worked and had about the same income and deposited all their money in a joint bank account. From this account they paid all their living expenses, including the payments on their place, until the husband died.
Both of them signed the note in controversy, and both of them executed the deed of trust to secure the note. Although title to the home was taken in the name of the wife, it was purchased as a home for the entire family, husband, wife and child, and used as such until the husband's death. There are reported cases in this State and in foreign jurisdictions where the facts are similar to the facts of the instant case with the exception that title to the mortgaged property was in husband and wife as tenants by the entirety. That fact would be more unfavorable to the wife's contention, that the husband is primarily liable on this note, than the facts of the instant case. If the mortgaged land were held by husband and wife as tenants by the entirety the husband would own the land if his wife should predecease him. Here the title was in the wife and the husband had no interest therein, except a possible curtesy interest.
The Chancellor stated: 'Under the pleadings and proof the Court is of the opinion that as between George F. Weis, deceased, and his wife, Mai E. Weis, the indebtedness remaining due at the date of his death on said note secured by said deed of trust was the primary obligation of the deceased, George F. Weis, and she is entitled to have said debt discharged by complainant in exoneration of the lien on the property owned by her.'
We do not...
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Morrow's Estate, In re
...joint debt? Unless his co-obligor is a mere accommodation maker, it is held that he is entitled to contribution. Commerce Union Bank v. Weis, 27 Tenn.App. 433, 181 S.W.2d 764. In such a case the co-obligor has no interest in the property--the collateral--but must contribute if the other obl......