Crabtree v. Bank
| Decision Date | 22 March 1902 |
| Citation | 67 S.W. 797,108 Tenn. 483 |
| Parties | CRABTREE v. BANK OF WINCHESTER et al. |
| Court | Tennessee Supreme Court |
Appeal from chancery court, Franklin county; T. M. McConnell Chancellor.
Suit by B. F. Crabtree against the Bank of Winchester and others. The bill was dismissed by the court of chancery appeals, and complainant appeals. Reversed, and decree entered in his favor.
Arthur Crownover and R. L. Bright, for appellant.
Embrey & Taylor and Geo. E. Banks, for appellee Bank of Winchester.
The bill in this cause attacks certain proceedings in the circuit court of Franklin county, in which the property of complainant was condemned to be sold under a levy of an execution issuing from the office of a justice of the peace and asking that the deed executed by the sheriff, who sold this property by virtue of a writ of venditioni exponas issuing from said court, as well as the several subsequent deeds, under which some of the defendants claim, be decreed to be a cloud upon the title of complainant, and for other relief incident to such a decree. The proceedings in that case, as far as it is necessary to set them out, were as follows: The defendant the Bank of Winchester recovered a judgment in 1891 before a justice of the peace of Franklin county against complainant, as principal, and C. C. Crabtree J. C. Lomey, B. F. Holder, and W. J. Mooney, as sureties. Soon thereafter an execution issuing from this judgment was levied upon the lands of two of the sureties, and the papers in the cause were at once delivered by the justice, in accordance with the statute, to the clerk of the circuit court of that county for an order of condemnation, and the cause was by him entered on the trial docket of that court as No. 27. After this was done, discovering that the principal in the judgment and the complainant in this cause was the owner of an undivided interest of one-third in a tract of 2,000 acres, subject to execution, the attorney for the Bank of Winchester appeared before the justice of the peace who had issued the execution, and made an affidavit, which, after reciting the recovery of the judgment, the issuance and levy of the execution upon the several tracts of two of the sureties, and the filing of the papers in the circuit court for an order of condemnation, concluded by saying that, having discovered property of the principal upon which a levy could be made, affiant asked the issuance of an alias execution to that end. In accordance with the prayer of the affidavit, an alias execution was issued, and levied on the interest of B. F. Crabtree in the 2,000-acre tract. At the time of the issuance and levy of this last execution the papers in the cause were already lodged in the circuit court of Franklin county, and the cause stood on the trial docket of that court, as has been stated already, as file No. 27. No effort had been made to dismiss the cause, or remand it, by procedendo or otherwise, to the office of the justice of the peace. This alias execution, with the levy indorsed upon it, and the affidavit referred to, were taken to the circuit court, and there filed. It was on the papers, including this last levy, that the order of condemnation was entered, the venditioni exponas was issued, and the sale made, which are attacked by the present bill.
Dismissing from consideration certain features of the case which serve to confuse, rather than to make clear, the point in issue, we will come to the question whether the justice had the jurisdiction to issue this second execution, under the facts already given. For it is clear that, if he had no such jurisdiction, then the attempted levy of it by the officer upon the property of the complainant was unauthorized, and the order of condemnation, followed by the venditioni exponas, and sale thereunder, were void and without any legal effect. For a determination of the question just suggested, a reference to the statutory provisions regulating proceedings of this character is necessary. Section 4808 of Shannon's Code directs that, "when an execution issued by a justice of the peace is levied on real estate, it shall be the duty of the justice to whom the same is returned to return the execution, together with the judgment and the papers in the cause, to the next circuit court of his county for condemnation." Section 4809 provides that "the circuit court, upon the return then made, may condemn the land and order the same *** to be sold by the sheriff of the county, in satisfaction of the judgment and costs," while by section 4810 it is enacted that, "if the circuit court condemns the land to be sold, the clerk should enter on the minutes the warrant, attachment or other leading process, with the officer's return thereon, *** affidavits for attachment or other process, the judgment of the justice, the executions levied, with the officer's return, and the judgment of the court." See, also subsection 8 of section 5892 of the Code. Thus it will be seen, under these provisions, every paper issued by the justice, or in any way connected with the cause, where a levy on land has been made by an officer by virtue of an execution issuing from a justice's court upon a judgment pronounced by him, together with the judgment itself, is to be transmitted to the circuit court. Upon being filed there, the jurisdiction of that court attaches, and that of the justice ends. It is true that in Mann v. Roberts, 11 Lea, 57-59, it was held that an order of condemnation is not a judgment, in the strict...
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Tate v. Tate
...41 S.W. 1056; Crabtree v. Bank, 108 Tenn. 483, 67 S.W. 797; Tenn. Coal Co. v. McDowell, 100 Tenn. 570, 47 S.W. 153. "In the case of Crabtree v. Bank, supra, the gist of the is that there will be no estoppel when there was a mutual mistake as to the effect of a court record to which the pers......
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Smith v. Cross
...580, 583; Taylor v. Nashville, etc., R. Co., 86 Tenn. 228, 6 S.W. 393; Collins v. Williams, 98 Tenn. 525, 41 S.W. 1056; Crabtree v. Bank, 108 Tenn. 483, 67 S.W. 797; Parkey v. Ramsey, 111 Tenn. 302, 307, 76 S.W. 812; Pom. Eq. Jur. § 807; Bigelow on Estoppel, 480. 7. The defendants base an e......
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W.E. Richmond & Co. v. Security Nat. Bank
...of the other rule that, where both parties have the same means of ascertaining the truth, there can be no estoppel. Crabtree v. Bank, 108 Tenn. 483, 67 S.W. 797, Brant v. Va. Coal, etc., Co., 93 U.S. 326, 23 L.Ed. 927. That is to say, if a party decides upon a matter or determines his cours......
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...Certainly the testator's mental capacity is not affected by anything the plaintiff has done. It was said by this court in Crabtree v. Bank, 108 Tenn. 483, 67 S.W. 797: it is essential, as a general rule, to the application of the principle of equitable estoppel that the party claiming to ha......