Denton v. Nashville Title Co.

• Decision Date: 06 February 1904
• Citation: 79 S.W. 799,112 Tenn. 320
• Parties: DENTON v. NASHVILLE TITLE CO.
• Court: Tennessee Supreme Court

79 S.W. 799

112 Tenn. 320

DENTON v. NASHVILLE TITLE CO.

Supreme Court of Tennessee.

February 6, 1904

Appeal from Chancery Court, Davidson County; John Allison Chancellor.

Action by Charles T. Denton against the Nashville Title Company. Judgment for defendant. Complainant appeals. Affirmed.

Marean P. Estes and J. H. Acklen, for appellant.

T Bryan, for appellee.

NEIL J. (after stating the facts).

It is clear that the defendant was guilty of a breach of duty in failing to note the existence of the judgment of June 8 1898, inasmuch as the appeal did not destroy the lien, but only suspended it (Shannon's Code, § 4711); and, being the immediate purchaser of the land from the person to whom the abstract was issued, and the defendant knowing that it was procured to be used in making sale of the property, the complainant was entitled to the benefit of it, and could sue for a material defect therein causing injury. Dickle v. Abstract Co., 89 Tenn. 431, 14 S.W. 896, 24 Am. St. Rep. 616.

It appears, however, that the injury was not caused by the enforcement of the judgment lien. Indeed, a comparison of certain dates above mentioned discloses the fact that the judgment of the Supreme Court, into which the judgment of the chancery court was merged, was more than one year old, and its lien therefore had expired when the proceedings were begun by Alford which resulted in a loss of the property to the complainant.

The complainant insists that the mortgage taken by Alford, and which was enforced as above stated, should be considered in connection with the judgment, and the two should be treated as one transaction, inasmuch as the mortgage was executed by Mauck to indemnify Alford in the liability which he had assumed in respect of the demand upon which the judgment was based, and the mortgage was enforced against the land. But if we so treat them the result is not changed. The judgment was not enforced. The mortgage, it is true, was enforced. But this paper had never been registered, and neither complainant nor his vendor had any knowledge of its existence. That instrument therefore would have had no vigor against the complaint if his tax title had been valid. That title however, was directly assailed for invalidity in the proceeding brought to enforce the mortgage, and was overthrown and cast aside as being only a cloud upon the title. We have a case, then, wherein the judgment which was omitted from...