Durant v. Davis
| Decision Date | 30 April 1873 |
| Parties | Robert R. Durant et al v. Elizabeth Davis. |
| Court | Tennessee Supreme Court |
A married woman purchased a piece of land and borrowed the money to make the cash payment, executing her note to the lender and promising to take a deed to her sole and separate use and then to give the lender a mortgage to secure the note. She paid for the land, took a deed as promised, but refused to make the mortgage. The lender filed a bill setting forth these facts and asking that the land be subjected. No defense was made, the bill was taken for confessed and a decree of sale, rendered. The woman having become discovert, filed her bill of review for error apparent. The defendant demurred. Held:
1. The using of borrowed money to pay for land, neither gives to the lender the right to be subrogated to the vendor's lien, nor does it create in his favor a resulting trust.
2. The promise to make the mortgage was void under the statute, and although the failure to comply is a fraud, yet it is one against which the courts can not relieve.
3. The original decree subjecting the land was clearly erroneous, being manifestly inconsistent with the case stated in the bill.
[Cited in: 4 Lea, 216;13 Lea, 470;16 Lea, 258, 259;13 Pickle, 323.]
Appeal from decree of the Chancery Court, September Term, 1868. HON. WILLIAM M. SMITH, Ch.D. D. MYERS and T. W. BROWN, for Complainants.
T. B. MICOU, for Defendants.
Elizabeth Davis filed her bill in the Chancery Court of Memphis to review and reverse a decree against her made in said court, at the November Term, 1867, in favor of the defendants.
The bill (which for the purposes of review is considered a part of the decree) shows upon its face that the complainant Elizabeth Davis borrowed $505 of the defendant Susannah, wife of R. R. Durant, for which she executed her note to said Susannah. The money was borrowed to enable her to make a payment upon a lot in Memphis, which she had contracted to buy; that complainant at the time she borrowed the money and executed the note was a married woman; that she paid $108 and refused to pay the balance. Judgment, pro confesso, was taken against complainant, she having been served with process, and failed to answer, and thereupon the court, on December 12, 1867, rendered a decree against her for the amount of the note and interest, and ordered and adjudged that the clerk and master should sell said lot between the first and tenth days of January, 1868, on a credit, etc.
The lot was accordingly sold on January 9, 1868, and said Susannah became the purchaser at the price of $612.32, being the amount of her debt and interest, and the costs, and upon the master's report of the sale it was confirmed and a writ of possession was ordered to issue. Complainant then filed her bill of review in said court, June 26, 1868, setting out the proceedings herein before cited, and alleging for errors apparent upon the face of the decree, that it appeared that no time to pay the money into the court before the sale of the lot, was given. And also relying upon the fact that the decree showed she was a married woman at the time of the execution of the note and rendition of the decree, and for these errors she prayed that said decree should be reviewed and reversed.
The defendants in the bill of review demurred, and the demurrer was overruled and decree made reversing the decree in the original bill from which they appealed to this court.
Upon the facts disclosed upon the face of the bill, we are satisfied that the Chancellor erred in making the decree complained of against defendant Davis. It was clear she was a married woman at the time of the execution of the note, and could not thus enter into any obligation binding upon her at law or in equity. Although the money borrowed was used in payment, in part, for the lot it was so used as the funds of Davis, and not of the lender, and no trust resulted to the said Susannah in the land, from the transaction. For this reason we think the decree of the Chancellor was correct, and affirm it.
A decree will be entered here reversing the decree in the original cause and adjudging all the costs in both causes against the complainant in the bill of review.On rehearing, Freeman, J., delivered the following opinion:
An opinion was delivered in this case at the last term, affirming the decree of the Chancellor, overruling the demurrer to the bill of review filed by Mrs. Davis. A petition for rehearing was filed, which was not examined then for want of time. We have now re-examined the case and feel no hesitancy in reaffirming the views announced in the former opinion.
Without setting out the elaborate statements of the original bill, or the bill of review, which we may here say are both subject to the objection presented in one of the demur...
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