Fain v. Headerick

• Decision Date: 30 September 1867
• Citation: Fain v. Headerick, 44 Tenn. 327 (Tenn. 1867)
• Parties: Samuel N. Fain et als. v. Joseph W. Headerick et als.
• Court: Tennessee Supreme Court

44 Tenn. 327

Samuel N. Fain et als.

v.Joseph W. Headerick et als.

Supreme Court of Tennessee.

September Term, 1867.

FROM JEFFERSON.

At the April Term, 1867, there was a decree pronounced against Noel and others, and in favor of the creditors of Headerick; from which Noel appealed. Chancellor SETH J. W. LUCKEY, presiding.

R. W. BARTON and JAMES R. COCKE, for Fain.

GEORGE ANDREWS, for Headerick.

NELSON, and LOGAN & LOGAN, for Noel.

MILLIGAN, J., delivered the opinion of the Court.

On the 20th of October, 1865, the complainants, Samuel N. Fain, Wm. D. Fain, and Horace W. King, late partners of the mercantile firm of “Fain & King,” filed their attachment bill in the Chancery Court at Dandridge, against the defendants, Joseph W. Headerick and Almegro Noel, alleging that Joseph W. Headerick was indebted to them, in various sums of money, due by notes of hand, &c.; and seeking by attachment, to secure the payment thereof.

The bill alleges that the defendant, Joseph W. Headerick, was the owner of a valuable tract of land, in Jefferson County, which contained about 921 acres, and which, in October, 1862, he had sold to his co-defendant, Almegro Noel, for the sum of $18,000 in Confederate Treasury notes. Ten thousand dollars of which were paid in hand, and the remainder, by agreement, was payable in one, two, and three years.

Noel took possession in 1863, and tendered the two first installments when due, in confederate money, which was refused by Headerick, leaving $8,500 of the original sum still unpaid.

On the 3d of June, 1865, Joseph W. Headerick sold, and by deed conveyed the same land, for the consideration of $8,500, to his son, Charles H. Headerick, which was duly registered on the day of its execution. No part of this sum appears to have been paid; and afterwards, on the 10th day of July, 1865, the two Headericks and Noel, under bond, submitted all the matters of controversy, growing out of the sale to Noel, and the payments made thereon, to the arbitrament and award of L. F. Leiper, James Fuller and A. K. Meek, who afterwards returned their award, in which, among other things, they decided that Noel could not specifically execute his contract; but as he had paid $10,000, in Confederate money, upon it, “he should continue to hold the possession of said land, and a lien on it, for the sum of $12,800, for payments and damages which if paid within one month from the date of the award, the said Noel shall give said Headerick the possession of said land by the 1st day of January, 1866; or in the case of failure on the part of said Headerick to make said payment, that said Noel proceed to advertise and sell said land, for cash in hand.”

The bill further charges, that the deed from Joseph W. Headerick, to his son, Charles H., was strictly voluntary, and void as to creditors; and the contract of sale between the former and Noel, was also void, because founded on an illegal consideration; and the award, consequently, in-operative to confer any higher or other rights upon the parties to it than they enjoyed before.

It is also alleged that Noel is about to sell the land, and by attachment it is sought to subject it to the payment of the complainants' debts.

Shortly after this bill was filed, five other similar bills were filed, seeking the same relief. Among which was one filed on the 11th day of April, 1866, by Andrew Ramsey, against the same defendants, in which it is alleged, on the 21st day of August 1865, he recovered a judgment against Joseph W. Headerick, B. Headerick, and F. W. Taylor, Administrators of L. D. Franklin, for $2,241.91, and costs, and that execution issued thereon, which, for want of personal property, was levied on the lands of Joseph W. Headerick, then occupied by his co-defendant, Almegro Noel, under an illegal and void contract of sale.

It is further alleged, that the deed from Joseph W. Headcrick to his son, Charles H., was not fraudulent and void, as having been made to hinder and delay creditors, but champertous, because of Noel's adverse possession. The bill also impeaches the award, and avers that the deed and award form a cloud upon the title to the land, which the complainant seeks to remove, and subject the same to the satisfaction of his judgment.

Noel answered, which, by consent, was taken as an answer to all the bills. His answer is filed as a cross-bill. He does not controvert the justice of the claims against his co-defendant, Joseph W. Headerick, but says he bought 800 acres of land of Joseph W. Headerick, on the 17th of September, 1862, for $18,000 in Confederate bonds, and that he has paid $10,000 in the same funds, except $150 in salt. The balance, he alleges, was tendered in Confederate money, and refused. The execution of the deed from Joseph W. Headerick to his son, Charles H. Headerick, is admitted, but it was executed with full knowledge that the land had been previously conveyed to the respondent, and that the vendee, Charles H. Headerick, had paid rent for the same, for the years 1863 and 1864.

The respondent relies on the award of the arbitrators, and insists that the contracts between him and Joseph W. Headerick, was executed. He avers his vendor executed to him a title-bond, which has been lost, or mislaid, and under which he took possession, and has held it ever since; and notwithstanding the illegal consideration paid for the land, the respondent insists that the submission and award make it valid and legal, and as such, capable of being enforced in a Court of Equity.

He also alleges, that, pursuant to the award, he caused the lien declared on the land by the arbitrators to be enforced, and the land to be sold, which he purchased at the sum of $12,800.

It is also insisted, that the two Headericks are bound by the award, because they were present and consenting thereto; and that Ramsey's judgment constituted no lien upon the land, because the legal title was in Charles H. Headerick, and the equitable title in respondent.

The two Headericks answered the original bill filed by Fain, and also file their answer as a cross-bill, against Noel. They admit, substantially, the allegations in the bill, but insist that the award was founded on an illegal consideration, and utterly void.

Joseph W. Headerick and Charles H. Headerick answer Ramsey's bill, and the former insists, that the sale to Noel was in parol, and that the sale to Charles H. Headerick was in good faith, and without fraud, &c. Charles H. Headerick denies all fraud and champerty.

The defendants demur to Noel's cross-bill, which the Chancellor sustained, and in his final decree, declared the deed from Joseph W. Headerick to Charles H. Headerick champertous and void, and that neither the submission bond and award, or the title bond to Noel, were so proven and registered as to prevent the lien of Ramsey's judgment, and the levy of the other attaching creditors, the legal title being in the defendant, Joseph W. Headerick; and that Ramsey's bill was properly filed to remove the cloud on the title; and directed a sale of the lands, reserving the question of the application of the fund, &c.

Under this general state of the facts as presented in the pleadings, there being little or no evidence in the case, various questions are presented in argument, which, we think, may all be resolved into two.

1st, What was the operation and effect of the deed from Joseph W. Headerick to his son, Charles H. Headerick, dated the 3d of June, 1865, and registered on the same day, as to the creditors of the vendor?

2d, Did the submission bond, and award, although springing out of an illegal consideration, together, form a new contract which a Court of Equity can enforce?

The precise nature of the contract between Joseph W. Headerick and his co-defendant, Almegro Noel, does not distinctly appear. Noel alleges that it was in writing, and evidenced by a bond for title, which has been lost or mislaid; while Headerick, the bargainor, denies that there was any title bond executed. Both admit the sale, and Noel's possession under it, together with his...