Fall v. Roper

• Decision Date: 31 December 1859
• Citation: 40 Tenn. 485
• Parties: FALL & CUNNINGHAM v. JOHN Y. ROPER, SR., et al.
• Court: Tennessee Supreme Court

40 Tenn. 485

FALL & CUNNINGHAM

v.JOHN Y. ROPER, SR., et al.

Supreme Court of Tennessee.

December Term, 1859.

FROM MACON.

Decree by Chancellor Ridley, for the defendants. The complainants appealed.Head & Turner, Fite & Alexander, for the complainants; Guild and Bennett, for the defendants.

MCKINNEY, J., delivered the opinion of the court.

This was an attachment bill, filed on the 4th of May, 1858. The complainants are creditors of the defendant, Martin, and they seek to obtain satisfaction of their debt out of certain land and slaves conveyed by Martin to Roper. They claim this relief upon two grounds: first, that the conveyances are void as to creditors, for fraud; and secondly, that the probate and registration of said conveyances are of no effect.

It appears that both deeds were executed on the 27th of April, 1858, and on the same day were acknowledged before the clerk of the County Court of Macon, by defendant, Martin, and registered in the Register's office of said county.

In each certificate of probate the words, “the within named,” and “with whom I am personally acquainted,” were omitted by the clerk. Afterwards, on the 8th of February, 1859, pending this suit, the clerk was procured to supply this omission, pursuant to secs. 2081, 2083 of the Code.

This omission is fatal to the probate. It is one of the most important requirements--as a protection against fraud--contained in the formula prescribed by the statute.

But it is insisted that the defect is cured. We do not think so. By the act of 1846, ch. 78, the omission of words in the certificate of probate did not vitiate, provided “the substance of the probate” required by the act of 1831 was contained in the certificate. Under this act the validity of the certificate must be judged, as it was prior to the Code.

The Code provides that the clerk, on the application of the party interested, may correct any “mistake or omission of words,” in the certificate. Sec. 2081. “And the Register shall record the correction in the proper book of his office, and make a reference to the same on the margin opposite to the original registry of the certificate.” Sec. 2083.

The acknowledgment of the deeds was taken by the clerk before the Code went into operation. But it is argued, that by the proper construction of the latter section, the correction, when made, necessarily relates to, and incorporates itself with, the original probate, so as to give it effect from its date, and that, in this...