Garnett v. Stockton

• Citation: 26 Tenn. 84
• Parties: GARNETT et al. v. STOCKTON et al.
• Decision Date: 30 September 1846
• Court: Supreme Court of Tennessee

26 Tenn. 84

GARNETT et al.

v.STOCKTON et al.

Supreme Court of Tennessee.

September Term, 1846.

Stockton purchased a drove of mules from Eubank and Garnett, and, as a security for the payment of the purchase-money, ($1,140,) agreed to execute a mortgage on 150 acres of land in Meigs county. Roddy was present at the time of the purchase in the state of Kentucky, and accompanied Stockton with the mules to Tennessee. Stockton executed the mortgage on the 23d day of September, 1841, to Eubank and Garnett. On the same day it was acknowledged by Stockton, and certified for registration, and was registered. The clerk, however, in his certificate of probate failed to state that he was personally acquainted with the bargainor, Stockton.

On the 22d of September, 1841, Stockton executed a deed of trust on the same land to Roddy for the sum of $800, which was duly acknowledged on the 23d day, and certified and registered.

After the lapse of the time in which the said debt was to be discharged, Roddy proposed to sell the land of Stockton by trustsale, and Eubank and Garnett filed this bill in the chancery court at Cleveland to restrain the sale, at the instance of said Roddy, and to appropriate the proceeds of said land to the satisfaction of their claim. The bill charged partnership in the purchase of the mules by Roddy and Stockton, and fraud.

It was heard on bill, answer, replication, and proof. The chancellor, Williams, thought there was not sufficient proof of a partnership, and that the certificate of probate of the deed of Garnett and Eubank was not good, and decreed the sale of the land for the satisfaction of Roddy's debt, and the balance to Garnett and Eubank. The complainant appealed.

Van Dyke, for complainants.

Frazier, for defendant.

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

The question chiefly discussed in this case is whether the chancellor erred in holding that the mortgage in favor of the complainant constituted no lien, and conferred no priority, because the clerk in his certificate of probate omitted to state that he was personally acquainted with the bargainor acknowledging the same. The chancellor's opinion was in conformity with what is decided in the case of Peyton v. Peacock, 1 Humph., upon the very point.

But it is said that it appears from the clerk's certificate of probate, upon the defendant's deed of trust, made on the same day, that he was personally acquainted with the bargainor; and it is contended that a...