Garretson v. Brien
| Decision Date | 31 December 1870 |
| Citation | 50 Tenn. 534 |
| Parties | Elizabeth Garretson v. M. M. Brien, et als. |
| Court | Tennessee Supreme Court |
Chancery Court at Smithville, September Term, 1867, before B. M. TILLMAN, Ch.
R Cantrell, Sr., for complainants, cited: Elrod v. Lancaster, 2 Head., 571;Ingraham v. Smith, 1 Head., 411;Peak v. Ligon, 10 Yer., 469;Estell v. Taul, 2 Yer., 467;Combs v. Young, 4 Yer., 218;Birdwell v. Cain, 1 Cold., 301; Act of 1850, c. 54.
Savage for defendants, cited: 2 Tenn., 334; Meigs, Dig., sec. 820; 2 Jac. L. D., 314, 318; 4 Kent, 37, 39, 40, 45, 48, 49; 3 Bl. C., 176; 6 Jac. L. D., Seizin; 8 Hum., 537;1 Hum., 414;7 Hum., 79;6 Hum., 444;1 Story, 57, 58, 61, 108, 298, 411, 413, 414; 2 Ib., 1493; 1 Greenl., sec. 207; 1 Cold., 19, 23;2 Head., 628; King's Dig., secs. 75, 91; 3 Yer., 124; Johns. C. R., 46.
On or about the 3d of Dec., 1843, Manson M. Brien purchased of Cicero B. Duncan, executor of the last will and testament of Thos. W. Duncan, he having power and authority under the will to make the sale, four several tracts of land in DeKalb county, described in the pleadings, and containing about five hundred acres. Duncan, the executor, executed to Brien a title bond binding himself to convey when the purchase money should be paid. Brien afterwards sold the land to B. F. Browning, for whom he, probably, made the purchase, and executed to him a similar title bond. The purchase money was fully paid by Browning to Brien, and by Brien to the executor, and the parties had it in contemplation that a deed should be executed from the executor, directly, to Browning, but this was prevented by the death of Browning, which occurred between the date of his will, 17th of November, 1846, and at the time of its probate, 4th of January, 1847. Browning was an unnaturalized foreigner. He died without heirs, but left a widow, Lucinda, who, having dissented from his will, filed a petition for dower, in the Circuit Court of DeKalb, on the 5th of February, 1848, and obtained a decree on the 7th of October, 1848, assigning her as dower, one hundred acres, with the mansion house. The costs of the application for dower, amounting to $47.62 1/2, were adjudged against her, and execution issued therefor on the 22d of November, 1848. No personal property being found, the execution was levied 22d of November, 1848, on the dower tract, which was sold, at public sale, 5th of February, 1849, and purchased by A. M. Savage, at the price of ten dollars. By the direction of Savage the land was conveyed by E. W. Taylor, successor of the former sheriff, to A. M. Savage and M. M. Brien, by deed, bearing date 18th of August, 1852, and duly registered on the same day. Savage afterwards died and M. M. Brien, on the 22d of October, 1859, executed a deed of gift for his interest in the land, to the children of Savage; which does not appear to have been formally proved and registered, but as to the execution of which there is no controversy.
In the meantime, on the 24th of February, 1865, this bill was filed by Thos. C. Wroe and his wife, Lucinda, formerly Lucinda Browning, against M. M. Brien, A. M. Savage, Cicero B. Duncan, and A. J. Duncan, to enjoin an action of ejectment, which had been brought by Brien and Savage, on the 30th of December, 1854, against J. M. White and others, to recover the dower interest, as well as other lands owned by Browning, at the time of his death. It is charged in the bill that, situated as it was, the dower interest was not the subject of levy and sale, and could not be sold by an execution at law; that the title bond of Browning had been lost or mislaid, or was in possession of Brien; that complainants are entitled to the land under an act of Assembly of this State; that Brien and Savage had fraudulently combined and confederated together, to defeat them of their just rights; had procured the execution of the sheriff's deed, and had brought an action of ejectment for the recovery of the land, the prosecution of which complainants pray may be perpetually enjoined, &c.
To this bill, the defendants pleaded, first, that the one hundred acres had been sold, as aforesaid, at sheriff's sale; and, second, that the remaining four hundred acres had been sold under a decree of the Chancery Court, at the suit and instance of Stephen H. Colmes, and purchased by one Malone; that more than two years had elapsed since the making of said sale, and the time of redemption had expired; and, that complainant had no title to said lands. Complainants filed a replication to said plea, and the defendants afterwards filed separate answers, the details of which it is unnecessary to state here, as several of the points relied upon were obviated by the agreement set out in the bill of exceptions.
It further appears that S. H. Colmes filed a bill against Thos. C. Wroe and others, and that on the 27th of March, 1855, a decree was pronounced in said cause, confirming a sale made therein, by the Master, and vesting the title to all of said lands in Thomas Malone, the purchaser, excepting the dower interest of the said Lucinda. By said decree, all the right, title, claim and interest of the heirs and executors of Thomas W. Duncan, deceased, and of Manson M. Brien, in said lands, were divested out of them and vested in Malone, to the extent of the interest purchased by him; and, in the said Lucinda, in fee, and to her sole, separate, and exclusive use, to the extent of the dower tract.
Without detailing intermediate proceedings, it may be stated that this cause was before this court, at a former term, and that a decree was pronounced therein, on the 7th of December, 1856, remanding it to the Chancery Court at Smithville, to the end that proper parties might be made and such proceedings had as might be necessary to the determination of the question, whether the property “of intestate Browning,” in the pleadings mentioned, did not escheat to the State.
A bill was thereupon filed by Tim. H. Williams, Attorney General for the fourth circuit, in the name of the State, against all the parties in interest, and claiming that the lands, with the exception of the dower interest, had escheated to the State, and that the title hereto should be divested out of all the other parties. A decree was pronounced in that cause, 23rd of September, 1858, dismissing the bill; from which an appeal was prayed and granted; but the appeal having been abandoned, a final decree was pronounced therein on the 23d of March, 1860, by which the cause was stricken from the docket at the cost of the State.
After the death of Browning, and before the commencement of the suit by Colmes, an act was passed by the General Assembly of this State, on the 10th of January, 1850, c. 54, pp. 162, 163, by which it was declared that when any person should die thereafter, intestate, leaving no heirs at law, capable of inheriting real estate under the laws of Tennessee; but leaving a widow, then, and in that case, the widow should be entitled...
To continue reading
Request your trial