Gaugh v. Henderson

• Decision Date: 30 April 1859
• Citation: 39 Tenn. 628
• Parties: GAUGH AND WIFE v. ANDREW HENDERSON et al.
• Court: Tennessee Supreme Court

39 Tenn. 628

GAUGH AND WIFE

v.ANDREW HENDERSON et al.

Supreme Court of Tennessee.

April Term, 1859.

FROM MEMPHIS.

Decree for the complainants by Judge Caruthers, at the November term, 1858. The defendants appealed. The facts are stated in the opinion of the court.

Yerger, Blythe, and Wickersham, for the complainants; Baily, Smith & Stovall, and Williams & McKisick, for the defendants.

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

The complainants brought this bill to regain the possession of a lot in the City of Memphis, alleged to be the property of Mrs. Gaugh, and to have the title of the defendants declared void for fraud. The Chancellor decreed for the complainants, and the defendants appealed.

The material facts of the case are as follows: On December 18, 1840, the lot in question, which was then wholly unimproved, was conveyed by W. L. Vance to the complainant, Alicia, then Alicia Ann Kernahan, an infant about six years of age, and daughter of one Andrew Kernahan. The consideration of the conveyance is stated to be $350, paid by said Alicia. This deed was duly proved and registered on February 6, 1841.

Shortly after the date of this conveyance, Andrew Kernahan, complainant's father, proceeded to erect a frame dwelling-house on said lot; and in April, 1842, five several judgments were rendered against him before a justice of the peace of Memphis, in all amounting to some $900, for the carpenters' and brick-masons' work done on said house. Executions on these judgments issued, and were returned levied upon said lot, being lot No. 358, in the City of Memphis, on April 18, 1842, as the property of Andrew Kernahan; and at the June term of the Circuit Court of Shelby county, the papers being returned into court by the justice, judgments of condemnation were rendered, and said lot ordered to be sold.

The lot was sold by the sheriff, on October 2, 1842, and was bid off by William Henderson, at the price of $950; and on December 12, 1842, the sheriff executed a deed to said Henderson for said lot. On the day after the sheriff's sale, to-wit: on October 3, 1842, William Henderson, the purchaser, sold and conveyed said lot to said Andrew Kernahan, at the price of $2,000, for which Kernahan executed four notes, each for $500, payable at one, two, three, and four years, and to secure said purchase-money, Kernahan, at the same time, by deed of trust of even date with the conveyance to him, conveyed said lot to Seth Wheatly and James R. Williams, as trustees, vesting the legal title in them, with power to sell, if said notes were not paid at maturity (which deed of trust seems still to remain in force).

Afterwards, on the 23d day of June, 1843, Kernahan, for the consideration of $750, sold and conveyed all his interest in said lot--being his equity of redemption under the trust deed--to the defendant, Andrew Henderson; and afterwards, on the 28th day of February, 1844, William Henderson assigned and transferred all his interest under said deed of trust, and the debt of $2,000, thereby secured, to defendant, Andrew Henderson. Shortly after this, to-wit, on the 4th of March, 1844, Andrew Henderson (who was a resident of New Orleans), by his agent, said William Henderson, filed a bill in the Chancery Court at Somerville, against the infant, Alicia Ann Kernahan, to have the foregoing deed made to her by Vance, for said lot, declared void, and the title divested out of her and vested in said Henderson.

The ground of the relief, assumed in the bill, is that the consideration money of $350, paid to Vance for the lot, was paid by said Andrew Kernahan, out of his own money, and that he caused said conveyance to be made by Vance to his infant daughter, to protect the property from his creditors--he being then insolvent, and indebted to a large amount--therefore, said conveyance was “voluntary as against his creditors, and void.”

On the 23d day of May, 1845, a decree was made in said cause for the complainant, declaring the conveyance to Alicia to have been made to defraud the creditors of A. Kernahan, and divesting the title out of the said Alicia Ann, and vesting the same in complainant, Henderson.

Soon after the filing of said bill, namely, on the 16th day of June, 1844, the complainant, Andrew Henderson, by his attorney in fact, William Henderson, sold and conveyed said lot to one John Delafield, of whom notice will be taken presently; and after various intermediate sales and conveyances, said lot was purchased by the defendants, Messrs. Greenlaw.

The said Alicia intermarried with the other complainant, and on the 8th day of May, 1858, and within less than three years after complainant, Alicia, attained her full age, this bill was filed, to have said sheriff's sale, the decree before mentioned, and the various conveyances, including that to defendants, Greenlaw, declared illegal, fraudulent, and void.

Several important and vexatious questions of law and fact have been discussed in the argument.

For the complainants it is insisted, that the execution sale was void, and communicated no title to the purchaser for various reasons:

1. It is insisted, that if it were admitted to be true, that the lot was purchased and paid for by Andrew Kernahan, with his own money, and the title made by his procurement to his infant daughter, for the avowed purpose of protecting the property against his own creditors, that still the lot could not be seized and sold by execution at law by his creditors, but only by decree of a Court of Equity. See 10 Humph. 13;7 Yerg. 155, 159;1 Ired. 553; contra 1 Humph. 491;6 Humph. 93;19 Wend. 414.

There is a serious conflict of judicial opinion upon this point, and as its determination is not necessary to the present decision, in the view we have taken of the case upon the facts, we pass it by.

2. It is further urged, that taking it as established, that the consideration money was paid by the father, still, as it is not proved that there were any judgment creditors of his existing at the time of the conveyance, the investment must be regarded as an advancement by the father for the benefit of his child, or a voluntary settlement upon her, which subsequent creditors cannot challenge or impeach, merely on the ground of its being voluntary. With reference to the facts of this case, this proposition is by no means free from difficulty. But we lay it aside, and proceed to consider the case upon the facts.

3. It is insisted that the sale was void, because there is nothing in the record to show that writs of venditioni exponas ever issued to authorize said sale. The proof shows that no such writs can now be found by the present clerk--not that such writs were not in fact issued, but the clerk states that in the column of the execution docket, set apart to note the date of issuance of writs of fieri facias and venditioni exponas, he finds this memorandum, “““July 7th, '42;” which, from his knowledge of the manner of keeping the docket, he understands to represent the date of the issuance of the writ of venditioni exponas in said case. This date would suit, as the writs must have been tested of the June term, 1842, the date of condemnation of the lot, and were executed on the return day of the following October term. The sheriff's deed, made soon after the sale, recites the writ in his hands, but this recital is not evidence of the fact. Without more, however, we think this objection must fail.

4. But the fact that Andrew Kernahan paid any part of the consideration money of said lot is utterly denied by the complainants. And this is the turning point of the case. If the truth be not so, then it follows, of course, that the sheriff's sale, and the proceeding in equity, are alike inoperative and void...