Gill v. McKinney

• Decision Date: 03 July 1918
• Citation: 205 S.W. 416,140 Tenn. 549
• Parties: GILL v. MCKINNEY ET AL.
• Court: Tennessee Supreme Court

205 S.W. 416

140 Tenn. 549

GILL v. MCKINNEY ET AL.

Supreme Court of Tennessee.

July 3, 1918

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

Bill by Madeline Gill against Mrs. J. W. McKinney and others to remove a cloud upon title. From a decree in her favor granting part of the relief demanded, a complainant appeals. Modified and affirmed.

P. H Phelan, Jr., and Jas. L. McRee, both of Memphis, for appellant.

Caruthers Ewing and D. B. Sweeney, both of Memphis, for appellee.

LANSDEN J.

The bill in this case was filed to remove a deed of Mrs. McKinney to defendant Knight as a cloud upon complainant's title. Mrs. McKinney was the owner of the land in controversy. On June 29, 1914, she signed and executed a deed conveying the land to R. N. Gill and his wife, the complainant. This deed was duly recorded. Later Mr. and Mrs. Gill separated. She went to Little Rock, Ark., and her husband remained in Memphis, Tenn., on the land. The negotiations for the sale and purchase of the land by Gill and wife from Mrs. McKinney were conducted by one T. F. Turley as agent for both parties. Turley called Mrs. McKinney on the telephone and asked her if she would take $4,000 for the land, and she agreed to do this. One thousand dollars was paid in cash and the balance of the purchase price was agreed to be paid, in the original contract, in one, two, and three years. Mrs. Gill had sold a tract of land which belonged to her and had accepted notes for the deferred payments due in one, two, three, and four years. At her instance and request Mrs. McKinney agreed to change the contract so as to make the payments correspond with the notes which Mrs. Gill held. The deed was executed to Gill and wife. Mrs. Gill paid one half of the cash payment and Gill paid the other half, and they executed joint notes for the balance. After Mrs. Gill and her husband separated at the instance of Gill, Turley interested the defendant Knight in the land. He assumed Gill's obligations in the matter and took the land at the purchase price which he (Gill) and Mrs. Gill agreed to pay Mrs. McKinney. Knight however, treated the transaction as though Mrs. Gill had no interest in it. Mrs. Gill was eliminated from the deed executed to her and her husband by Mrs. McKinney by the simple device of erasing her name therefrom. Knight knew this. Turley and Gill knew of Mrs. Gill's rights in the matter.

The case was submitted to a jury, and it found that Knight knew of Mrs. Gill's interest in the land, but that Mrs. McKinney did not. It also found that there was a delivery of the deed upon the making of the cash payment to Turley. There is no dispute in the evidence but what the $1,000 was paid by Mr. and Mrs. Gill. These findings are not conclusive of the case.

The question is made that Mrs. McKinney did not know that Mrs. Gill was a grantee in the deed which she executed. It is said that this is established by the pleadings, and it is not a matter of dispute; however, it is clear that Turley was Mrs. McKinney's agent for this particular transaction, and that he drafted the deed naming Mr. and Mrs. Gill as grantees, and on behalf of Mrs. McKinney accepted the cash payment from them. Mrs. McKinney signed the deed at Turley's request, and it would be immaterial whether she knew the exact names of the grantees or not. It is beyond dispute that she intended to convey the land to the customers produced by Turley. She accepted Mrs. Gill's check, indorsed it, and collected the money on it in addition to changing the original contract with respect to the dates of the payments at Mrs. Gill's request so as to conform to the dates of the notes which Mrs. Gill held; so that there can be no question but what the deed of Mrs. McKinney to Gill and wife is a valid deed.

We also think that there is no material dispute in the evidence as to the delivery of this deed to Mr. and Mrs. Gill. After Mrs. McKinney signed the deed, Turley received the money for her from Mr. and Mrs. Gill, and also received from Mrs. Gill the registration fees, and agreed to and did have the deed registered. Mrs. Gill said that he physically delivered the deed to her and that she, in turn, delivered it to him for the purpose of having it registered. This makes a clear case of delivery; but whether the deed was actually delivered to her hands or not it was treated as delivered by Turley and all others in interest, and he agreed to and did have it registered. McEwen & Tompkins v. Bamberger, 3 Lea, 581; McEwen v. Troost, 1 Sneed, 186; Nichol v. Davidson County, 3 Tenn. Ch. 547.

The chancellor held in accord with this opinion upon the question of delivery, and also held that the deed created an estate by the entireties in Mr. and Mrs. Gill. He held that the subsequent deed of Mrs. McKinney to Knight, at the instance of Gill, conveyed to Knight only Gill's interest in the estate by the entireties, and that Mrs. Gill should be required to pay the $3,000 balance of the purchase money, and hold and enjoy the land for and during her natural life, and that if Gill should survive her Knight would be entitled to the property after her death.

It is perfectly manifest that erasing the name of Mrs. Gill from the deed to her and Gill had no effect whatever upon the title she received by the execution of the deed, and the subsequent conveyance of the entire interest in the land to Knight by Mrs. McKinney likewise could not affect her title except to becloud it. As to Gill, of course he would be estopped to deny the title received by Knight, and for that reason Knight has, or is entitled to receive from Gill, whatever interest in the land was created by the deed from Mrs. McKinney to him and Mrs. Gill. Huffman v. Huffman, 1 Lea, 491; Howard v. Huffman, 3 Head, 563, 75 Am. Dec. 783; Gates v. Card, 93 Tenn. 334, 24 S.W. 486.

The question then is, What estate was created in Mr. and Mrs. Gill by the deed of Mrs. McKinney? At common law it undoubtedly was an estate by the entireties. It is said, however, for Knight, that chapter 26, Acts 1913, emancipating married women, had the effect to abolish such estates and the deed created in Mr. and Mrs. Gill an estate of equal moities, which in this state is a tenancy in common.

There is much learning upon the origin and nature of estates by the entireties. No case that we have examined is fuller or more accurate, more learned or able, than our own case of Ames v. Norman, 4 Sneed, 683, 70 Am. Dec. 269. The opinion of the court in that case was prepared by Judge McKinney, who was doubtless one of the ablest and most learned common-law judges in America.

At the common law, the union of husband and wife was deemed so complete as to make them one person in legal contemplation. This legal union of two individuals grew out of and depended upon the fact of marriage; so when land was conveyed to husband and wife jointly, which, but for this legal union, would have created a joint tenancy, it was held by the common-law judges to create a tenancy by the entireties. In the case referred to, Judge McKinney said:

"First. By the common law, the husband and wife are as one person in law; the legal existence of the wife is incorporated into that of the husband; and though, in modern times, exceptions to this doctrine have been introduced, the general principle still exists. As one of the necessary results of this unity of persons in husband and wife, it has always been held that where an estate is conveyed or devised to them jointly, they do not take in joint tenancy; constituting one legal person, they cannot be vested with separate or separable interests; they are said, therefore, to take by entireties; that is, each of them is seised of the whole estate, and neither of a part. And this tenancy may exist whether the estate is in fee, for life, for years, or other chattel interest, and whether the property be in possession, reversion, or remainder. Co. Lit. 187, b; 1 Bright's Husband and Wife, 25. As a consequence peculiar to this tenancy, it is laid down in the books that, during their joint lives, neither can alien the estate thus held without the consent and concurrence of the other, and the survivor takes the whole estate; neither can sever the joint interest; the whole estate belongs to the wife as well as to the husband, and the husband cannot by his

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