Green v. Stevenson

• Citation: 54 S.W. 1011
• Parties: GREEN v. STEVENSON.
• Decision Date: 16 December 1899
• Court: Supreme Court of Tennessee

54 S.W. 1011

GREEN v. STEVENSON.

Court of Chancery Appeals of Tennessee.

December 16, 1899.

Appeal from chancery court, Bedford county; W. S. Bearden, Chancellor.

Bill by W. L. Green against Charlie Stevenson to obtain possession of land. From a decree in complainant's favor, defendant appeals. Reversed.

H. L. Dayton, for appellant. W. L. Cromell, for appellee.

WILSON, J.

The original bill in this cause was filed January 7, 1898, to set up the right of complainant to a tract of land of some 70 acres in the Eighteenth civil district of Bedford county, and for a writ to put him in possession. The bill avers, in effect, that September 11, 1893, Stevenson, then a single man, conveyed this land by mortgage, containing a power of sale, to Thomas R. Myers and Charles G. Parker, for the purpose of securing certain debts or obligations mentioned in it; that this mortgage was duly registered; that the debt or obligation secured by it was merged into a judgment for $164.50, June 21, 1895, before a justice of the peace, and that, the same not being paid, the mortgagees, in pursuance of the terms of the mortgage, proceeded to foreclose it by a sale of the land; that at the sale made, after advertisement and in conformity to the terms of the instrument, complainant became the purchaser at the price of $175, his bid being the highest and best; and that he purchased at the request of defendant, being assured by him that it was all right, and that he would surrender possession to him in the fall of 1897, and that he had since repeatedly demanded possession of the defendant, which had been refused. He prays that he be decreed to be the rightful owner of the land, that a writ issue to put him in possession, and for general relief. The defendant answered March 8, 1898, and filed his answer as a cross bill. The substance of the answer and cross bill, so far as need be stated, is: (1) That defendant got title to the land, or his interest therein, under a deed from one Davidson and wife. (2) That this conveyance of Davidson and wife was made under and in pursuance of the provisions of the will of Mrs. Martha Stevenson, which provided for the purchase of a home jointly for himself and children during his life, and that, if he died without living children, the estate so purchased for him should revert to her estate, to be divided among her devisees and legatees under her will. (3) That he executed the mortgage to Myers & Parker, and its terms will best show its purport, and that he was a single man at the time he executed it. (4) That he does not admit that the debt mentioned in the mortgage was reduced to judgment, and that the land was advertised for sale, as alleged, and denies that complainant became the purchaser at the sale under the mortgage at $175. (5) That it is not admitted that complainant received a deed to the land as alleged, and it is denied that the defendant, shortly after the alleged purchase by complainant, rented from him or became his tenant on the land for 1899. (6) That he never agreed to surrender possession in the fall of 1897, and that complainant had never demanded the possession of it. (7) That there was what purported to be a public sale of the interest of defendant in the land in the foreclosure of the mortgage executed to Myers & Parker, and that at this sale one James Darnell became the purchaser, at a bid of $165; that, after investigating the title, said Darnell decided not to comply with his bid, claiming that he would not, under the sale, get a good title, as it only affected the interest of defendant in the land, which was a joint interest with the children, and as the land was burdened with a contingent remainder. (8) That complainant came to defendant, and told him that he (complainant) would take the bid of Darnell off of his hands if defendant would pay him interest, and allow him to use in cultivation a part of the land, and that defendant agreed to do this, and that complainant went so far under this agreement as to break up a part of the land to put in corn when he decided to move to the state of Texas, thereby abandoning said contract. (9) That defendant insisted upon complainant carrying out said contract, telling him that he (defendant) had no money, or could not pay him unless he made it out of the land. (10) That the relation of complainant to the sale of the land under the mortgage to Myers & Parker was not as a purchaser of it; that he took the bid of Darnell for the benefit of complainant, and was to be repaid, with interest, by the use of the land; and that he is now seeking to deprive defendant of his home, all his property, worth $1,200, for the small sum of $175. (11) The answer and cross bill then refer to the parts of the will of Mrs. Martha Stevenson and the deed of Davidson and wife, through whom the interest of defendant is derived, which, it is averred, is a joint interest with his children, subject to a contingent remainder. It is denied that complainant is entitled to the possession of the land, and it is averred that this claim on his part is a premeditated fraud. It is further insisted that, under the terms of the will of Mrs. Martha Stevenson and the deed of Davidson and wife, the children of defendant, born to him after the mortgage to Myers & Parker, acquired an interest in the land, and that his interest was simply a joint interest with that of his said children. It is finally insisted that, if complainant has any claim against the interest of defendant in the land, it is one, at most, secured by a mortgage, as what he did was more in the nature of making a loan to benefit defendant than anything else. Under the answer, as a cross bill, the court is asked to adjudge and declare the right of defendant in the land under the will of Mrs. Martha Stevenson and the deed of Davidson to him; that whatever claim complainant may have cannot be more than a mortgage on his interest; and that the deed to complainant be declared a cloud upon his title and interest, and null and void as a deed for title; and for general relief under the facts. The cross bill was answered, and its material averments denied.

A considerable volume of evidence was taken by both sides. Much of it was objected to as hearsay, and as expressing merely the opinion and understanding of the witnesses giving it, and because it was given in response to leading questions, and a number of the questions propounded to several of the witnesses, and their answers thereto, were ruled out on objection by the officer taking the deposition, and subsequently by the chancellor. The depositions of A. N. Arnold and W. H. Crowell were subsequently suppressed upon objections by the chancellor. No bill of exceptions showing the action of the court in respect to evidence offered and rejected, or offered and admitted over objection, seems to have been taken, and we need not, therefore, further notice this part of the case.

The chancellor heard the cause September 9, 1899. He held that the complainant was entitled to the land in dispute, dismissed the cross bill, and ordered a writ of possession to issue to put him in control and charge of the land. Defendant was taxed with the costs. He has appealed, and assigned errors, as follows: First. The court erred in matter of mixed law and fact, in holding that the equities of the cross bill were not sustained by the proof in dismissing it, and in holding that complainant was entitled to the property, and in awarding him a writ of possession. Second. It erred in holding that the deed of Myers & Parker to complainant was more than a mortgage upon the interest of defendant in the land to secure him in whatever he paid said parties when the deed was executed to him.

The facts in this case, as they appear in the evidence and pleadings, so far as material to be stated, are:

(1) Mrs. M. J. Stevenson, in her will dated July 29, 1882, made this bequest to defendant: "I give and bequeath to Charlie Stevenson, colored, the sum of $1,500, and it is herein made the duty of my executors to invest this amount in a piece of land, a horse, and wagon, to serve as a home for said Charlie Stevenson and his descendants, forever." October 2, 1892, she made a codicil to her will. The second item of this codicil is: "In my said will I have made a bequest to an amount therein specified to Charlie Stevenson, a colored man, which amount I provided shall be invested in land for his benefit. I now wish to append the further proviso to said bequest: That the land so purchased shall remain in his possession during his natural lifetime, and at his death, should he die without child or living children, then in that case the said land so purchased shall revert back to my estate, and the proceeds thereof shall be divided in proportion as I have bequeathed the balance of my estate, each one receiving their percentage as though the same was now to be distributed with the funds of my estate. It is my further wish that William A. Buchanan, in connection with my executor, see that the bequest to Charlie Stevenson, colored, be carried out, and that proper selection of land be made; and, further, if there is no provision in my original will for said Charlie to have a horse and wagon, I wish to insert here that said Charlie shall be furnished with a wagon, and also a horse worth about $80." In her will her brother Thomas W. Buchanan was requested to act as her executor, and, in case of his death or other incompetency, N. J. Simley was named as his successor to act as her executor. Buchanan qualified as executor, and died, and Robert P. Frierson qualified as her administrator with the will annexed. Said Frierson, after consultation with, and upon the recommendation of, W. A. Buchanan, as provided for in the codicil to this will, January 27, 1885, bought the tract of land in dispute for the defendant from T. A. Davidson and wife, paying therefor in cash the sum of $1,400. Their deed refers to the will of Mrs....