Grubb v. Browder

• Decision Date: 30 September 1872
• Parties: Grubb v. Browder.
• Court: Tennessee Supreme Court

58 Tenn. 299

Grubb

v.Browder.

Supreme Court of Tennessee.

September Term, 1872.

FROM M'MINN.

Appeal from Chancery Court at Athens, May Term, 1872. D. M. KEY, Ch.

VANDYKE, COOKE & VANDYKE, for Complainant.

BURGE, for Defendant.

MCFARLAND, J., delivered the opinion of the Court.

The complainant in this bill alleges that he obtained a judgment before a justice of the peace against the defendant Calvin Browder, had execution levied upon fifty acres of land claimed by Browder, and, after condemnation in the Circuit Court, the same was sold and bid off by Bynum Allen for the use of the complainant, and deed was made to him. No money was paid by Allen, for the reason that he purchased for the complainant. An action of ejectment was brought against Browder upon this title, but failed, owing to the fact that the proof showed that the sheriff failed to give to defendant in possession the notice required by the statute.

The bill further shows, that by a decree of the County Court of McMinn county, in November, 1861, the lands of Edmund Browder, deceased, were sold, and 266 acres purchased by Thos. Grisham. Grisham afterwards sold the fifty acres in question out of the above tract to the defendant Calvin Browder, and had received payment therefor, but that no conveyance had ever been made to said Browder, and he is not informed whether any bond for title was ever given. The bill further charges, that Grisham had failed to pay the full amount of purchase money due from him for the whole tract, purchased under the decree of the County Court, and for the balance due there was a lien on the land; that a bill was filed in the Chancery Court to enforce this lien, and a decree rendered for the balance due from Grisham, for which the land was ordered to be sold; that after his purchase under his execution from the justice of the peace, and while he supposed he, or Allen for him, had title to the fifty acres, he and the other purchasers under Grisham agreed to pay the balance due from Grisham on his purchase pro rata, and thus discharge the lien and save the land. Under this arrangement he paid $80.75, which was agreed between him and the other purchasers under Grisham to be his proportion of the balance due.

The bill prays that the satisfaction of his judgment rendered by the justice of the peace be set aside, and the same revived; that the land be sold to satisfy the same, and also to satisfy the $80.75 paid by him, due from Grisham, and which went to discharge the lien upon the land.

The answer of Browder insists upon various grounds of defense, but in substance, admits the rendition of the judgment, the levy and sale, and the failure of the action of ejectment. Admits that Grisham purchased the whole tract under a decree of the County Court, and sold the fifty acres to him, but says no deed, bond or other written evidence of the sale was ever executed; that he has not paid the full amount to Grisham. But it is not shown how much he was to pay for the same, how much he has paid, or how much remains unpaid. He further admits the decree in the Chancery Court against Grisham for the unpaid balance due from him, and also that the complainant has paid $80.75 on this decree, but says that he did so officiously, without his (respondent's) knowledge or consent. The defendant Grisham is stated in the bill to be a non-resident of the State, and judgment pro confesso is entered against him. There are other matters appearing in the...