Hames v. Archer Paper Co.

• Decision Date: 02 September 1958
• Citation: 319 S.W.2d 252,45 Tenn.App. 1
• Court: Tennessee Court of Appeals
• Parties: A. C. HAMES and wife, Marcella Hames, Appellants, v. ARCHER PAPER COMPANY, Appellee. 45 Tenn.App. 1, 319 S.W.2d 252 Knoxville

Page 252

319 S.W.2d 252

A. C. HAMES and wife, Marcella Hames, Appellants, v. ARCHER PAPER COMPANY, Appellee.

45 Tenn.App. 1, 319 S.W.2d 252

Court of Appeals of Tennessee, Western Section at

Knoxville.

Sept. 2, 1958.

Certiorari Denied by Supreme Court Dec. 12, 1958.

[45 TENNAPP 3] Atchley & Atchley, of Chattanooga, for appellants.

Strang, Fletcher, Carriger & Walker, of Chattanooga, for appellee.

[45 TENNAPP 4] BEJACH, Judge.

This cause involves an appeal by Mrs. Marcella Hames from a decree of the Chancery Court of Hamilton County, Tennessee, dismissing her bill filed for the purpose of removing a cloud on the title to a tract of land in Hamilton County, Tennessee, and adjudging that the Archer Paper Company had a superior title to said tract of land. The land in question is Lot 37, Block A of Robin Sterchi Subdivision as shown by Plat Book 15, page 24, in the Register's Office in Hamilton County, Tennessee. While this cause was pending in the lower court, one of the original complainants, A. C. Hames, died and his will was probated in Catoosa County, Georgia. Under said will, Mrs. Marcella Rehring Hames, his widow, was appointed executrix, and an order was entered in this cause directing that she be permitted to prosecute same, as executrix of her deceased husband, and individually in her own right; and that the death of the deceased complainant would not abate the right of complainants in this cause.

The proof in the cause was taken by depositions. There is little if any dispute about the facts. The case turns on the construction and application of the Recording Statute of Tennessee, in connection with the statute which creates a lien in favor of a judgment creditor. The material facts are as follows. The land involved in this cause, a tract of slightly less than one acre, had formerly belonged to Robin Sterchi and Juanita Sterchi. Under date of September 20, 1947, Robin Sterchi and Juanita Sterchi, his wife, conveyed this lot to Fred Sterchi, Jr., but the deed making this conveyance was not recorded until October 9, 1951. Under date of October 8, 1951, acknowledged before a Notary Public on October 10, 1951, Fred Sterchi, Jr., and wife Muirtelle Sterchi, conveyed[45 TENNAPP 5] this lot to A. C. Hames, Trustee, but said deed was not recorded until February 10, 1954. Mr. and Mrs. Hames never resided on the property, but fenced same, built a barn on it, and used it for a horse lot. The barn remained there until the latter part of 1954 when it was torn down and removed to the State of Georgia, Mr. and Mrs. Hames having at that time removed their place of residence to that state. In the meantime, on June 13, 1953, Archer Paper Company, the defendant in the lower court, and the appellee in this court, filed suit in Part I of the Chancery Court of Hamilton County, Tennessee against Fred W. Sterchi, Jr., seeking a decree against him for $1660.32 for an indebtedness alleged to be due for merchandise sold and delivered. On January 21, 1954, in said suit, same being cause No. 32333, a final decree was entered granting to the Archer Paper Company a recovery in the amount of $1660.12, which decree was duly enrolled on January 21, 1954, in Book 5-J, at page 253 of the Records of the Chancery Court of Hamilton County. An execution was issued on said decree which was on the 23rd day of February 1954 levied by the Sheriff of Hamilton County on the land here involved and other lots in another subdivision, same being levied on as the property of Fred Sterchi, Jr. On March 1, 1954, the Honorable Clifford Curry, Chancellor of Part I of the Chancery Court of Hamilton County, entered an order in said cause No. 32333 directing the Sheriff to proceed with the sale of said property. On that date, March 1, 1954, the Clerk and Master issued an order of sale to the Sheriff of Hamilton County, pursuant to which the Sheriff, Rex Richey, after advertising the property levied on as required by law, proceeded on April 10, 1954, to sell the land. According to the Sheriff's return, there were no bidders for the other lots levied on, but the lot [45 TENNAPP 6] here involved was sold by him to the Archer Paper Company for the sum of $1100.00. The Sheriff's deed conveying said property to the Archer Paper Company was executed on May 27, 1954 and was filed for registration with the Register of Hamilton County on June 9, 1954, same now being recorded in Book 1142, page 500, Register's Office of Hamilton County, Tennessee. The bill in this cause was filed in Part II of the Chancery Court of Hamilton County October 19, 1956 for the purpose of removing the said Sheriff's deed as a cloud on the title to the land involved in this cause. Same is No. 33958 in the Chancery Court of Hamilton County, Tennessee. The theory of complainants' bill is that complainants' title is superior to that conveyed by the Sheriff's deed because: 1st. Complainants' deed was recorded February 10, 1954, which was prior to the levy made by the Sheriff on February 23, 1954; 2nd. The Sheriff's levy was void because same was levied on several different lots, the lot here involved being one of them, some of said lots being in one subdivision and some in another; 3rd. The Sheriff's deed conveying the lot here involved was void, the land conveyed by same being adversely held and occupied by complainants at the time of the Sheriff's levy and at the time of the execution and delivery of the Sheriff's deed, and that the Sheriff's sale is therefore champertous; 4th. The Sheriff's sale was invalid and void because written notice, as required by Section 27-703, T.C.A. was not served on either complainants or Fred Sterchi, Jr.; 5th. The rule of caveat emptor applies to all judicial sales, and the purchaser, the Archer Paper Company, was aware of complainants' adverse possession.

The cause was tried before Hon. M. B. Finkelstein, Chancellor of Part II of the Chancery Court of Hamilton [45 TENNAPP 7] County, who on August 1, 1957 filed a memorandum opinion in which he decided the issues in favor of the defendant, the Archer Paper Company, and ordered complainants' bill dismissed. On August 16, 1957, complainants filed a petition to rehear which was taken under advisement by the Chancellor, and overruled in a memorandum opinion filed October 8, 1957. Both the Chancellor's original memorandum and his memorandum overruling the petition to rehear have been helpful to this court in deciding this cause. On September 9, 1957, a decree had been entered adjudging that the judgment lien of the defendant Archer Paper Company which attached to the land on January 21, 1954 was superior to the unregistered deed of the complainant, that the sale of the defendant, Archer Paper Company, was made pursuant to the judgment lien, that the rules of champerty and caveat emptor have no application to this cause, that notice of the impending execution of the sale was not required to be given, that the Archer Paper Company has a valid title under the Sheriff's deed of May 27, 1954, and ordering the dismissal of complainants' bill. On October 23, 1957, a final decree was entered overruling the petition to rehear and granting to complainant Marcella Hames an appeal. This decree provides, on application of complainant, and by agreement of the parties, that the technical and original record in the cause of Archer Paper Company vs. Fred W. Sterchi, Jr., No. 32333, in the Chancery Court of Hamilton County, Tennessee, as well as the two memorandum opinions of Chancellor Finkelstein, be incorporated in the record to be sent up on appeal.

As appellant, Mrs. Hames has filed in this court five assignments of error. It will not be necessary to copy [45 TENNAPP 8] these assignments of error into this opinion. They present adequately the several contentions of complainant in the lower court, as state above. In our opinion, the determinative issue is whether the Archer Paper Company's title depends upon the lien created by its judgment against Fred W. Sterchi, Jr. recovered January 21, 1954, or on the lien established by the Sheriff's levy on February 23, 1954, between which two dates the Hames deed was recorded, viz., on February 10, 1954. We feel constrained to agree with the ruling of the learned Chancellor, and hold that appellee's title was acquired pursuant to the judgment lien of January 21, 1954, and is therefore superior to the title of appellant. The judgment lien and the execution lien are not inconsistent but cumulative. Each of them supplements the other.

The Code Section under the provisions of which the judgment lien of the Archer Paper Company attached is 25-501 T.C.A., which was Section 8043 of the Code of 1932 in force at the time of said judgment, January 21, 1954, and the time within which such lien must be enforced to be effective is provided for in Section 25-506 T.C.A. which was Section 8045 of the Code of 1932. The language of said Code Sections, as set out in the Code of 1932, is as follows:

'8043-4708-(2980). Lien on land.--Judgments and decrees obtained in any court of record of this state, in the county where the debtor resides at the time of rendition, shall be liens upon the debtor's land in that county from the time the same were rendered.

* * *

'8045-4710-(2982). To be enforced in twelve months.--The lien thus given will be lost, unless an execution[45 TENNAPP 9] is taken out and the land sold within twelve months after the rendition of the judgment or decree.'

The Code Sections quoted above must, necessarily, be construed in connection with the statutes of Tennessee which provide for registration or recording of deeds and other instruments of title. The material portion of said recording statutes is now contained in Section 64-2603 T.C.A., which was, at the time material to this lawsuit, incorporated in Section 7668 of the 1950 Supplement to the Code of Tennessee. The material part of said Section 7668 of the 1950 Supplement to the Code is as follows:

'Any of said instruments not...