Harrison v. Wade

• Citation: 43 Tenn. 505
• Parties: C. H. Harrison and Wife v. M. B. Wade et als.
• Decision Date: 31 December 1866
• Court: Supreme Court of Tennessee

43 Tenn. 505

C. H. Harrison and Wife

v.M. B. Wade et als.

Supreme Court of Tennessee.

December Term, 1866.

FROM RUTHERFORD.

Chancellor JOHN P. STEELE, at the April Term, 1866, dismissed complainant's bill from which decree he appealed to this Court.

WILLIAM H. WISENER, Sr., for Complainants.

CHARLES READY and E. H. EWING, for Respondents.

SHACKELFORD, J., delivered the opinon of the Court.

The complainants, at the March Term, 1865, of the Rutherford Circuit Court, recovered two judgments against T. H. Carney--one on the 14th of March, 1865, and one on the 15th of the same month, for about $8,000. The judgments were registered on the 4th of May, following. Executions were issued from these judgments, and returned nulla bona, on the 8th of July, thereafter. The bill in this case was filed on the 30th of July, 1865. The allegations of the bill are: “On the 4th of March, a few days before the sitting of the court in which the judgments were rendered, T. H. Carney, by deed, conveyed to defendants two tracts of land, for the consideration of $36,000, in the payment of debts he owed them. The debts are set forth in the deed. It was absolute and for the consideration specified. On the day of its execution, it was proven by the subscribing witnesses. The Clerk, in his certificate, omitted to state, the witnesses were personally acquainted with the bargainor in the deed.” On the 8th of August, 1865, the defendants had the record of probate corrected with proper reference, in conformity with the provisions of section 2080 and 2081 of the Code.

There is no charge or allegation of fraud in the bill. They allege that they have a lien in equity upon the lands, and seek to enforce it, and the cloud created by the deed and defective probate upon this lien removed; that an attachment issue, and the lands be sold for the payment of this debt. An attachment and injunction were granted by the Chancellor, and the lands were attached. The de fendants, in their answer, insist upon the validity of their purchase; exhibit their deed; that the registration of it under the probate was valid; that if the original certificate of probate was invalid, the amended certificate relates back to the original probate and registration, and relieves the deed of all exceptions. The Chancellor was of opinion the complainants were not entitled to relief, and dismissed the bill; from which they have appealed to this Court. Two questions are presented for our consideration.

1st, Was the original probate of the deed of the 4th March, 1865, defective, and did the subsequent correction and registration of the probate, under the provisions of sections 2080 and 2091 of the Code, relate back, so as to defeat any intervening rights that may have attached?

2d, Did return of the execution, and registration of the judgments, create such an equitable lien as would give a Court of Chancery jurisdiction of the case?

The first question depends upon the construction to be given to sections 2080 and 2081 of the Code. By section 2080, the unintentional omission by the Clerk, of any words in a certificate of an acknowledgment, or a probate of any deed, shall, in no wise, vitiate the validity of such deed, but the same shall be good and valid, to all intents and purposes, if the substance of said authentication required by law is in the certificate. By section 2081, if the omission be matter of substance, the Clerk, on application of either party interested, may correct such mistake or omission of words in such certificate, or any such deed or instrument. Section 2083 provides, the Register shall record the correction in the proper book of his office. In the case under consideration, the Clerk omitted to state in his certificate, the witnesses were personally acquainted with the bargainor. This is required by the positive words of the Statute, and are words of substance. The object and purpose of the Legislature was, to prevent fraud; and unless this fact appears in the certificate of the Clerk, the probate is defective in substance. This Court held, in the case of Fall & Cunningham vs. John R Roper and others, 3 Head, 485: “The omission of the words by the Clerk, in the certificate of probate, the within named bargainor, with whom I am personally acquainted,” is fatal to the probate of the deed. The Court say it is one of the most important requirements against fraud, in the formula of the Statute. The principle of that case is applicable to the case under consideration. The words omitted in this probate are: “they were personally acquainted with the bargainor.” These are words of substance, and fall clearly within the principle settled in 3 Head. The probate being defective in substance, what is the legal consequence, after the probate and registration, and before the defect was cured, under the provisions of the Code referred to? The complainants recovered their judgment. Sec. 2980 of the Code, provides that a judgment shall be a lien on the lands of the debtor for twelve months; provided, etc. The deed not being proved as required by law, was not good as against judgment creditors. The rights of the parties attached upon the rendition of the judgment, and the subsequent correction and registration could not divest the rights fixed by law. It was not contemplated by the Legislature, the correction of the probate should relate back and divest any rights that had attached....