Henderson v. McGhee

• Decision Date: 30 September 1871
• Parties: O. C. Henderson, Adm'r, &c., v. C. M. McGhee et als.
• Court: Tennessee Supreme Court

53 Tenn. 55

O. C. Henderson, Adm'r, &c.,

v.C. M. McGhee et als.

Supreme Court of Tennessee.

September Term, 1871.

FROM M'MINN.

Appeal from the decree of the Chancery Court, January Term, 1870. D. C. TREWHITT, Ch.

Blizard & Bradford for complainants, insisted that the certificate of probate upon the mortgage is defective and did not entitle it to registration, citing Fall v. Roper, 3 Head, 485;Johnson v. Walton, 1 Sneed, 258; Code, s. 2042.

Briant & Richmond for Proctor, insisted:

1. That the deed was good between the parties, and as against the personal representatives and heirs, without registration.

2. Creditors have not attacked the deed, and are not before the court in such manner as now to enable them to do so.

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

Section 2326 of the Code provides: “Insolvent estates of deceased persons shall be divided among the creditors ratably, and no action brought, judgment, bill single or note shall have precedence over unliquidated accounts, presented and filed, authenticated according to law; but all such claims shall be acted upon as being of equal grade.”

It has been several times determined by this court that our registration system is one of positive law, founded on general grounds of public policy. That a clerk in taking probate of a deed of bargain and sale of property by the acknowledgment of the bargainor, must allege his personal acquaintance with such bargainor, or such certificate will be defective and the deed will create no lien as against a judgment creditor: 1 Hum., 135;7 Hum., 85; 5 Sneed, 692.

Code, s. 2332, provides: “The suggestion of insolvency and advertisement thereof shall operate as an injunction in all cases against the bringing of any suit before any judicature whatever against the administrator or executor of such insolvent estate.”

From these regulations and decisions it necessarily follows as a principle that the creditor who claims under an unregistered mortgage, or a mortgage registered upon a defective probate, has no priority over other creditors, the insolvency of the estate having been suggested and a bill in chancery filed to settle it as an insolvent estate before any step taken by the mortgage creditor to foreclose or enforce the mortgage.

The statute expressly breaks down all distinction in the dignity of debts, and treats all as of equal grade. The suggestion of insolvency accomplishes this provision of the statute, and in effect makes each creditor whose debt or claim is properly authenticated a quasi judgment creditor.

The suggestion is...