Hill v. McLean

• Decision Date: 31 December 1882
• Citation: 78 Tenn. 107
• Parties: J. W. Hill, Ex'r, v. A. V. McLean et al.
• Court: Tennessee Supreme Court

78 Tenn. 107

J. W. Hill, Ex'r,

v.A. V. McLean et al.

Supreme Court of Tennessee.

December Term, 1882.

FROM RUTHERFORD.

Appeal from the Chancery Court at Murfreesboro. A. S. MARKS, Ch.PALMER & RICHARDSON for Complainant.

F. R. BURRUS for Defendants.

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

The contest in this case is for priority of lien on a tract of land between two creditors of a common debtor. The chancellor dismissed the bill, and the complainant appealed.

On February 26, 1872, Julia A. Smith, the testatrix of the complainant, sold and conveyed to the defendant, A. V. McLean, the tract of land in question for the consideration of $8,685.36, the receipt of which is acknowledged on the face of the deed as paid in cash. On the same day, and at the same time, the defendant McLean conveyed the land to H. O. Blackman, the intestate of the defendant R. C. Blackman, in mortgage to secure the note of McLean of that date to H. O. Blackman, due January 6, 1873, for $5,151.68. At the same time, and as part of the transaction, H. O. Blackman assigned to Julia A. Smith a note which he held on complainant J. W. Hill, due January 6, 1873, for the same sum of $5,151.68, secured by a mortgage on a tract of land belonging to Hill. In effect, McLean paid to complainant's intestate so much of the purchase money of the land in controversy by Hill's note, substituting his own note in lieu thereof to Blackman, secured by a mortgage on the land he had thus bought. The bill alleges that at the same time and place McLean executed to Julia A. Smith a note for the residue of the purchase money, in the words and figures following, to-wit:

“Murfreesboro, February 26, 1872.

$1,400. On or before the first day of next January, 1873, I promise to pay Mrs. Julia A. Smith fourteen hundred dollars, balance due of purchase money for a tract of land bought by me of said Julia A. Smith, it being the same land on which I now live, with ten per cent. interest per annum from date until paid.

A. V. McLean.”

The bill further alleges that McLean was residing on the land bought by him at the date of the deed, and never bought any other land from her. H. O. Blackman died intestate on September 15, 1872, and the defendant R. C. Blackman was appointed and qualified as the administrator of his estate. On July 4, 1873, Julia A. Smith died, having made a will of which the complainant was appointed executor, and qualified accordingly. The bill was filed September 6, 1875, to have a lien declared and enforced on the land sold to McLean for the payment of the note of $1,400. The defendant R. C. Blackman, as administrator, had already filed his bill against McLean to foreclose the mortgage of his intestate, and had obtained a decree for the sale of the land to satisfy the debt secured. The present complainant claimed the right to priority of satisfaction out of the land before the mortgage debt, upon the ground that his intestate, Julia A. Smith, had refused to sign the deed conveying the land to McLean, unless H. O. Blackman would agree that the note of $1,400 for the balance of purchase money should first be paid out of the proceeds of the sale of the land, and that Blackman had agreed that this should be done.

The bill was taken for confessed against the defendant A. V. McLean. The defendant Blackman answered, admitting all the facts alleged in the bill, except those relating to the consideration of the sale to McLean, and the note of $1,400. He does not admit the execution of the latter note as claimed, and avers, upon information, that the consideration was all paid by the assignment of the note and mortgage of Hill, and by the conveyance by McLean to Julia A. Smith of another tract of land by way of exchange. The bill waives an answer under oath, and the answer only operates to make an issue between the parties. There is no proof of any conveyance of land by McLean to Smith in part satisfaction of the purchase money due from him. On the contrary, the only evidence on the subject distinctly negatives the averment. The contest, therefore, upon the facts, is narrowed down to the point whether the note for $1,400 was executed for a balance of the purchase money, at the time, and under the circumstances claimed in the bill.

The proof shows that the deed from Smith to McLean, and the mortgage from McLean to Blackman, were executed at the same time at the office of a lawyer in the town of Murfreesboro, on the 26th of February, 1872. There can be no doubt that there were present on that occasion the lawyer himself, who died in October, 1875, and who seems to have been the attorney of Blackman, A. V. McLean, Julia A. Smith, H. O. Blackman, J. W. Hill and James A. Leiper, the latter being a lawyer also occupying the same office, but not employed by any of the parties. Of these, the only persons living when the cause was at issue were McLean, Leiper and Hill, all of whom were examined as witnesses by complainant.

Before stating the substance of the testimony of these living parties, it should be observed that Julia A. Smith and A. V. McLean were brother and sister, and they and complainant Hill's wife were the nephew and nieces of H. O. Blackman, and, as such, took one share, in right of their mother, in his estate. The defendant, R. C. Blackman, was a brother of H. O. Blackman, and also took one share of his estate as an heir and distributee. H. O. Blackman died possessed of a considerable estate. By her will Julia A. Smith devised and bequeathed her property, which consisted principally in the purchase money of the land sold to McLean, to the wife and children of complainant Hill. McLean took nothing under the will.

McLean testifies that the consideration for the land was, as recited in the deed, $8,685.30, of which $2,133.62 were paid in improvements which he had put upon the land, and $5,151.68 in the Hill note. This left a balance of $1,400, for which he executed and delivered to Julia A. Smith his note filed with the bill. The witness says that the note was written by complainant Hill on the day it bears date, in the presence of the parties and at the place hereinbefore mentioned, under the direction of Blackman's lawyer, who told him how to write it. He further proves, upon interrogatories addressed to him for the purpose of bringing out the testimony, that the facts upon which the equity of the complainant's claim to priority of satisfaction out of the land is rested occurred as stated in the bill. He testifies that Julia A. Smith refused to sign the deed of conveyance to him so as to enable him to execute the mortgage to Blackman, unless Blackman would agree that the balance of the purchase money due to her, which was evidenced by the $1,400 note, should be first paid out of the land, and that Blackman agreed to those terms, and the papers were then executed. He adds that no part of the note had been paid by him.

Hill testifies that he wrote the...