Irvine v. Shrum

• Court: Supreme Court of Tennessee
• Writing for the Court: Wilkes
• Citation: 36 S.W. 1089
• Decision Date: 23 September 1896
• Parties: IRVINE v. SHRUM.

Page 1089

36 S.W. 1089 IRVINE
v.
SHRUM. Supreme Court of Tennessee. September 23, 1896.

Appeal from chancery court, Hamilton county; T. M. McConnell, Chancellor.

Bill by Allean Irvine against S. W. Shrum. Decree for defendant, and complainant appeals. Affirmed.

Dodson & Dodson, for appellant. D. S. Anderson and W. T. Frierson, for appellee.

WILKES, J.

E. H. Irvine and wife, Allean Irvine, executed a deed of trust upon certain real estate to one Gifford, to secure a debt due from the husband to defendant, Shrum. The wife's name was signed to the deed, but it did not appear in the body or conveying part of the instrument. The trust deed was foreclosed, and Shrum became the purchaser. Thereupon the wife filed her bill in chancery enjoining him from taking possession of the property and claiming homestead therein. While this suit was pending Shrum learned that there was a debt for purchase money upon the land, and a deed of trust to secure the same. Shrum thereupon bought the purchase-money notes, and caused the mortgage to secure them to be foreclosed, and bought under the foreclosure sale, and took deed from Montague, the trustee. He thereupon, by leave of the court, filed a cross bill, alleging the purchase under both trust deeds, and asked that title be decreed to him free of all homestead or rights in Irvine and wife, or either of them. This was demurred to on the grounds that Montague's right to enforce the trust for the purchase money was barred by the statute of limitation, inasmuch as his notes were barred, and that the legal and equitable title to the property had become merged in Shrum, and the purchase-money debt had been satisfied, and the lien discharged thereby. This demurrer was overruled, and answer was made, and proof taken, and a decree was rendered fixing the right of Shrum to the land superior to the right of homestead, and awarding a writ of possession, and from this decree the complainant appealed. The case has been heard by the court of chancery appeals, and the decree of the chancellor affirmed, and complainant has appealed to this court, and assigned errors raising the same question already passed upon.

We see no error in the decrees of the chancellor and court of chancery appeals. The right of Montague to sell under his deed of trust was not barred by the statute of limitation, even though, as to the notes secured thereby, the statute may have run, so as to bar the recovery of any personal judgment on them. The...