Johnson v. McKinney

• Citation: 222 S.W.2d 879
• Parties: JOHNSON et ux. v. McKINNEY et al.
• Decision Date: 22 October 1948
• Court: Supreme Court of Tennessee

222 S.W.2d 879

JOHNSON et ux. v. McKINNEY et al.

Court of Appeals of Tennessee Western Section.

October 22, 1948.

Certiorari Denied by Supreme Court March 11, 1949.

Galbraith & Galbraith, Henderson, for appellants.

Ross & Ross, Savannah, Willard N. Smith, Henderson, for appellees.

ANDERSON, Presiding Judge.

This bill was filed on April 29, 1946, by Carmon R. Johnson and his wife, Katherine Johnson, against G. E. McKinney and Virgil B. Holder. The object is to have removed as a cloud upon the complainants' title the sale of a tract of land of 29 acres owned by complainants as tenants by the entireties. The sale was ordered in another proceeding in the chancery court of Chester County to enforce a lien for delinquent drainage assessments theretofore levied on said property by the Jones Creek Drainage District No. 10. The defendant McKinney became the purchaser at the sale and later sold and conveyed the land to the defendant Holder. They filed a joint answer setting up a number of defenses presently to be noticed. By an amendment to the bill the drainage district was named as a party defendant. It filed no separate answer but contented itself with adopting the joint answer filed by its co-defendants. Upon the hearing the chancellor dismissed the bill and the complainants appealed.

The principal grounds of the attack on the sale are (1) that the complainants were not served with process in the proceeding instituted to enforce the lien of the assessment and were not otherwise given proper notice of the sale and; (2) that the land was not sold for cash as required by the applicable statutory provision, but that upon the contrary bonds of the drainage district were accepted in payment of the amount bid at the judicial sale.

The Jones Creek Drainage District No. 10 was organized in 1920. Assessments were made against the lands in the district for the payment of the cost of the improvements. The assessments were payable in annual installments. Bonds of the district were issued and sold, payable from the assessments. Among other tracts in the district was one designated "No. 11", assessed to the Charlie Stewart estate, containing 29 acres. This is the tract involved in the present case. The assessments against it were delinquent for the years 1929 to 1938 inclusive, amounting in the aggregate to $808.76, exclusive of interest, penalties and cost. On September 18, 1942, the Board of Directors of the drainage district caused a bill to be filed in the name of Chester County for the use of the drainage district, for the purpose of collecting assessments against the land that were delinquent. There were included a number of tracts in addition to the 29-acre tract aforesaid.

The cause was heard at the March Term 1943, and a decree of sale entered, directing the Clerk & Master to advertise and sell a number of the tracts of land, including that here in question.

The sale was duly held and the defendant McKinney was the successful bidder on all of the tracts sold, including tract No. 11, owned by the complainants. The Clerk & Master reported accordingly, and his report being unexcepted to was confirmed at the September Term, 1943. Upon confirmation, the chancellor decreed that "upon payment of the cost of the suit and all unpaid state and county taxes against said lands sold in the cause, all the right, title, claim and interest of the respective parties to whom said lands were assessed for drainage taxes and the owners of the same, be divested out of them and each of them and vested in the purchaser, G. E. McKinney, his heirs and assigns forever, subject to the two years allowed by statute for redemption of the lands sold", followed by a description of the respective tracts.

It was further ordered that upon the payment of the cost and state and county taxes and the expiration of the two years allowed for redemption, the Clerk & Master should make and acknowledge for registration and delivery to the said G. E. McKinney a deed conveying to him the said tracts.

These conditions having been complied with, the Clerk & Master executed and delivered a deed to McKinney who later sold the land to the defendant, Virgil P. Holder. The deed from McKinney to Holder contained the following:

"This being Tract No. 11 in the Jones Creek Drainage District assessed to Charlie Stewart Estate and later acquired by C. R. Johnson. G. E. McKinney acquired title in a decree of the chancery court of Chester County, Tennessee, in the cause of Chester County, Tennessee for the use of Jones Creek Drainage District No. 10, filed against Mrs. Robert Bell Short et al. to enforce a lien for drainage assessments. The redemption period being passed, G. E. McKinney acquired title in fee. There is also a deed from J. R. Galbraith to G. E. McKinney, in this cause of record in the Register's office of Chester County, Tennessee, in Book No. 42, page 564, and to which reference is here made."

Before reaching the challenge to the validity of the sale it is necessary to dispose of a contention made by the defendants which it is asserted is conclusive of the controversy apart from any other questions. It is insisted that because the complainants did not offer to reimburse the purchaser for the amount of his outlay he cannot maintain the bill. This contention is bottomed upon the maxim that, "He who seeks equity must do equity", but misconceives the practice in the enforcement of that maxim. Where it is applicable in a case of this kind, the making of an offer of reimbursement does not go to the right to maintain the bill, but may be decreed as a condition of granting of the relief sought. Thus it is said that a court of equity "now does not wait for the complainant to offer to do equity, but acts upon the supposition that, knowing the requirement of the court, he is willing to do whatever equity towards the defendant the court may require of him". Gibson's Suits in Chancery, sec. 39. "In general", says Mr. Gibson, "a complainant seeks to recover property from which the defendant has removed an incumbrance or to which the defendant has added in good faith, relief will be granted the complainant only on condition that the defendant be reimbursed to the extent the complainant has been by him benefited". Ibid. In short, the condition imposed in a case of this kind is, as it were, the price of the decree which the court gives.

See also, Gaylor v. Miller, 166 Tenn. 45, 51, 59 S.W.2d 502; Kindell v. Titus, 56 Tenn. 727, 741; Strother v. Reilly, 105 Tenn. 48, 58 S.W. 332.

The case of Fowler v. Tankersley, Tenn. App., 222 S.W.2d 395, from the Equity docket of Obion County cited by the defendants, is not authority for a contrary view. That case is not in point on the facts. It went off on the ground of estoppel in pais.

It is thus necessary to dispose of the complainants' attack upon the validity of the decree confirming the sale of the land to enforce the lien of the assessments. At the time the bill was filed in the proceeding which resulted in that decree, there was of record in Chester County a deed showing that the tract in question was owned by the complainants as tenants by the entireties. However, the bill in that case described only one, C. R. Johnson, who is the same person as the complainant, Carmon R. Johnson, as being the owner, and he was named as defendant. His wife was not made a defendant.

Although he was named as a party defendant in that proceeding, the complainant, Carmon R. Johnson, contends that no process was ever served upon him. It appears that at the time that bill was filed, the complainants, though domiciled in Chester County, were actually living in the state of Mississippi, where the complainant, Carmon R. Johnson, was working. However, they frequently spent the weekends in Chester County at their home and the home of relatives. Carmon R. Johnson was inducted into the United States Navy at Jackson, Mississippi, on the 1st day of May, 1943. He continued in the service until October 13, 1945, when he was honorably discharged.

The record in the other case disclosed that a subpoena to answer was issued on the 19th day of September, 1942, for the complainant, Carmon R. Johnson, and certain other defendants, and that it was returned executed on all of those named therein by G. L. Ball, a deputy sheriff. Pro confesso as to the defendants, including C. R. Johnson, was taken on March 23, 1943. The officer who served the process died before the present suit was tried. The complainant, Carmon R. Johnson, testified in this case that no process in the other proceeding was served upon him. The only corroboration of his testimony in this respect is purely negative in character. This, with Johnson's testimony, is insufficient to overcome the officer's return. Henry v. Wilson, 77 Tenn. 176; Posey v. Eaton, 77 Tenn. 500.

With respect to the rights of the complainant, Mrs. Johnson, the case presents a different and more serious question. As already said, the fact that she was a tenant by the entireties of the tract appeared of record in Chester County at the time the bill to enforce the lien of the drainage assessments was filed. She was not named a defendant in that bill; she was never served with process; she did not enter an appearance in that case; nor was she ever notified actually or constructively that the land was to be sold. In fact, when the bill was filed and when the sale was ordered and had, she was actually living with her husband in the state of Mississippi.

The idea that by judicial fiat one can be deprived of his property without prior notice affording an opportunity to be heard is in conflict with the Anglo-Saxon tradition, which is deeply rooted in this country. Generally, it is so contrary to our idea of fair play that when advanced, it immediately challenges the most serious attention. The great doctrine of notice is the cornerstone of our jurisprudence. Its fundamental nature has never been better described than by...