Jonte v. Gill

• Decision Date: 08 February 1897
• Citation: 39 S.W. 750
• Parties: JONTE v. GILL et al. PALMER et al. v. WEAKLEY et al. GOLDBERG et al. v. SAME.
• Court: Tennessee Supreme Court

39 S.W. 750

JONTE v. GILL et al.

PALMER et al. v. WEAKLEY et al.

GOLDBERG et al. v. SAME.

Court of Chancery Appeals of Tennessee.

February 8, 1897.

Appeal from chancery court, Davidson county; J. W. Bonner, Special Chancellor.

Three bills to enforce mechanics' liens, consolidated and tried together, — one by N. S. Jonte against J. Y. Gill and others, one by Palmer & Reese against J. L. Weakley and others, and one by Goldberg & Rich against J. L. Weakley and others. From a decree in favor of the lien claimants, J. L. Weakley appeals. Affirmed.

Stokes & Stokes, C. D. Berry, and Smith & Dickinson, for complainants. Lelleyett & Barr, for defendants.

NEIL, J.

Bill filed to enforce sundry mechanics' liens upon property on which the defendant J. L. Weakley claims a vendor's lien alleged to have arisen in a sale made by him of the real estate in controversy to his co-defendant J. Y. Gill. The case was heard below by Hon. J. W. Bonner, circuit judge, sitting by interchange for the regular chancellor. He decreed that the mechanic's lien was superior to the vendor's lien, and ordered a sale of the property, and directed that out of the proceeds the mechanic's lien should be first paid, and then the vendor's lien. The latter lien was asserted in the cost bill filed by defendant Weakley. He has appealed from the decree of the chancellor and assigned errors.

The facts present a rather peculiar case. There is a sharp conflict in the testimony upon most of the material points, but the weight of the evidence is clearly with the complainants. Nearly all of the witnesses are interested, or were at the time their testimony was delivered. We have examined all of the depositions, however, with care, and upon the whole case we find the facts to be as follows: On the 18th day of July, 1892, J. L. Weakley conveyed to his co-defendant J. Y. Gill the real estate in controversy (and two other lots more particularly noticed hereafter), at the price of $2,850, payable in two notes, each for $1,425, maturing at six and twelve months, with interest, and to secure which a lien was retained in the deed. This deed was acknowledged by J. L. Weakley on the 5th day of August, 1892, before a notary public, but was withheld from registration until the 3d day of March, 1893. The defendant J. Y. Gill says that he did not file the deed for registration at an earlier date because he did not have sufficient money to pay the registration fee; but the proof shows beyond any sort of controversy that he received from J. L. Weakley, between the date of the deed and the date of its filing for registration, numerous sums of money, any one of which would have been largely more than sufficient to pay the fee mentioned. Between the date of the deed and its filing for registration defendant Gill had contracted for and placed upon the lot a house, for the building of which the complainants sue in the present case. They are now met by Mr. Weakley with the claim that he has a vendor's lien upon the property, by virtue of the before-mentioned unregistered deed, and that their rights and the materials contributed by them must be subordinated to his demands. On the records of the county the title appears to be in J. L. Weakley. In addition to this, defendant Gill led the complainants to believe that he was having the house built for defendant Weakley, and when it was or should be completed he was to sell it, and, after paying out of the proceeds the expense of building, he was to have a profit for building, and the residue of the proceeds would go to defendant Weakley. This impression in the minds of the complainants was further added to and strengthened by the fact that the plan prepared by the architect, and by which the building was constructed, had on it the name of J. L. Weakley, showing that it was a plan by which to build a house for him. Added to this, defendant Weakley was constantly — almost, if not altogether, daily — in and about the building, while undergoing construction and frequently gave directions as to how things should be done, and sometimes had part of the structure torn out, and other parts added, and this in the presence of the complainants or some of them. Moreover, when complainants, or some of them, would call for money, defendant Gill would frequently tell them to wait until he could see defendant Weakley, and would go to him and return with money, and would pay it to the complainants, or such of them as demanded money. Besides this, Mr. Weakley in person made a contract with one of the complainants to build a pavement in the front yard. Thus, united to the direct statements and representations of Mr. Gill, and the continuing representations made by the architect's plan, we have Mr. Weakley constantly in and around the work, acting as if he were in fact the owner. This was enough to mislead, and did mislead, the complainants. The foregoing statement must, however, be qualified as to complainants Goldberg & Rich this far: When they had furnished three-fourths of the lumber they had agreed with defendant Gill to furnish for the building, they called upon defendant Weakley to see when they could get a settlement for it. What then took place can be best told in the language of the complainant Rich in his deposition. He says: "The building took an unusually long time to be finished. We wanted a settlement for the material that went into it, and I went to Mr. Weakley to find out when we could get a settlement of it. When I came into Mr. Weakley's store to see him, I found Mr. Gill standing there. I told Mr. Gill what I came for. and he said, `I would rather you did not speak to Mr. Weakley about this yet'; but I said I would rather find out just when we could get a settlement, and I went to Mr. Weakley in the store beyond, where I spoke to Mr. Gill. I told Mr. Weakley I furnished the lumber for his house, and I would like to know when we could get a settlement for it. Mr. Weakley said: `Why, that house does not belong to me at all; it belongs to Gill.' I said: `Mr. Weakley, that is something new to me. I was under the impression that the house was built for you by Gill.' He said: `No; I have sold him the property, and he is building the house for himself. I have an agreement with him to buy the house from him when completed.' He then called Mr. Gill to where we were talking in the store, and asked him if that house didn't belong to him, and Mr. Gill said: `Yes, sir; it does.' He said: `I thought you understood it that way all the time.' Says I: `Mr. Gill, you never told it so, and how could we understand it? We were under the impression that the house was being built for Mr. Weakley.' That was the...