Jordan v. Johns

• Decision Date: 23 February 1935
• Parties: JORDAN et al. v. JOHNS.
• Court: Tennessee Supreme Court

Page 798

79 S.W.2d 798

JORDAN et al. v. JOHNS.

Supreme Court of Tennessee.

February 23, 1935.

Appeal from Chancery Court, Wilson County; J. W. Stout, Chancellor.

Action by Powell Jordan and others against D. L. Johns, who filed a cross-bill. From an adverse decree, defendant appeals.

Affirmed.

Roberts & Roberts, of Nashville, and W. B. Knott, of Murfreesboro, for appellant.

O. B. Starnes and W. R. Chambers, both of Lebanon, for appellees.

SMITH, Special Justice.

From a decree dismissing his amended and supplemental cross-bill on demurrer, Johns has appealed, and assigned four errors. As the action of the chancellor was based on the application of the rule of res adjudicata, it will be necessary to examine the original pleadings in order to ascertain whether the holographic will of Mary Johns, wife of cross-complainant, was, or by the exercise of proper diligence on his part could have been, set up as a muniment of title in his answer to the original bill.

Claiming that their ancestor, Mary Johns, died intestate on September 28, 1927, seized and possessed of a one-half undivided interest in the property described in the bill, and that they were her lawful heirs at law, Powell Jordan, John Jordan, Ted Jordan, Callie Bond, and Lura Vaughn, the last-named being a minor, filed the original bill in the chancery court of Wilson county, seeking to have the land sold for partition, and an accounting for the rents and profits from the date of Mary Johns' death.

They set up as their muniment of title a deed dated September 12, 1916, by which the land was conveyed by W. B. Johns and wife to D. L. Johns and wife, Mary Johns.

D. L. Johns answered the bill, and also filed his answer as a cross-bill. In his answer, it was alleged that the deed dated September 12, 1916, made Exhibit A to the answer, was null and void, in that it did not contain a granting clause, but, if mistaken in this, the deed should be read in the light of an instrument executed by Mary Johns on August 14, 1911, which, the answer stated, was executed by her in pursuance of an agreement between her and her husband that all property, real or personal, thereafter acquired by them, should be taken in their joint names so that the survivor would take the title. The answer alleged that Exhibit B was probated in the county court of Rutherford county, Tenn., as the will of Mary Johns, and the defendant Johns averred that said instrument reflected the last wish and will of Mary Johns with respect to all of her property, both real and personal.

This instrument is as follows: "Realizing the uncertainty of life and that death is sure to come I this day will and deed to my husband D. L. Johns all of my personal property and real estate that I may own at my death for love and affection to have and to hold during his natural life and to be disposed of as he sees proper at his death. This being my only and last will deed and testimony this the fourteenth day of August, 1911. Mary Johns."

It was acknowledged before J. C. Ingram, a notary public of Rutherford county, in the form customarily used in the acknowledgment of deeds.

It is clear from the averments of the answer that the foregoing instrument was not set up in the answer of defendant, Johns, as a muniment of title, but was relied on solely for the purpose of corroborating his claim that if the court should hold the deed dated September 12, 1916, was sufficient to convey the title to Johns and his wife, Mary Johns, this instrument should be regarded as evidence that such deed should be so reformed as to constitute Johns and his wife tenants by the entireties.

The answer set up as a muniment of title a deed dated November 10, 1932, made Exhibit C, by which W. B. Johns and wife conveyed the land to D. L. Johns. This deed was executed because Johns had been advised by his counsel that the deed dated September 12, 1916, was void for want of a granting clause, and consequently the legal title remained in the grantors, W. B. Johns and wife.

Assuming the role of a cross-complainant, Johns prayed that the deed dated September 12, 1916, if held valid, be reformed so as to vest the title in him and his wife, Mary Johns, as tenants by the entireties, and that the instrument dated August 14, 1911, should be looked to as evidence by the court in aid of the prayer for reformation.

The complainants, as cross-defendants, demurred to the cross-bill on various grounds, some of which are no longer relevant. The relevant grounds of demurrer were to the effect: (1) That the answer, cross-bill, and exhibits thereto showed on their face that the deed dated September 12, 1916, was adequate to convey the legal title to Johns and his wife, Mary Johns, and that as the deed was executed after January 1, 1914, the date on which the first Married Woman's Act (Acts 1913, c. 26) went into effect, the title was vested in Johns and his wife, as tenants in common, and not as tenants by the entireties. Gill v. McKinney, 140 Tenn. 549, 205 S. W. 416; (2) that the instrument, made Exhibit B to the answer, was insufficient as a will, to convey land, as it was attested by only one witness, and that it was insufficient as a holographic will, as it did not appear to be in the handwriting of Mary Johns, and did not show compliance with the other statutory requirements necessary for the execution of a holograph; (3) that the instrument was insufficient as a deed, as it attempted to convey property which Mary Johns did not own at the date of its execution; (4) that the deed dated September 12, 1916, could not be reformed, as reformation was barred by the statute of limitation of ten years (Code 1932, § 8601). Barnes v. Barnes, 157 Tenn. 332, 8 S.W.(2d) 481; (5) that the deed dated November 10, 1932, was invalid, in that the title attempted to be conveyed by W. B. Johns and wife to D. L. Johns had been conveyed to D. L. Johns and his wife, Mary Johns, by the deed dated September 12, 1916.

The chancellor sustained each of these grounds of demurrer, holding: (1) That the deed dated September 12, 1916, was valid, and conveyed the title to the land to D. L. Johns and Mary Johns, as tenants in common; (2) that the prayer for the reformation of the deed was denied on the ground that the ten-year statute of limitations barred such relief; (3) that the instrument, made Exhibit B to the answer, was insufficient as a will of land, because it was attested by only one witness, and that it was not good as a deed because it purported to convey property of which Mary Johns was not the owner at the date of its execution; (4) that the deed of November 10, 1932, was invalid, in that the land attempted to be conveyed by it had been validly conveyed to D. L. Johns and Mary Johns, by deed of September 12, 1916.

From the decree of the chancellor, sustaining the demurrer and dismissing the cross-bill, Johns appealed to this court, and assigned five errors, the fourth being to the effect that the chancellor erred in holding that the paper writing of September 12, 1916, was not affected by the instrument of August 14, 1911, evidencing the understanding and agreement between D. L. Johns and wife with respect to the manner in which title to real estate thereafter was to be taken.

This court held that while the deed of September 12, 1916, was inartificially drawn, nevertheless, as the grantees were named in the habendum clause, and the deed contained covenants of warranty, and against incumbrances, it was legally sufficient to convey the title to D. L. Johns and his wife, Mary Johns, and, further, that the prayer for reformation of the deed was barred by the ten-year statute.

The decree of the chancellor was accordingly affirmed, and the cause remanded to the chancery court of Wilson county for the execution of the chancellor's decree.

On April 19, 1934, counsel for Johns filed a petition to rehear, based on the ground that as the court had held the deed of September 12, 1916, valid, with the consequence that the title to the land was vested in Johns and his wife, as tenants in common, the court should have construed the deed in accordance with the agreement executed on August 14, 1911, so as to make the deed conform to the intention of the parties, and vest the title in them as tenants by the entireties, and this on the ground that, as they were ignorant people, they did not understand the legal effect of the deed of September 12, 1916, but instructed the draughtsman so to draw it as to vest the title in them, and the survivor of them.

It was further alleged that within a few days prior to the filing of the petition for rehearing, Johns, incidentally, and for the first time, informed one of his counsel that the instrument of August 14, 1911, was entirely in the handwriting of his wife, Mary Johns, and that counsel, on April 18, 1934, had caused the instrument to be duly and regularly...