Jordan v. Jordan

• Decision Date: 25 February 1922
• Citation: 239 S.W. 423
• Parties: JORDAN et al. v. JORDAN.
• Court: Tennessee Supreme Court

239 S.W. 423

JORDAN et al. v. JORDAN.

Supreme Court of Tennessee.

February 25, 1922.

Certiorari to Court of Civil Appeals.

Bill for partition by Fannie M. Jordan and others against Albert Fite Jordan. Decree denying a petition of W. W. Jordan and another to be relieved of their purchase at the partition sale and vesting title in them was affirmed by the Court of Civil Appeals, and the purchasers bring certiorari. Reversed and remanded, with instructions.

H. B. McGinness and L. A. Ligon, both of Carthage, for plaintiffs.

J. N. Fisher, J. R. Curtis, and W. V. Lee, all of Carthage, and Roberts & Cooper, of Nashville, for defendant.

L. D. SMITH, J.

This is a case in which the purchasers of land at a chancery court sale made for partition are seeking to have the sale set aside after confirmation upon the ground that the decree ordering the sale and decree of confirmation were void, and that the decree of sale was obtained by misrepresentation and fraud, was void for other reasons, and that they did not obtain a good title to the property purchased. A full history of the pleadings and proceedings will be necessary to an intelligent consideration of the many questions presented.

The original bill in this cause was filed on August 18, 1920, by Fannie M. Jordan and husband, W. W. Jordan, and three of their children who were adults at the time, against another one of their children who was a minor. The bill alleged that Fannie M. Jordan and her children, who were named in the bill, were the owners of a certain tract of land situated in the Fourth civil district of Smith county, which had been conveyed to them by J. H. Young, deceased, the father of Fannie M. Jordan, by deed recorded in Deed Book No. 9, page 483, of the register's office of Smith county, and saying, "a certified copy of which will be filed on or before the hearing, if necessary." It was alleged that Fannie M. Jordan owned the entire life estate in the property, and that her children jointly owned the remainder interest therein. It was alleged that the land was a farm situated so that it could not be advantageously partitioned in kind, and that it would be manifestly to the advantage of all concerned that same be sold for distribution of the proceeds. The complainant Fannie M. Jordan alleged that she was willing that the land be sold, and that she be paid the value of her life estate, and the remainder distributed among her children. Some of the reasons given by her for her consenting to the sale are that she is unable to run and manage the farm profitably, and that her adult children are anxious to establish themselves in business, and that her minor son is away from home attending school, and it is important that he finish his education. The bill mentions the fact that the property is incumbered with a trust deed to secure the sum of $7,500, which is a lien against the interests of Mrs. Jordan and her three adult children. The trustees in the trust deed and the persons to whom the incumbrance is owing, to wit, H. B. Cox and W. W. Jenkins, and who subsequently became the purchasers of the land, and who are now seeking to be relieved of their purchase, were named as defendants to the bill, and it is alleged that they were willing for the land to be sold subject to the incumbrance against it.

A guardian ad litem was duly appointed to represent the minor defendant, and a formal answer was filed, but this answer was not sworn to.

The chancellor referred the case to the master with directions to take proof and report:

(1) Who are the owners of the lands and in what shares or proportions the same is owned.

(2) What incumbrances, if any, are on the land.

(3) Is the land so situated as that it cannot be advantageously partitioned in kind, so as to give to each of those entitled to share therein a suitable home?

(4) Would it or not be to the advantage of those interested to have the land sold for distribution of the proceeds.

(5) If the land should be sold, upon what terms the sale should be made.

(6) What is the age of the life tenant, Mrs. Fannie M. Jordan.

Upon this order of reference considerable testimony was taken, and the master reported:

First, that the lands described in the pleadings are owned as follows: Mrs. Fannie M. Jordan is the owner of the entire life estate in said land, and the remainder interest in the same is owned in equal shares by Howard Y. Jordan, John M. Jordan, Will A. Jordan, and Albert Fite Jordan.

Second, the only incumbrance on the land is one for $7,500 on the shares of Fannie M. Jordan, Howard Y. Jordan, John M. Jordan, and Will A. Jordan, which is a mortgage to secure said amount to W. W. Jenkins, due June 23, 1924.

Third, said land is so situated that it cannot be advantageously partitioned in kind so as to give to each of those entitled a suitable home.

Fourth, it would be manifestly to the advantage of all concerned that the same be sold for a division of the proceeds of sale. The said Fannie M. Jordan, owner of the life estate, agrees to accept the present cash value of her said life estate.

Fifth, said lands should be sold for one-fourth cash, and the remainder in equal installments due in one, two, and three years from date of sale with notes drawing interest, payable annually, with a lien retained on the land. The land is susceptible to a subdivision into two or more tracts, and should be offered separately and as a whole, and the same made the way the most money is realized.

Sixth, the life tenant, Mrs. Fannie M. Jordan, is 50 years old. The land should be sold on the premises.

The report of sale was filed by the master on October 2, 1920. It was confirmed by decree pronounced at chambers on October 18, 1920, without any certificate from the clerk and master under seal that there was in his opinion no prospect of the bid being raised.

The caption of the confirmatory decree reads:

"Be it remembered that this cause came on to be heard before Hon. W. R. Officer, chancellor sitting at chambers in Gainesboro, Tenn., it being agreed by counsel and parties on both sides that the matter be heard at chambers on this, the 18th day of October, 1920, upon the record in this cause, and especially upon the report of sale filed by the master, which report is in the following words and figures, to wit."

After reciting the report of sale, the decree proceeds to adjudicate that all the right, title, claim, and interest which any of these parties, Fannie M., Howard Y., John M., William A., Jr., and Albert Fite, and H. B. Cox, trustee, and W. W. Jenkins, have in and to the tract of land described in the pleadings and hereinafter set up by metes and bounds, be, and the same are hereby, divested out of them and vested in the purchasers of the same subject to a lien declared to further secure the payment of the unpaid purchase money.

The decree then recited:

"It appearing to the court that Mrs. Fannie M. Jordan was the owner of the entire life estate in said tract of land, that she has agreed and does agree to accept in lieu thereof the present cash value of said life estate to be paid to her out of the proceeds of this sale, that at her present age, she being 50 years of age and being in reasonably good health, she is entitled to 60 per cent. of the net proceeds thereof, it is therefore decreed that after the payment of costs and expenses of sale that out of the proceeds of said sale she be paid 60 per cent. of the same. It also appearing that the remainder interest in said land after the payment of said life estate belonged to the complainants Howard Y. Jordan, John Jordan, William A. Jordan, Jr., and the defendant Albert Fite Jordan, it is decreed that said remainder, after the discharge of the present value of the life estate, be distributed to them equally. It further appearing that heretofore said Fannie M. Jordan, Howard Y. Jordan, John M. Jordan, and William A. Jordan, Jr., had executed a mortgage to H. B. Cox, trustee, on their respective shares or interests in said land, and that by agreement the shares of said Howard Y. Jordan, John M. Jordan, and William A. Jordan, Jr., are to be charged respectively with $1,000 each of the amount due on said mortgage, and that the share of Mrs. Fannie M. Jordan is charged with the remainder of the mortgage, it is so decreed, and out of the cash payment required by a former decree said mortgage will be paid, and the respective shares above mentioned will be charged accordingly."

The decree provides for the purchaser to be given full possession of the property on January 1, 1921. The decree allows fees to be paid out of the funds to the complainants' solicitors $1,750, and to the guardian ad litem $250. The decree also allows the clerk and master as compensation for his services the sum of $775. It provides for the payment of the cost of making a survey of the land, $31.90, and the taxes on the land for the year 1920. The decree provides that after payment of the costs and expenses aforesaid the clerk will distribute the remainder of the cash payment to those entitled as shown by the decree.

At the first regular term of the chancery court following the sale made by the clerk and master, and on March 10, 1921, the purchasers W. W. Jenkins and H. B. Cox were permitted to file the petition which presents the matters now under consideration, and an order by the court was made requiring all the parties to the cause, they being named as defendants to the petition, to make defense thereto without service of process, except the minor defendant, Albert Fite Jordan.

The averments of this petition material to the present inquiry were these:

(1) The filing of the original bill and the fact that it alleged that Mrs. Fannie M. Jordan owned the entire life estate, and that her children jointly owned the remainder interest therein.

(2) That the deed referred to in the bill, copy of which it was said would be filed on or before the hearing, was not filed with the papers, and ...