Kindell v. Titus

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 727
• Parties: WILLIAM C. KINDELL et al. v. FRAZER TITUS et al.
• Court: Tennessee Supreme Court

56 Tenn. 727

WILLIAM C. KINDELL et al.

v.FRAZER TITUS et al.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal from the decree of the Chancery Court, October Term, 1868. WILLIAM M. SMITH, Ch.

ALEX. W. CAMPBELL, A. T. & J. R. ROBERTSON, THOMAS W. BROWN for appellant.

ED. A. BEECHER, JAMES WICKERSHAM, HEISKELL, WHITE & HEISKELL, JAMES FENTRESS, E. L. BELCHER, E. B. BARTLETT, POSTON, HUMES & SCOTT, SCRUGGS & POSTON, WILSON & BEARD for appellee.

FREEMAN, J., delivered the opinion of the Court.

This bill was filed in March, 1860, by the heirs of V. D. Barry, to set aside a sale of real estate made by order of the County Court of Shelby county. The facts are, that V. D. Barry died in April, 1853, and at the May Term of the Court, thereafter, Isaac Y. Gibson was appointed his administrator. On the 1st day of August, 1853, said Gibson, together with the widow, Henry A. Barry, and the other heirs, filed a petition in the County Court asking a sale of several slaves and the lot in controversy. The petition alleges that the administrator had returned into the Court an inventory of all the personal property and a list of all the debts of his intestate, so far as known; copies of which are offered to be filed; that the petitioners, except Gibson and the widow, are the only heirs and distributees of the deceased, and are entitled, after the payment of the debts and settlement of the estate, to the remainder in distribution: that the personal estate is insufficient to pay the debts after a just provision for the support of the widow: that it will hereafter be necessary, for the purpose of paying the debts and making a distribution among the petitioners, to sell the slaves and the lot in controversy, after laying off the widow's dower: and that the petitioners are all of full age and desirous of having the property sold in order that a final settlement may be had as soon as possible. The prayer is, that dower be assigned the widow; and that the remainder be sold, together with the remainder interest covered by the dower, and the proceeds paid to the administrator with directions to discharge the debts of the deceased and pay over the residue as he may be justified in doing, taking refunding bonds from distributees.

The same day the petition was filed, a decree was entered, reciting that the Court was satisfied that the allegations of the petition were true--and directing the slaves and lot of ground to be sold, for the purpose of paying debts; and, for distribution among the parties, as therein mentioned. The prayer of the petition was granted, commissioners were appointed to lay off dower, and the balance of the lot was ordered to be sub-divided and sold. The reversionary interest, as it is called in the decree, covered by the dower, was also ordered to be sold. Under this decree a sale was had, and Frazier Titus and others became the purchasers of the lot, which was reported to the Court and confirmed.

It is now insisted, that this sale is void under the Act of 1827, ch. 54, secs. 4 and 5, providing for the sale of the real estate of deceased persons; and for other reasons, that will be hereafter noticed.

The Act of 1827 provides, that when an administrator has exhausted the personal estate of an intestate in the payment of debts, leaving just debts against such estate unpaid, and where such intestate dies seized of real estate situated in any county of this State, it shall be lawful for any Chancery or Circuit Court of the district or county where such lands or part of them may lie--on the prayer of the administrator, or any bona fide creditor, whose debt may remain unpaid--to decree the sale of such lands, or so much thereof as may be sufficient to satisfy the debt set forth and shown to exist:

“ Provided, That before any decree shall be entered, it shall be made satisfactorily to appear that the personal estate has been exhausted in the payment of bona fide debts, and that the debts for which the sale is sought, are justly due; and,

Provided further, That said Court shall decree the sale of such part of the real estate as will be least injurious to the heirs or legal representative.”

The next section is, “Suits prosecuted under this Act shall be conducted in the same way as other suits in equity, and sales made under this Act, shall vest in the purchaser a good and sufficient title in fee simple.”

It would seem that this Statute, so plain and unambiguous, when taken in connection with the well-known purpose of the Legislature in its passage, ought to be of easy construction. Yet as we know, it has given birth to some, apparently, diverse decisions, growing mainly out of an effort on the part of our Courts to meet the supposed exigencies of what are known as hard cases. We have found, however, that whenever an effort has been made to strain the construction of a plain Statute, or of a Constitutional Provision, the result almost inevitably is to make a set of hard precedents, which embarrass the Courts in their future action. We therefore think the safe plan is to follow the plain intent of the law as it is written; and, if evils arise, leave them for correction by the Legislature.

It is conceded that the County Court has the same jurisdiction to make sales of real estate as the Circuit and Chancery Courts; that is, has concurrent jurisdiction with these Courts: and, we may add, that the Act of 1827 should be liberally construed, in order to attain the end designed, so as to carry out the true intent and meaning of the Legislature--so we understand the leading case on this subject of Dulles v. Read, 6 Yerg., 53. Still it must not be overlooked that this is a special and limited jurisdiction--Statutory alone-- and that we must look to the Statute itself to ascertain its boundaries. In the language of Judge McKinney, in the case of Whitemore v. Johnson, 10 Hum., 610, the “Statute confers upon the Circuit Court” (and also the County Court) “a new jurisdiction of a special and limited character. With a wise and most commendable solicitude for the protection of the estates of minors, it has with unusual precision specified and enumerated the facts essential to warrant the exercise of the jurisdiction intended to be conferred.” While, as we have said, there is some apparent contradiction in some of our decisions on the Act of 1827, on looking into them carefully it will be found that, in their main features, they all agree; and exact a substantial conformity to the requirements of the Statute, in order to give the Court jurisdiction to sell.

The first and leading case construing the Act of 1827, is that of Dulles v. Read, 6 Yerg., 53. The bill was filed in that case by the creditors of Bacchus against the administrator, heir, and other creditors, asking a sale of the real estate. It alleged that the personal estate had been exhausted; that the real estate was insufficient to pay all the debts; and sought to have the proceeds of the sale of the realty divided pro rata among all the creditors of the deceased. It also alleged, that the administrator, though all the personal assets had been exhausted, intended to let certain creditors have judgment upon the plea of fully administered in his favor, in order that those favored creditors might proceed by scire facias upon the real estate in the hands of the heir. The alleged favored creditors demurred to the bill. The Court held, that the Act of 1827, though not a repeal of the Act of 1784, was intended to remedy the evils which existed in the mode of proceeding against the real estate under that Act. One of which was a multiplicity of suits against the estate and the consequent costs; and therefore its only object was, that the administrator should bring all the creditors before the Court by the bill he was authorized to file, and have all the claims adjudicated in one suit: and, of course, the same policy applied when the bill was filed by a bona fide creditor of the estate. The other leading mischief was, that under the previous law, each creditor might get his judgment at a different time, and the first might exhaust all the realty and leave others nothing at all: and, we add, the administrator might favor such creditor as he chose and allow judgments to go, by such an arrangement as was charged to exist in the bill in that case. Judge Green then gives the remedy, as provided by the Act of 1827, and says: “It was intended, that the Chancellor, having an account of all the debts before him, and an exact knowledge of the character, description, and probable value of the estate, should take the land into the custody of the Court, and direct its sale for the benefit of all;” and such a sale should be conducted for the benefit of all and the property made to bring the highest price, and even a re-sale ordered if necessary to the end designated. He therefore concludes, that when the administrator files the bill, all the creditors must be brought in, or may come in, and share ratably in the proceeds of the sale. It was argued in that case, that the Act restricts the payment of debts out of the proceeds of the land, to such debts as are “shown to exist in the bill,” and that creditors not shown to exist in the bill were excluded. To this the Court replied, this construction “sticks too close to the letter of the Statute, disregarding the design and purport of the Act”--and that the true construction of the Act was-- ““ All such debts, as, in the course of the investigation which is originated by such bill, may be shown to exist, shall be included.” In answer to the objection, that the jurisdiction to make the sale would be defeated, if it appeared before final decree, that the administrator had money in his hands, the Court say: that the provision in relation to the exhaustion of personal assets, was only intended to preserve the policy of former legislation on this subject: i. e. the appropriation of personalty first to the payment of the debts: and...