Lewis v. Turnley

• Decision Date: 21 July 1896
• Citation: 36 S.W. 872,97 Tenn. 197
• Parties: LEWIS v. TURNLEY.
• Court: Tennessee Supreme Court

36 S.W. 872

97 Tenn. 197

LEWIS v. TURNLEY.

Supreme Court of Tennessee.

July 21, 1896

Appeal from chancery court, Dyer county; John S. Cooper, Chancellor.

Suit by H. C. Lewis, administrator, against C. E. Turnley. From the decree both parties appeal. Reversed.

W. S Draper and Moore & Wells, for complainant.

W. E Bell and Hays & Biggs, for defendant.

McALISTER J.

This bill was filed in the chancery court of Dyer county for the enforcement of a vendor's lien and the collection of a note. The note was given for a one-half undivided interest in a lot in the town of Fowlkes, Tenn., upon which was located a gin mill, machinery, etc. The note was executed by the defendant, C. E. Turnley, payable to the order of William Harper. Harper died in January, 1891, and this bill was filed in 1892 by his administrator, H. C. Lewis, against C. E Turnley, the maker of the note. The defendant, Turnley, filed an answer and cross bill, in which he admitted the purchase of the land and the note in suit. In his cross bill he charged that there were valuable buildings and machinery on the land, which greatly enhanced its value, and that these improvements constituted the principal inducement to the trade. It is further charged that at the time of said trade the vendor, William Harper, had said improvements insured to the amount of $1,600, which insurance did not expire for several months; and that it was a condition of the trade for the land that the policies of insurance should be transferred to defendant and his partner, King, who had purchased the other one-half interest in the property; that Harper although often requested to make the transfer, failed to do so; and that, while the improvements were so insured in the name of Harper, a fire occurred, which totally destroyed said buildings and machinery. Defendant also charged that said Harper agreed, and that it was part of the consideration of the contract, that, if the property should burn before he complied with his agreement, he would be bound for the insurance; that defendant was thereby damaged to the extent of one-half of said insurance, to wit, the sum of $800, which amount he seeks to set off against complainant's claim and recover the excess as a counterclaim. The answer and cross bill were filed in November, 1893. The contract for the sale of the land and improvements was made on the 11th of August, 1886. The original bill was filed in 1892. Complainant demurred to the cross bill, assigning, among other grounds, that said cause of action set up in said cross bill was barred by the statutes of three and six years. This demurrer was overruled by Chancellor Livingston, but the order overruling the demurrer recited that defendant in cross bill is permitted to rely in his answer on the statutes of limitation, which defense was accordingly incorporated in the answer filed to the cross bill. The cause was finally heard by the Honorable John S. Cooper, chancellor, who pronounced a decree in favor of complainant for the sum of $499.80 balance due on said notes, with interest, and ordered a sale of the property for the satisfaction of said amount, which was declared a lien on the property. The chancellor denied defendant any relief on his cross bill, and dismissed the same, taxing complainant with two-thirds of the costs of suit and defendant with the remaining one-third. Complainant appealed from so much of said decree as taxed him with any part of the costs. Defendant, Turnley, also appealed from the decree of the chancellor dismissing his cross bill and pronouncing judgment against him for the amount of said notes, and declaring the same a lien upon the property. We are thoroughly satisfied, from a careful reading of this record, that it was a stipulation of the original contract that the policies of insurance on the improvements should be transferred to the defendant and to his co-purchaser, King. It is shown that the lot was intrinsically of little value, and that the improvements constituted the material inducement to the trade, and were the real consideration for the purchase notes. The defendant, Turnley, agreed to pay for an undivided one-half interest in this property the sum of $1,000, and William Harper, the vendor, promised that he would attend to the transfer of the policies immediately. He did not send the policies as he had contracted to do, and several letters were written him by King, calling his attention to this matter. After the lapse of about two months he did send the policies by mail, but upon examination it was found there had been no transfer by the company to the purchasers. The policies were received on Thursday, and on Saturday night following the buildings and improvements were consumed by fire. The policies, while issued by good and solvent companies, were not collectible by Harper, the vendor, for the reason he had sold and conveyed the property to the defendant; nor were they collectible by the defendant, since there had been no assignment or transfer of the insurance; so that, when the fire occurred, the defendant suffered a total loss of his improvements. The record shows further that when the policies were received on Thursday, and the defendant discovered there had been no transfer or assignment of the insurance, he...