Lowe v. Wright

• Decision Date: 30 March 1956
• Parties: G. Gilbert LOWE et al. v. J. Douglas WRIGHT et al.
• Court: Tennessee Court of Appeals

Page 413

292 S.W.2d 413

40 Tenn.App. 525

G. Gilbert LOWE et al. v. J. Douglas WRIGHT et al.

Court of Appeals of Tennessee, Middle Section.

March 30, 1956 Certiorari Denied by Supreme Court July 20, 1956.

J. L. Reynolds, Nashville, for G. Gilbert Lowe, and others.

Denney, Leftwich & Glasgow, Nashville, for J. Douglas Wright, and others.

Ned Lentz and Morris Levine, Nashville, for William H. Robin.

Hume, Howard, Davis & Boult, Nashville, for Globe Indemnity Co.

Bass, Berry & Sims, Nashville, for First American National Bank.

FELTS, Justice.

Complainants filed the bill to cancel and remove as a cloud on their title a deed by the terms of which they conveyed to defendants a tract of 3.74 acres of land, fronting on Old Hickory Boulevard and Dickerson Road in Davidson County, for a consideration of $10,000 cash in hand paid. The ground of relief alleged was that the deed was a forgery.

Defendants denied that the deed was a forgery and averred that they had bought the land in good faith through complainants' agent E. W. Parrish for $10,000 and had paid for it by three checks--a check to him for $1,000 as earnest money, a check to him for $100 for a title policy, and a check for the balance of $8,900 to complainants; and that the agent had delivered to defendants a deed which appeared to have been properly signed and acknowledged by complainants before W. H. Robin, a notary public in Davidson County.

Defendants Wright and wife filed their answer as a cross bill bringing in as additional defendants Robin, the notary public, Globe Indemnity Company, surety on his bond as notary, and the First American National Bank which had issued a cashier's check to complainants for $8,900, in lieu of the personal check which defendant J. Douglas Wright had issued to them for $8,900.

Defendants alleged in their cross bill that if there was any fraud in the transaction, it was the fraud of complainants' agent Parrish, for which complainants were liable; that if the deed was not properly signed and acknowledged by them before the notary, he and his surety were liable for his improper certification of the acknowledgment; and that the Bank was liable for its negligence in not putting on the cashier's check the words which were on Wright's check, viz.: 'In full payment for lot, corner Old Hickory Blvd. and Dickerson Road'.

Answers were filed to the cross bill, a large amount of proof was taken, and the cause heard before the Chancellor. He filed an opinion holding that the deed was a forgery but that complainants were not entitled to have it cancelled and removed as a cloud on their title except upon repayment of $8,900 which they had received from defendants by way of the cashier's check. He further held that the notary and his surety were liable under the cross bill; and that the Bank was not liable.

He entered a decree that the title would remain vested in defendants unless complainants paid the sum of $8,900 into court within 60 days, and if they did, the title would be vested in them; that the notary and his surety were liable to defendants Wright and wife for such damages as they sustained by the notary's wrongful certification of the acknowledgment, and a reference was ordered to fix the amount thereof; that the cross bill was dismissed as to the Bank; and that the decree was without prejudice to complainants' rights, if any, against the notary and his surety.

All the parties acquiesced in this decree except complainants, G. Gilbert Lowe and wife Martha Lowe, and cross defendant William H. Robin, the notary public. These parties appealed and have assigned errors. We first consider the matters raised by complainants' assignments.

They insist that the deed was a forgery, utterly void, passed no title, and the Chancellor should have removed it as a cloud on their title, without condition--without requiring them to pay $8,900 into court; that the Chancellor erred in holding that E. W. Parrish had any authority, real or apparent, as their agent to sell this land, and that Wright was not negligent in purchasing it without inquiring as to such authority; that the Chancellor erred in holding Wright was not negligent in not seeing that the Bank put on its cashier's check the same notation he had had on his check; and that the Chancellor erred in dismissing the cross bill as to the Bank.

The parcel of land in suit was part of a tract of 70 acres of land, lying on Old Hickory Boulevard and Dickerson Road, which was given to G. Gilbert Lowe by the will of his great uncle. See, Nashville Trust Co. v. Grimes, 179 Tenn. 567, 569, 167 S.W.2d 994. In September 1951, he had this 70-acre tract surveyed and a plat made of it; and in January 1952, he employed E. W. Parrish, a Nashville realtor, as his agent to develop and sell a subdivision of it. Some 50 acres of this tract was subdivided into 45 lots, each lot containing about an acre, and Parrish had a plat made of it, naming it 'Hickory Acres Subdivision * * * G. Gilbert Lowe, owner; E. W. Parrish Realty Company, developer' (Ex. map).

The 3.74 acre lot here involved was not in that subdivision but lay just east of it. But Parrish put on this lot a large 'For Sale' sign at the same time he erected some 20 or more 'For Sale' signs on these 45 lots. He was engaged in selling these lots and had sold some 11 of them at the time he sold this 3.74 acre lot to Wright. His sales of those 11 lots to other persons were made under circumstances more or less similar to those of his sale of this lot to Wright.

Complainants were living near Henderson in Chester County, Tennessee, but had recently lived in Nashville and frequently came back to Nashville and this subdivision. They entrusted Parrish with wellnigh unlimited authority in selling these lots. He told them he had a notary public who knew the signatures of each of them and it was not necessary for them to go before the notary to acknowledge the deeds. He would have one or the other of them sign the names of both of them to the deeds, have the notary affix his seal and certificate to them in proper form, deliver them to the purchasers, receive the purchase money, and later account to complainants.

Complainants were not ignorant or illiterate. Mr. Lowe was 42, had had three years in a university, and was a teacher of agriculture; and Mrs. Lowe was mature, intelligent, and well educated. Nor were they inexperienced. They had conveyed parts of this 70-acre tract by two deeds which they had properly signed and acknowledged. Nevertheless, they approved Parrish's sales of 11 of these lots when not one of these deeds had been properly signed and acknowledged by them. They later ratified all of these deeds.

Parrish was often delinquent in his payments of the sums due complainants from these sales. In April 1953, he had delivered their deeds and closed sales of three lots, but had not paid them the proceeds. He owed them $1,150.85 on each of these lots, or $3,452.55, and two of his checks for $1,150.85 each, one dated April 6, and one April 7, 1953, had been dishonored. The Lowes were pressing him for payment. On April 27, 1953, Mrs. Lowe met him at a bank in Nashville, he handed her $1,000 in money, and she got a cashier's check for that amount; and on May 1, 1953, he delivered to complainants the cashier's check for $8,900, under circumstances hereinafter set out.

About April 1, 1953, Wright saw Parrish's 'For Sale' sign on this 3.74 acre lot, telephoned Parrish about it, and was told by Parrish that it was for sale. Wright offered $8,500 for it, but Parrish said this offer was not enough and he would not submit it to the Lowes. Some three weeks later, Parrish told Wright they would sell this lot for $10,000 cash. Wright agreed, Parrish had him sign a contract and give Parrish a check for $1,000 as earnest money on April 27, 1953.

On April 30, 1953, Parrish had Wright meet him at the First American National Bank, Melrose Branch, where he delivered the deed, and Wright gave him a check for $100 for the title policy and a check to complainants for $8,900, marked: 'In full payment for lot, corner Old Hickory Blvd. and Dickerson Road'. Parrish then said the Lowes would not take a personal check but required a cashier's check. Wright asked the teller to put this same notation on the cashier's check; but left before the check was completed. It did not bear that notation, but was payable to the order of 'G. Gilbert Lowe & Martha Lowe', dated May 1, 1953, for $8,900.

On May 1, 1953, Parrish brought this $8,900 cashier's check to the Lowes' home, told them that he had just closed a deal in Shelbyville and the proceeds of this check, payable to them, belonged to him; that the person issuing the check knew he owed them and wanted them to get their money out of it and made it payable to them for that reason. Parrish and Lowe went to the First State Bank in Henderson, and Lowe deposited this $8,900 cashier's check to the joint account of himself and Mrs. Lowe in that bank. Deducting $2,452.55, as the amount Parrish owed them, Lowe had the bank issue to Parrish a cashier's check for $6,000 and give him $447.45 in money.

Thus it appears that Parrish, as agent for complainants, negotiated a contract for them to sell this land to the Wrights; that he received the purchase price in the form of two checks to himself (for the earnest and for the title policy) and a check to them for $8,900, which they received in the form of a cashier's check; and that he delivered a deed for them conveying this land to the purchasers, the Wrights.

Complainants claim that Parrish had no authority to act as agent for them in any part of this transaction; that they did not sign their names to this deed or authorize him to negotiate any contract to sell this land to the Wrights, or to receive any of the purchase price. This raises the questions of how authority is to be evidenced, and whether it has been proved in this case.

To authorize an agent to execute a...