Marlin v. Merrill

• Decision Date: 24 May 1941
• Citation: 156 S.W.2d 814
• Parties: MARLIN v. MERRILL.
• Court: Tennessee Supreme Court

156 S.W.2d 814

MARLIN v. MERRILL.

Court of Appeals of Tennessee, Middle Section.

May 24, 1941.

Rehearing Granted July 12, 1941.

Certiorari Denied by Supreme Court December 6, 1941.

Appeal in Error from Circuit Court, Davidson County; E. F. Langford, Judge.

Action of replevin by Mrs. J. D. Marlin against Mrs. Ella Merrill for possession of an automobile. Bracey-Welsh Company and another filed an intervening petition on behalf of themselves and all other

creditors of William F. Gardner, deceased, to have automobile declared a part of estate of deceased, after plaintiff appealed to circuit from judgment of the court of general sessions. From an adverse judgment, the plaintiff and petitioning creditors appeal in error.

Judgment in accordance with opinion.

James W. Stokes, of Nashville, for plaintiff in error.

J. G. Lackey, Jr., of Nashville, for intervening petitioners.

A. P. Ottarson, Jr., of Nashville, for defendant in error.

FELTS, Judge.

This is an action of replevin by Mrs. Marlin against Mrs. Merrill for possession of an automobile, which each of them claims as a gift from William F. Gardner, deceased brother of Mrs. Marlin. The court of general sessions adjudged that the car be restored to Mrs. Merrill and in default of which she recover $425 of Mrs. Marlin and the surety on her replevin bond. Mrs. Marlin appealed to the circuit court. That court, holding the case could be brought up only by certiorari, dismissed the appeal. The Supreme Court, holding an appeal the proper remedy, reversed and remanded the case. Marlin v. Merrill, 176 Tenn. 63, 138 S.W.2d 418.

On the remand Bracey-Welsh Company and Dr. Bate Dozier filed an intervening petition on behalf of themselves and all other creditors of William F. Gardner, deceased. This petition alleged that William F. Gardner died March 13, 1939, and Mrs. Marlin qualified as his administratrix; that the assets of the estate, as shown by her inventory, amounted to only $121, while the claims filed against the estate amounted to $615.15; that the estate was insolvent; and that the bills of sale under which Mrs. Marlin and Mrs. Merrill claimed the automobile were without consideration and were "null and void as a fraud on the creditors of W. F. Gardner, deceased." The prayer was "that said bills of sale to plaintiff, Mrs. J. D. Marlin, and to defendant, Mrs. Ella Merrill, as described above, be decreed null and void and set aside, and said automobile be declared a part of the estate of said W. F. Gardner."

Mrs. Marlin, in her capacity as administratrix, was not made a party. Nor did she answer the petition in her individual capacity. Mrs. Merrill filed a plea that the court had no jurisdiction of the subject matter of the petition, since the "court cannot set aside a conveyance for fraud, mistake or duress." She also demurred to the petition upon the grounds that it did not show that the insolvency of the estate had been suggested, and that the administratrix was not a party. She also filed an answer alleging that W. F. Gardner had given her the automobile, denying that Mrs. Marlin was ever the owner of it, and denying that the creditors had any right to take it from her.

The circuit judge overruled the plea and the demurrer. Hearing the case, without a jury, upon the testimony of witnesses called by Mrs. Marlin and Mrs. Merrill, the court dismissed the petition, affirmed the judgment of the court of general sessions and rendered judgment that Mrs. Merrill recover $425 of Mrs. Marlin and the surety on her replevin bond, the judgment to be satisfied by the return of the property replevied. The costs were also adjudged against Mrs. Marlin and her surety.

Mrs. Marlin and the petitioning creditors appealed in error. She insists that the court should have upheld the gift to her and awarded her the car. They insist that the court should have held that both gifts, being without consideration, were fraudulent and void as to creditors, and should have awarded them possession of the car, and directed that it be sold for the payment of the claims of themselves and the other creditors.

W. F. Gardner had been employed for many years by the Bell Telephone Company at Louisville, Kentucky. Shortly before January 1937, the company retired him on a pension. A short time before his retirement he and his wife separated in Louisville. He made a property settlement with her and she obtained a divorce and the custody of their daughter. The daughter is now 21 years of age. He came to Nashville in January 1937, to live in the home with his only sister, Mrs. Marlin. At this time he seems to have owed no debts and to have had some money on hand.

On March 27, 1937, he went to Louisville, Kentucky, and bought the automobile here in question, a Ford sedan, paying cash therefor and having the seller execute a bill of sale reciting that the car was transferred to "Mrs. John D. Marlin, 309 Russell Street, Nashville, Tennessee." He brought the car to Mrs. Marlin's home. Her testimony is that he gave her the keys and insisted that she and her husband drive the car to see how well it ran and that they did drive it to Gallatin and back that night. On April 2, 1937, Gardner went to the court house in Nashville and had the car registered in the name of Mrs. Marlin. She had no garage at her home and Gardner rented a garage in the neighborhood, where the car was kept. She kept one set of keys and he kept the other, both of them using the car. Her testimony is that when she did not want him to use the car (usually when he was drinking), she would make him give her his keys to the car. On March 16, 1938, he had the car registered in his own name; but Mrs. Marlin says this was done without her knowledge.

In the spring of 1938, Gardner began to drink to excess. On the night of June 12, 1938, he came home under the influence of drink, and Mrs. Marlin's son "got after him for drinking and using bad language in the presence of his mother." Gardner "got mad and left the house that night," taking the car with him. He went to board with a Mrs. Kirkpatrick for a short time. Later he bought a "restaurant on wheels," located on Fourth Avenue, South, Nashville, and lived in a room on the back end of the restaurant. Mrs. Merrill worked for him at the restaurant during the daytime, using the car to go to her home on Woodland Street in the afternoons and to return to the restaurant in the mornings.

Mrs. Marlin did not hear from her brother from June 12, 1938 until February 1, 1939, when she learned that he was sick at the Merchants Hotel on Broad Street. She went there to see him, found him seriously ill, called a doctor and had him removed to Dozier's Hospital. Here he was operated on, but his condition was found to be such that the operation could do him no good and it was seen that he could live only a short while. Mrs. Marlin wrote Gardner's daughter to come to see him. Mrs. Marlin says she saw Mrs. Merrill at the hospital and asked her "to send my car back home, as Mary Floyd (Gardner's daughter) will want to use the car in going back and forth from the hospital to see her father." Mrs. Merrill says that Mrs. Marlin asked her to send "her brother's car over to her home" for the daughter's use.

However, the car was not sent. That day or the next day Gardner executed a bill of sale of the car to Mrs. Merrill, which was witnessed by two nurses at the hospital, and which recited a consideration of $10 cash paid. But this was not paid, and Mrs. Merrill claims the car as a gift. The date of this bill of sale was February 9, 1939. On the next day Mrs. Merrill had the license transferred to her. Mrs. Marlin did not learn of the gift of the car to Mrs. Merrill until after her brother's death.

A few days after the operation upon Gardner, Mrs. Marlin, at his request, took him to her home and nursed him until his death on March 13, 1939.

Mrs. Marlin qualified as his administratrix. His estate consisted of $101 cash in bank and certain wearing apparel of no money value. The debts filed against the estate aggregate $615.15. The claim of Bracey-Wels Company for $392.87 was for the funeral expenses. The claim of Dr. Bate Dozier for $16, and the claim of D. S. Tatum for $25 were for doctors' bills and expenses incident to Gardner's last illness. His former wife, Mrs. Aline B. Gardner, filed a claim for $175, which was for some telephone stock which he had sold for her about six months before his death and had never sent her the money. The other claim was that of the Gulf Refining Company for $6.28.

Replevin is a possessory action, and it is unnecessary to prove title. But plaintiff must prove his right of possession. Young v. Harris-Cortner Co., 152 Tenn. 34, 39, 268 S.W. 1120. If the right of the property or its possession is in defendant or in a stranger, plaintiff will be defeated. Lieberman, Loveman & O'Brien v. Clark, 114 Tenn. 117, 126, 127, 85 S.W. 258, 69 L.R.A. 732; Robb v. Cherry, 98 Tenn. 72, 76, 38 S.W. 412. As stated, Mrs. Marlin asserted no right to the car as administratrix. The only right asserted by her to support her action to recover possession of the car was that her brother had made a valid gift of it to her. The burden was on her to establish such a gift. If the evidence failed to establish the gift, the judgment against her was correct, irrespective of whether Mrs. Merrill or the petitioners were entitled to possession of the car.

To constitute a valid gift the evidence must show not only an intention on the part of the donor to make the gift but also a delivery by him of the subject of the gift to the donee. There is no delivery unless dominion and control of the subject of the gift, to the fullest extent consistent with its nature, is renounced and relinquished by the donor and acquired by the donee. Williams v. Thornton, 160 Tenn. 229, 232, 22 S.W.2d 1041; Chandler v. Roddy, 163 Tenn. 338, 350, 43 S.W.2d 397; Dietzen v. American Trust & Banking Co., 175 Tenn. 49, 54, 131 S.W.2d 69,...