McBee v. McBee

• Decision Date: 30 September 1870
• Citation: 48 Tenn. 558
• Parties: Hannah A. McBee v. Adam H. McBee.
• Court: Tennessee Supreme Court

48 Tenn. 558

Hannah A. McBee

v.Adam H. McBee.

Supreme Court of Tennessee.

September Term, 1870.

FROM JEFFERSON.

In the Chancery Court at Dandridge, SETH J. W. LUCKY, Ch., presiding.

Meek & Gratz, for complainants, cited Code, 3183, as to notice of writ of error; Code, 3158, and Owens v. Sims, 3 Col., 544, as to divorce; Code, 4489, 3534 and 3186; 1835, c. 20, s. 16; Lewis v. Baker, 1 Head, 386; McGavock v. Bell, 3 Col., 512, as to purchaser's right; Pryor v. Conner, MS., that a payment of $100 required, was not error in a decree barring redemption.

J. R. Cocke & Henderson, for defendants, insisted that Parmenter v. Parmenter, and Code, 3158, did not preclude relief as to the decree for alimony, and cited Dwarris on Stat., 40. On the decree to bar redemption, they cited Code, 2124, sub. sec. 2.

NICHOLSON, C. J., delivered the opinion of the Court.

Complainant filed her bill for divorce and alimony, against defendant, on the 7th of November, 1864. Defendant being a non-resident, publication was made, and upon his failure to appear and defend, at the June Term, 1865, of the Chancery Court at Dandridge, judgment pro confesso was taken, and the cause set for hearing. The cause was heard at the same term, when a decree was made, dissolving the bonds of matrimony. It appearing to the Court that complainant prayed for alimony, and that to secure this, complainant had procured a tract of land, of about 230 acres, belonging to defendant, to be attached; and the Chancellor, being of opinion that she was entitled to alimony, ordered the Clerk and Master to report what amount would be proper as alimony, and, also, what would be a reasonable compensation to her solicitor.

The Clerk and Master reported that two thousand dollars would be a reasonable allowance as alimony, and that two hundred dollars would be reasonable compensation to her solicitor. This report was confirmed, and the land attached was decreed to be sold. The following is the decree: “That the tract of land mentioned in the pleadings, so attached, be sold in satisfaction of the aforesaid sum of money, and the costs of the suit; and that the Clerk and Master, after giving thirty days' notice, will proceed to sell said land to the highest bidder, on a credit of six months, taking bond and security, and retaining a lien until the purchase money is paid, with the exception of the sum of four hundred dollars, which the Clerk and Master shall require to be paid cash in hand on the day of sale; and out of the proceeds of sale, the Clerk and Master shall first pay the costs of this suit, the solicitor's fee, and the sum of two thousand dollars to the complainant, as her alimony, &c.; and at the special instance and request of complainant, the said land shall be sold without the equity of redemption.”

The land was sold in August, 1865, when it was bid off by a purchaser at two thousand five hundred dollars, of which four hundred dollars was paid in cash, and a note given for the residue, payable at six months. At the December Term, 1865, the sale was confirmed, and the title divested and vested.

On the 30th of August, 1867, defendant petitioned one of the Supreme Judges for a writ of error, which was granted.

It is now moved to dismiss the writ of error, on two grounds: first, because the five days' notice of the application for writ of error was not given; and second, because by section 3158 of the Code, divorce cases can be revised only by appeal.

The answer to the first reason is, that complainant has waived the necessity for notice by appearing--thus answering the object of notice.

The answer to the second reason is, that the bill is not only a divorce bill, but also a bill for alimony. Whilst it is true that errors in divorce cases can only be revised upon appeal, it does not follow that errors in a bill for alimony, as well as divorce, may not be revised by writ of error. The reasons for excepting divorce cases from the general provision allowing writs of error, are special, and have no application to decrees for alimony. Nor is there any necessary connection between divorce and alimony; a divorce may be granted without alimony, and alimony may be granted when no divorce is decreed. Code, 2468. Looking to the intention of the Legislature as our guide, we are satisfied that it was not intended to prohibit writs of error in cases of alimony. Whilst, therefore, any error in this case, as to the divorce, can not be revised by this court, if there are errors in the decree, as to alimony, they are subject to revision by writ of error. In this conclusion, we are not in conflict with the cases of Parmenter v. Parmenter, 3 Head, 225, and Owens v. Sims, 3 Cold., 544.

An examination of the record discloses much irregularity and disregard of the rules of Chancery proceedings, in the ascertainment of a reasonable amount to be allowed for alimony, and as compensation to complainant's solicitor; but as we do not see that either allowance is unreasonable, or that injustice was done to defendant, we refrain from commenting upon these irregularities. The objection to the decree mainly relied on by defendant's counsel, is, that the Chancellor decreed the land to be sold for four hundred dollars in cash, and the residue on a credit of six months; and, at the special instance and request of the complainant, ordered the sale to take place without the equity of redemption. We are aware of no reported case in which the question now raised, has been determined. We must be governed, then, by a fair construction of those provisions of the Code, which secure to the debtor or owner of the land sold, the right of re-purchase or redemption, and of those which authorize the Court to decree sales free from this right of re-purchase or redemption.

The general law is, that all real estate sold under execution, or under a decree, judgment or order of any Court of Chancery, whether founded on a foreclosure of a mortgage, or deed of trust, or otherwise, shall be redeemable at any time within two years after such sale. Code, 2124. By this general law the right of redemption is secured, whether the sale be for cash or on a credit. But this right of redemption is subject to this exception: When, upon application of a complainant, the Court orders that the property be sold on a credit of not less than six months nor more than two years, upon confirmation thereof by the Court, no right of redemption or re-purchase shall exist in the debtor or his creditor, but the title of the purchaser shall be absolute. In such case no right of redemption or of re-purchase exists. Code, 2124 and 4489. By this exception, the complainant may, with the assent of the Court, deprive the debtor of the benefit of redemption secured to him by the general law. In the case of Burrow v. Henson, 2 Sneed, 658, this Court said, that to obtain the benefit of the exception and destroy the right of redemption, the sale must be brought strictly within its provisions. Two things, therefore, must appear...