McCreary v. McCorkle

• Decision Date: 19 August 1899
• Citation: 54 S.W. 53
• Parties: McCREARY v. McCORKLE et al.
• Court: Tennessee Supreme Court

54 S.W. 53

McCREARY v. McCORKLE et al.

Court of Chancery Appeals of Tennessee.

August 19, 1899.

Appeal from chancery court, Knox county; H. B. Lindsay, Chancellor.

Bill by W. L. McCreary against Josephine E. McCorkle and others to foreclose a trust deed. From a decree in favor of plaintiff, both parties appeal. Modified.

Templeton & Carlock, for complainant. Welcker & Parker, for defendants.

BARTON, J.

The contest in this case is as to the respective interests of the several parties in a lot of land situated in the city of Knoxville. The original bill in the case was filed to collect a promissory note, and to foreclose a deed of trust which had been made to secure the note in question, the deed having been made to John W. Green, trustee, by the defendant Mrs. Josephine E. McCorkle and her son M. H. McCorkle. The bill alleges that M. H. McCorkle was the principal on a note, and his mother, Josephine E. McCorkle, surety, and that the mother, Josephine E. McCorkle, was the real owner of the entire interest in a lot of land described, which she conveyed to secure this debt of her son. But it was further alleged that it was claimed by and on behalf of the defendants Frank and Jesse McCorkle and the other defendants that Josephine E. McCorkle was not at the time of the execution of the deed of trust the owner of the land, but that the land was at that time owned by M. H. McCorkle, Frank McCorkle, and Jesse E. McCorkle, as the only children and heirs at law of Franklin McCorkle, deceased. The bill sought to have the claim alleged to be made on behalf of defendants set aside as a cloud on the title to the lot, to have the right and title to the lot settled, and the mortgage which had been executed by Josephine E. McCorkle and M. H. McCorkle foreclosed, and for a judgment on the note. The bill was answered by Green, as trustee, as to whom no question is now raised, by the defendant Frank McCorkle, who answered for himself, and by Jesse E. McCorkle, who was a minor, by J. C. Ford, guardian ad litem. Josephine McCorkle and M. H. McCorkle filed no answers and made no defense, and pro confesso was taken as to them. The chancellor, after proof, rendered a decree, from which both parties appealed, and the question before us is as to the right, title, and interest of these defendants in and to the lot in question.

The complainant is the owner and holder of the note, executed by M. H. McCorkle and Josephine E. McCorkle, dated January 10, 1893, payable to the order of Haynes, Henson & Co., for $1,500, with interest from date, on which there is indorsed a credit, March 2, 1893, for $112.42. On January 10, 1893, Josephine E. McCorkle and M. H. McCorkle made and executed the deed of trust which this bill was filed to foreclose, by which they conveyed, or assumed to convey, the lot in question to John W. Green, trustee, to secure the note sued on; and no question is made in behalf of these two defendants but this deed conveyed whatever interest these two parties had in and to the lot in question and were authorized to convey, but the real contest arises upon the following state of facts: The lot in question, together with other real estate, on and prior to November 15, 1870, was owned by the heirs of Hu A. M. White, deceased, these heirs being six in number, and who were Margaret C. White, Caroline H. McGhee, formerly Caroline H. White, then the wife of C. M. McGhee, Ann E. Cowan, formerly Ann E. White, the wife of James D. Cowan, C. B. White, Lucy G. White, and E. W. White. On November 15, 1870, C. M. McGhee and James D. Cowan, acting as agents of these children and heirs at law of Hu A. M. White, deceased, contracted to sell to J. M. Mayfield this lot, and to that end executed to Mayfield a title bond. On February 15, 1872, Mayfield sold the lot to Franklin McCorkle, who, in consideration therefor, assumed payment of the notes given by Mayfield, and paid Mayfield for the expenditure made by him. On February 19, 1872, the heirs of Hu A. M. White executed a power of attorney to Robert Craighead, by which they named and appointed him attorney in fact, and authorized him to bargain, sell, transfer, and convey any and all part of the tract of land located in Knox county, known as "White's Addition," in which this lot was located, and any other land of which the said Hu A. M. White had died seised, and generally appointed and constituted Craighead their attorney in fact for them in reference to said land. This power of attorney is fully set out on pages 21, 22, and 23 of the record, and was properly executed and acknowledged before a notary public. But two of these heirs, as seen, were at the time married women. The certificate to this power of attorney shows a privy examination of them. The acknowledgment of the bargainors and makers of this power of attorney was taken on February 19, 1872. On the same date this attorney in fact, Robert Craighead, executed and acknowledged a deed to Franklin McCorkle for the lot in question. This deed was as follows:

"This indenture, made and entered into this the 15th day of February, 1872, by and between Robert Craighead, attorney in fact for the heirs of Hu A. M. White, deceased, of Knox county, Tennessee, party of the first part, and Franklin McCorkle, of the same county and state, party of the second part, witnesseth: That whereas, on the 1st day of August, 1870, C. M. McGhee and James D. Cowan, as agents for the heirs of Hu A. M. White, deceased, executed to one J. M. Mayfield their title bond, wherein and whereby they bound themselves to make unto the said Mayfield a warranty deed to lot number sixty-four (64), in White's addition to Knoxville, upon the payment to them by said Mayfield of two notes therein described, as follows: to wit, each note for seven hundred and sixty ($760.00) dollars, both made by J. M. Mayfield and Ella S. Mayfield, at Knoxville, Tennessee, one on the 1st day of November, 1870, and the other on the 1st day of August, 1870, both payable to the order of C. M. McGhee and Jas. D. Cowan, agents for the heirs of Hu A. M. White, deceased, and both notes bearing interest at the rate of 6 per cent. per annum, payable annually, and both notes expressing upon their face that they are given in payment for lot No. 64 in White's addition to Knoxville, and both notes having on their face a waiver of all claims under the homestead law, and all other laws exempting property from execution, and acknowledging said lot to be bound for the payment of said notes; and whereas, said Mayfield has surrendered said title bond to the party of the first part, directed said first party to make a deed to the party of the second part for said lot, and has procured said second party to assume the payment of said two notes, and to pay a certain other note for $167.05, secured by a deed in trust from said Mayfield and his wife to Jno. M. Brooks, trustee, made July 14, 1871, and registered in the register's office of Knox county in Trust Book A, Vol. 1, p. 553: Now, therefore, in consideration of the premises, the party of the first part has this day bargained, sold, delivered, conveyed, and confirmed, and by these presents doth bargain, sell, alien, convey, and confirm, unto the party of the second part, that certain lot of land designated upon the plot of White's addition to Knoxville as lot No. (64) sixty-four, — to have and to hold unto the said second party, his heirs and assigns, forever, the aforegranted premises, together with all and singular the rights, privileges, tenements, hereditaments, and appurtenances thereunto belonging; and the said first party covenants to and with the said second party that he is lawfully seised of said lot, and has a good right to convey the same, and that the heirs of the said Hu A. M. White will forever warrant and defend the title to said lot against the lawful claims of all persons whomsoever. A lien is hereby expressly retained on said lot to secure the payment of said two notes the payment of which has been assumed by said second party. In witness whereof I have hereunto set my hand and affixed my seal the year and day above written. R. Craighead, Attorney in Fact. Witness: James B. Kennedy, Jno. M. Brooks.

"State of Tennessee, Knox County. Personally appeared before me, J. S. A. Blang, clerk of the county court of said county, R. Craighead, attorney in fact, with whom I am personally acquainted, and who acknowledged that he executed the foregoing instrument for purposes therein contained. Witness my hand at office in Knoxville, the 19th day of February, 1872."

It further appears that Franklin McCorkle took possession of this tract of land, and he, together with his wife and children, lived upon it until his death, and afterwards his widow, Josephine E. McCorkle, occupied it until the bringing of this suit, together with his children. The proof also shows that Franklin McCorkle died intestate, leaving as his only children and heirs at law the defendants M. H. McCorkle, Franklin McCorkle, and Jesse McCorkle. Franklin McCorkle died in January, 1885. It is shown that neither the widow nor the children knew of the precise condition of the title. On these facts the defendants rely.

It further appears, however, that on November 1, 1883, another deed was executed and properly acknowledged, with proper privy examination, as to all the heirs of Hu A. M. White, deceased. This deed is as follows: "Deed. James D. Cowan and others to Franklin McCorkle et al. Know all men by these presents, that we, M. C. White, C. M. McGhee and wife, Jas. D. Cowan and wife, E. W. White, C. V. White, Thomas Rogers and wife, heirs of Hugh A. M. White, deceased, all of the county of Knox and state of Tennessee, did heretofore, to wit, on the 15th day of November, 1870, through our agents, C. M. McGhee and James D. Cowan, sell to J. M. Mayfield one lot of land situated in the 12th civil district of Knox county, and known as lot No. 64, in White's addition to Knoxville, and...