Meador v. Meador

• Decision Date: 31 December 1870
• Citation: 50 Tenn. 562
• Parties: Susan J. Meador v. Henry L. Meador, et al.
• Court: Tennessee Supreme Court

50 Tenn. 562

Susan J. Meador

v.Henry L. Meador, et al.

Supreme Court of Tennessee.

December Term, 1870.

FROM SMITH.

In Chancery at Carthage, before B. M. TILLMAN, Chancellor.

The bill alleged that the defendant, Joseph Meador was in possession of the deed of W. A. Meador, late husband of complainant, and that he claimed to hold it under a parol mortgage and deposit of the deed. That he had sold the land to co-defendant, Jones, and made him a deed, and prayed the delivery of the deed deposited, and the cancellation of the other deed as a cloud. That W. A. was dead, and Henry L. Meader, defendant, his heir at law, and defendant Duke, his administrator. The answers set up the deposit as an equitable mortgage, and, by way of cross bill, asks “if no lien exists,” a sale of the land and the application of the fund to the payment of the debts of defendant.

The decree below, reciting that it appearing that the deed “was delivered to the said Joseph Meador by the said W. A. Meador, deceased, intending thereby to secure the said Joseph Meador for his liabilities as security, and otherwise, of the said W. A. Meador, deceased;” declared that the delivery of the deed of W. A. Meador to defendant Joseph Meador did not create a lien or mortgage on the land in favor of Joseph Meador, and that complainant was entitled to dower and the residue of the fund, subject to the payment of all just debts outstanding--it adjudged that the title to the land was “in the heirs of W. A. Meador, deceased, and that the deed from Joseph Meador to his co-defendant, was void, and a cloud upon the title of the heirs at law of W. A. Meador, deceased, and shall be for naught held.”

From this decree the defendants appealed.

James W. McHenry, for Duke, cited Russell v. Russell, 1 Bro., 269; 4 Kent, 150, 151, 168; Coote, 222; 1 Hil. on Mort., 3rd ed., 650, 662; 2 Sto. Eq. Jur., sec. 1020; 2 Greenl. Cruise, 85; Gilliam v. Esselman, 5 Sneed, 88;Barfield v. Code, 4 Sneed, 465;Arendale v. Morgan, 5 Sneed, 703.

John W. Head, for respondents, said: In England, an equitable mortgage may be created by the deposit of title deeds, and is not within the statute of frauds: Russell v. Russell, 1 Bro., 269; Birch v. Ellames, 2 Anst., 427; 4 Kent, 150; Willard's Eq. Jur., 440; Ex parte Whitbread, 19 Ves., 209; 2 East R., 486; 2 Ves. & Beames, 79; 12 Price, 597; 2 Mylne & K., 417, 419. This doctrine has been repeatedly recognized in New York, though they have Registry laws similar to ours: Jackson v. Parkhurst, 4 Wend., 376;1 Johns. Cas., 114; 2 J. C. R., 603; 2 Sandf. Ch., 9; Willard's Eq. Jur., 440. Some of the other States have recognized the same doctrine, and it has been recognized by the Supreme Court of the United States in Mandeville v. Welch, 5 Wheat, 284. The question has not been directly decided in Tennessee. The cases cited in 1 Heis., Dig., do not sustain the doctrine there laid down. Barfield v. Cole, 4 Sneed, 465, draws the distinction between a pledge and a mortgage, and decides that a mortgage, under the act of 1831, does not take effect as to creditors until registered. Gilliam v. Esselman, 5 Sneed, 86, does not raise the question, and the language of McKinney, J., is a dictum. If it were a decision, the Judge is referring to legal, not equitable mortgages. The case does not decide that equitable liens can not exist without writing. In Arendale v. Morgan, 5 Sneed, 703, it was...