Milam v. Milam

• Decision Date: 16 February 1918
• Citation: 200 S.W. 826,138 Tenn. 686
• Parties: MILAM v. MILAM ET AL.
• Court: Tennessee Supreme Court

200 S.W. 826

138 Tenn. 686

MILAM v. MILAM ET AL.

Supreme Court of Tennessee.

February 16, 1918

Appeal from Chancery Court, Davidson County; Jas. B. Newman Chancellor.

Bill by Ellen C. Milam against Robert M. Milam and others. From a decree for complainant, defendants appealed to the Court of Civil Appeals, which reversed, and complainant appeals. Decree of the Court of Civil Appeals reversed, and cause remanded to the chancery court for further proceedings consistent with the opinion.

Thos W. Wrenne and M. P. O'Connor, of Nashville, for complainant.

Jas. A Ryan, of Nashville, guardian ad litem.

WILLIAMS J.

The bill of complaint was filed to enforce a lien upon realty for the repayment of a sum advanced by complainant toward its purchase.

Robert M. Milam, the son of complainant, Ellen C. Milam, married, and he and his young wife were desirous of purchasing a home in one of the best residential sections of the city of Nashville. He had only $1,700, and the property they preferred would cost approximately $7,000. Complainant advanced the difference, paying the sum to the owner vendor, Ogden, under an agreement with her son and daughter that she was to have a lien upon the property for the security of its repayment to her. Accordingly, a deed was executed by Ogden to Kate S. Milam, the young wife, to her general estate; and Robert M. and Kate S. Milam executed to the complainant a series of notes to represent the advancement sum. On the back of each note was written this agreement, which described the property in question:

"This note is secured to its face value by a first lien on the property on the southwest corner of Twentieth avenue and Broad street, known as lot No. 213 of O. B. Hayes' plan, Nashville, Tennessee. In acknowledgment hereof, witness our signatures attached.

Robert M. Milam.

Kate S. Milam."

There was no acknowledgement of this indorsed stipulation.

Mrs. Kate S. Milam died, leaving three small children, after having retired some of the notes of the series. The bill was filed to enforce payment of those notes that remained unpaid.

The guardian ad litem of the defendant minor children urges in their behalf that the attempt to declare a lien upon the land, by said indorsement, must fail because Kate S. Milam was a feme covert, incapable of contracting to that end at the date of the transaction without privy acknowledgement, and, further, that the court lacks power to declare and enforce any equitable remedy, if that attempt to fix a lien be invalid.

The chancellor declared a lien in favor of complainant, but on appeal the Court of Civil Appeals reversed this ruling. That court states that the case is one of hardship on complainant, but--

"that we are unable to discover wherein we can give her any relief, but we express the hope that the higher court can do what we are unable to do: Find a way for her out of this difficulty."

Must a court of equity confess its inability to afford relief in a case of such manifest hardship? If so, an age-long boast of equity must fail of vindication.

The Court of Civil Appeals states that a decision of this court was a barrier to the rendition of what it deemed a just decree.

In that case, Durant v. Davis, 10 Heisk. (57 Tenn.) 522, it appeared that Elizabeth Davis, a married woman, borrowed of Mrs. Durant $500 with which to make the partial cash payment on a lot in Memphis, promising to give a mortgage on the lot to secure the same. A note was executed for the amount. Upon a bill being filed setting up two theories--one of a resulting trust, and the other of complainant's subrogation to a vendor's lien--the court held that Mrs. Durant was entitled to neither remedy. There was no allegation or prayer in the bill of complaint in respect of an equitable lien as a remedy distinct from the two that were sought.

It is upon that distinct doctrine, some phases of which have been developed in comparitively recent years, and since the decision in Durant v. Davis, that a number of courts have awarded relief on such facts as are presented on this record.

Chancellor Cooper, in Brown v. Bigley, 3 Tenn. Ch. 618, remarked that the inclination of the courts of this country has been to enlarge the doctrine of the equitable lien or charge, with a view to the attainment of justice, without much respect for the technical restrictions of the common law. It might be added that, in part, at least, the expansion of the doctrine has been for the purpose of meeting the demands of justice in cases where other and earlier developed equitable remedies had themselves proved inadequate because of the fact that they had become formalized and encrusted by limiting or restrictive rules. Equity in that attitude was forced to do for doctrines of her own formulation what she had originally set herself to do for those of the common law--afford amelioration in respect of their rigidity and lack of pliability to bring as a product a just result in a decree settling the rights of litigants. An illustration of this is found in the doctrine of subrogation, a creation of equity, or rather a graft on equitable jurisprudence from the civil law. The steady growth and expansion of that doctrine in importance and in liberality of application to various subjects and classes of persons has often been commented on by judges and law writers.

It has been said that the doctrine of equitable lien, in certain aspects, is not essentially different from that of the doctrine of subrogation, and, similarly, it is applied in cases where the law fails to give relief and justice would miscarry but for its declaration. The doctrine, however, does not afford a remedy without recognized bounds, nor is it "to be applied according to the measure of conscience of the particular chancellor any more than," as an illustrious law writer said, "to the measure of his foot." Equity called it into being, and enforces it on the principle that a person, having gotten property of another, ought not in good conscience to retain it as a thing freed of obligation to respond.

An equitable lien, strictly speaking, is not a jus in re or a jus ad rem, but is the right to have the property subjected in a court of equity to the payment of the claim.

It is a floating equity until action by the court is invoked.

"Even in the absence of an express contract, a lien, based upon the fundamental maxims of equity, may be implied and declared...