Myers v. Comer
| Decision Date | 29 October 1921 |
| Citation | 234 S.W. 325 |
| Parties | MYERS et al. v. COMER et al. |
| Court | Tennessee Supreme Court |
Action by Anna Bell Myers and others against John Comer and others in ejectment, for partition and accounting for rents. Demurrer to bill sustained, and bill dismissed, and complainants appeal. Decree reversed, and cause remanded.
J. N. Russell, of La Follette, for Anna Bell Myers and others.
Jesse L. Rogers, of La Follette, for John Comer and others.
This is an action in ejectment. The bill was filed by complainants, grandchildren and heirs at law of Mrs. Sarah Bailey, who died intestate in Campbell county some time prior to the year 1906 — the exact date of her death is not stated in the bill — to recover an undivided one-half interest in a certain tract of land situate in the First civil district of Campbell county, which is specifically described in the bill, for a sale thereof for partition amongst the rightful owners, and for an accounting for rents.
The bill alleges: That the said Sarah Bailey died seized and possessed of said interest in fee by virtue of a certain deed executed by David Usher on January 6, 1871, to John Bailey and his wife, Sarah. The granting clause of the deed from David Usher to John Bailey and his wife, Sarah, is as follows:
"This indenture, made and entered into this 6th day of January, 1871, between David Usher of the first part and John Bailey and his wife, Sarah Bailey, of the second part, all of the county of Campbell and state of Tennessee, witnesseth: that said David Usher for and in consideration of the sum of two hundred and fifty dollars to him in hand paid, the receipt of which is hereby acknowledged, hath bargained, sold and by these presents doth bargain, sell and convey, unto John Bailey and his wife, Sarah Bailey, their heirs and assigns forever jointly and severally in equal moities, a certain tract or parcel of land lying and being in the county of Campbell and state of Tennessee, civil district No. 1 and bounded as follows." [Then follows the description.]
That it was the intention of the grantor, David Usher, and the effect of the deed was, to vest the title to said land in John Bailey and his wife, Sarah, as tenants in common, and upon the death of the said Sarah complainants became the owners in fee, by inheritance from their grandmother, of an undivided one-half interest in said land.
That on July 24, 1906, notwithstanding complainants were the owners of an undivided one-half interest in said land by virtue of such inheritance, John Bailey, who survived his wife, undertook to convey, by deed, said tract of land to the defendant, Sarah Comer, wife of defendant, John Comer; and that John Comer and wife Sarah, as complainants believe and charge, have since undertaken to convey said land to their codefendants, Scott Stout, Letcher Sharp, and Thomas Chapman, though the deeds executed by Comer and wife to said parties have never been recorded; and that said defendants, acting either under said deeds from Comer and wife, or as naked trespassers, have taken possession of said tract of land and are claiming the same as their own, and are using the same, and are collecting the rents and profits therefrom, notwithstanding complainants are the owners of an undivided one-half interest in said land, and are entitled to the immediate possession of same.
Defendants demurred to the bill, setting up the defense that, under the deed from David Usher to John Bailey and wife, Sarah, they took said land as tenants of the entirety, and not as tenants in common, and that upon the death of his wife, Sarah, the title to said land, in its entirety, became vested in her husband, John Bailey, with full power in him to convey the same, and that by virtue of his conveyance of July 24, 1906, defendant, Sarah Comer, became the owner of said land, and she and her husband had the right to convey it to their codefendants.
The chancellor sustained the demurrer and dismissed complainants' bill, and they have appealed and assigned the decree of the chancellor for error.
While the chancellor's decree does not indicate his reason for sustaining the demurrer, it is manifest that he was of the opinion that, under the deed from David Usher, John Bailey and his wife took said land as tenants of the entirety, and not as tenants in common; this being the only question presented by the demurrer.
In this holding we think there is error.
In Jones on Real Property, vol. 2, § 797, it is said:
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In re Miller
...the part of the grantor to create such a tenancy is presumed, in the absence of an expression of a contrary intention." Myers v. Conner, 234 S.W. 325, 326 (Tenn. 1921). The court finds that under the terms of the Leasehold Deed of Trust, Debtor and Miller contractually altered their rights ......
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In re: KATHY DIANE LAWSON, 10-11001
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Bartley v. Nunley
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Mullens v. Mullens
...the terms of the deed, in equal moieties to the next of kin of the life tenants as provided by our statute of descent. See Myers v. Comer, 144 Tenn. 475, 234 S. W. 325; Teague v. Sowder, 121 Tenn. 168, 114 S. W. 484, and Beecher v. Hicks, 7 Lea, By the terms of the deed, the estate passing ......