Myers v. Wolf

• Decision Date: 17 January 1931
• Parties: MYERS v. WOLF et al.
• Court: Tennessee Supreme Court

34 S.W.2d 201

162 Tenn. 42

MYERS v. WOLF et al.

Supreme Court of Tennessee.

January 17, 1931

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Suit by Mrs. Minnie L. Myers against Joe Wolf and others. From a decree of dismissal, complainant appeals.

Reversed and remanded.

Albert Williams, of Lebanon, and S. L. Felts, of Nashville, for complainant.

Carmack Cochran, Jeff McCarn, and S. N. Harwood, all of Nashville for defendants.

SWIGGART J.

Complainant's original bill was filed to enjoin the execution of process in the chancery court, issued under a decree of an independent suit, on the ground that the decree in the former suit was void. After answer had been filed, the chancellor sustained a motion to dissolve a temporary injunction theretofore issued and, it appearing to the chancellor that the injunction was the principal relief sought by the bill, the suit was dismissed. Mengle Box Co. v. Lauderdale County, 144 Tenn. 266, 230 S.W. 963. From the decree dismissing the suit complainant has appealed to this court.

The record does not disclose the grounds of the motion to dissolve the temporary injunction, and the chancellor assigned no reason for his action thereon. It may be assumed, however, that the chancellor failed to find any equity on the face of the complainant's bill.

The decree, which is sought herein to be adjudged void, was rendered by the chancery court of Davidson county upon the bill of E. D. Mouzon filed against the present complainant, Minnie L. Myers, and her husband, J. A. Myers. It recited the conveyance in April, 1927, of a tract or lot of real estate in Davidson county to two defendants, and the execution by them of three promissory notes in part payment, falling due in one, two, and three years from the date of the deed, the first two notes being for $1,000 each and the third for $500; for all of which a vendor's lien was retained. The decree, rendered May 22, 1929, adjudged the default of the defendants at the dates of maturity of the two notes for $1,000 each, and that the note for $500 had become payable by virtue of the right of the holder to declare it due and payable because of the default on the previous notes. The court thereupon gave judgment for the complainant, Mouzon, against the defendants, for the aggregate of the three notes, and directed the sale of the real estate covered by the vendor's lien, with direction that the purchaser should assume a note for $7,500, secured by a deed of trust on the property, "and for the balance, that is the equity in said property, the purchaser will pay one-fourth cash and will be required to execute for the balance of the purchase price four notes," etc. The decree directed that the clerk and master should execute a deed to the purchaser, upon the payment of all the purchase-money notes, "divesting title out of the parties to this cause and vesting same in the purchaser." It was further decreed that the sale should be free from the equity of redemption, homestead, and dower.

The bill in the cause now before us recites the holding of the sale under the decree above set out, the confirmation by the chancery court of the purchase by J. D. McCarn, and the issuance of a writ of possession, directing that the said J. D. McCarn be placed in possession of the premises.

The present action is brought against E. D. Mouzon, complainant in the first cause, J. D. McCarn, purchaser under the decree of sale, and Joe Wolf, the deputy sheriff in whose hands the writ of possession was placed for execution. J. A. Myers, husband of complainant, who was one of the defendants in the first cause, is not a party to this action.

Complainant's bill avers that the real estate in question was her sole and separate property; that the deed of E. D. Mouzon conveyed the same to her alone; and that J. A. Myers had no interest thereunder.

The bill avers that the decree directing the sale of the property, the purported sale itself, and the decree confirming the sale, are void because (1) complainant was not a party to the suit, process was not served upon her, and she neither made appearance nor authorized any one to make appearance therein for her, wherefore the court had no jurisdiction of her person; (2) the adjudication in the decree of May 22, 1929, that the owner of the three purchase-money notes was entitled to declare the third note due and payable, prior to the date of its maturity, because of the default in the proceeding note, was "unsupported by any allegation of said bill and wholly outside of and beyond said bill," the decree having been rendered prior to the date of the maturity of the third note; (3) the owners and holders of the $7,500 first mortgage lien, which the purchaser under the decree was required to assume, being parties in interest, were not made parties to the suit, and were not before the court; and (4) the adjudication that the sale should be free from any equity of redemption, and should be made on a credit, was not supported by any averment or application "made in the bill or at the bar."

The bill prays that the decree of May 22, 1929, ordering the sale of said property, be adjudged void, and that said purported sale be declared void and of no effect; and for general relief.

It is assigned as error by the complainant (appellant) that the chancellor should have held the decree of May 22, 1929, void because there was no appropriate averment in the bill to support a decree on the note for $500 which was not then due, and the bill did not aver that the real estate was so situated that it could not be sold in part to satisfy the two notes then in default, as authorized by sections 5326-5328, Shannon's Code (Code 1858,§§ 3563-3565).

The original bill of E. D. Mouzon, exhibit to complainant's bill herein, averred the liability of the defendants on the three notes for which the vendor's lien was retained, that nothing had been paid on any of them; prayed specifically for a decree on the first note, in default when the bill was filed; and further prayed: "That complainant be allowed to so amend his bill from time to time as to be granted a judgment on the other notes not yet matured as they become due either by limitation of time or by option of holder on account of default, and that complainant be granted a decree enforcing his said lien as provided in his deed to defendants and stated on the face of the notes and that the real estate described in this bill be ordered sold for the purpose of paying said notes and enforcing complainant's lien, free from all equities of redemption, homestead and dower."

The decree of May 22, 1929, included the amount of the third note, upon the express finding of the chancellor "that the last of the three notes in the sum of $500.00 has not yet matured by reason of expiration of the time, but under the terms of the deed executed by the complainant to the defendants, it is provided that the holder of said note or notes has the right, after default of sixty days, to declare all the notes due and payable."

In Murphy v. Johnson, 107 Tenn. 552, 64 S.W. 894, 895, it was held that a decree for an amount in excess of that which the bill showed to be due from the defendant was void as to the excess, because "wholly without warrant in the pleadings." And it is generally held that "a decree beyond the fair scope of the pleadings would be void." Lieberman, Loveman & Cohn v. Knight, 153 Tenn. 268, 283 S.W. 450, 452; Thompson v. Keck Mfg. Co., 107 Tenn. 451, 64 S.W. 709.

An original bill, weighed on demurrer, is given a liberal construction, with all reasonable intendments taken in its favor. McFarland v. Mass. Bonding & Ins. Co., 157 Tenn. 254, 8 S.W.2d 369, 64 A. L. R. 962. And certainly no less liberal rule of construction should be applied when testing the sufficiency of a bill to support a decree against attack in an independent suit brought for the purpose. "The cardinal rule," says the court in Dodd v. Benthal, 51 Tenn. (4 Heisk.) 601, 609, "is that the bill must not be so vague that the defendant may be surprised by a case that he could not be prepared to meet."

It is not sufficient to render a decree void, that the bill which supports it avers essential facts defectively or with a lack of certainty. It must appear that the decree is without the scope of the bill. We are of opinion that the bill in the first suit was fairly construed by the chancellor as asking for a decree on the notes due at the date of the hearing, because matured by their own terms, and on the note not then matured, because of the default in the others; and, given this construction, the decree rendered was not "beyond the fair scope" of the bill.

The chancellor, having found the entire debt due and payable, properly enforced the vendor's lien on the entire tract, and the sections of the Code above referred to were not applicable.

The decree of May 22, 1929, directed that at the sale to be held thereunder "the purchaser will assume the $7,500.00 note secured by a deed of trust on said property, with accumulated interest thereon, and the taxes for 1929."

If this requirement was improper, we do not think it rendered the decree void. Mere errors or irregularities are not sufficient to invalidate a decree when attacked in a collateral or subsequent suit. Freeman on Judgments (5th Ed.) § 1217, pp. 2529, 2530.

The decree disclosing the existence of an outstanding mortgage, superior to the vendor's lien, it is contended that the proceedings to enforce the lien, including the decree, were void, because the prior mortgagee was not a party to the suit.

If the prior mortgagee was a necessary party, it is for the reasons stated in King v. Patterson, 129 Tenn. 1, 16, 17 164 S.W. 1191, wherein the court held...