Partee v. Thomas

• Decision Date: 24 April 1882
• Citation: 11 F. 769
• Parties: PARTEE v. THOMAS and others.
• Court: U.S. District Court — Western District of Tennessee

11 F. 769

PARTEE v. THOMAS and others.

United States Circuit Court, W.D. Tennessee.

April 24, 1882

M. D Caldwell, for defendants.

The bill alleges that Daniel Cherry, by his will of May 9, 1843 made provisions for his daughters, of whom the plaintiff Mosella D. Cherry, afterwards married to Hiram A. Partee, who died in 1877, was one. It is under the ninth and eighteenth items of the will that the plaintiff claims title to the lands described in the bill. They read as follows:

'Item 9. I give unto Norman T. Cherry and Calvin W. Cherry, as trustees for my daughter, Mosella Dearbra Cherry, and for her benefit and for her use, the following property named hereafter, viz.: I give to said trustees, for use aforesaid, 1,366 acres of land, lying, etc.; also one negro man, etc., (the will here described numerous slaves and other personal property;) and after the said Mosella's death the whole legacy to be divided among her children, if any, and if she should die without lawful issue, my will and desire is for the said property to be equally divided among my daughters Belinda F. Jones and Alumia A. Cherry, to them and their heirs forever.'

'Item 18. It is my special will and desire that if my said sons, Norman T. Cherry and Calvin W. Cherry, who are the trustees for my daughters, Belinda F. Jones, Mosella D. Cherry, and Alumia A. Cherry, think proper, and if it should so happen that some of said property ought to be sold for the benefit of them, so as to buy them some negroes, or other property, to assist them, my will is for them to sell it, but never make any title to the purchaser till it is all paid for in full.'

The will makes similar provision for the other daughters and the children of two that were dead, appointing other trustees for those, and has devises for the testator's wife and sons. It was duly probated and registered not long after its date. The trustees tendered their resignations by petition to the chancery court of Gibson county, and by decree of September 12, 1845, Hiram A. Partee, who had married Mosella, was appointed trustee in their place. Partee and his wife jointly executed an instrument of date November 28, 1848, appointing Citizen S. Wood their attorney in fact to sell the land, referring in it to the marriage of Partee with Mosella, the trusts of the will, and Partee's substitution by the court for the original trustees. This instrument was defectively acknowledged, but duly registered.

On October 11, 1852, Wood sold the land in controversy, by deed in the usual form, to the defendants' grantor, who went into possession, and that possession has been continued successively to the present time.

Partee died in December, 1877, and his widow filed this bill April 27, 1880, against the defendant and the plaintiff's children, the heirs at law of Partee, stating these facts, claiming title to the land, and praying that the power of attorney and the deeds, from that of Wood down to that to defendant, be cancelled as clouds on her title; that she be let into possession; for an account of rents and profits, and for general relief.

The bill is demurred to for want of equity, and the defenses made are, a want of jurisdiction, title through deeds and through the statute of limitations.

There are seven other precisely similar bills, against all the occupants of the 1,366 acres of land, claiming through the attorney in fact; and as the defenses were in all respects the same, they were heard together, under an agreement that the judgment in this case should control in all.

Clapp & Beard and Taylor & Carroll, for plaintiff.

HAMMOND, D.J.

There has grown up in Tennessee, without any statute such as exists in many of the states, a rule that a party out of possession may file a bill in equity to remove, as clouds upon his title, the deeds of an adversary claimant in possession, and thereby recover the land, or rents or profits, the rule being entirely the product of judicial decision. Almony v. Hicks, 3 Head, 39, and numerous cases cited; 1 Meigs, Dig. (2d Ed.)p. 479, Sec. 474. If this case were technically a bill to remove clouds from the plaintiff's title, the question whether a federal court of equity could maintain jurisdiction by reason of this local law would be presented for decision. But while the bill is obviously framed in view of the state practice, and prays only to cancel the defendant's deeds as clouds on the plaintiff's title, to be let into possession, and for an account of rents or profits, it is not a bill to remove clouds at all. It is, or should be, on the facts stated, a bill to declare and execute the trusts of the will, and secure to the plaintiff her equitable estate for life as against breaches of the trust alleged to have been committed by her trustee in his lifetime, by which the defendant has possessed himself of her life estate. The bill contains a general prayer for relief, which is sufficient to maintain it in its true character; but it may also be amended to conform its special prayer to its real purpose, and should not be dismissed for the defect mentioned. Rev. St. Sec. 954; Bump, Fed. Proc. 664. It is like the interesting case of Estill v. Deckerd, 4 Bax. 497, where a bill prosecuted to remove clouds from plaintiff's title was rejected in that form, but remanded by the supreme court for amendment as a bill to execute the trusts of the will. The relief granted does not proceed upon the ground of annulling or setting aside the deeds, but is founded on the theory that the title passed to the defendant, and enures in equity to the benefit of the plaintiff. Silver v. Ladd, 7 Wall. 219, 228. And whenever there is an element of trust, our strictest rule of an adequate remedy at law does not apply. Oelrichs v. Spain, 15 Wall. 211, 228.

The remedy of a wife or widow to recover possession of her land, where her trustee, being her husband, has sold it, or his interest in it, is fully discussed by an eminent chancellor on the authority of the Tennessee cases, in Cantrell v. Davidson Co. 3 Tenn.Ch. 427. What precise limitations on these rules of equitable relief in the state courts may be imposed on this court by probably inherent differences of jurisdiction, it is not necessary now to inquire. That inquiry could only arise in a case where she had a legal title, upon which she could maintain ejectment either jointly with her husband, or solely after his death, or where she had a trustee capable of suing for her. Here, if her contention be true, the defendant, claiming the ownership against her under their joint deed through the power of attorney, or else the other defendants, her husband's heirs at law, are her trustees by operation of law, and hold the legal title for her benefit, and it is to charge them as such that she applies to our equitable jurisdiction, and not to cancel their instruments of title as clouds on hers. In this view the jurisdiction is indisputable. 2 Spence, Eq.Jur. 844; 2 Washb.Real.Prop. (4th Ed.)p. 522, Secs. 14, 15; Id. p. 515, Secs. 25, 26; Id. p. 488, Sec. 27. 'Where a trustee has abused his trust,' says the supreme court, 'the cestui que trust has the option to take the original or the substituted property. Parties are sometimes remitted to a court of law, but this is never done where the remedy is not as effectual and complete there as the chancellor can make it. Equity sometimes takes jurisdiction on account of the parties, and sometimes on account of the relief to be administered. ' May v. Le Clair, 11 Wall. 236; Duncan v. Jandon, 15 Wall. 165; Railroad Co. v. Durant, 95 U.S. 576; Bowen v. Chase, 94 U.S. 812; Villa v. Rodrignez, 12 Wall. 323; Hume v. Beale, 17 Wall. 336; Adams v. Adams, 21 Wall. 185; Cook v. Tullis, 18 Wall. 332; Irvin v. Marshall, 20 How. 558, 564; Oliver v. Piatt, 3 How. 333; Gaines v. Chew, 2 How. 619, 649; Bump, Fed. Proc. 423-427.

But it is strenuously argued that Partee, the plaintiff's husband, was never trustee, because, it is said, the chancery proceedings substituting him were inoperative for that purpose. If this be so, it does not affect the jurisdiction, as the result would be that the legal title passed to the heirs at law of Norman T. and Calvin W. Cherry, the original trustees, who are dead. These heirs could be brought in as parties defendant, as in Estill v. Deckerd, supra. Still, the question is important as affecting the defence of the statute of limitations, to be presently considered, and in order to determine whether the heirs at law of the original trustees should have been parties, and whether the bill is defective in that regard. But there is not a sufficient statement of facts in the record as it now stands to decide it.

The bill alleges that Partee was appointed trustee by the chancery court on the resignation of the trustees named in the will, and the plaintiff promises to file a duly-certified copy of the record on or before the hearing. It is not made an exhibit to the bill. There was used by both sides on the argument, and I find in the record, a certified copy of the decree, (which seems not to have been filed,) but nothing else. It can only be regarded as filed in evidence for the hearing, and now used for information. If a part of the bill, it is simply an imperfect document exhibited with it that cannot be said to qualify the broad allegations of the bill, which must, I think, be taken to be true on demurrer, however the facts may appear at the hearing. The learned counsel for the defendant insists that it cannot be looked to at all, and cites Willis v. Louderback, 5 Lea. 561, which holds that a part of a record cannot be admitted in evidence if the whole is necessary to make out the plaintiff's case. The precise extent or qualifications of this rule, about which there is a good deal of...