Pope v. Harrison

• Decision Date: 31 December 1885
• Citation: 84 Tenn. 82
• Parties: Helen Pope et al. v. Ed. V. Harrison et al. Helen Pope et al. v. John F. Couts et al.
• Court: Tennessee Supreme Court

84 Tenn. 82

Helen Pope et al.

v.Ed. V. Harrison et al.

Helen Pope et al.

v.John F. Couts et al.

Supreme Court of Tennessee.

December Term, 1885.

FROM MONTGOMERY.

Appeal from the Chancery Court at Clarksville. GEO. E. SEAY, Ch.

L. W. FINLAY, J. W. SCALES and THOMAS B. TURLEY for Complainants.

SMITH & LURTON and HOUSE & MERRITT for Defendants.

COOKE, J., delivered the opinion of the Court.

On January 18, 1818, Bennett Searcy died intestate, leaving Marcia F. McLean, then the wife of one Charles D. McLean, his only heir-at-law. He died seized and possessed of a considerable amount of real estate, consisting of town lots in Carksville and lands adjacent thereto. On January --, 1818, letters of administration were granted the said Charles D. McLean and the widow of said Searcy upon his estate. On November 29, 1818, said daughter, Marcia, died leaving her said husband and two children, Maria D. and Marcia S., surviving her, said children being, then, one of them about nineteen months, and the other only six days old. In January, 1819, said Charles D. McLean, the father of said infant children, was duly appointed their guardian and entered upon the duties of said trust.

At the July term, 1819, of the court of pleas and quarter sessions of Montgomery county, two judgments were rendered against the administrators of said estate, one in favor of James Elder, for the sum of $63.00 and costs of suit, and the other in favor of Jerry Bailey, for $56.37 1/2, a plea of fully administered being found by the jury in favor of said administrators in each of said causes.

At the April term, 1820, of said court, judgments upon sci. fa., based upon these judgments, were rendered against said minors, Maria D. and Marcia S., as heirs-at-law of said Searcy, and execution awarded, to be levied of the lands and tenements of the deceased descended to them.

At the April term, 1880, of said court, two other judgments were rendered against said administrators in favor of Polly B. Hatcher, one for $113.75 and costs, and the other for $105.60 and costs, pleas of fully administered having been found in favor of said administrators by the jury in each of these cases.

Judgments upon sci. fa. were likewise rendered against said heirs upon each of these judgments at the October term, 1820, and execution awarded to be levied of the lands descended, etc.

Executions were issued upon these several judgments on sci. fa. Those in favor of said Elder and Bailey were levied upon Lot No. 88, in the town of Clarksville, which was sold under the same, and on March 15, 1821, the Sheriff executed a deed therefor to the purchaser, Cave Johnson.

The executions issued upon the judgments in favor of Polly B. Hatcher were levied upon Lots Nos. 101 and 103 in said town, which were in like manner sold, and on January 4, 1823, the Sheriff executed a deed to John K. Poston, the purchaser of these lots, all of said lots being lands descended to said minors from their said grandfather, Bennett Searcy. Said purchasers went into possession of said lots respectively under said sheriff's deeds, and they and those claiming under them have held the same ever since, and the respondents in these causes respectively were in possession, claiming and holding under said deeds and mesne conveyances to themselves from said purchasers said lots in fee.

These bills were filed January 8 and 27, 1880, by the descendants and heirs-at-law of said Maria D. and Marcia S. McLean, alleging that their said father and guardian, Charles D. McLean, was tenant by curtesy consummate, and as such entitled to a life estate in said land, and that they are entitled to the remainder; and that said Maria D. and Marcia S., under whom they claim as such remaindermen, were not parties to the proceedings by sci. fa. under which said judicial sales were made, and that they were not served with process; that said Charles D. McLean alone was served; that said proceedings were only effective to pass the title to the life estate of said Charles D. McLean, and void as to them and their remainder interests, and they seek to have said sheriff's deeds declared void so far as they purport to convey the fee simple interest in said lots, or to affect their remainder interest, and to have them removed as a cloud upon their titles respectively, the said Charles D. McLean being still alive and his life estate not having fallen in. It is alleged by the bill that portions of these records and proceedings have been lost or destroyed, and certified copies of such portions as have been preserved, and also of the sheriff's deeds, are filed as exhibits and made parts of these bills, and which are certified, not as transcripts of perfect records, but to be transcripts of all that can be found after diligent search, etc.

These bills were dismissed upon demurrer and the complainants have appealed. Numerous causes of demurrer were assigned, but those which raise the questions to be considered are, that the records exhibited with the bills, when taken with the legal presumptions arising therefrom, show that said Maria D. and Marcia S., were properly before the court; that said record can not be averred against, and that no extraneous evidence to show the contrary under the frame of these bills is admissible, and that complainants are barred by laches, long lapse of time and the statutes of limitations, etc.

As before stated, the records are shown to be imperfect. The judgments as entered upon the records of the court are all complete, but the files to a greater or less extent have been lost or destroyed. The original judgments against the administrators are in the record, but all the files, including the writs, returns, pleadings, evidence, subpoenas, etc., are gone. The judgments are, in all respects, in proper form; theye are not assailed, and are sufficient to authorize the issuance of sci. fas. on motion against the heir, etc., to reach and subject the realty descended. In the sci. fas. proceedings on the judgments in favor of Elder and Bailey, there is none of the record except the judgments entered upon the record. Neither the writs or returns are preserved.

The judgments are as follows:

“James Elder against Charles D. McLean, guardian of Marcia S. McLean and Maria D. McLean, heirs of Bennett Searcy, deceased: This day came the plaintiff by attorney, and the said defendants by their guardian being solemnly called to come and defend this suit came not, nor do they say anything in bar, or preclusion of the plaintiff's action. Therefore it is considered by the court that the plaintiff recover against the defendants the sum of fifty-three dollars and thirty-two cents, the debt in the writ of scire facias specified, and also the sum of three dollars and seventy-nine cents interest thereon, and the further sum of nine dollars and twenty-five cents costs heretofore expended, as also his costs expended in serving and prosecuting the writ of scire facias, to be levied of the lands and tenements which were of said Bennett Searcy at the time of his death, and which have descended to his heirs-at-law.”

“Jerry Bailey against the heirs of Bennett Searcy: This day came the plaintiff by his attorney, and Charles D. McLean, the guardian of the heirs of Bennett Searcy, deceased, being solemnly called to come into court and plead to the scire facias, failed to do so, nor says anything in preclusion of the plaintiff's claim, wherefore it is considered by the court, that the plaintiff recover of the said defendants, the sum of fifty-six dollars and thirty-seven and one-half cents debt, and the further sum of two dollars and fifty-three cents damages for the detention of the debt, and the costs in this behalf expended, to be levied of the lands and tenements of Maria D. and Marcia S. McLean that descended to them from Bennett Searcy, deceased.”

The judgments in the sci. fa. proceedings in the cases of Polly B. Hatcher, are as follows:

“Polly B. Hatcher against the heirs of Bennett Searcy, deceased: This day came the parties by their attorneys, and thereupon came a jury of good and lawful men to well, etc., who being duly elected, tried and sworn the truth to speak upon the issue joined, upon their oath do say, that the said defendants have not paid the debt in the scire facias mentioned, as said defendants by their guardian have alleged, and the court having inspected the record in the scire facias mentioned, and said parties having, by their counsel, been heard, etc.: It is considered by the court that there is such a record as mentioned in the scire facias. It is therefore considered by the court, that Polly B. Hatcher recover of the said Maria D. McLean and Marcia S. McLean, the sum of one hundred and eighty dollars and seventy-six cents, the debt, and interest thereon to this time in the scire facias mentioned, and also the sum of nine dollars and fifty-two cents and the costs, etc., * * to be levied of the lands and tenements that descended to the said Maria D. and Marcia S. McLean as the heirs-at-law of Bennett Searcy, deceased.”

The other judgment on the sci. fa. proceedings in favor of said Polly B. Hatcher, is in form substantially as the one copied above. There is one writ of scire facias in each of these cases contained in the records, each of which is in due form, containing all the necessary recitals, and among others that the lands of Bennett Searcy, deceased, descended to said infants, Maria D. and Marcia S. McLean, and commanding the sheriff to make known to Charles D. McLean, the guardian of the said minors, etc., and requiring him to appear, etc., and show cause, if any he can, why the real estate descended, etc., should not be subjected to the satisfaction of said judgments, etc. These writs were each directed to the sheriff of Montgomery county, and were executed in that county alone upon said guardian. No writs against the infants themselves in either case are contained in the record, nor is it anywhere stated...