Posey v. Eaton

• Decision Date: 30 September 1882
• Citation: 77 Tenn. 500
• Parties: Satira Posey et al. v. E. G. Eaton et al.
• Court: Tennessee Supreme Court

77 Tenn. 500

Satira Posey et al.

v.E. G. Eaton et al.

Supreme Court of Tennessee.

September Term, 1882.

FROM HAMILTON.

Appeal from the Chancery Court at Chattanooga. W. M. BRADFORD, Ch.

BURTON & SON and L. B. HEADRICK for Complainants.

KEY & RICHMOND and TOMLINSON FORT for Defendants.

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

This bill is filed to remove a cloud from the title of complainants, to certain lands in Hamilton county. These lands belonged, in his life time, to John Brown, Jr., who died in 1863, in the city of Nashville, but was in fact a resident of Hamilton county, Tennessee, at his death.

It appears that William Clift claimed to be a creditor by judgment against John J. Brown, administrator of Jno. Brown, Jr., deceased, and filed his bill in 1868, against the administrator and heirs of Brown, to sell lands descended to the heirs for the payment of his own and other debts.

The papers filed in said cause are shown to be lost or destroyed, so that we have only the decrees and orders made in the minutes of the court, showing the action of the court in the case, and the entries on the rule docket, to guide us as to their contents, except the secondary proof found in the record, given by counsel who had examined said papers before they were lost, in preparing the answers of their clients in this case.

Said proceedings are claimed by the present bill to bevoid, and prayed to be so declared.

The facts charged on which this decree is asked, as found in the bill, are as follows:

That Clift and Abell were not creditors, and had no subsisting debts against the estate. That more than two and six years had elapsed after the appointment of one Ragan, in Davidson county, administrator of the estate of Brown, and these parties had not brought suit against him, and the claims were therefore barred by limitation; and because said administrator was not a party to the suit, nor any account of the personal estate that had come into his hands taken; and because there was sufficient personal estate left by deceased to pay all just debts.

We need but say, that none of these matters can be inquired into in a collateral proceeding as this is, unless it be possibly the failure to make the administrator a party the decrees of this court being regular on their face, and showing the existence of the debts, the exhaustion and insufficiency of the personalty, and consequent necessity of the sale of the land with reasonable certainty. The objections referred to might avail as error on a direct proceeding by appeal or writ of error, to reverse the decrees made, but can not be looked to in a proceeding like the present, as repeatedly adjudged by this court.

Other objections are made in the pleadings, some of them, of a more serious character, which we proceed to notice:

It is alleged that the proceedings are void, because Judge Trewhitt was second cousin of the Browns, and made an order in the case directing an answer to be filed, and Judge Key is alleged and shown to have made an order appointing a guardian ad litem for one or more of the minors, and is said to have been incompetent to have done so, because he had been a counsel for parties in the cause.

These objections have no validity as we have held, in such a case, overruling such opinions, as seemed to hold the contrary. If the parties submit to the action of the judge at the time, the incompetency is considered waived, and not available on a collateral attack on the judgment. This question and the cases will be found reviewed in the case of Holmes v. Eason, at Jackson, April Term, 1882, in an opinion of Judge Cooper, in which the cases in 6 and 8 Baxt., 72 and 353, are overruled, and the principle of the case of Crozier v. Goodwin & McConnell, 1 Lea, 125, affirmed.

It may well be doubted whether the question of the representative character of John J. Brown, as administrator of Jno. Brown, Jr., deceased, as urged in the argument by the learned counsel, is made in the pleadings before us. We think it certain it was not intended to be made by the pleader who drew the bill, and it is evident he meant only to allege the fact that he was not a party, so that an account could be had of the personalty in his hands, and the correctness of his administration looked into on an account, as the matter of complaint in this bill. No charge is made that Brown, who was appointed by the county court of Hamilton county, the residence of...