Powers v. McKenzie

• Decision Date: 23 April 1891
• Citation: 16 S.W. 559,90 Tenn. 167
• Parties: POWERS et ux. v. MCKENZIE et al.
• Court: Tennessee Supreme Court

16 S.W. 559

90 Tenn. 167

POWERS et ux. v. MCKENZIE et al.

Supreme Court of Tennessee.

April 23, 1891

Appeal from chancery court, Carroll county; A. G. HAWKINS Chancellor.

Jo.R Hawkins, Alvin & Alonzo Hawkings, and B. F. Lillard, for appellants.

H. C Townes, W. W. Murray and S.W. Hawkins, for appellees.

WILSON Special Judge.

The bill in this cause was filed in the chancery court of Carroll county, Tenn., in March, 1889, by John B. Powers and wife Siletha J. Powers, residents of the state of Texas, to recover from defendants a tract of land containing 212 acres, including a portion of the town of McKenzie and its suburbs, or all of said tract not sold to innocent purchasers; to reach other lands possessed by certain of the defendants, bought with the proceeds realized from sales of parts and parcels of said tract; and to make certain of the defendants' account for rents and profits derived therefrom.The predicate of the bill is the right of Siletha J. Powers to recover, upon the facts alleged therein, as the surviving child and heir at law of A. A. McKenzie, deceased.There was a demurrer filed by defendants, interposing the defense of the statute of limitations, and the staleness of the claim evidenced by its origin, as presented by the facts alleged in the bill.The demurrer was overruled, and the defendants answered, directly denying all the material facts stated in the complaint.Upon motion granted, the chancellor submitted the cause to the determination of a jury upon these issues.Its trial consumed nearly a month, and resulted in a finding by the jury of one of the issues in favor of the complainants and two for the defendants.Thereupon the chancellor dismissed the bill, and the complainants appealed to this court.

The record here, in connection with what may be designated the bill of exceptions, is in four volumes, and they are all somewhat voluminous.The matter contained in them, relevant and irrelevant, admitted and rejected, by the court below, is "dumped," in its original form and variety, without any sort of reference to the law of orderly consecution, or to fitness of place.In consequence, the proper classification of the numerous evidential facts and circumstances, and the various rulings of the lower court thereon, and their resolution into a legal conclusion determinative of the just rights of the parties, have imposed an unnecessary tax of time and labor upon the court, that, as the profession knows, in order to the proper dispatch of the numerous cases before it, need, in addition to the assistance of able and candid counsel, clear, orderly, and consecutive records of causes.

The controverted facts surrounding and involved in this controversy as is manifest from the record, have developed much feeling among the branches of the original McKenzie family.Everything has been contested, and charges and countercharges, either directly or indirectly, appear at every turn.This feeling, at least to some extent, entered the minds of counsel; and as the result of this, in part, perhaps, the pursuit of witnesses in their cross-examinations, and the objections to questions put, and answers thereto, exhibit intensity and extension.

The essential facts controlling the rights of the parties, as reasonably established in the record, are these: The defendants, aside from husbands of daughters, claim the lands in dispute as heirs at law of James McKenzie, who died in 1873.His title was founded upon a general warranty deed of his brotherA. A. McKenzie, executed July 1, 1837, and put of record in 1839, and his possession thereunder until his death.A. A. McKenzie, then a resident of Texas, died in 1850.This daughter, and only surviving heir at law, the complainantSiletha J. Powers, while admitting the execution and genuineness of the deed of July 1, 1837, from her father to his brotherJames M. McKenzie, insists that, under a contemporaneous agreement made by the brother, and their father and mother, John and Martha McKenzie, a specified trust accompanied and constituted a part of the deed.This alleged trust was that James M. McKenzie take the legal title to the lands in controversy, in trust, and hold it for the use and benefit of and for a home for his father and mother, during their joint and several lives, and upon the death of the survivor of them he was to reconvey the lands to his brotherA. A. McKenzie, if living, and, if dead, to his heirs at law.In support of the trust, she presents with the bill a written instrument of even date with the deed of her father to James M. McKenzie, embracing its terms, signed by James M., John, and Martha McKenzie, and witnessed by Samuel Winn, Sarah Winn, Jery McKenzie, and J. W. Hamill; the last named being the alleged draughtsman of the body of the instrument.It is asserted that this instrument, witnessed as just stated, exhibited with the bill, is the actual paper executed by James McKenzie to preserve the evidence of the trust, or that it is a true copy of the one that was actually executed by him.It is obvious, however, from the evidence in this record introduced by the complainant herself, that her right, if any exists, growing out of the trust, must stand or fall upon the fact that the instrument is the original, and not a copy; for there is no evidence, of material weight or directness, that it is a copy.In further statement of her relation to the terms of the trust, it is insisted by Mrs. Powers that John McKenzie, the father of James M. and A. A. McKenzie, died many years since; that Martha, their mother, died in 1851, that her father, A. A. McKenzie, died in 1850; that she married when a minor, before the death of her father and grandmother Martha; that she has since been a feme covert; and that through the fraud and concealment of facts by James M. McKenzie, and her failure to discover the existence of the trust instrument, witnessed as before stated, and exhibited with her bill, until after the death of her mother, in March, 1885, she was unaware of her rights, and the written evidences sustaining them, and hence no suit to establish the same was sooner instituted.

Predicating her claim, practically and substantially, upon the direct terms and validity of this written instrument alleged to have been executed by James M. McKenzie, and witnessed by the parties stated, all of whom died years since, it is obvious that defendants, failing to put complainants out of court by this demurrer, had either to surrender or successfully assail the genuineness of the trust instrument, and maintain that no such trust as is indicated by its terms was ever in fact entered into by James M. McKenzie.Five issues were presented by complainants to the chancellor for submission to the jury.He submitted three of them.The first averred, in substance, that the deed of A. A. McKenzie to James M. McKenzie, of date July 1, 1837, was executed in consideration of the latter holding the land described, and the legal title thereto, in trust for the use and benefit of his father and mother, during their joint and several lives, and upon their death to reconvey it to A. A. McKenzie, if living, and, if dead, to his heirs at law.The second avers that Martha McKenzie, the mother of A. A. and James M. McKenzie, died after the death of her son A. A. McKenzie.The third avers that James M. McKenzie held the land in controversy, and the legal title thereto, from the death of his mother till his death, in trust for the use and benefit of the heirs at law of A. A. McKenzie, and that since the death of James M. McKenziethe defendants have held the land under the same trust.

An immense volume of evidence in depositions, in written matter, and given by witnesses orally, was introduced before the jury trying these issues.Most of it was directed in support of, and assault upon, the witnessed instrument of trust presented by the complainant as the direct written basis of her claim, and asserted by her to have been executed by James M. McKenzie.It is obvious, therefore, that a large part of it was in reference to the authenticity of the signatures to and handwriting of said instrument, and of the old written matter brought forward to uphold or destroy it.The first and third issues were found by the jury in favor of the defendants, and the second for complainants; and, as stated, the bill was dismissed by the chancellor, and the case is here by appeal of complainants.

The assignment of errors, as filed by complainants, is not in conformity to the rules of this court regulating the matter and hence, strictly speaking, should not be considered.It is presumed, however, that learned counsel of complainants supposed their printed brief was to be...