Robertson v. Winchester

• Decision Date: 01 September 1886
• Citation: 1 S.W. 781
• Parties: ROBERTSON <I>v.</I> WINCHESTER and others.
• Court: Tennessee Supreme Court

Page 781

1 S.W. 781

ROBERTSONv.

WINCHESTER and others.

Supreme Court of Tennessee.

September Term, 1886.

Appeal from chancery court, Hamilton county.

Dodson & Moon, Barton & Son, and H. C. Beck, for complainant. Elder & White and Wheeler & Marshall, for respondents.

SNODGRASS, J.

On the tenth November, 1868, C. C. Hudson died in New York, intestate, the owner of certain real estate in Gibson, Weakley, Knox, and Hamilton counties, Tennessee. Administration was granted on his estate in the county court of Gibson county, in June, 1869, and soon thereafter (August 19, 1870) Administrator Needam Holland, Spiral Hill, John P. Hudson, John Wetherford, and Mary Wetherford, and A. F. Hurst, filed the first bill it is necessary to notice in this cause, against Charles E. Hudson, Thomas H. and Mary Elliot, and P. Y. Hudson. The bill alleged the death of Hudson as stated, the qualification of complainant Needam Holland, administrator, and that the other complainants were creditors, with amount of their several debts; and that complainants Hudson and Mary Wetherford, and defendants C. E. Hudson and Mary Elliot, were the only heirs at law, and defendant P. Y. Hudson, the widow, of C. C. Hudson, deceased. It alleged the exhaustion of the personalty in payment of just debts, and sought to subject the real estate described for such purpose. Among the real estate thus sought to be and subsequently sold, were the lots in Chattanooga now in controversy. The bill alleged that Mary H. Elliot was the wife of Thomas H. Elliot, and both were non-residents, as well as C. E. and P. Y. Hudson; and prayed that Charles E. Hudson, Mary and Thomas H. Elliot, and P. Y. Hudson be made parties defendant, and that publication be made for them to answer, etc.; that the real estate described be sold to pay the debts, and for appropriate relief. No order for publication, nor proof of actual publication, appears in the record, nor is it recited, in terms, that publication was in fact made for Thomas Elliot or P. Y. Hudson; but it appears that P. Y. Hudson answered, and there is a judgment for confessed in the record, as follows:

"Needam Holland, Adm'r, et al., v. Chas. E. Hudson, Mary H. Elliot, Priscilla Y. Hudson.

"And it appearing to the clerk and master that publication had been made for defendants to appear and answer, and defendants Chas. E. Hudson and Mary H. Elliott having failed to plead, answer, or demur within the time allowed by law, it is therefore ordered by the court that the bill be taken for confessed, and set for hearing, ex parte as to said two defendants.

                                                                 "J. A. McDEAMON."
                

The entries on the min. docket are as follows:

                ===========|==================|============================|=============================|======================
                 DATE.     |     SOLICITORS.  |           PARTIES.         |      NATURE OF BILL.        |     SECURITIES
                -----------|------------------|----------------------------|-----------------------------|-----------------------
                ...........|    Spiral Hill.  |    Needam Holland,         |  O. Bill.                   |  
                ...........|    ...........   |    Adm'r of C. C. Hudson,  | ..........................  |  
                ...........|    ...........   |    Spiral Hill,            | ..........................  |  
                ...........|    ...........   |    John P. Hudson,         | ..........................  |  
                ...........|    ...........   |    Mary E. Wetherford,     | ..........................  |  .....................
                ...........|    ...........   |    John Wetherford,        | ..........................  |  .....................
                ...........|    ...........   |    Augustus Hurt,          | ..........................  |  .....................
                ...........|    ...........   |             v.             | ..........................  |  .....................
                ...........|    ...........   |    Chas. E. Hudson.        | ..........................  |  .....................
                ...........|    ...........   |    Mary H. Elliot,         | ..........................  |  .....................
                ...........|    ...........   |    P. Y. Hudson.           | ..........................  |  .....................
                -------------------------------------------------------------------------------------------------------------------
                                    CHANCERY COURT, TRENTON, TENNESSEE.
                ====================|======================================================|==========================================
                                    |              PROCESSES, RULES, ORDERS, ETC.          |          DISPOSITION.
                --------------------|------------------------------------------------------|-------------------------------------------
                 August 19th,       |            Bill filed.                               |          ..............
                 August 30th,       |            Publication made.                         |          ..............
                --------------------|------------------------------------------------------|--------------------------------------------
                

This is followed in the transcript by decree of January 26, 1871, in which it is recited that the cause came on to be heard upon bill, order pro confesso, answer of P. Y. Hudson, and proof. This decree was for a reference to the master to ascertain whether the personalty had been exhausted, and existence of just debts in favor of complainants, and, for all the purposes of this case, it is sufficient to say here that such report was made and confirmed without exception, sale of the lots in Chattanooga now in controversy ordered, and made on the sixth May, 1871, and A. F. Hurt became the purchaser, at the price of $3,240; executing two notes therefor for $1,620 each, payable in 10 and 20 months from date of sale, (the first one being credited with $65 cash paid thereon at date executed;) that this sale was reported and confirmed without exception February 3, 1872, and title vested in the purchaser.

The second bill in this cause, called a "supplemental bill," was filed eleventh July, 1872, by the purchaser, A. F. Hurt, Needam Holland, administrator, John P. Hudson, John P. Wetherford and wife, Mary E. Wetherford, and the widow, P. Y. Hudson, against "all the defendants to the first bill except those joining in this," (Mrs. P. Y. Hudson was the only defendant to the other bill who joined in this, and hence the bill was filed against Thomas H. and Mary Elliot and Charles E. Hudson,) and against certain other parties who were named, viz., Richard S. Robertson, Robert W. Pendleton, J. T. Atterberry, and ____ Pulliam, who were alleged to be non-residents. This bill recited the proceedings in the original cause, and showed that Hurt became the purchaser of the Chattanooga lots now in controversy, and that the title of Charles C. Hudson had been invested in him; that he had paid a full price for the same, and executed his notes to the special commissioner, as shown in his report, (before referred to,) believing that he was getting a perfect title; that he has since discovered that the title was not altogether in C. C. Hudson, but was in him and Richard S. Robertson, Robert W. Pendleton, J. T. Atterberry, and ____ Pulliam. The complainants further charged that Charles C. Hudson was the owner in equity, and that the other defendants had a bare legal title, with no beneficial interest whatever; that Charles C. Hudson purchased and paid for the interest of the other parties in said lots before his death, and they should have conveyed the legal title to him, but, if this was ever done, complainants do not know it, and the deed, never registered, was lost; but that Charles C. Hudson was entitled to the sole legal title. Complainants prayed to be allowed to file this as a supplemental or amended bill in the original cause now pending against Charles E. Hudson et al.; that Charles E. Hudson, and all the defendants to the original bill not here made complainants, together with Richard S. Robertson, Robert W. Pendleton, J. T. Atterberry, and ____ Pulliam, be made defendants, and publication made for them, etc.; and that they answer, etc.; and that the title to said lots be divested out of them, said Robertson, Pulliam, Atterberry, and Pendleton, and vested in Augustus F. Hurt, the purchaser, etc., in same manner as the title of Charles C. Hudson was so invested, etc.; and for such other and further relief as in equity may belong.

Neither of these bills had any caption in which the names of defendants were set forth, but the defendants were either named, or, as in this one, named and known, by description, as defendants in the other bill; and from such description we have set forth the names in a former part of this opinion; that is, Thomas H. and Mary Elliot, Charles E. Hudson, R. S. Robertson, Robert W. Pendleton, J. T. Atterberry, and ____ Pulliam, all alleged to be non-residents. The complainants did not charge, in terms, that the purchase notes were unpaid, but they referred to and recited the proceedings in the other cause, showing that they were given on the sixth of May, 1871, due 10 and 20 months from date; and, as this bill was filed on the eleventh of July, 1872, it was filed before the last note was due, and non-payment is inferred. Neither did the bill, in terms, pray for a rescission of the sale, but, as such relief was within the scope of the prayer for general relief under the facts, it may be treated as including this, in considering hereinafter the question of jurisdiction involved. In this case the transcript does not show any order for publication, proof of publication, nor is the fact that publication was made anywhere recited in any order or decree appearing in the transcript, which has no copy of any order or entry on the rule docket, if any were made. But the final decree in the case, pronounced December 21, 1872, recites "that the case came on for hearing before the...