Sevier County Bank v. State
| Decision Date | 16 December 1933 |
| Citation | 69 S.W.2d 622,17 Tenn.App. 619 |
| Parties | SEVIER COUNTY BANK v. STATE ex rel. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court March 10, 1934.
Appeal from Chancery Court, Sevier County; Ben Robertson Chancellor.
Suit by State, on the relation of the Tennessee Great Smoky Mountains National Park Commission, against the Sevier County Bank. From a decree for relator, respondent appeals.
Reversed and case dismissed.
A. M Paine, of Sevierville, for appellant.
J. W Cooper, Asst. Atty. Gen., and Jno. O. Morrell, of Sevierville, for appellee.
This suit was instituted by the Tennessee Great Smoky Mountains National Park Commission (chapter 54, Pub. Acts 1927), created for the purpose of acquiring land to establish a park, and by later authority to reconvey the land to the United States government for the purpose of creating the Great Smoky Mountains National Park here, against the Sevierville bank, to recover for the bank's negligence in handling the park funds. In the acquisition of these mountain lands, the commission appointed purchasing agents to obtain the land by purchase if possible and avoid condemnation proceedings authorized under the law; it was the practice of these purchasing agents to take options upon the land, pending an examination of the titles by the abstract attorneys employed by the commission. The commission's office was located in Knoxville, and, when the abstracts were approved by the assistant attorney general in charge, deeds were drawn and sent, accompanied by the commission's check for the purchase price, to a bank in the county where the land was located, for delivery to the vendor when the deeds were properly executed. The proper execution of the deed was evidenced by the certificate of a title agent who resided in the county, and whose duty it was to see that the deed was executed according to the form required by law and that all incumbrances noted upon the abstract of title had been properly released, all taxes paid, and no liens had been placed of record since the date of the abstract. When the deed was delivered to the bank, accompanied by this certificate of the commission's agent, the funds were then paid over to the vendors, and the deeds transmitted by the bank to the commission.
At the time of the transaction in question there was located in Sevier county, and in the town of Sevierville, two or more banks, and the commission had been transacting its business through the First National Bank, and, while the commission paid nothing to the bank for this service, the bank had the advantage of its competitors in that the funds passed through its hands, and perhaps the vendors deposited the purchase money in the bank. At any rate, it was considered a desirable banking item.
In January, 1929, the cashier of the Sevier County Bank, Mr. S. L. Atchley, wrote a letter to the assistant attorney general in Knoxville, who was handling these matters, calling his attention to the fact that these funds were sent almost exclusively to the First National Bank for distribution, and requested a division of this business, calling attention to the custom of a division of state funds between the banks of the county, and he stated that his bank was willing to do anything that was required of it. In reply the assistant attorney general, representing the commission, agreed to a division of this business, and began to send business through the bank. The cashier again wrote thanking the commission for this business, and stated, "A bank is always anxious to have all the money possible come through their bank."
The first letter of instructions to the bank was written in February, 1929, as follows:
"I am enclosing you some deeds and checks to be held in escrow and delivered according to the terms of the letters accompanying each one.
Before closing any of these matters, please get in touch with Mr. John O. Morrell, and ask him to see that there are no changes in the title since the date of the abstract which is furnished to him at the same time these matters are sent to you, and when he reports to you that there are no liens, except those mentioned in the letters of instruction, they may be closed.
The deeds should immediately be filed for registration in order to protect the State against any lien judgment or other encumbrances which might be placed against the land between the time of closing and the time the deed is filed for record. ***
The taxes for 1929 became a lien against the property on the 10th of January of this year, and while we are going to try to get a bill passed by the Legislature relieving these taxes, until that is done, you will retain an amount sufficient from the purchase price in each instance to pay the taxes for the year 1929.
We have heretofore used the previous year as a basis, the sum will be remitted to us and if we get a bill passed it will be refunded to the land owner."
On April 25, 1932, the deed and check herein involved were sent to the defendant Sevier County Bank with the following letter:
The check referred to was made payable to the vendor, M. B. Branam, and a copy of the letter written the bank was sent to Mr. B. E. Rippy, who had succeeded Mr. Morrell mentioned in the above correspondence as the representative of the commission, and he used the copy of the letter as his instructions; he stated, "and my duty was whatever was called for in that letter; I had examined the record to see if there had been any change in the title after the date of the abstract; and to see if the deed was properly executed." The agent Rippy was also a notary public and sometimes took the acknowledgments to the deeds, but this was not required, and his duty as agent was to see that the deeds were properly executed and the certificate of acknowledgment was in proper form.
The bank received the letter of instructions, but it did not contain the address of Mr. Branam, so the bank wrote him a letter, addressed to Sevierville, R. F. D., and omitted the route number. In this letter the bank solicited a deposit by stating to Mr. Branam that, if he did not need the money, he could leave it with the bank until he needed it. Two or three weeks passed and the bank received no reply to this letter and Mr. Branam did not appear to execute the deed. The park commission wrote the bank insisting that the matter be closed with dispatch. The cashier, Mr. Atchley, did not know Mr. Branam personally, and so he made inquiry of a Mrs. Price, whom he knew to have been a Branam, and she told him that Mr. M. B. Branam lived with his daughter in the city of Knoxville, and gave him the name of the street upon which she lived, but she could not furnish him with the house number. He then wrote Mr. M. B. Branam at Knoxville, giving the street address. In this letter he urged Mr. Branam to come to Sevierville and execute the deed and receive the purchase money. This letter was delivered, and within a few days Mr. Branam, accompanied by two of his sons, appeared at the bank in Sevierville, and stated he had come to execute the deed and receive the money. He was taken by Mr. Atchley to the courthouse and introduced to Mr. Rippy as Mr. M. B. Branam who had come to execute the title papers, and with this introduction Mr. Rippy made inquiry of Mr. Branam whether or not he was a single or a married man, and, being informed that he was a single man, took his acknowledgment to the papers, and made the further investigation required of him in his letter of instructions, and then executed a certificate, describing the land by the abstract number, to wit, abstract No. S 123 C, and further certifying "That all encumbrances shown in said abstract have been released of record; that all judgments affecting the title to said land has been satisfied of...
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