Shelby County v. Bickford

• Decision Date: 29 April 1899
• Citation: Shelby County v. Bickford, 52 S.W. 772, 102 Tenn. 395 (Tenn. 1899)
• Parties: SHELBY COUNTY v. BICKFORD et al.
• Court: Tennessee Supreme Court

52 S.W. 772

102 Tenn. 395

SHELBY COUNTY v. BICKFORD et al.

Supreme Court of Tennessee.

April 29, 1899

Appeal from chancery court, Shelby county; Sterling Pierson Chancellor.

Action by Shelby county against W. A. Bickford and another.From a decree for plaintiff, the executrix of Bickford appealed, he having died pending suit.Reversed.

Jas. H Malone and J. M. Gregory, for appellant.

Geo. B Peters, R. D. Jordan, and Gilmer P. Smith, for appellee.

McFARLAND Special Judge.

This suit was brought on the 8th January, 1889, by the county of Shelby against W. A. Bickford and Amos Woodruff, in the circuit court.The damages laid in the summons were $10,000.The declaration contained three counts, two of which, in substance, alleged that Bickford & Woodruff, being seized of certain lots in Memphis, Tenn., known as the "Overton Hotel Property," on 23d April, 1874, sold these lots to the county of Shelby for $150,000, a part of which was paid in cash, and notes given for deferred payments; that a deed was executed, in which the defendants covenanted that they were seised in fee, and had good right to convey, that the land was free from incumbrances, and that they would defend title to same.The declaration says, as to this deed: "And, by this deed here to the court shown, in consideration of $150,000 *** did bargain and sell," etc.This deed does not appear to have been filed with the declaration, or appear in the record as originally filed in this court.The declaration averred a breach of the covenants, especially against incumbrances, alleging that Bickford & Woodruff were the owners of the property in 1870 and 1871, and that there was due, for taxes which were a lien on this property for the years mentioned, to the state, $2,732.38; to the county, $7,243.05; total, $10,475.43,--and that this first sum of $2,732.38 due the statethe plaintiff had to pay the state under decree of sale made in the cause of Anderson against Partee and others in the chancery court of Shelby county, Tenn.The first count concludes in these words: "And the plaintiff avers that it has often demanded of the defendants the payment of said sum of $2,732.38 paid to the state of Tennessee, and the sum of $7,743.05 due to it for the assessed value for said property for the years 1870 and 1871, but, notwithstanding this, said defendants have wholly and entirely failed and refused to pay either or any part of said sums of money or interest, to the plaintiff's damage, wherefore it sues."The second count recites the deed, covenants, etc., and avers that the lots were liable for taxes to the state and county for 1870 and 1871 for $10,106.13, and that the defendants were bound by their covenants to pay the same; that when final payment of the balance due on the purchase was made, in the sum of $14,035, on February 2, 1885, the defendants declared that all taxes due and a lien on said property had been paid, and that it was free from taxes, notwithstanding which the defendants suffered said land to be sold for taxes due to the state for the years 1870 and 1871 for the sum of $2,363.08; together with the cost of the cause, $369.30; making a total of $2,732.38,--which, added to amount due county, $7,743.05, made a grand total of $10,475.43.The main feature of this count is to have a recovery upon the verbal promise and undertaking of the defendants thus set forth: "And the plaintiff avers at the time of the payment of the several sums of money due the said defendants for the purchase of said property by the plaintiff, and especially on the occasion of part payment, to wit, the 2d day of February, 1885, the said defendants represented that each and all of the taxes on said property due the state and the county, including all years, have been paid, and if there were any still due, prior to the year 1875, the same should and would be paid at once; and they positively alleged, plaintiff avers, that all of said taxes were then paid and discharged.But, notwithstanding this, the said taxes due for the years 1870 and 1871 were forced out of plaintiff in order to redeem their said property, and the county taxes for the years 1870 and 1871 still remain unpaid to plaintiff, but though often requested," etc.The third count in the declaration is for money loaned, work and labor done, and money paid for them, all on February 2, 1889, etc., without stating any amount claimed.Bickford filed 20 different pleas, in which he denied every material averment of the declaration, and pleaded covenants performed, limitation, payment, stated account, settlement, merger, general issue, etc.The case was, by order of the circuit court and the consent of the parties, transferred for trial to the chancery court, November 28, 1890.Woodruff made no defense, and a pro confesso was taken as to him; and no further notice seems to have been taken, so far as he was concerned, his name not being mentioned in the final decree.W. A. Bickford having died, a motion was made on, to wit, November 25, 1895, by counsel for the defense, to abate the cause, for the reason that four whole terms of the court had elapsed since the death of Bickford had been suggested and proven; and as it appeared to the court that scire facias had been issued and served on the executrix of Bickford, requiring her to show cause why the suit should not be revived against her, the motion to abate was overruled, and the cause was revived.On October 8, 1895, a stipulation of counsel was filed in the cause, by which they agreed to use the original papers in the chancery case of Anderson v. Partee as evidence in the cause, subject to all exceptions for irrelevancy and incompetency.This record in the case of Anderson v. Partee (No. --, chancery court of Shelby county) appears in the transcript; but how it got there does not appear, except upon affidavits of complainant's attorney filed upon suggestion of diminution.There was a decree in the chancery court against W. A. Bickford's estate for $13,984.63, and appeal and assignment of

errors by Bickford's executrix.

It is necessary, before noticing the several assignments of error, and in order to correctly determine the status of this case, and of the complainants in the case, that we should fix and define the status of this case, and of the complainants in the case.The case was begun by summons in the circuit court, and declaration filed there.It was then removed to the chancery court, and further proceedings had there.The result may be very different if the case was continued in the chancery court as a law case, and heard as such.If still a law case, inasmuch as there was no bill of exceptions filed, the presumption here will be--whatever may be wanting of proof in the record--that there was proof below sufficient to sustain the finding of the court below.If proceeded with after removal and heard as a chancery cause there, upon appeal here the hearing will be de novo and upon the record as its competent parts may appear.The order transferring is as follows: "On application of plaintiff to transfer this cause to the chancery court of Shelby county, and it appearing to the court that it is a cause of an equitable nature, and by consent of parties, it is by the court ordered that this cause be, and is hereby, transferred for further proceedings and trial to the chancery court of Shelby county," etc.This order was made under the provisions of section 6074, Shannon's Code, which provides for such removal, and clearly contemplates that proceedings subsequent to removal shall be according to the forms and rules of chancery pleading and practice.

The next question is to the status of the plaintiffs with respect to this suit.If this is an action by the state in its sovereign capacity, or by the county as one of the agents of the sovereign, and for the recovery of taxes, then the ordinary statutes of limitation will not apply, under the maxim "Nullum tempus occurrit regi," unless Acts 1885, c. 24, andId.c. 86, apply.This action is not by the county to recover taxes, quasi taxes, but to recover an indebtedness which it claims by virtue of a contractual relation between it and defendants.It is not brought by the county, in its delegated sovereign capacity for the recovery of any revenue due it by imposition of its sovereign will, but as an individual sues another individual for an ordinary breach of contract.It is well settled that in such cases, where the government enters...