Simmons v. Bailey
| Decision Date | 25 June 1900 |
| Citation | 58 S.W. 277 |
| Parties | SIMMONS v. BAILEY et al. |
| Court | Tennessee Supreme Court |
Suit by Ina H. Simmons against Harriet A. Bailey and others. Decree for complainant. Defendants appeal. Affirmed.
M. C. Ketchum, for appellants. C. H. Moorman, for appellee.
The original bill in this case was filed to enforce a vendor's lien for unpaid purchase money. There was an answer filed as a cross bill, in which the defendant set up a defect of title, and failure to deliver a perfect abstract, as was stipulated for in the contract, and fraudulent representations as to title. There was a demurrer to the cross bill upon the ground that it failed to point out wherein the title was defective, or in what the false representations consisted, or wherein the abstract was defective. This demurrer to the cross bill was sustained, and it was dismissed. Under the original bill the lien was declared, the amount of the debt was ascertained, and the land was ordered to be sold to satisfy the balance of purchase money. The defendant to the original bill (being the complainant in the cross bill) has appealed, and assigns as error the dismissal of the cross bill, and refusal to grant relief thereunder. The cross bill alleges that the land was purchased, a cash payment was made, and notes executed for the balance; that a warranty deed was executed to the purchaser; that he was in possession of the premises. It does not allege that the complainant vendor is insolvent, or that there has been any eviction or any action to disturb the defendant's possession. It does allege that when the contract was made the vendor represented that the title to the land was perfect, and agreed to furnish a full, complete, and perfect abstract; that he delayed furnishing the abstract until just before suit was brought; that defendant, on receiving it, immediately submitted the same to counsel, and was advised that the chain was incomplete and the title was not perfect; that he at once notified complainant of these facts, but he had made no effort to remedy the defect, and defendant thereupon returned the abstract to complainant and rejected the same. The cross bill also charges that complainant knew his title was defective when he made the contract, and thereby perpetrated a fraud upon the defendant. The cross bill alleges in a general way, and incidentally rather than specifically and directly, that the title is not good; but there is no specification of any defect, and no statement of how or in what manner the title is defective or the abstract is incomplete. The demurrer is, in substance, that the cross bill shows the defendant in possession under a general warranty deed, and without any allegation that his title or possession has been disturbed or questioned or that the complainant is insolvent, and wholly fails to designate or charge in what respect the title is defective.
The errors assigned are that the cross bill alleges fraudulent misrepresentations as to title; that there are material defects in the title; that a complete and perfect abstract has never been delivered; and it is further assigned as error that a decree was rendered against defendant Harriet A. Bailey ordering the land sold, because the allegations in the bill were not sufficient to entitle the complainant to such relief. The last assignment is too indefinite, inasmuch as it does not allege in what respect the allegations of the bill were not sufficient, and the brief filed with the assignment...
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Howell v. Tomlinson
...Tomlinson could rely upon failure of consideration, this was an affirmative defense which he had the burden of proving. Simmons v. Bailey, 105 Tenn. 152, 58 S.W. 277; Gibson's Suits in Chancery, 3d Ed., sec. We think he failed to carry this burden, failed to prove failure of consideration, ......