Smith v. Sovran Bank Cent. South, s. 88-3002-I

• Decision Date: 28 March 1990
• Docket Number: Nos. 88-3002-I,C,s. 88-3002-I
• Citation: 792 S.W.2d 928
• Parties: Thomas P. SMITH, et al., Plaintiffs/Appellants, v. SOVRAN BANK CENTRAL SOUTH and James L. Woodard, Defendants/Appellees. A. 89-222-II.
• Court: Tennessee Court of Appeals

Page 928

792 S.W.2d 928

Thomas P. SMITH, et al., Plaintiffs/Appellants, v. SOVRAN BANK CENTRAL SOUTH and James L. Woodard, Defendants/Appellees.

Nos. 88-3002-II, C.A. 89-222-II.

Court of Appeals of Tennessee Western Section, at Nashville.

March 28, 1990.

Application for Permission to Appeal

Denied by Supreme Court

June 11, 1990.

Dan R. Alexander, Nashville, for plaintiffs/appellants.

C.D. Berry and J. Patrick Murphy, Bass, Berry & Sims, Nashville, for defendants/appelles.

TOMLIN, Presiding Judge (Western Section).

Thomas P. Smith, administrator of the estate of Minnie Craig Smith, joined by other heirs of Ms. Smith (hereafter "plaintiffs"), brought this suit against Sovran Bank and James Woodard, Trustee, (hereafter "defendants") under a deed of trust. Suit was filed in the Chancery Court for Davidson County to have plaintiffs declared owners of a one-half undivided interest in certain real property and to quiet title thereto. The chancellor below granted defendants' motion for summary judgment. The singular issue presented by this appeal is whether or not the chancellor's action was erroneous. We hold that it was not and affirm.

Inasmuch as we are dealing with the granting of a summary judgment motion, we look to the transaction history as reflected in the pleadings and supporting affidavits for a determination of the facts, which appear to be as follows: William and Minnie Smith Miller were married in 1942. Minnie obtained a divorce from William in Davidson County in 1950, but they continued to live together out of wedlock, ostensibly as man and wife. On July 15, 1985, Ernestine Thibodeaux conveyed by warranty deed a certain parcel of land to "William E. Miller, and wife, Minnie Miller, the Grantees herein, their (successors), heirs and assigns...." On that same day a purchase money mortgage to secure the payment of a promissory note "executed by William E. Miller and wife, Minnie Miller to the order of Ernestine Thibodeaux" was given to Joseph B. Pitt, Jr., Trustee, signed and acknowledged by "William E. Miller and wife, Minnie Miller."

Minnie Miller died in March, 1987. Shortly thereafter, William Miller married Shirley T. Miller. On July 23, 1987, for the purpose of securing a loan from the Williamson County Bank, ¹ a deed of trust was executed by "William E. Miller & wife, Shirley T. Miller" as grantors to James L. Woodard, Trustee, granting a lien on the subject property to defendant bank. This was the same property earlier conveyed to William E. Miller and wife, Minnie Miller. The "reference back" in the deed of trust to defendant bank contained the following language:

Being the same property conveyed to William E. Miller and wife, Minnie Miller by Warranty Deed of Ernestine Thibodeaux, unmarried, as of record in Book 6608, page 516, Register's Office of Davidson County, Tennessee. Minnie Miller is now deceased and title to the within described property is vested in William E. Miller as the surviving tenant by the entirety.

In September, 1987, letters of administration were applied for relative to the estate of Minnie Miller. This suit was subsequently filed.

In ruling on a motion for summary judgment, both the appellate and trial courts must review the matter in the light most favorable to the nonmoving party and draw all legitimate conclusions of fact in its favor. Daniels v. White Consolidated Industries, Inc., 692 S.W.2d 422 (Tenn.App.1985).

It is the plaintiffs' contention that the deed from Thibodeaux to William and Minnie Miller created a tenancy in common in the property and such was their intention. They further contend that William Miller was the owner of only a one-half interest in the property, the other half passing to them by intestate succession.

In granting defendants' motion for summary judgment, the chancellor stated:

The elements of estoppel have been established in this case. Without creating an estate by entirety between Mary Craig Smith Miller and William E. Miller, this Court holds that the heirs of Mary Craig Smith Miller, because of the intervention of an innocent purchaser, cannot assert that the estate in question is any different from that which their ancestor said it was.

On appeal, plaintiffs concede that they are estopped to deny that William and Minnie Miller were married. They further concede that a recital in a deed conveying property to husband and wife without stating a specific ownership interest creates a presumption that the parties take title as tenants by the entirety. Plaintiffs furthermore contend that the presumption is a rebuttable one and to accomplish this rebuttal plaintiffs filed affidavits of Minnie Miller's heirs stating essentially that they "knew" that William and Minnie Miller intended to take title as tenants in common. In support of their position plaintiffs rely upon Myers v. Comer, 144 Tenn. 475, 234 S.W. 325 (1921).

Plaintiffs' reliance upon Myers is misplaced. In that case certain property was conveyed to a couple as husband and wife, "jointly and severally in equal moities." While acknowledging the general rule that a deed to a husband and wife ordinarily created a tenancy by the entireties, the Supreme Court held that the language in the deed evidenced a clear intent that the parties were to take title to the land as tenants in common. A reading of Myers clearly reveals that the presumption of the creation of a tenancy by the entirety can be rebutted only when a contrary intention is expressed in the instrument itself, as opposed to extrinsic evidence. Be that as it may, this is not the issue before us since the intent of William and Minnie Miller is irrelevant and not determinative of this case.

As recognized by the chancellor, what we are dealing with here is estoppel by deed. Our Supreme Court, in Denny v. Wilson County, 198 Tenn. 677, 281 S.W.2d 671 (1955), has described estoppel by deed as:

a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed or from denying the truth of any material facts asserted in it.

Id. 281 S.W.2d at 675.

A case strikingly similar to the case at bar and one which we feel is of great persuasion is that of Duke v. Hopper, 486 S.W.2d 744 (Tenn.App.1972), written by former...