Trice v. McGill

• Decision Date: 01 February 1929
• Citation: 13 S.W.2d 49
• Parties: TRICE et al. v. McGILL et al.
• Court: Tennessee Supreme Court

Page 49

13 S.W.2d 49

TRICE et al. v.McGILL et al.

Supreme Court of Tennessee.

February 1, 1929.

Certiorari to Court of Appeals.

Suit by Mrs. Nannie Trice and another against Newt McGill and others.Decree for complainants was reversed by the Court of Appeals, and the bill dismissed, and they bring certiorari.Writ denied.

Ross & Ballew, of Savannah, for appellants.

Anderson & White, of Jackson, and Galbraith & Mitchell, of Henderson, for appellees.

GREEN, C. J.

On July 4, 1922, J. T. Trice and his wife, Nannie Trice, conveyed a farm in Chester county to the children of Newt McGill, Trice's nephew.The consideration named in the deed was $1,000 and love and affection.

Trice and wife filed this bill averring that the real consideration of the deed was that Newt McGill and his wife and family should move to the Trice farm, run the farm, and take care of Trice and wife so long as they lived.It was charged that McGill and his family, after moving to the Trice home and complying with this contract for about two years, moved away and breached the said contract.The bill was filed to set aside the deed and recover the land conveyed.The chancellor decreed the relief sought, but the Court of Appeals reversed his decree and dismissed the bill.

Conceding that the real consideration of the deed was that McGill should live on the place and take care of the old people, the deed contained no stipulation of the right to forfeit and re-enter for condition broken.If the consideration alleged had been written into the instrument, it would be treated as a covenant, in view of other language of the deed, and the complainants' remedy would have been a suit for breach of this covenant.This is true unless the deed had been taken by McGill with no intention of complying with the obligation assumed.Carney v. Carney, 138 Tenn. 647, 200 S. W. 517, and cases cited.

The chancellor found that McGill had no intention of complying with his undertaking to live on the farm and look after the old people when the deed was executed, and therefore set aside the deed for fraud.The Court of Appeals reviewed the evidence de novo and reached a different conclusion.

We think the Court of Appeals improperly undertook a review of the evidence de novo The case was heard before the chancellor upon oral proof by consent, but there was no agreement "expressed in writing" that the case should so be heard.Beatty v. Schenck, 127 Tenn. 63, 152 S. W. 1033, therefore controlled, and the Court of Appeals should not have disturbed the finding of the chancellor if that finding was sustained by material evidence.

Section 4887, Thompson's Shannon's Code, requires the appellate courts in Tennessee to review cases appealed from the chancery court"tried according to the forms of the chancery court" de novo and to re-examine "the whole matter of law and fact appearing in the record."

Prior to chapter 119, Acts of 1917, a non-jury case, heard on oral testimony in the chancery court, was not tried according to the forms of the chancery court.Hence section 4887, Thompson's Shannon's Code, was not obligatory, and hence Beatty v. Schenck, supra.

Chapter 119 of the Acts of 1917 changed the forms of the chancery court so as to make it formal to try a case upon oral proof in the chancery court by consent of parties"expressed in writing."When the parties proceeded in chancery according to the provisions of chapter 119 of the Acts of 1917—under that new chancery form — the appellant was still entitled to a review of the whole matter of law and fact.Watkins, Trustee, v. Sedberry, 155 Tenn. 148, 290 S. W. 970.

Compliance with the new form, however, requires that the consent of parties be "expressed in writing," and there was no attempt at such compliance in this case.The case was irregularly tried, and cannot be taken out of the authority of Beatty v. Schenck, which has been consistently followed.

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