Williams v. Cravens

• Decision Date: 27 October 1945
• Citation: 191 S.W.2d 942,28 Tenn.App. 541
• Parties: WILLIAMS v. CRAVENS et ux.
• Court: Tennessee Court of Appeals

191 S.W.2d 942

28 Tenn.App. 541

WILLIAMS v. CRAVENS et ux.

Court of Appeals of Tennessee, Middle Section.

October 27, 1945

Rehearing Denied Nov. 24, 1945.

Certiorari Denied by Supreme Court Jan. 19, 1946.

Appeal from Chancery Court, Fentress County; A. F. Officer Chancellor.

Action in ejectment by Guy Williams against J. B. Cravens and wife wherein the defendant wife filed a cross-bill seeking to have complainant's deed declared void and removed as a cloud on her title. From a decree dismissing both the bill and the cross-bill, the complainant appeals.

Decree affirmed in part, and in part modified and cause remanded.

Ward R. Case and Robert F. Turner, both of Jamestown, for appellant.

A. R Hogue, of Jamestown, for appellees.

FELTS Judge.

This is an ejectment suit for a farm of about 40 acres just outside Jamestown. Defendants have been in possession since 1927 under a deed vesting title in them as tenants by the entirety. Complainant claims under a tax sale to the State April 4, 1940, and a deed from the Commissioner of Finance and Taxation October 19, 1942.

J. B Cravens by plea and answer attacked the tax sale and the deed to complainant upon a number of grounds, and stated he was willing and ready to refund all of complainant's expenditures which were proper charges on his interest in the land. His wife Loretta Cravens adopted his answer and further averred that she was not a party to the tax suit, had no notice of the sale, and her rights were not affected thereby; and that the sale was illegal and void because the chancellor's decree of sale had been reversed and the suit dismissed by the Supreme Court. She filed her answer as a cross-bill seeking to have complainant's deed declared void and removed as a cloud on her title.

The cause was heard before the chancellor and a jury. At the close of the evidence, there being no disputed issue of fact, the chancellor discharged the jury and filed his opinion deciding the issues. He held that the matters relied on by J. B. Cravens were insufficient to constitute a defense, but that Mrs. Cravens was not bound by the decree in the tax suit and her rights had not been divested by the tax sale, that her title and right of possession as a tenant by the entirety were enough to defeat complainant's bill, but that she could not maintain her cross-bill because more than three years had elapsed since the tax sale (Code sec. 1610) and because she had not tendered the amounts required by the statute (Code sec. 1611). Accordingly, the chancellor entered a decree dismissing the bill and the cross-bill and taxing complainant with the costs.

Complainant moved for a new trial, his motion was overruled, he saved a bill of exceptions, appealed and has assigned errors. He insists that Mrs. Cravens was bound by the decree in the tax case and her interest was divested by the sale and passed to him under his deed from the Commissioner, and that in any event he was entitled to maintain his bill because he had acquired the interest of J. B. Cravens and that interest carried with it the right of possession, since the husband has the right of usufruct and possession of property held by him and his wife as tenants by the entirety.

There is no dispute as to the facts. J. B. Cravens and his wife purchased the land for $1,250 and took a deed conveying it to them as tenants by the entirety. The deed was dated and acknowledged December 29, 1927, and recorded June 4, 1928. They have lived on the land ever since. The taxes on it became delinquent for the years 1933 to 1936, inclusive. These taxes were assessed to J. B. Cravens alone.

On January 24, 1938, the State of Tennessee and the County of Fentress filed a bill in the Chancery Court of that county against J. H. Allred and some 380 others, including J. B. Cravens, to collect delinquent taxes on their respective lands for the years 1930 to 1936, inclusive, that suit being styled State et al. v. Allred et al. The bill exhibited a list of the taxes delinquent against the lands of each of the named defendants, which list showed the taxes on the land here involved were assessed against J. B. Cravens and were delinquent for the years 1933 to 1936, inclusive.

As stated, these taxes were not assessed to Mrs. Cravens, and she was not named as a defendant to the bill, no process was served on her, no notice was directed to her, and she made no appearance in that suit.

There were six other similar bills pending in that court for delinquent taxes for the six years 1924 to 1929, inclusive, against some of the same persons named as defendants in the Allred suit. The bill in that suit asked that these six earlier suits be consolidated with the latter suit and this was done. Pro confessos were entered against J. H. Allred, J. B. Cravens, and numerous others of the named defendants. On November 16, 1938, judgments were entered against 'the several foregoing named persons' for the respective amounts of taxes assessed to each of them, and the Clerk and Master was ordered, after advertisement by printed handbills, to sell each parcel of land separately for cash subject to the right of redemption.

On January 25, 1939, the Clerk and Master sold said lands, including that here involved, to the State for the amount of the delinquent taxes, penalties, interest, attorney's fees, and costs, there being no other bidder. The Clerk and Master filed a report of the sales, and the report was confirmed by decree of the chancellor on April 4, 1940, which decree adjudged: 'It is, therefore, ordered, adjudged and decreed that all the right, title and interest of each and every respective person, or defendant above named, in and to each respective tract of land, above described, listed opposite his or her name, be divested out of them and each of them respectively, and vested in the State of Tennessee and it is decreed that said right and title be vested in said State of Tennessee subject alone to the right of redemption as provided by law.'

J. H. Allred and some of the other defendants appealed from the chancellor's decree directing a sale of their lands for delinquent taxes, and the Supreme Court reversed the chancellor's decree and dismissed the bill in the Allred suit. State et al. v. Allred et al., 177 Tenn. 61, 146 S.W.2d 138. As shown by that opinion, the ground of reversal and dismissal was that the Allred bill had been filed in violation of Chapter 71, Acts of 1937, amending Code section 1591, so as to provide that where there were tax suits pending against any particular tract of land no subsequent tax suit should be filed against it until the prior suits had proceeded to the sale of said land.

On November 19, 1942, George F. McCanless, Commissioner of Finance and Taxation, with the approval of the Governor and the Attorney General, executed a deed conveying to complainant 'all the right, title, claim, and interest of the State of Tennessee' in the land here in question. The consideration was complainant's payment of the delinquent taxes, penalties, interest, attorney's fees, and costs, aggregating $285.11, for the years 1933 through 1937, and the assumption of the taxes accrued since 1937.

That these taxes were not assessed also to Mrs. Cravens was immaterial. They were nonetheless a lien on her interest in the land. Code section 1331. Nor did the failure to name her as a defendant in the Allred tax suit prevent her becoming such. That suit was a proceeding in rem. Code section 1332; State ex rel. v. Collier, 160 Tenn. 403, 23 S.W.2d 897. Having an interest in the land, she was made a defendant by the seizure of it, which was effected by the filing of the bill describing the land. State ex rel. v. Collier, supra; Roberts v. Frogge, 149 Tenn. 181, 258 S.W. 782. So the decree in that case, if there was sufficient notice to her, could bind her as much as if she had been named as a defendant in the bill. State ex rel. v. Collier, supra; Collins et al. v. Oliver, 24 Tenn.App. 337, 144 S.W.2d 9; Obion County v. Massengill, 177 Tenn. 477, 151 S.W.2d 156; Esch v. Wilcox, 181 Tenn. 165, 178 S.W.2d 770.

There was nothing that could be notice to her except the poster naming her husband among many others whose lands were advertised for sale for delinquent taxes. The chancellor held this was not sufficient notice to her. Whether it was, we need not determine; for upon another ground we think her interest in this land was not affected by the tax suit.

The decree confirming the sale in that suit by its very terms left her interest untouched. It did not undertake to divest the interests of all the defendants but only those 'above named,' Mrs. Cravens not being one of them. Its language which we have quoted above, expressly limited its divestitute of title to that 'of each and every...