Williams v. Neil

• Decision Date: 30 April 1871
• Citation: 51 Tenn. 279
• Parties: James Williams et als. v. Thomas A. Neil et als.
• Court: Tennessee Supreme Court

51 Tenn. 279

James Williams et als.

v.Thomas A. Neil et als.

Supreme Court of Tennessee.

April Term, 1871.

FROM HARDIN.

Error to the Chancery Court at Savannah. Decree at March Term. 1871. GEO. H. NIXON, Ch.

Bateman & Patterson, for complainants, cited Jones v. Williamson, 5 Col., 371, 376, 380, 381, Code 4576, Bentley v. Hurxthal, 3 Head, 378; 1 Dan'l Ch. Pr., 197.

J. F. McKinney & J. F. Huddleston, for the defendant, cited 3 Col., 52; 1 Sneed, 297, Code 3603.

FREEMAN, J., delivered the opinion of the Court.

The defendant presented a writ of error to reverse the decree of the Chancellor, ordering a sale of the land in the pleadings mentioned. The ground assigned for reversal of the decree is that the heirs of one Johnson, who was trustee under the deed of trust made for the payment of certain debts, and who had died, were not parties to the decree. It appears that these heirs acknowledged service of process, but no answer was filed for them, or order pro confesso taken against them, nor guardian ad litem appointed for a portion of them who were minors.

Neil and wife are the only parties having any real interest in this land; Mrs. Ross, the mother of Mrs. Neil, having died after the rendition of the decree of sale, and a revivor having been had upon her death against Neil and wife, Mrs. Neil being her only heir at law.

The decree ordering the sale was made by consent--its language being, “and by the agreement of parties and their solicitors, it is agreed that the said sale be set aside, and that said lands so conveyed in said deeds of trust be again sold,” etc.

It is well settled that there lies no appeal or re-hearing from a decree by consent, and such decree can only be impeached by an original bill in the nature of a bill of review, when it has been obtained by fraud or imposition. This is the result of all the authorities on this question. See case of French et als. v. Shotwell, 5 Johns. Ch. R., 555, where the authorities are collected by Chancellor Kent; also, Story Eq. Pl., sec. 426, note 1; 5 Col., 375, 376; and manuscript case at Nashville of_____

Section 3107 of Code provides that “a judgment by confession, or the suing out of an injunction against a judgment at law, is a release of errors;” and by sec. 2970 the words “judgment and decree” are declared to be interchangeable in the Code, each embracing the final determination of a cause, whether at law or in equity.

We hold, therefore, that whatever errors there may be in the decree of sale complained of, the complainants in this writ of error have precluded themselves from any relief in this Court, either by appeal or writ of error.

The decree being conclusive on the parties prosecuting this writ of error, however erroneous as to other parties, will not be set aside by this Court, because of errors as to such other parties, said parties not complaining of the same, but being, as far as we can see, content therewith: 3 Head, 378;Whitley v. Davis, 1 Swan, 333.

It appears in this case that Johnson was originally appointed trustee in the deed of trust made for the purpose of securing certain debts, and that he died before executing the trust. The County Court of Hardin county, upon motion alone, as far as appears in this record, appointed one McDougal trustee in his stead, and the decree says, “he is hereby fully authorized to carry out the provisions of said deed of trust.”We can see nothing of these proceedings, if any were read, except the decrees, and if there was nothing but a motion made in County Court, it was not a case where, by the Code, an appointment of a new trustee on motion can be made: Secs. 3650, 3656.

Upon the death of trustees, it is provided that “a new trustee may always be appointed, on application by the beneficiaries by petition, making all necessary parties defendants,” and jurisdiction in the same chapter is given to Circuit, Chancery and County Courts to appoint trustees, and remove them for...