Williams v. Williams

• Decision Date: 21 June 1941
• Parties: WILLIAMS et al. v. WILLIAMS et al.
• Court: Tennessee Court of Appeals

156 S.W.2d 363

25 Tenn.App. 290

WILLIAMS et al. v. WILLIAMS et al.

Court of Appeals of Tennessee, Middle Section.

June 21, 1941

Certiorari Denied by Supreme Court December 6, 1941.

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

Suit by Blanche Williams and others against Mrs. M. H. Williams and others for partition of a farm or, in the alternative, for a sale for division of the proceeds. From an adverse decree defendants Louis Williams and others appeal.

Decree modified and, as modified, affirmed, and cause remanded to chancery court.

Ward R Case and Robert F. Turner, both of Jamestown, for appellants Louis Williams and others.

George C. Bertram, of Byrdstown, for appellee W. M. Beaty.

Ben E. Groce, of Byrdstown, for appellee Estell Williams.

J. Q. McDonald, of Livingston, for appellee Nashville Trust Co.

CROWNOVER Presiding Judge.

In the original bill in this cause the complainants asked for partition of a farm of about 200 acres, of the value of about $3,000, among eight claimants, or, in the alternative, for a sale for division of the proceeds. The answers raised questions of conflicting titles.

W. F. Williams died testate, in Pickett County, on August 8, 1918, leaving surviving him his widow, Mrs. Martha H. Williams, and six children. By his will all of his property was bequeathed and devised to his wife and her children. His devisees were: Mrs. Martha H. Williams, Myrtie Williams, Hatcher Williams, Bettie Whittenburg, Oscar Williams, Louis Williams, and Montie Williams--each being devised a 1/7 interest in said estate.

Hatcher Williams died some time later, leaving surviving him his three children: Blanche Williams, Finley Williams, and Marie Williams Wright. Each was therefore entitled to a 1/21 interest in said property.

It appears that the court house at Byrdstown and contents were destroyed by fire in 1934, but the lost record of this will has been restored.

The bill in this cause was filed in 1939.

The complainants in this cause--Blanche Williams, Finley Williams, Estell Williams, and W. M. Beaty--alleged in the original bill that several interests in said property have been conveyed since the death of W. F. Williams: (1) That W. M. Beaty had become the owner of a 2/7 interest in the following manner: Louis Williams, the owner of a 1/7 interest, purchased the 1/7 interest of his sister, Bettie Whittenburg. He executed a deed of trust conveying a "one-third" interest to secure a loan from W. M. Beaty. The trust deed was foreclosed, and Beaty became the purchaser of the interest owned by Louis Williams, and the County Court Clerk executed to him a deed which was recorded. Beaty asked in the bill that if it be discovered that Louis Williams also owned a 1/21 interest he be decreed to be the owner of it. (It appears that Louis Williams has purchased the 1/21 interest of Marie Williams Wright.) (2) That Estell Williams purchased the 1/7 interest of Mrs. Martha H. Williams at an execution sale, and the sheriff executed to him a deed, which was recorded. (3) That Dr. W. D. Haggard purchased the 1/7 interest of Myrtie Williams under an execution sale, but no deed was on record when the bill was filed.

The widow, Mrs. Martha H. Williams, answered and attempted to attack the restored will, alleging that the original will devised to her a life estate in all the property with remainder to her six children. She alleged that she was entitled to dissent from the will. However, Mrs. Williams died while this suit was pending, and these contentions seem to have been abandoned.

Mrs. Williams in her answer denied that the interests in the property were as alleged in the bill, and denied that her interest had been sold under execution to Estell Williams or was subject to be sold.

Dr. W. D. Haggard answered and alleged that he was the owner of the 1/7 interest devised to Myrtie Williams. Dr. Haggard died while the suit was pending and the cause was revived in the names of his heirs and devisees, two of whom were minors, for whom a guardian ad litem was appointed who answered for them. The Nashville Trust Company, executor of his estate, answered.

Judgments pro confesso were taken against Estell Williams, Myrtie Williams, Bettie Whittenburg and Oscar Williams; and these pro confesso judgments were never set aside. However, Myrtie Williams, Bettie Whittenburg, Oscar Williams and Montie Meek afterward answered and denied the ownership of some of the parties as alleged in the original bill.

It appears that the widow, Mrs. Martha H. Williams, and Louis Williams have lived on the land since the death of W. F. Williams in 1918. It is not shown who has been occupying it since her death in 1940.

The chancellor referred the cause to the clerk and master to take proof and report, (1) a correct description of the land, (2) the interests of the parties in the land, (3) all incumbrances including taxes, (4) whether said land was susceptible of advantageous partition in kind, and (5) if it should be sold, the terms, etc., of the sale.

The clerk and master reported, giving a description of the land, and finding the interests of the parties as follows:

(1) W. M. Beaty 2/7, being the 1/7 devised to Louis Williams and the 1/7 acquired by Louis Williams by purchase from Bettie Whittenburg, and both interests acquired by said W. M. Beaty by purchase under a sale by virtue of a deed of trust; (2) Estell Williams 1/7, being the 1/7 of the widow Mrs. Martha H. Williams, and acquired by him by purchase at a sheriff's sale; (3) the heirs and devisees of Dr. W. D. Haggard 1/7, being the interest of Myrtie Williams and acquired at a sheriff's sale; (4) Montie Meek 1/7 devised to her by the will; (5) Oscar Williams 1/7 devised to him by the will; (6) Finley Williams and Blanche Williams each 1/21 acquired through their father Hatcher Williams to whom was devised a 1/7 interest; (7) Louis Williams 1/21 acquired by him by purchase from Marie Williams Wright, one of the heirs of Hatcher Williams.

He reported that the delinquent taxes amounted to $826.18, and that the land was not susceptible of partition and that it should be sold, being first offered in three tracts and then as a whole.

The chancellor overruled the exceptions of the defendants and confirmed the report of the clerk and master, and decree was entered accordingly.

The defendants excepted to the decree and prayed an appeal, but only the defendants Louis Williams, Myrtie Williams and Montie Meek perfected their appeals. These defendants, Bettie Whittenburg, and Oscar Williams have assigned errors, which are, in substance, as follows:

(1) The chancellor erred in decreeing that W. M. Beaty had established title to a 2/7 interest.

(2) The chancellor erred in decreeing that Estell Williams had established title to a 1/7 interest.

(3) The chancellor erred in decreeing that the heirs and devisees of Dr. W. D. Haggard had established title to a 1/7 interest.

(4) The chancellor erred in confirming the report of the clerk and master as to the delinquent taxes on the property.

(5) The chancellor erred in confirming the master's report which recommended that the land be divided into three tracts and offered at the sale, first in three separate tracts, and then as a whole, and the sale confirmed that brought the highest price.

The original bill is a partition suit, but the titles of some of the parties were disputed by the answers. If any of the defendants in a partition suit dispute the complainant's right to a partition, the complainant must make such proof as would entitle him to a recovery in ejectment. Gibson's Suits in Chancery, 4th Ed., secs. 1058, 1061; Code, sec. 9180. And partition cannot be had while the title is in dispute, either in kind or by sale. Campbell v. Lewisburg & N. R. R. Co., 160 Tenn. 477, 26 S.W.2d 141.

The original records of the proceedings by which Estell Williams and Dr. W. D. Haggard become the purchasers each of a 1/7 interest at a sheriff's sale were destroyed when the courthouse was burned, after these sales. Estell Williams and the heirs and devisees of Dr. Haggard rely on sheriffs' deeds and, Beaty relies on a (trustee's) clerk's deed. They contend that said deeds are prima facie evidence of the facts recited therein. Code, secs. 8915, 9745.

I. The first assignment, that the chancellor erred in holding that W. M. Beaty had established title to a 2/7 interest, must be overruled.

Beaty undertook to establish title by introducing a deed executed by the County Court Clerk under authority of the deed of trust executed by Louis Williams.

(1 and 2) The defendants contend that this deed executed by the County Court Clerk was not executed by him in his official capacity as clerk, therefore it is not prima facie evidence of the facts in such instrument recited.

It is true the deed was not executed by the clerk in his official capacity, but the deed of trust executed by Louis Williams provided that "the person holding the office of County Court Clerk for said County shall have the authority to convey the property to the purchaser." And Code, sec 9745, provides, "All instruments of conveyance executed in official capacity by any public officer of this state or by any person occupying a position of trust or acting in a fiduciary relation shall be admitted, held, and construed by the courts as prima facie evidence of the facts in such instruments recited, in so far as such facts relate to the execution of the power of such office or trust." Under this statute a trustee's deed is prima facie evidence of its recitals. Harrison v. Beaty, 24 Tenn.App. 13, 137 S.W.2d 946, 951; Camp v. Riddle, 128 Tenn. 294, 160 S.W. 844, Ann.Cas. 1915C, 145; Richardson v. Schwoon, 3 Tenn.App. 512; King v. Richardson, 7...