# FILED
December 31, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON
BOBBY R. RUSHIN G, ) ) Plaintiff/Appellee, ) Dyer Chancer y No. 92-696 ) VS. ) Appeal No . 02A01-9711-CH- 00278 ) ROBERT R. DANIEL, ) ) Defendant/Appellant, ) ) and ) ) DONALD E. D ILLS, SHARON DILLS, ) and DAVID W. LANIER, ) ) Defendants/Appellees. ) APPEAL FROM

THE CHANCE RY COURT O F DYER CO UNTY AT DYERSBURG, TENNESSEE THE HONORABLE R. LEE MOOR E, CHANCELLOR LANCE E. WEBB Union City, Tennessee Attorney for Appellant CHARLES T. D

YER WILKES & DYER ATTORNEYS Dyersburg, Tennessee Attorney for Appellee Bobby R. Rushing STEPHEN D. SCOFIELD Dyersburg, Tennessee Attorney for Appellees Donald E. Dills and Sharon Dills

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: W. FRANK CR

AWFORD, P.J. HOLLY KIRBY LI LLARD, J. Defendant Robert R. Daniel (“D aniel” or “Appellant”)

appeals the judgment of the2

trial court which quieted the title of Plaintiff Bobby Rushing ( “Rushing” or “Appel lee”) tothe disputed property and declared the instrument rel ied on by Daniel a nullity and of no effect and dismissed all remaining cross claims by the Defendants.

I. Factual and Procedur al History

From approximately 1968 unti l 1972, Appellant Daniel and Appellee Don Dills (“Dills”) had business dealings tog ether. One business they r an together was Volunteer Amusement Company, which they opera ted together from 1969 until 1971 w hen Daniel acquired the interest of Dills. In approximately 1969, Di lls of fere d to transfer a one-third interest in the subject property (upon which the

Sinclair servic

e station, now called

“K.C.’s One Stop” was being built), contingent upon Daniel fulfilli ng certain requirements. This case revolves around the q uestion of whether Daniel ac quired a one-third inter est in the property by way

of this agreement.

As part of their agreement, Dani el helped in clearing the subject property during the construction of the service station on that property. He also was to be certified in the repair of auto mot ive air conditioning , engine tune-ups and dealer t raining, all of whic h he completed in 1969. He was also to operate the service s tation for a period of years after its completion. Daniel testified the required per iod wastwo years. Dil ls testified that Daniel was required to operate the bus iness for 15 years . The amount of time Daniel actually operated the business is disp uted, b ut he did not opera te the bu siness lo nger than two years. Daniel furnished all the necessary equipment for operating the s tation, but removed the same when he stop ped operating the station . While the service station was in operation, all profits were appli ed toward the indebtedness, Daniel received a salary for his operation of the service station and the taxes, insurance, and other bills were pai d out of the proceeds of the business.

Don Dills and his wife, Sharon Dills, by Warranty Deeds recorded October 8, 1973, June 29, 1977, and January 29, 1985, c onveyed full interest i n the subject property to3

Dav id Lan ier (“Lanier”). The thi rd deed was superfluous, si nce Lanier had obtained the entire interest in the

subject property

by way of the prior

deeds. After 1976, Dills no l onger had an in terest in the subje ct proper ty.

In September of 1983, Jimmy Dale Daniel, son of Appellant Daniel, was operating a business on the subject proper ty known as “The Store. ” Jimmy Daniel entered i nto a lease agreement with Dav id Lanier and paid to Lan ier the sum of $900.00 per month. Daniel knew that his son had entered into the lease and paid rent to La nier.

In 1985 Plaintiff/Appellee Rushing purchased al l the assets of “The Store” from Jimmy Daniel for approximately $16,000.00 and began operating a co n venience store known as K.C.’s One Stop on the subject property. Jimmy Daniel assigned the lease of the property to Rushing.Lanier, as lessor, consented to the assignment.

S ubseque ntly, on September 17, 1987, Rushing ent ered into a purchas e agreemen t with Lanier to purchase the subjec t property. Rushing discovered the Daniel d eed in a title search and Lan iersought to obtain a quitcl aim deed from Daniel with regard to his onethird interest in the subject pr operty, b ut Dan iel refused. Rushing decided to go forward
w ith the purchase and on April 3, 1 992, Lanier executed a Warranty Deed pur porting t o convey undivided title in the subject property to Rushing. On November 20, 1992, Rushi ng instituted this action against Dan iel to quiet title to the subject p roperty. T h e Dills and Lanier were later added to the s uit as defendants, and Daniel filed cross-claims against them.

At trial, the chancellor made the following findings. The instrument recorded was a photoco py, it was undated, and did not rise to the standar d of a deed. The document was not prepared to indicate that Di lls signature is acknowledged and the document contains a contingency for Dan iel to perform in the future which was not met. The docume nt fails forlack of consideration and is not enforceable as a contract or deed. This ap peal by Daniel followed.4 II. Construction of the Instrument

It is the dut y of the co urt to con strue a de ed, if po ssible, t o give effect to its several parts and avoid rejecting any of its provisions , t h e presumption being that the par ties intended every part of the deed to hav e some mea ning. Quar les v. Arthur , 231 S.W.2d 589, 590 (Tenn. App. 1950). It cannot be assumed that the grantor intended to contradict himself and the court should always lean to such a construction as r econciles the different parts of the deed and reject a cons truction which leads to a contradiction. Id . In construction of deeds, the overriding purpose is ascertainment of the intention of parties, which will be gathered from the instrument considered as a whole without regard to formal divisions or parts. Id
.
In the ca se befo re this Cou rt, the in strumen t at issue reads in it s entiret y: To all concerned: I, Don Dills, owner of said property located at Highway 51 By Pass calle d Volunteer Sinclair Serv ice Station consisting of build ing, e quipment, and land 150' x 150', do sell one third (1/3) interest to Bob Daniel for the sum of one dollar ($1 .0 0) and other considerations. Final Agreement will be drawn up at a later date.All profits of said service station will be applied toward any indebtedness. Appellantargues that the language of this instrument clearly conveys a one-third interest in the subject property, and tha t the subsequent paragraph d oes not defeat that interest. Appellantcites Higgenson v. Smith , 272 S.W.2d 348 (1954) for the contention that where the conflict between the gr anting clause anda later limiting cl ause cannot be reconciled, the granting clause must prevail.

While this is a true statement of the law, this Court must first look to the whole of the instrument, without reference to its formal divisions , in order to ascertain the intention of t he parties, and not allow technical rules to over ride the intent. Beecher v. Hicks , 7 Lea , 211(1881). An estate conveyed by the grantingclause may be enlarged or les sened in the habendum if, considering the inst rument as a whole, such appears to h ave been the intent5

of the parties. Higgenson at 349.

In the case

of Carnes v. Apperson , 2 Sneed, 562 the grantor ex ecuted an instrument

which arguably de eded property to the grantee. The grantee argued that the words “bargained

and sold” evidenced a title in presenti was intended to

pass. The court found that while such language was s ufficient to presently conv eyan interest, subsequent language in the instrument evidenc ed it was merely an ag reement to pay upon a the occurrence of a contingency (payment of $500).

This Court must determine whethe r the parties intended to presently convey

an interest in the property, or w hether this instrument w as something di ffe rent. The same wor ds may be construed as an agreement to c onvey, or as operating as an actual conveyance, a ccording to the intention of the parties to be gathered from the context. Hanks v. Folsom , 79 Tenn. 555 (1883).

This case bears some similarity to the case of Topp v. White , 12 Heiskell, 165, 173. In the Topp case, the parties executed two writings. The first writing stated “Said Davis has this day, by these presents, sold to Robertson Topp the tract of land (describi ng it). [H]e has likewise executed

five notes . . . [I]t is understood by the parties to this agreement,as there is not time to pass regul arly deeds for the above mentioned property, that between this and the 1st of May, 1869, the parties are to meet in Memphis, where said Davis is to make, or cause to b e made, to said Topp, a deed in fee for said l and . . .” The second writingstated as follows: “I h ave this day bargai ned and sold t o Isa ac N. Davis the following town lots

in the city of Memphis (describing them), I obligate myself to make said Davis a deed in fee for said l ots.” The court in Topp set out to determine whether the writings operated, in presenti, to pass title, or whether they were mere agreements t o convey. In evaluating the first writing, the court found th at the language in the beginning of the agreement “Said Davis has t his day, and by these presents, sold to Robertson Topp,” standing alone, would b e sufficientto convey the title. Id . at 174. How ever, the l anguage found further in t he same6

writing evidenc

ed that they

did not intend the title to pass by the contract then executed. Id
. The court state d that if the parties understood th at by this writi ng the title to the land passed, and that the contract was,in this regard, an executed one, there could have been no reason for stipulating for the execution of another deed for the same purpose. Id
. The court found the same as to the second wr iting. When Topp expressly cov enanted thathe would make a deed thereto, he implied that what he did make was

not regarded as a deed. Id . at 175.

In the case a t hand, t he langua ge “Final A greemen t will be dra wn up at a later date” evidencesthe intention of the grantor that this writing was not a fin al agreement. There were also other problems with the instrumen t. Dills indicated that he had no recollection of ever executing the document and doesn’t think that he prepared it. Neithe r Dill s nor Daniel recall the delivery of the deed to Daniel. The instrument

recorded was admittedly a cop y and no exp lanatio n was given f or the abs ence of the origna l. The do cument wa s prepared on Volunteer

Motor Lodge stationary. There is nothing on the document to show actuallywhen the document is dated. The document does not contain a proper acknowledgment, and there is no way t o determine if the notary w as actu ally notari zing Dill’s signature. Furthermore, the instru ment di d not contain an oath of considerati on as required under Tenn. Code Ann. §67-4-409(6)(A) nor w as any Recordation tax paid as required by Tenn. Code Ann. §67-4-409(a) . Considering the instrument as a whole, with emphasis on the actual language indi cating a final agreement would be drawn up later, this Court finds that this instr ument was not a deed.
Furthermore, every species of cont ract may be subject to condi tions by which an estate or inte rest may commence or be enlar ged or defeated. Carnes v. Apperson , 2 Sneed, 562. No technical words are necessary to cr eate the condition, o r declare its nature. Whether the contract be upon condition p recedent or subsequent must be resolved bythe intention and understanding of the parties, to be collect ed by carefully consi dering the entire instrument. Id
.7

All parties in this case ag reed that the transfer of the interes t in the property wa

s conditioned upon several things. Both Appellant and Appellee Dills agreed that Appel lant was to supply the tools and eq uipment for the service station and operate the station for a period of time. The trial court found that the conti ngency was not fulfill ed. Upon careful consideration of the record in this matter, we find tha t the evidence does not preponder ate against the trial cour

t’s finding.

Dills testified that Daniel agr eed to furnish the tools and equip ment and operate the service station until the indebtedness was paid. The testimony o f Daniel was similar

except he indicated that he

was only requi red to operate the servic e station for a two year

period. Dillls testifi ed that w

hen Dani el left

he actually took

the equipment with him. Ther e was no rebuttal testimony in that regar d. Ther e wa s proof from Dills that Daniel operated the station for only a brief period of time and that between 1969 o r 1970 and 1972 there were fouror five other people wh o operated the service st ation. There was testimony from one witness that corroborated that testimo ny. While several key facts in this case were disputed, the trial ju dge was able to assess the credibility of all

witnesses, and the evidence presented does not pr eponderate against his finding
.
The language in the instrument stating that a “Final agreement will be dra wn up at a later date” may equall y suggest t hat this wasnot a contract. Howev er, any type of contract (including a deed) is subject to conditions. Based upon the instrument itself and the testimony of the parties, the trial court found that this i nstrument contained a contingency for Daniel to perform in the future.The trial court also found that the fulfillment of the contingency was the consideration for the contr act or deed. Afte r hearin g all the testimony

in this matter the trial

court concluded that the contingency was n ot fulfilled. For the above noted reasons, this Court has found that the evidence does not preponderate against that finding. Therefore, whether the instrument bea deed, a contract to convey, a contract to negotiate, or something less, it contained a contingency that was not fulfilled, and therefore must fail for lack of consi deration.8

For the foregoing reasons, the trial court did not err in finding that this inst rument was not a deed, that the instr ument contained a

contingency for Daniel to perform in the future which was not met and the instrument was not enforceable asa contract or a deed. The trial court was correct in quieting t he title of Bob by Rushing.

III. Dismissal of Cross C laims

It is the position of Appellant tha t the trial court erred in dismissin g his cros s-claims against David Lanier, forimprovements to the property and for one-third share of the rent s from the subject property. Ba sed upon the above finding that Appellant did not

acquire any interest in the property by way of the instrument, Appellant is not entitled to any share of the rent s from th e subject property.
Appellantclai ms t o have expended the sum of $7,000 for i mprovements to the property, in the form of an addition of a game room to the back of the service sta ti on. Further testimony indicated the cost to Appellant may have been closer to $4,500. There was testimony that in 1978 Appell ant and Mahlon Green, operator o f the service station at that time, added a trailer to the back of the

station and r

emodeled it t

o serve as a game room for Appellant to place his gaming machines. Green paid for thetrailer and Appellant paid for the remodeling materials and did the labor.
It appears from the record that the sole purpose of

the addition was to provide an area for Appellant to put his vi deo games. Appellant testified tha t he customarily splits the profits from his video games 50/50 with the business operator of the premises, and he did this with Green. Although Appellant testified that it was not customary for him to improve the p roperty in order to pl ace his machines, the improv ement of the property di rectl y benefitted Appellant. This Court fi nds that Appel lant benefitt ed from the ad dition to the property, and is not entitledto reimbu rsement from Lanier for the improv ement to the property on any theory such as unjust enrichment or quantum meruit. The trial court did not err in dismissing all the cross claims of the parties.9 IV. Conclusion

The judgment of the trial court is hereby affirmed. Costs of thi s appeal are taxed to Appella nt, for wh ich execut ion may iss ue if nec essary.

HIGHERS, J. CONCUR:

CRAWFORD, P.J., W.S.
LILLARD, J.