### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 10, 2001 Session CHARLES DOSS, ET AL 

### . v. GRACE T. SAWYERS Appeal from the Chancery Court for Rhea County No. 7227 Jeffrey F. Stewart, Chancellor FILED JULY 20, 2001 No. E2000-01745-COA-R3-CV

This is a suit wherein the Plaintiffs seek to remove a cloud in the form of a purchase agreement from the title of property owned by the Plaintiffs. The Trial Court found that the purchase agreement was invalid because of lack of mental capacity of the then owner, Char

les Doss, to sign the a

greement, and awarded a judgmen t in the amount of $6900 to the Defendant for payments made under the agreement. We reverse the judgment of the Cour

t relative to the in

validity of the pur

chase agreement

and, in accordance with the prayer of the counter-c

omplaint, order that the property be conveyed by the Clerk and Master to the Defendant subject to payment of the balance owed on the property as determined upon remand.
Tenn.R.App.P. 3 Appeal as of Right; Judgmen

t of the Chancery

Court Reversed; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. J. Arnold Fitzgerald, Dayton, Tennessee, for the Appellant, Grace T. Sawyers Steven D. Brown, Da

yton, Tennessee,

for the Appellee

, Robert Doss

OPINION1 Charles Doss died during the pendency of the suit and his sons, Edward C. and Robert D oss, were

permitted t

o intervene

as representati

ves of Charl

es’ heir s pursuant to T.C.A. 20- 5-102.

2 The complaint alleges t hat the property des cribed in a deed which is made Exhibit A the reto from Gus Doss to Charles Doss, conveying 15.14 acres is the property in dispute. How ever, at tri al a deed con veying 30 acres pu rp orting to be the property in quest ion from Gus Doss to Charles Doss and Vallie Walker, who we assume later married Charles Doss, was introduced. This deed exce

pts a port

ion of the pr

operty which,

although des cribed, doe s not state t he acreage exc epted.

-2- Charles Doss 1 and his wife Vallie Doss sued Grace T. Sawyers seeking to remove a c l oud from their title to some 29 acres 2 of real estat e located in Roane County. The c loud alleged is a purchase agreement

entered into on February 5, 1981, between the Dosses as sellers and E. Paxton Sawyers as purchaser. Later, Mr. Sawyers’ interest in the purchase agreement was assigned to his wife, Grace T. Sawyers, at the time of their divorce. The Trial Court found that Charles Doss lacked m ental capa city to execute th e purchase agreement,

that “the terms of the agreement were not complied with and the Par ol E vidence Rule would prevent any oral modification of the agreement.” He then “based upon the stipulation of counsel for Robert Doss that he will not seek contribution from the other heirs of C harles Doss” awarded a judg ment agai nst Robert Doss in the amount of $6900 for payments made under the purchase agreement notwithstanding that the record discloses cashed checks pay able to Charles Dos s totaling $10,500. Ms. Sawyers appeals insisting the Court was in error in not ordering the Plaintiff to deliver a deed to Ms. Sawyers for all prop erty describedin the purchase agreement or that the Clerk and Master be authorized to deliver such a deed. In the alternative Ms. Sawyers insists that she shoul d be repaid all monies p

reviously paid on th

e purchase agr

eement, plus pre-judgment interest from the date of each payment. As pertinent to this appeal the purchase agreement provided the following: That the purchase price

is $650.00 Dollars per acre, a portion of which has be en paidprevious to the date of this contract and the balance is due when the deedis delivered to t he Purchaser, no longer than 90 da ys from date, unle

ss a further agree

ment is reached b

etween the part

ies. In this non-jury case

, our review is de novo upon the record of the procee dings below ; however, th at record comes to us with a presumption that the Trial Court’s factual findings are correct. Tenn. R. App. P. 13(d). We must honor that presumption unless we find that the evidence preponderates against

the Trial Court’s factualfindings. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993). The Trial Court’s conclusions of law, however, are not accorded the sa

me deference. Campbell v. Florida Steel Corp. , 919 S.W.2d 26 (Tenn. 1996).-3-

The proof as to Charles Doss' mental capacity, which we quote in full, is sparse: David Doss (Son) Q Was your dad in the hospital at the time

he signed this? A Sure was. Q What was he in the hospital for? A Emphysema. That’s all I know. Q Do you remember his condition back in February of 1981 when he signed this agreement? A He was sitting there talking to Paxton Sawyers. He wasn’t talking to me, buthe was sitting up there talking to Paxton Sawyers just like – I knowed he was sick but I didn’t know anything else. Q You didn’t know anything else about him except that he was sick? A I knowed he was sick. Charlotte Akins (Daughter) Q What

kind of condition was he in on February of 1981 when he was there at Rhea County Hospi

tal? A He was in very bad shape. The doctors had t old us he didn’t have but maybe – MR. FITZGERALD: Object to that, Your Honor. THE COURT: Well, I sustain. You can’t tell what the doctors told you but you can tell you

r personal obser

vations. BY MR. BROWN: Q What did you observe about your father there on that day on February 5 th of 1981?3 It appears fr om the record t

hat Mr. Doss,

who had from time to t ime requested pa

yment on the purchase price, request ed any remainder owed to be applied on his funeral bill whi ch, presumably,

Mr. Sawyers, who owned a half interest

in a mortuary, would be due.

-4- A Well, when they c

amei n from signing the papers, after they left he started crying and he wanted to know why they made him do it. I said, Daddy, I thought that’s what you wanted to do. He said, no, I thought I had to.

. . . . Q What is it that your father said? A He told

me when they went out of the room – when David and Paxton went outof the room Daddy started crying. He said, why did the y make me sign that. I said, Dad dy, I though t that is what is [sic ] you wanted to do.

He said, no, it wasn’t, I thought I had to. Q Did he indicate t

o you why he thought h

e had to sign it? A Just the fact that he was in such bad shape , I rec kon, is all I know. He thought he didn’t have any choice. Q Did he indicate t

o you that this was so

me sort of agree

ment to bury him? A Yes, he did. There are, however,

several things tha

t militate against the Trial Court's finding as to mental capacity. First, we note that b oth a son and a daughter of Mr. Doss were present in the hospital when the purchase agreement was signed and would think it highly unlikely tha t the y would have remained silent and signed their names as witnesses to t he agreem ent had their father’s mental capacity been in question. Moreover, prior to the execution of the purchase agreement on February 5, 1981, Mr. Doss had received 16 checks totaling $3600, beginning January 14, 1980, and ending January 24, 1981. Therea fter, 40 payments

were made from February 7, 1981, to January 29, 1985, 3 in the amount of $6900. Thirty-six of the 56 checks paid to M r. Doss stated on their face: “For payment on property” or words to that effect. There is no contention that Mr. Doss had any mental impairment

during the latter period of time. Finally, we n ote, and perhaps most importantly, the agreement

as drafted called for the payment of $600 per acre . However, befo re signing, Mr. Dos s himself objected that the agreement was $650 per acre and the instrument

was altered to

reflect that amount. (See appendix.)-5-

We thus conclude that the evidence preponderates against the Trial Court's finding that Mr. Doss lacked menta

l capacity to ente

r into the agreem

ent. The Court’s finding a breach of the terms of the agreement was apparently based upon the fact that payment was not made fo r the property wit hin 90 days of the da

te of the agreem

ent. However, the payment was due–in the words of the agreement--“when the deed is delivered to

the purchaser, no longer than 90 days from date unless a further agree ment is reached between the parties.” The d eed was never delivered, which did not trigger the duty to pay the balance owed. Additionally, it is clear that the parties tacitly reached a further agreement

in that periodic pa

yments continued to be made by Mr. Sawyers and accepted by Mr. Doss. Finally, as to the Parol Evidence Rule, we do not believe consideration of t he checks, 36 of which, as already pointed out, were endorsed by Mr. Doss and contained the notation “payment on property” violates the Rule. In view of the foregoing, we c onclude t hat Ms. Sawyers should be entitled to enforce the agreement. We accordingly direct that upon a determination by the Trial Court of the balance owed on the purchase a greement and payment of that am ount by Ms. Sawyers , the Clerk and Mas ter shall execute a deed conveying the property to her. We do believe it a

ppropriate in vie

w of the fact that

there is proof Rob

ert erected a m

obile homeon the property, that the Chancellor, should the parties not be able to agree, conduct a hearing to determine an equitable adjustment as to the balance owed. For the foregoing re

asons the judgment o

f the Trial Court is

reversed and the cause remanded for the purposes hereinbefore set out and collection

of costs below whic

h are, as are c

osts of appeal, adjudged against

Vallie Doss, Rober

t Doss and Edward D

oss.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE