Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-24
DEcIssON OF THE AUPREaE COURT.
oFFIcIAL.
Opinions OF the Supreme CsurS OF Ike
state 81 Tennessee, al Knoxville, Sep
reElbar Term. 1879.


The Chancellor was Of opinion that the case was
Recognizable in court OF law al0fe BY action Of
tejectment; aud therefore q court OF equity could
give no relief nor entertain the case. Ard this Is
1.-THE first question.
8 Facts be complainant and his two brothers.
F4Wiliam and George were the joint owners Of q
sSIarye tract OF land IN " Dupeh Bottom on French
Broad river Cooke county, by descent from their
father who died in 1881; ard BY purchase They hels
lit in common until 1889, when they agreed upon
partition ia writing signed By the parties deserib
ling an1 setting apart the share OF EACH and after
3that held in severalty according 10 the partition
fSThe writing was not very formal, was it ever
{reqstsred Il specified the boundaries between
them with sufficient certainty, bat did rot expressly
pass the title OF each to the ether. But it al
ways, ard is Jet, Acknowledged by them As valaed
and binding division, and the ownership and
several possession was regulated BY r. 1ne
G 7oint debtz against them were at the time very
s heavy, which were, Is alleged, mainly incurred
for portions Of said lands which they had purehas-
sed. The pressure OF these debts so heavy upon
hem that in 1872 they found necessary to secure
their creditors bya deed Of trust upon the land This
was made 70 BOardmsn trustee, for the benefit OF
himself and all other creditors TO the amount Of
Twelve or fifteen thousand dollars All three signed
he deed of trust and covered the whole OF the land
without any regard to the partition reference to-
sill il the deed. BY the exertons Of the parties, with
tbs inaolg sncs of the trustee and benefciares the
debt reduced, BY ls47, to about 5000 without
kany sale Of the property. AT that time the com
1itilanL whose nSallu Oectfttu
Effected ss it is stated went of 10 the South with
sSmsIl drove Of horses. lie was expected 70 return
lin few weeks, but did not do for seven years.
Without any apparent cause for it. but eccenricity
of character he kept his abode and movements Sc
scret. and had no correspondence with his mother,
Ebrofhers or friends A rurnoF very soon got out
that ne dead, and il seems TO have been believ
ed by lis brother and the neighbors generally " hen
he left he verbally authorised his brother William
to take charge OF, and manage Tor him, his property,
lreal and PERSONAL AMI apply the stock AID income
40 the common debts On the 18th February, le49,
bout sixteen months after complainant left
the country, the mortgage debts stu remain
Aing unpaid, under the SuppcSttlOa as they al
"a Iege, that he was dead and his lands had des-
esnded to his too brothers AID his mother they made
sale of the most valuable portion of It TO the
81 Taylor brothers. for $1,000, which, or the larger
spOrtiOn of it. as Is recited IN the bond for titie
that dsy executed BY the three was to be paid to
Sthe benefciaries IN the deed Of trust Of ISL In
81 october 1854 the trust debts having been paid BY
Sfhe Taylors according 20 contract, deed IN fee,
&with warranty, was executed BY the said William,
tIeOrge and Esther Carter. to the TSylOrs, in pur
ssusnce Of the bond. Just before that was done
Satisfactory information had been received that
coin painant was alive of which both parties were
s5apprised. lie soon after returned, and filed this
sssbill the next January, 1855. The object of the
bil is TO settle up the whole matter OF the trust
swith his brothers, Boardman, the trustee. and the
81 Iayors, for the payments they have made OF the
trust debts; to have account OF rents aud
1DrOut8 against MS Drttner4 and tue AaJl9fS,
4the use and possession OF his land by each and
to vacate the deed made by his brothers and mother
without authority, and upon full adjustment of
he rights and equities OF all the parties, " have nus
land restored to him.
~ he instituted an action OF eJectmenf against the
aTaylors. cOntemporaneousy with the fling OF the.
Sbill. He was forced 10 elect, by order of the
the Court, in which tribunal be would proceed.
- He decided in favor of the court Of equity and
ahis action of ejectment was dismissed. a demuF-1
RI bi5 hill digalfFgynd
sto rely upon it in the answer Upon the final
hearing the bill was dismissed, upon the ground
that court Of equity had no jurisdiction; but bis.
fremedV if any he had. was at law. Upon the cor
rectness Of this opinion of the Chancellor, the ar:
yument has been made here. It seems very clear to-
Is that his Honor erred and that it IS case Of equi
Fable jurisdiction on various grounds
I. The legal title Of the complainant passed into
oardman by virtue Of the deed Of trust Of mort
e1gage of 1872 Technically it could only revert
Shy re-conveyanee Of the trustee or by decree.
upon foreclosure. But it has been held aDd is well
gsettied, that it cannot be set up against the
szsmortgagor after the debts secured by i aFo.
4paid of By Aim, even at law but if q stranger TO
Ssthe deed had paid it of, hs would be regarded
Gas assignee and might use It for his protection In
"a suit brought against him for the land. This is
decided in the Of Petty VS.. Clark Peters, 4S2
SIt is not then the payment of the mortgage debts
that avoids the technical difficulty and vacates the
Esmortgagee's legal title, but it IS the payment by
THE mortgagOr. In which case the debt being exhn-
tf5 deCuEltJ u liGftE Dttii
fand the title returns to the former owner. Not so
Lin reason or in law, where the payment is by a
ctranger 70 the deed. In that case the mortgage is
brought in BY him with the debt and still stands as
Ssecurty for it. That vas the case here. TIE Tay:
zors paid 81 800 of the mortgage debts and by that
are substituted to the rights of the creditors The
stitIa would still remain In the trustee Boardman,
for their security 70 the extent OF their payments
4From this It must follow that complainant could
nOt have succeeded IN his action Of electment the
could baan p< Nv the
ffaylora Is ar ample profession against him But
ndepspdent Of that, the mortgage was not in fact,
sfully paid eff One Of the debts amounting to some
thing less than one hundred dollars was still unpaid
land is yet from al we True, this was debt
the trustee and tsesms he did not desire the ben
et Of the security Of the mortgage but he had not
srelinuuished or reconveyed.
G The remedy at law was, therefore, closed against
EEconrainant Bat he certainly had right 10 come
court of equity 70 have the mortgage forclcsed
Ssaud the rights Of all the ptSties adjusted.
k9 The defendants would be entitled to lein upon
athe land for the amount they had paid towards the
Edebts for they regarded as the assgnees Of the
raortgage creditors, entitled TO stand Ia their shoes
ESand have the advantage of their securities. But
ithey would of course be chaFgeable with rents for
sthe time they have been in possession Of the land
SfThe other defendants George and William carter,
Sswoud be liable to account for the of the land
S@by them and whatever they may have paid Of the
lebts out OF the effects Of the complainant IL this
Ekthe Taylors not complicated, but having become
Hsequtable assignees Of the mortgage in part they
are so connected with the matters as to be proper
kpsrties.
"a Another ground might be stated under this head,
Ito sustain the jurisdiction of court of equity. The
par ttion made in 1889. though in writing as 70
avod the statute Of frauds does not, perhaps, ere
ate perfect legal title, it does not purpOrt 10
convey TO each of the tenants IN common from the
others right in seYerSty to the portions allotted
to each. However this nav be there can be nOdOubt
but that equitable right in severalty is created
by the writing and court of equity would make II
perfect BY investing and dlvestng the legal utie IN
confarnitY with the written agreement of partition
EfsThey held the perfect legal title in common. then
6uuencgmbeFed, and the only object OF the deed OF
S39 between them was 10 sever their JOINT interest
and designate the oue-thiFd 10 which each would be
enfitled This is clearly and explicitly DOM. To il
mo objection is yet made, aud court Of equity viii
kscarry it out. The joint mortgage upon the Whole
Rhas no other effect than 70 cucumber the whole the
3one-third of each alike for the debt Here
hthen proper matter for court OF equity TO adj
Ejust by apportiOning the mortgage debts inclusive
sof those paid by the Tayors, among the three, SO
Jas to make them equal in the burthen upon final
: 3settlenent
81 q The Taylors ars in possession without title, as
1.-THE brothers of complainant who sold and conveyed
Ito them it is clear had no right to convey his land
But they connect themselves with the matter by the
fnavnent of the secured debts, and by substitution
ITO the rights Of the creditors under the mortgage
$50 although they have rights under their pur-
chase vet they have under the mortgage. Their in
terest Is to the extent of their payments and far
lther The complainant has right to bring them
sIuto court of equity for discovery Of the amount
IA of their payments and the benefits they have re
ceived from the trust property by its use or other
wise So be has also Alright 70 cali upon his brothers
ethe other defendants, for the same purpose For all
aathis court Of chancery is the proper form.
"a g. He has right to come into this court 10 clear
his title of the clouds resting upon it by the deed to
Echo Taylors well the mortgage deed. even if il
zbad been fully paid of Other grounds Of urisdic-
ton might be stated, bat they need not the fore
/. going are sufficient.
It Is commended that court Of equity will not en-
teraIn bill for partition until the legal title is set
ted But this is not hill for partition 1t is to set
e equities in relation land already partitioned
BAT least in view Of 4 court Of chsncery But ever
when the object is TO partition, but the titles are
Reputable there equities 10 settle, court o.
eouty may be resorted to for this purpose and hay
ing done So will decree partition under the same
EbHl. Storys Eq, sec. ESQ., and the following sec
kEtiOns.
81 Having settled the question Of jurisdiction and
deterlnned 10 entertain the for relief there car
be but little difficulty in drawing up decree fol
Mzthat purpose.