Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-03-28
pEorsrors 81 THn anPnpmE couRr.
oEYolAL.

OFHolAL.
Opinions Of the supreme Court Of the
state of Tennessee, nj jackson, April
Terfns 1853.
Gaugh and wife ss Henderson and others
The complainants brought this bill to regain the
possession Of lot in the city Of Memphis alleged to
be the property Of Mrs Gaugh and to have the title
of the defendants declared void for fraud.s The
Chancellor decreed for the compliments and the de-
PENDANTS appealed.
The material facts of the case are as follows: On
the 18th of December, 1910, the lot in question,
which was then wholly unimproved was conveyed
by W. L. Vance to the complainant Ahcia-then
Alicia Ann hernahan, an infant about six years Of
age, and daughter Of one Andrew Kernshan The
consideration of the conveyance is stated TO be $780,
paid by said Alicia. This deed was duly proved and
registered on the 9th of February, 1871
Shortly after the date Of this conveyance Andrew
kernahan compliments father. proceeded to erect
a frame dwelling house on said lot ;and in April lS42
five several judgments were recovered against him
before justice ofthe peace Memphis all amount
ing to some $500 for the carpenters and brlek-na-
I sons work done on said house. Executions on the
judgments were ISSUED, and were returned levied
upon said lot, being lot S5S in the city of Memphis
on the 18th day Of April, 1912, the property Of
Andrew Kernahan. And at the June term OF the
Circuit Court Of Shelby county, the papers being re-
turned into Court by the Justice judgments Of con-
| domination were rendered and said lot ordered to
be sold
The lot vas sold by the Sheriff on the ID of Octo-
Der, 1912, and was bid off by William Henderson, at
the price of $3.50. And the 12thday of December.
1872, the Sheriff executed a deed to said Hender-
for said lot On the day after the Sheriff s sale
to wit on the Sd of October, 1872 Viii Henderson,
the purchaser, sold and conveyed said lot to said
Andrew Kernahan at the price OF g 600, for which
kernahan executed four notes, eacn for 5000, pay
able at one two three and four years. and to secure
sad purchase mUney kernahan, at tie same time,
by deed Of trust of same date with the conveyance
to him. conveyed said lot to Seth Weatherly and Jos.
r. Williams as trustees, vestiEg the legal title IN
them with power to sell if said notes were not paid
at maturity, (Which deed of trust seems still to re-
mann in fOrCe.)
Afterwards. on the 23d day of June. IS43 Kerna-
ham, for the consideration of $3.50 sold and convey
ed all his interest in said ot-being his equity Of
redemption under the trust deed, to the defendant,
Andrew Henderson; and afterwards, on the 2Sth
day Of February 1874, William Henderson assigned
and transferred all his interest under said deed of
trust and the debt of $4,000 thereby secured to de-
PENDANT, Andrew Henderson. Shortly after this,
to-wit: on the 4th of March, 1874, Andrew Hen
dersOn (whO was a resident Of New Oreans) by his
agent. said William Henderson, flied bill in the
Chancery Court at SOmerYille, against the in
FAINT Alicia Ann Kernahan, TO have the foregoing
deed made to her by Vance for said lot declared
void and the title Invested out Of her and vested in
said Henderson.
The ground of this relief assumed in the bill is
for the lot was paid by said Andrew kernahan out
of his own money, and that he caused SAID convey
to be made by Vance to his infant daughter to
protect the property from his creditors, he being
then insolvent and indebted to large amount
therefore said conveyance was voluntary as
against his creditors and void"
On the 23d day of May, 1854, decree was made
in said case for the complaining declaring the con-
yeyance to Alicia TO have been made to defeat the
creditors of A. Kernahan ard directing the title out
1ofI auIr- asfi1 Tlp IN
plainant, Henderson.
Soon after the filing of said BILL namely, on the
10th day Of June, 1874, the complainant, Andrew
HendqsOn by his attorney, in fact, William Hender
son, so and conveyed said lot to one John Delafed
of whom notice will be taken presently, and after
various intermediate sales and cOnyeyances said lot
purchased by the defendants, the Messrs Green
law.
The said Alicia intermarried with complainant
and on the 8th day of May, 1858, and in less than
three wears after complainant Alicia, attained her
full age this bill was filed to have said sheriff
sale the decree before mentioned, and the various
convevances incu ding that to defendants Greenlaw
declared Illegal fraudulent and void Several inn
pcrtant and vexatious questions OF law aad fact
kave been discussed in the argument
For the cOmplanants 1t was insisted that the exc
cution sale was void and communicated no title to
the purchaser for various reasons:
l. 1t insisted that if it were admitted to be true,
that the lot was purchased and paid for by Andrew
Kernahan with his own money, and tire title made
by his procurement to his infant daughter, for the
avowed purpose of protecting the property against
his own creditors, that still the lot could not be
seized and sold by execution at law by his credit
ors, but only by a decree Of court Of Equity.
Lee 10: Humph. 10: Gerg. ljj, l59; l lredellS
L. Rep. 553; Contra. l Humph. 49l; Humph SO;
70 Weed. Al
There is a serious conflict of judicial opinion upon
this point and Its determination is not necessary
20 the present decision in the view we have taken
Of the case, we pass 1t by.
2 1t Is further urged. that taking it as establish
ed that the consideration money was paid by the
father STILL II Is not proved that there were any
Judgment creditors of his existing at the time Of the
conveyance. the investment must be regarded as
an advancement by the father for the benefit OF
ms child or a voluntary settlement made upon
her. which subsequent creditors cannot challenge
or impeach merely on the ground OF Its beng vol
untaTy.
With reference to the facts Of tine case, this pro-
position is by no means free from difficulty, but we
lay it aside and proceed to consider the case upon
the facts.
? 1t Is insisted that the sale was void, because
there Is nothing in the record to show that wTIts
Of ceaitiyui ery0Hs were issued to authorize said
sale The proof shows that no such wrIts can
now be found by the present clerk, not that such
writs not in fact issued but the Clerk states
that in the column of the execution docket. set
apart write the date Of the issuance Of wrIs of
e fl and UepditiOi erDOauS. he finds this memOran-
dun: " July 9TH. ~" which. from his knowledge
Of keeping the docket he understands to represent
the date Of the issuance of the writs OF UeadtOaj
etU0RuS il said cases. This date would suit as the
writs must have been tested Of the June Term,
1914 the date of condemnation Of the lot. and |
were executed the return Of the following
October Term. The Sherifs deed made soon
after the sale recites the the writs in his hands
but this recital is not evidence of the fact. /
Without more, however. we think this objection
must fail
L. But the fact that Andrew Kernahan paid any
part of the consideration money Of said let IS utterly
denied by the compliments. And this is the turn
ing point of the case If the truth be not then it
follows. of course, that the Sherif4s sale and the |
proceeding in Equity are alike imperative and void
TO affect the title OF the complainant. Alicia.
And upon this point it must be borne in mind that
the burden of proof is upon the defendants to dis
prove by clear and satisfactory evidence, the truth
OF the fact reCted in the deed. And 1t must like
wise be remembered, that lapse Of time under the |
circumstances, furnishes no presumption IN favor /
of the defendants prcUdicial to the complainant,
who all the while from the titles Of the sale mas |
been within the saving Of the statute Of Emita- |
tons.
The proof mainly relied on to establish the fact of
the payment of the purchase money of the lot by \
kernahan in his deposition taken in the Chancery
suit of Andrew Henderson. against complainant,
Alicia. before mentioned. If exception had been
taken to this deposition on the hearing. we incline
to the opinion that it ought to have been rejected
and, the objection made here, are by no means
JlaI IL ought not 10 De regarded as mad
mssible evidence The objections TO 1t are uumer-
Gus. and some of them Of very grave character
1t was taken the 10th of March 1914, just fifteen
days after the filing Of the bill which was an ap-
pearance to the May Term following, and three
months before the cause was put at issue by filing
replication and was not so far can be seen from
this record, taken de Je8e For this reason it
was liable to have been suppressed and would have
been doubtless, but for the culpabe neglect of the
next friend of the infant, to take exception to it, But
another objection of more serious nature, arises
out of the conduct OF the next friend Of the infant
in taking SAID deposition. And here it Is proper
to ex0neTate from all censure, the highly respecta-
bic gentleman who appeared as counsel for the
plaintiff IN taking said deposition. lie did nothing
more than bis professional duty seemed to demand
IF him. and doubtless ignorant of the fact, too
apparent from all the circumstances of this case,
% be denied, that combination existed between
he agent Of the complainant and the next friend Of
he infant to obtain a decree divesung the in
ant of her title, by artifce and fraud. The next
riend OF the infant was a lawyer, and was appoint
ID next friend on the application Of the agent
If complainant; and from all the circumstaa-
res OF the case the conclusion cannot be resist
u. that ne so appointed to aid in the accomplish
ncnt of the object sought by the bill The law
PORTION of the next friend, counsel for the com h.
claimant and the next friend could not perhaps have