Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-02-09
DECISIONS OF THE SUPREME COURT
OFETCLAL
Opinions of the Supreme Court Of the
State of Tennessee, at JiIcksOn3 April
Term, 1853.


State of Tennessee, at Jackson, April
Term5 1859.
NathewsOn and Others Spencer.
This case is brought here, for the third time, upon
questonn before presented for our consideration
The point now is another supposed chasm in the
plaintiff claim Of title. The facts upon which the
objection rests are these:
James Hart of North Carolina, being the owner Of
the tract Of land in controversy, on the 3lst day Of
March 1880 bargained and sold said tract of land
with several other tracts situated IN the West
ern District of Tennessee, to John Ray and John
jenkins and executed bond for title, binding him
seftO convey said lands TO them when the purchase
money should be paid-the same being payable IN
four annual instaments-tor which their bills, sin
gle, were executed TO him.
Afterwards on the 10Th Of December. 1881, sad
Jas Hart made Conveyance to Andrew Hart, by
which he assigned to the latter in trust for the ben
eft Of creditors all his bonds, notes. and other eYl
dences Of debt-including the notes Of Ray and
jenkins given for said lands-also, all his personal
property; also eight tracts Of land IN Cartnet cOun
ty North Carolina. And in said deed, James Hart
likewise conveyed to said trustee all his right, title
aud interest in and to said lands previously bar
gained and sold to Ray and jenkins; and recitlng
particularly to said trust deed his previous sale OF
said lands to Ray and Jenkins and his obligation to
make title to them on payment of the purchase
money due on the before mentioned notes assigned
to said trustee.
In the deed of trust it is provided that i the
bonds notes and evidences Of debt therein specified
and assigned, were collected within reasona-
bic time, the trustee should dispose Of them to the
highest bidder at public auction
The deed likewise provides for the sale Of the real
and personal property therein conveyed and directs
that the sale shall be at the Court House Of Cartinet
county, and that notice thereof for the space OF
twenty days. shall be given by public advertisement
at three OF more places in said county.
Afterwards on the 18th Of July 1881, the trustee
sold said notes of Ray and jenkins, to Thos. Mar
shall, at public auction; AID On the same day the
trustees execute to him = deed OF conveyance. IN
fee for said lands bargained and sold by James Hart
to Ray and jenkins. And on the 10th Of September
1881 ThOs. Marshall conveyed said lands IN fee u
said Ray and jenkins. In both of said last mention
ed conveyances the covenants convey on payment
of the purchase money, executed by James Hart to
Ray and JenkIns-haYing paid the purchase money
occurred the legal title to the lands cOvenanted tC
be conveyed to them by James Hart, as before
stated.
And the question to be determined is, whether o.
not the title thus acquired by them Is q valid nag
Its validity is denied by the counsel of the de
PENDANT on the ground that the trustee did not pur
sue the power conferred upon him by the deed Of
trust Its specific obligations are, first that the
trustee conveyed the lands to Marshall 1oih0d sat
at public duciioR; and secondly that it does not ap
pear that twenty days notice Of the sale of the notes
of Ray and jenkins, was given by the trustee.
The first objection isfOunded on nisconstruction
of the deed Ii is manifest from the whole instru-
meut, that the lands previously bargained and sold
by James Hart TO Bay aud jenkins, were not intend
ed to be sold by the trustee. No such thing was
contemplated II IS obvious that the object Of James
Hart IN conveying the legal title to said lands to the
trustee was merely to enable him, On collecting the
notes from Ray and jenkins, to transfer 70 them
the title in pursuance Of the bond for title before
mentioned; or, if they fail TO pay in reasonable
time and sale Ofthe notes atpublc auction should
become necessary, that the trustee might be in a
condition to transfer the legal title to the purchaser
as security to him for the payment Of said notes
The instrument admits Of no other reasonable or
sensible construction.
As regards the second objection, it would not be
going toe fer tosay perhaps, that more than twenty
years having elapsed from the time Of the sale Of the
notes before the institution Of the present action 1t
might properly have been left to the Jury to pre-
sumo the twenty days notice had been given by the
trustee
But. for the sake of argument, let this ,presump-
ton be rejected and let it be admitted that the no
tiee was not given, still we are of opinion that the
defendant who is stranger to the title derived
from James Hart and trespasser on the premises,
cannot be beard to set mp thig objection to the valid
ity of the title acquired by Ray and genklns-lt m
deed, it be an objection at all.
We do not intend by any means to question tie
correctness Of the general principle, that where
specific mode of executing power Is prescribed,
that must be pursued. Nor do we stop 70 inquire
whether or not the title in question might be sBa
cessfully assaulted by party in interest on the
ground of the supposed omission Of the trustee to
give notice It is sufficient for the present determ
nation to say that the defendant does noocupy such
4 relation to the transaction entities him to raise
any such question.
Ray and jenkins acquired precisely the title they
had contracted for with James Hart; and they ac-
ouired it, substantially. in the mode stipulated in
the covenant for title True. James Hart did not,
in proper person, execute the conveyance to them;
lint il was made with his consent and by his author
ity through the medium Of others, in a mode APP
ppoYed by him; and in well as in law. thus
vas equivalent to every intent and purpose, TO an
execution Of the contract by himself
From this view il results, that me Judgment IS
erroneous. II win be reversed, aud the case viii
be remanded for new trial on the merits.
Test: N. d. WELGH, Cldrk MCKINNEY