Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-09-13


state of Tennessee, az Knoxville, sep
tenn Der Term. 1880.
Gass ct ais, vs. HAWKINS Aad wife.
This is bill iled by Sarah Cas-, the widow o
Hezekesh B. Gass. deceased, and six Of his children
against Mary Ann HaWkins-his remaining chill
and her husband, Henry N Hawkins, in whicl
compliments seek to have the dover of said Sarsl
assigned 70 her out Of = certain tract of land ii
Greene county, and partition of the residence-al
leging that the said tract descended from the sal
Hezekeah B. On the 9Th of February. 1888. Johr
Gass, the father of said Hezekeah B., executed tG
him bond, in the penalty Of $4,000, conditioned
that he would make to the said Hezekiah B., or 70
all of his children, the said John might elect,
deed in fee simple with covenants if general war
ranty, TO certain tract of land describing the
by miles and bounds, Of which the above tract is =
part-exeeptng, however, from the conveyance
all the land contained within said boundaries
which he had heretofore conveyed to others, and
also so acres below said Johns gristmIl, as the
said John might choose to have the same run out
or surveyed.
In the said bond it was stipulated that if the said
John should execute said deed in his lifetime 70 the
children of the said Hezekiah B. then the said
HeZekiah b. was 70 have life estate In said lands
and If the said John should die without making the
deed-either TO the SAID Hezekiah B. or his heirs
then the personal representatives OF said John
we're required TO execute the deed to the said Here
dlah and the said John reserved TO himself q
exception of q saw-min which the said HeZekiah
was about to erect and timber 70 ssW in said mill
the said HeZekiah 20 do whatever saving the
said John5might want for his own use, he to furn-
ish the stock log; and also excepting the houses
and buildings which the said H skiah hal {
upon the place, and the field which he then had il
possession and cultivation, ard arewOod for his own
use and timber to keep up the place.
he said Hezekiah B. with his family Immediate
ly took possession of the said tract OF lInd-msde
improvements and eontended TO reside thereon un>
I'll his death ia 1886, and his widow and heirs and
have had pOssessin of the same ever since. They
claimed il absolutely, their own and were never
disturbed or any claim made 90 il, either by said
John Gass or his other heirs, 10 1886, but wheth~
er before, or after the death OF the
said Hezekah B., does net apper, the said
John went before the Clerk If the COun-
" Court of Greene County and acknowledged
said bond, and the same was registered. 10 June
1910, the SAID John Cas-, without having executed
said deed died leaving will, bearing date the LIST
Of March 1887 in which he devised said tract of
land 10 his son Hezekish B. Gass' family describing
the same as 800 acres, the place WhereOn he died
And in bill in equity subsequently led by the eX
scutors Of the said John Gass against those inter-
ested in his estate for construction of the will.
and the execution of the trusts therein contained, it
was alleged aud not denied-that the devise Of the
300 acres of land to HeZekiah B. Gass' family was
made in pursuance of the title bond. under which
he and those claiming under him, had had such
length of possession as that the absolute title WAS
vested and they thea efOre, asked to be exhOneTaed
from the execution of any further trusts in regard
70 said land and never did claim il further in
termeddle with it. What quantity Of land was con
tanned in the bond does nOt appear, nor how much
John Gass had conveyed to others before its exc
euuon; but it from the bill, that after he had
made the bond, he conveyed to one Sample so acres
of the land therein embraced which is now, and has
been for many years. In possession of one Vim. B.
Bubb as to whom complainant have dismissed
their bill, eOnceding that they have no valid claim
on that part Of the tract. We are of course una
Bile from anything In this record 20 state the guam
tity of land which remains 70 the heirs of HeZekSh
B. Gass, after making the deductions above msu-
toned.
Upon these facts we are of opinion lst: that
this cannot be regarded, as q vOllgtuyy bond be-
tween John Gass and bis son Hezekish g., but on
the contrary an instrument founded upon yalty,
was to invest the said Hezekiah B. in his lifetime
with title in fee simple Co said land, subject 20 be
Invested by deed from John Gass 10 the children
of the said Hezekiah B. and which was never
made and also subject TO the life estate of said
John, which ceased at his death and that, there
fore, upon the death Of the said Hezsklah B., tie
said tract of land came by descent to has children
and heirs at law,
The bill so alleges and we think is the legal effec
Of the bond. In arriving az this conclusion we dc
not deem il necessary TO consider what effect the
said Hezekiah B. to the sand John to saw his lumber
contained said bond, might have in relieving il o.
this supposed voluntary character. Nor do e
into the question whether this bond were
clearly wanting in any valuable consideration, 8
Court of Equity might not have executed il by de-
creeIng a conveyance, upon the notion of a meri
tous consideration, and it being father and child
Burne. ct ais WenthrOp ct ais, Johns oh Rep.
429, 1877. Menturn, vs.. SaymOure, 4 do 4g7 500.
As before stated we think aside from tAess
views it must be held to have invested Hezeksh B
Bass with the equitible title to this land Accord
ing to the authority Of the case of Whety etsas,
Whetty es ais Sneed 573 this bond is 10 be taken
not as gift but q contract, for the conveyance OF
land valid under the statute of frauds though
no price be named or recited-and we are not &C
presume from the absence of the price in the bond
that none existed but just the contrary The title
bond is prima faca evidence and 1t devolVes on him
who csntroVsrts 1t, to rebuff the presumption BY
proof In this case there Is not the slightest eyi.
dence 70 show that this bond was a gratuity; OF
that il was not founded IN q valuable consideration,
and no such thing averred in the pleadlngs.
speak of 8 consideration other than appears
upon the face of the bond A consideration is Just
as necessary now as before the statute Of frauds
but it need not be stated in the writing title bond
It's existence may be shown by parol or other Gem
mon law proof and all the presumptions in favor OF
its existence which at the common Law, arouse out
of an instrument like this still obligatory upon
us as a court. Il was unnecessary that this bond
should have been signed by II. b. Gass on order
70 bind him as to his part of the contract he being
law principles, independent of the statute II was
sufficient that it was sgne by JOIN Gsss, who Waa
70 be charged herewith and that II, contained An
apt description Of the land TO be conveyed by him
with the terms upon which the conveyance was 20
be made, Sneed 473, Dew. & Bait Law, 1885,. A
sufficient consideration is TO be presumed, not only
from the fact that the writing is under SEAL there
being no intimstion upon its face of gift but this
Is very materially aided by the penalty annexed on
failure to convey aud by the covenants for warranty
and indeed by the terms Of the entire instrument
the true construction Of which more naturally i'm
ports a sale than gift The presumption q not
affected by the relation Of father and son. nor BY
the power retained in John Gsss to convey 10 the
children of Hezekiah B. This does not prove that
some valuable consideration did not pass from the
said Hezekiah B. or his children 20 said John. hay
woods heirs, vs.. Moore, 2, Herm, 5s4. The proc
aliunds that he acknowledged the bond, and eEuseI
it to be registered that neither he or bis heirs ever
claimed the lana-together with the Wsat Of any
averment or testimony that Il was intended as
gift support alse the presumption that IL wss ssls
second:-The devise In the will must be held
satisfaction Of the bond, and the loyal title anita