Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-06-01


state of tennessee at Nashville, De-
cembe< Term, 1850.
Lowry and others, VS.. Brown and OtherG
The compliments are the children and heirs of
James Lowry who died intestate about the year
1888 They brought this bill to recover lot In the
town of Murfreesboro', alleged to have been pur-
chased with their money, by their guardian IN hlS
o1on
The widow of the intestate took out letters of ad
mnistration upon the intestates estate and after
wards, in the year 1886, intermarried with one
Richard Altman, from whom she separated IN about
a year after they married. Shortly after the mar
rage said Altman, was appointed guardian Tor
eomplainants who were then infants of tender
age. Some time after his appointment as guardian,
said Altman purchased the house and lot IN ques-
tion for which he paid the sum of 81 800. In 1872
Altman was declared bankrupt, and said house and
lot was by the assignee in bankrupt and purehss
ed by Walter ard Edwards who IN 1886 sold and con-
veyed the by deed of gut claim, to the defend
ant Brown, for The SUM of 81 400. Altman died
before the fling of this BILL leaving his widow sur
viving him.
The bill charged that the entire consideration
money of the property, was paid out Of the funds
belonging to complainant in the possession OF All
man as their guardian, and that defendant Brown
purchased the property with a full knowledge OF
| that fact The proof shows that James Lowry, the
father of complainant left an estate of the value
of some three or four thousand dollars, which had
| been mostly converted into money, prior to the
marriage of Mrs. Lowry with Altman. The widow
| of Altman formerly Mrs. Lowry, and admlnlsta-
| trix of said Lowry's estate) was examined as
| witness for complainants. She proves very fully,
if her testimony be admissible, the allegation of the
| bill that the purchase made by her husband,
Altman, with tine money OF his wards. her COM
| potency as a witness, however, Is denied
But aside from her testimony, there Is other tes-
timony sufficient perhaps, to support the bill The
witness Mrs. Dill, proves expressly, that at time
| subsequent to the purchase of the property by
Brown Altman told her, that he had paid for the
property with money belonging to his wards
| Leaving out of view, the general understanding
of the neighbors that such the fact, the char
| acter, and pecunisry condition OF Altman at tne
time of the purchase proved by most OF the VIII
uesses are persuasive of the truth of the bill de
| was a man of prohigate character, drunkard and
| gambler; whose employment was that of keeper
| of a small tipping grocery" Notwithstanding the
vague general estimates and statements OF some Oh
the witnesses it is utterly impossible to resist the
conclusion that he was net possessed OF the means
| of making the purchase otherwise than oy the
msapproprlation of the trust fund In his hands, In
whole, or in part, at least
| The defendant Brown. in his answer, denies that
he purchased the property with knowledge OF the
fact that il had been paid for by Altman, with the
money of his wards and asserts that he Is a bona
fde purchaser for valuable consideration, without
| notice.
This ground of defence cannot, we think, be sus-
tanned in view of all the circumstances of the case
The Droof abundanty establishes, that there existed
| a great intimacy between the defendant and Altman,
for a long time previous to the purchase OF the
| property by the latter. They lived In the same
| village were engaged in the same business and
their associations and intercourse were constant,
familiar and apparently conhdlng; and it IS almost
impossible to resist the conclusion that the defend
ant could not possibly have been ignorant OF the
| fact notorious to every one, that Altman was not
nossessed of the means of paying for the property
in any other way, than by the use of the funds OF
his wards And that he did misspply the fund and
utterly failed account to his wards for the same
except some small amounts for tuition and clotnlng
is shown by his last settlement with the Cierk IN
| 1912.
But another matter relied on to charge the de-
PENDANT with notice in regard to the title is that ne
agreed to accept and did receive mere q11t ctd'IH
deed for the property. From this TACT above, II Is
insisted the law presumes notice of the defective
t;tla of his vendor The authorities referred to on
this point are not very satisfactory, nor do they
agree Mr. Rawle, in his work on Covenants for
Title ",seems to be of opinion that no presumption
! of notice properly arise from the absence Oh
General covenants in the deed: D. sol. On the other
| hand Justice Story in the of Oliver vs.. Platt
:, : Towards rep. $685. regards 1t as an important
circumstance that gut claim deed only was gwen
the legal effect of which was TO convey merely the
vendors interest in the property, and under such
circumstances he says, it is difficult to conceive
: how the purchaser can claim protection as bona
fe purchaser for valuable consideration, without
notice against any title paramount to that OF tnt
vendor which 8ltdCHeu lISeil as al
trust to the properly. 1here Is mucH plausAOAl'1
The quit claim deed merely places the purchaser
in the shoes of his vendor with reference to Inc
title and only protects him against the claim Oh the
latter and those desiring title under him; whereas
the general covenant of warranty secures hlp
against all persons setting up claim by ltle-that Is
against all but naked trespassers.
The ruIe is well settled and is presumed to bt
Known to every purchaser of real property, that II
india rRu1fNy in -
faRure of title depends upon the covenants IN hi
deed. and If he accepts deed without sufficient
covenants for his security, and there be no elemen
!, of fraud mistake or other equity In the transac
ton he takes the title at his own risk, and is with
ont remedy either at law or in equity, in the even
= ! of failure of title. Kent's CON-. ST. 523 an'
notes.
| almost invarable usage with US OF requiring gen
oral covenants it would seem that the vendor 8 re
| f,s.I 10 give and the purchasers agreement t
| accent deed without such covenants, furnish
Il reasonable ground of presumption of mutual know
edge or at least, of suspicion, OF some defect o
title. e.,.:
nitting the usual covenants be attributed! At al
events the refusal of the vendor TO take upon MIN
" self the ordinary liabilities in sucn cases, must o.
regarded as sufficient unless satisfactorily explain
cd 10 nut every one of ordinary prudence upoE
.nonirv as to the source and validity of the title
| thus brought under suspicion by the mere refusa
Of the vendor to give the general covenant usual
| such cases.
70 There is no explanation in the present case t.
70 reneI the presumption thus arising. And this pre-
sumption, especially when coupled with the add
Is tonal presumption arising from the intimate rela
tons between the defendant and Altman, and u
| means of knowledge open to the former IS 70 IN
circumstances and condition of the latter, we thin
entirely sufficient to charge the defendant with con
structiye if not actual notice of the trust attache
to the property in favor Of the compliments.
Tn this view the case may be disposed Of leavin
ont of view altogether the testimony OF Mr.. Al
man. ,,r-
Decree for compliments. MCKINNEY.
Correct copy: j. CLARK, Clerk.