Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-02-15

ana others.
.CoRREcrroN fnF PROBATE: Under sections
20sO and psi Of the Code, the correction and
registration, By the Clerk of the Probate of any
deed or other instrument. does not relate back
50 as to defeat any intervening rights that may
have attached,
cate that THE Witnesses were personally ac-
quaiuted with the bargainOr. is fatal a. % Judg-
ment creditors, though not as between bargainor
IlrN: A purely legal lien Is enforced by exc
cuiipn and sale of property within twelve
months; and upon failure 20 go sell the lien D.
lost and cannot be continued By filing bill in
Chancery.
The complainants at the March term,
1863, Of the Rutherford Circuit Court re-
covered two judgments against 7. II. Car
ney, one on the 18th Of March, 1865, and
one on the 18th Of same month for about
$4,000. The judgments were registered on
the 4th Of May following were
issued from these judgments and returned
aalllo bona on the Sth of July thereafter
The bill in this case was filed on Both July,
1863 The allegations Of the bill are, on
the 4th of March, few days before the
sitting Of the court in which the judgments
we're rendered T. II. Carney, by deed, con-
viewed 10 defendants two tracts Of land for
the consideration Of $50, 600, in the payment
Of debts he owed them-the debts are set
forth in the deed-it was absolute and 70
the consideration specified. On the day Of
its execution il was proven by the subscrib-
ing witnesses, the Clerk in his certi6 ,ate
omitted 10 state the witnesses were person
ally acquainted with the bargainor in the
deed On the Sth August, 1865, tie de-
PENDANTS had the record Of probate correct
ed with proper reference in conformity
with the provisions Of sections 2OSO and
20Sl Of the code.
There is no charge or allegation Of fraud
in the bill. They allege that they have a
lien ia equity upon the lands, and seek to
enforce it, and the cloud created by the
deed and defective probate upon this lien
removed that an attachment issue, and the
lands be sold for the payment Of this debt.
An attachment and injunction were granted
by the Chancellor, and the lands were
attached The defendants, in their answer,
insist upon the validity Of their purchase,
exhibit their deed that the registration Of
il under the probate was valid; that if the
original certificate Of probate was invalid,
the amended certificate relates back 10 the
original probate and registration, and re-
lieyes the ueed Of all exceptions. The
Chancellor was of opinion the complain
ants we're not entitled 10 relief and dis
missed the bill, from which they have APP
pealed 10 this Court Two questions are
presented for our consideration:
First. Was the original probate of the
deed Of the 4th March, 1865, defective, and
did the subsequent correction and registra-
ton of the probate, under the provision OF
sections 2080 and 20Sl of the Code, relate
back so As to defeat any intervening rights
that may have attached
Second Did return Of the execution and
registration Of the judgments create such
an equitable lien az would give a court o
chancery jurisdiction Of the case?
The first question depends upon the con.
strnction 10 be given to sections 20S0 and
205l Of the Code. BY section 20S0, the
unintentional omission by the clerk Of any
words Ia a certificate, Of an acknowledge
ment or a probate of any deed, shall in no
wise yitiate the validity of such deed, bat
the same shall be good and valid 10 all
iutents and purposes, il the substance OF
said Authorization required by law H.
in the certificate. BY section 2O8l, if the
omission be matter of substance the clerk,
on application Of either party interested,
may correct such mistake CT omission of
MblAn III NifAll AtlNlAidlNB bl util HiAllA hftNl
or instrument Section 20S3 provides the
register shall record the correction in the
proper book Of his office. In the case under
consideration, the clerk omitted to state in
his certificate the witnesses were personally
acquainted with the bargain or. This is re-
quired by the positive words of the statute,
and are words Of substance. The object and
purpose Of the Legislature was TO prevent
fraud, and unless this fact appears in the
certificate of the clerk, the probate is de-
fectiye in substance. This court held in
the case Of Fall q Cunningham ra. Jno. r.
Roper and others, Head 4S5. The
omission Of the words by the clerk in the
certificate Of probate, The 1rithia named bar
gdiROr loith rhom 4 AN persOadLydcguGiRtdd,'
is fatal 20 the probate of the deed The
court say il is one of the most important
requirements against fraud in the formula
Of the statute. The principle of that case
is applicable 10 the case under COnsidera-
ton. The words omitted in this probate
are" they were personally acquainted
with the bargainor" These are words of
substance, and fall clearly within the prin-
ciple settled in Head. The probate be
ing defective in substance, what is the legal
consequence after the probate and registra-
ton, and before the defect was cured, an
der the provisions of the Code referred TO ?
The compliments recovered their iudg-
ment. Sec. 1880 of the Code, provides that
Judgment shall be a lien on the lands of
the debtor for twelve months; provided,
etc The deed not being proved as re-
quired by law, was not good az against
Judgment Creditors-the rights of the par
ties attached upon the rendition of the
iudgment-and the subsequent correction
and registration could not diyest the rights
fixed by the law. Ii was not contemplated
by the Legislature, the correction Of the
probate should relate back and divesl any
rights that had attached. Sec 2OS3 was
intended 20 prevent a second registration of
the deed, and it would be good against all
persons ailer the correction. We are.
therefore, Of opinion the registration was
invalid as against the Judgment creditors
before the correction of the probate, and the
correction did not have a retroactive effect
80 a. 70 diyest the rights of persons that
attached before that was done.
Second-The probate being defective. the
complainants had a lien for the satisfaction
Of their judgments at law They failed 10
take ont execution as provided hv section
29S2 Of the Code, and sell within twelve
months, but registered their judgments as
provided by section 29Sl ofthe Code. which
is, "a judgment or decree shall not bind
the equitable interested a debtor in real
estate or other property, unless within sixty
days from lis rendition memorandum of
the Judgment or decree, stating the amount
and date thereof, with the names of the
parties, is registered in the registers Office.
and by section 29SG, the lien shall cease
unless the bill is filed within thirty DAYS
from the return Of the execution The,eN~
eCutiOns in this case were returned MALTA
bona. The object and purpose of these
sections Of the Code was 20 reach the euui-
table interest OF the debtor in the property.
This bill was fled under the provisions
Of these sections Of the Code Upon the
rendition Of the judgments the complain
ant had a lien on the land plain aud am
embarrassed by provisions Of section 2QsO
aud unless the land was levied upon by
execution and sold from the judgments
which were q lien within twelve months
from the rendition of the Judgment, the
lien is lost
The Judgment debtor. Carney, hv his
deed OF 4th March, 1860, conveyed his en-