Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-01-29
Anion aud 9ispateh.
Largest CirculatiOn in CltI AID State.
LEGAL.
Decisions of fhe Supreme Court of
Tennessee, AT Nashville, December
Tarua EsRz


Henderson, Attorney at Law.
"A Court Of Chancsry cannot make a binding
decree in any case unless it has Jurisdiction both
Of the subject matter and also of the person Of
the defendant"
"a III party fraudulently convey land TO which
be had no title. the vendor who comes into q
Court Of Chancery to rescind the contract win
not be compelled to take an after acquired title.
Tenant BY the curtesy can only convey has
interest a. such to purchaser"
THE courts will not set aside for irregularities
merely. the sale Of an infants estate, where il
is advantageous 10 tho infant ~ &
John A Elliott ex'or Of James 4. Blair, dec.3,
and testamentary guardian Of Sarah Blair.
us. Sarah i. Blair, Peter Preacher, Ct a.
Many years ago George Elliott died in the
State Of Virginia, leaving widow and hVe
children, and q considerable estate, consisting
of slaves. money. etc. The widow and her I've
children invested q portion OF the estate m a
nessee, and took the conveyance to them
selves 90 tenants in common. and soon
thereafter removed upon and cultivated the
land At this time some of the children were
minors and all the daughters unmarried. One
of the daughters, Mary, afterwards married
Thomas A. Haynes. and Sarah, James Blair.
Soon after Mary's marriage. her husband,
Thomas ii. Haynes, desiring 20 separate his
WiioA interest IN lue caAates ugfteu Win III tue
other parties in interest upon commissioners or
referees 10 divide the slaves and estimate the
value of the Haynes interest in the land and
other property. The commissioners met together
and made the division of the slaves, and esti-
mated the value Of Mrs. Haynes interest in the
real and perishabie property at the sum OF
g1l56 26 for which the other parties executed
their bond 10 Haynes and wife, and they their
Joint receipt or acquittance in full Of all claims
against the estate.
Some time afterwards Mrs Blair died. leaving
her husband, James Blair, and an infant child,
Sarah 4. Blair, the defendant, surviving her.
james Blair seems 10 have been a man Of con-
siderable estate, and in 1857. he determined 10
remove TO the State Of Texas but before going,
he and the other parties in interest, except
Haynes aud wife, sold and by deed with eoven-
ants OF seizen and'Warranty, conveyed the land
in controversy to one Peter Peacher for the sum
Of $40 so per acre. The deed recltes the con-
sideratiOn and the execution of the notes for
the payment Of the purchase money, and re-
chaser, Peacher, immediately took possession oil
the land, and has paid portion Of the purchase
price. but still owes with the accumulated in
ierest. about the sum Of 10000.
IL further appears that Blair went 10 Texas,
leaving his daughter in Tennessee with her
relatives. and on his return early in 1860, he
executed will, and died some short time there
after. In his will ne bequeathed all his property
both real and personal, 10 his daughter Sarah.
with limitations over in the event of her death
under twenty-One years without issue,
OF part to his family. and the remainder TO
his wife's relative. In the will the testator re-
cites the sale OF the land in contest TO Peacher,
and provides in substance, if Peacher should
pay the purchase money. and should Thereafter
be disturbed in the possession by the daughter.
or any one claiming under her that all costs;
damages or injury " that he or his assigns should
thereby sustain should be paid out Of his estate.
il being his intention TO protect Pe0cher in his
purchase, and TO this end he expresses wish
that his ,oiH should receive liberal construc
ton.
John Elliott, the complainant, was appointed
executor Of the will and also testamentary
guardian Of the testator's daughter Sarah
Blair; and as such he has qualified in both ca
pacities in the County Court OF Montgomery
In 1850. Peacher being in failing eircumstan-
ces, conveyed n portion of the land purchased
as aforesaid with other property, to u
o. Kisee. for the payment Of certain
debts in the order mentioned IN TIT
deed. shortly after the execution Qf tins
trust. the Grin Of X. H. Short 4 Co. Of The n'tl
Of New Orleans. as creditors Of Peaeher. Tiled
their bill in the Chancery Court Of Montgomery
county, alleging that the deed rom Peacher 70
Kisee, as trustee, was founded upsn fictitious
considerations, and II was therefore fraudulent
and void. The bill sought TO attach the proper
ty conveyed, and prayed that the deed be sci
aside or the property sold and the complain
ants debts satisfied out of the surplus, etc.
By consent of all parties in October, 1860. th'
Chancellor decided that the property be sold
and y. o. Kisee was appointed commissioner {
conduct the sale, with instructions to report hi
action 10 the court. Under this order the salt
was made By the commissioner. and w. u. Dran'
became the purchaser Of the land, amounting n
was supposed, to about 356 acres, at 800 pc
acre, but in consequences OF some disa
greement between the purchaser and tn
commissioner as TO the precise number o
acres contained in the tract, he did not at th
date Of the sale execute his notes fer the pur
chase money. The sale, however, was reported
to the court and survey of the lands was or
dered. The survey was made, and the quantity
Of land sold accurately ascertained to be 30
acres. But before the report Of the survey wa
made, the war interviewed and suspended all FUR
Their action until 1865 when the report OF sueYel
was made and confirmed by the Chancellor. a
this time the purchasers payments for To,
land--he having entered into possession unde
the terms of the sale-being all due, claim wa
made against him for the principal and interes
OF purchase money. and the title Invested AM
rested in Drane, subject. however. to lien 70
the unpaid purchase money.
But prior % this, in the year 1861, tn
complainant. Elliot, as executor OF Jane
Blair, deceased, and the other vendors =
Preacher, had fled their petition In SAT-
cause 10 assert their lien upon the proPert
for the unpaid purchase money and tn
Chancellor directed that 80 much OF the Judg
ment as was obtained against Drain, as wa
necessary 10 satisfy the original unpaid purchas
money, be applied for that purpose, and the re
mainder to be held by the commissioners 10 b
appropriated to the other creditors under tn
future order of the court.
Some short time. as IL seems, after the ad
iOurnment Of the court IN 1860, at Which the de
cree aRainst Drane was pronounced, &c was DIS
covered that there was defect in his title TO
portion of the lands purchased by him at tn
commissioners sale, and that the interests Q
| HAYNES and wife. and the defendant, Sarah 4
Blair. had never been conveyed to Peacher-
The attempted partition of the land between
| the widow and heirs Of George Elliott. deceased
| was found not TO be in conformity to law, an'
the legal title still remained in Mrs. Haynes
| so also WAS the conveyance of JAS. Blair nope
rntive to pass 10 Peacher, under whom Dram
derived title, any interest, but his title by tn
curtesy. leaving at his death the fee in an un
divided interest in the land in his daughter sa
/ rah L. Blair.
Pending this htigation, Haynes executed
| deed in due and legal form, with PRIV examl
/ naticn for their undivided interest in the land
70 the complainant, chm Elliott, and this billii
| the defendant Sarah +. Blair. to have the sal
TO Drane perfected by divesting her interest i
| the land, and thereby perfecting Drane's title
In the meantime Drane died, having preyiousl
| made and published his laet will snd teFlamen'
| BY which be devised his estate 20 his wife. Eiiz
| Drane, and also appointed her his executril
She comes into court and resisls this application
/ and her attorney is appointed guardian a
| Hfsm ofSarah Blair, who as before shown,
| msae party defendant.
| Added TO this complicat ed state Of facts,
| 1867 Mrs Drane fled her cross bill, by which Sd
| seeks Ia set aside the sale TO her husband. mad
|
grounds of fraud and want OF lnrlsdletiSn IN N
The proof shows that James Blair's estat,
! besides lands in Texas aud Missouri, amount
| "a some $4,000 in Tennessee, and that the land
| in dispute since the sale 10 Peachef In 1857 hnS
greatly deprecated IN value.
IL also appears that Peacher entered into po'
session under his purchase, and held aud cult
waited the lands up 20 ls0l, and that Drane too
possession after him under his purchase. an
peAceably held and occupied ituntil has dealt
| and that his widow still remains ia the uninfe
| rupted possession and enjoyment Of the land.
! Under this State Of facts. the Chancellor d'
| creed for the complainant. dismissed the cro
bill. confirmed the sale TO Drane, and diyeste
the title out of Sarah E. Blair and yeStedlt
the executriX and deyisee OF Mrs. Drane. frol
which Mrs. Drane appealed in error 10 this c0ur
IL Is clear, under this state Of facts, thRt n
conveyance from J. A. Elliott, j III. Blair az
| otheTs, executed 10 Peter PeacheT on the III
| Of January, 1887. was imperative 10 convey n
title Of Haynes and wife 20 the land assumed
| he sold, as well, also. as the defendant Mary
| Blair's interest therein. Whatever may haN
| been the opinion Of the heirs Of George Elliot
deceased. 10 the validity Of the div sion OF d
| estate of their ancestors. and the legal effect
| the receipt, or acquitanee. execuled By Hsyn
| and wife az the time. u is clear that this pr
/ eeedine. under well established PRINCIPLES. d
| not divest the title OF Mrs. HAYNES 10 her on
/ sixth undivided interest in the land
III Is equally true that James Blair. the faith
IF Sarah X, Blair, by his uniting in the de,
could not divest his daughter Of her uudiv,
sixth in the land. He was merely tenant By a
cnrtesy, and his deed could have no other effe
than 70 convey his interest as such 90 the pu
chaser
A conveyance by Peaeher in trust to His
] communicated 70 him the same estate or lntert