Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-11-22
No L.
Joseph r. Anderson Is. John Talbot

Ii. s.,
It is not perhaps essential to tie validity Of
a condemnation and sale of land on a Justices
judgment that the papers shOuld be returned
and the condemnation had at the next term Of
the Circuit Court after the levy. Code $3.50;
but unless they are returned within reason
able time, the lien is lost; and bona fde pur-
chaser from the debtor, by deed registered
before the condemnation, will acquire good
title as against the purchaser az execution
sale.
A levy made on the 18th of January, 1862;
sale by debtor to complainant 9th Oct ls65;
papers Ct J. p. returned 10 March term, lseo;
1.-THE war Intervening Sherif's sale 14th July,
ise6 held prima facie invalid, on demurrer.
This court cannot judicially know whether q
particular term of court was held or not, but 1t
will iudicially take notice that courts were re-
established alter the war, prior to July, 1855.
secret liens are not favored in law.
A party in possession ofland has right TO
remove as q cloud. a claim under execution
sale without averring that the Sheriff has made
q deed which it seems may be presumed.
\ levy on the land of a surety, is not void
because the return does not show that there
was no property, real OF personal, OF the prln-
Cipal to be found. The Code ~ 3,02s 4,O9} is dis
rectory. ffthe surety submits 10 other person
can complain.
From the Chancery Court at BlOunt-
vile. Decree allowing demurrer and dis
missing the bill. o. P. Temple, CHI, pre-
siding.
f. w. Earnest for complainant.
R. NJ. Barton for defendant. As TO
REQUISITES of levy he cited Grissom VS..
Moore. 1 Sneed, SOL Lien of levy;
Parker VS.. Swami. l Hum. so. Farqu-
har VS.. Toney, Hum. 502.
OPINION.
This is bill filed in the Chancery Court
at Blountville, to remove cloud on the
title to about 113 acres of land. The bill
was demurred to, demurrer sustained by
the Chancellor, and the bill dismissed,
from which decree complainant prose-
cutes writ of error to this court.
The facts stated in The bill, material TO
be noticed, are that Talbot obtained three
judgments before Justice of the Peace,
for Sullivan county, in August, 1860,
against one Rutledge, as principal, and
James D. Rhea, as security each for the
sum of $345.78 and cOsts; that on the
18th day of January, 1852, executions on
these judgments were levied on 11S acres
of land, of the said security, Rhea The
| papers in the cases were sent up to the
| Circuit Court of Sullivan county, by the
Justice, for condemnation of the land, at
the March term, 1866, when an order of
condemnation was entered and venditioni
exponas issued, under which the land was
| sold on the 14th of July, 1866, and pur-
chased by Talbot, he bidding the amount
of his debt and costs.
On the 9th of October, 1852, COM
plainant, Anderson, purchased 500 acres
of land from the said surety, Rhea, in
Guiding the 113 acres levied on, and on
the 4th of December, 1862, his deed for
the same was registered, and he went into
possession Of the land under his purchase
and has remained in possession up to the
filing of this bill.
Complainant alleges that he supposes
said Talbot holds the Sheriff's deed for
said tract of land, and he fears his pos
session will be disturbed by him. He
prays that the cloud be removed from his
| title, and that he be quoted in his posses
sion, with a prayer for such other and
different relief as he may be entitled to.
The first question presented for our
consideration is, does the bill allege such
a case as will authorize a court of equity
to interpose to remove the cloud on title
of cnmplainant's land. While the allega
tons of he bill on this question are not
very specific n strong. yet upon the whole
facts as stated we Thick, admitting them
to be rue, (as the demurrer dOes) the
complainant has made out a case emitting
blm to relief.
Ii is held in this State, that a bill will
lie to remove cloud upon title, and
declare deed which constitutes that
cloud, void, ard have the same cancelled
whether its character as such appear from
the face of tue instrument or not Jones
vs.. Perry. 10 Yer. S3-3 Head. 80, l J.
c. r 522.
A bill to remove cloud is ahead Of
equity by itself. 1t will lie, although thl
defendants are in possession, and com
plainants have the legal title, and nigh
sue at law Tor recovery of the property,
that not being esteemed adequate relief
Head AZ, Yer. 524, 10 Yer. SO, SO.
The principle here stated is, that thu
relief granted is not dependent upon thr
fact, that the party seeking il has the lie
gal title, and may successfully maintain
or assert it in court of law. The prin
ciple on which this head of equity rests
is QGiG tin1et;' aud is thus stated by Mr.
Willard Ia his work on Equity Jurispru
f dence: "Where person is apprehensiv
of being subjected to future nconve
nience, probable or even possible to hap
, pen, by neglect, inadvertance, or culpa
bility of another; in such cases the cou1
will grant the party relief; by quietin
his apprehension of future inconvenience
by removing The causes which may lea
to it-See Wizards Eq. Jur. 303.
A sound application of the above prin
ciples we hold will entitle the complain
ant, under the facts of this case, to main
, tain his bill to remove the cloud from b
/ title; provided the title shown to be in, c
, claimed of defendants, be an invalid title
or an unsupported claim of right, in Ii
| ,rioru of q cnIlrt of ani1itr L. tho Lon