Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-02
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph II. HeiskeIl, AttOrney-Gen-
eral and Reporter.
No. "a.
James u. Roberts vs. ]. D. Francis, A. N. Alex
ander, JohnW. Summer, ct al.

James Il. Roberts vs.. j. D. Francis, A. N. Alex
ander, JohnW. Summer, ct al.
OPINION.
We are satisfied from the pleadings
and proofs in this cause, that John W.
Summer, on or about the 21st January,
1860, agreed to sell to Eppy Francis, who
died few days thereafter, the tract of
land, described in the bill as containing
about rs acres, but more correctly de-
scribed in Carnes' plat, and certificate of
survey, as containing 81 acres; that
Francis executed to Summer three notes
for the purchase money; two of which
were assigned, by Summer to complain
ant on the 18th January, 1861, (snd not
1860 as stated in the bill:) that complain
ant obtained judgment against the adj
ministrstors of Francis and Summer, in
the Circuit Court of Cannon, for 1858. SO,
the amount of the balance due on the
first note assigned to him; that said judg-
ment, and the record thereof, had been
fraudulently sb5tracted, or destroyed, be-
fore this bill was filed on the 25th Sep
TENDER, 1865; that the record was sup
piled and established, in the Circuit
Court, by a judgment, duly rendered, at
February Term, 1866; and that the sec
ond note for six hundred dollars, due lst
January, 1862, and assigned to complain
ant, was till due and owing when the bill
was filed.
1t is charged, in the bill, that title
bond was executed by Summer for the
conveyance of the land, on the payment
of the purchase money, and that it passed
into the hands of the administrators of
Francis who, in the first part of their an
swer, admit its existence, but state, in a
subsequent part, that they may be mis-
taken and that the paper which they saw
may have been the plat and certificate of
survey. Summer, IN his answer, admits
that he sold to Francis 81 acres and
poles of land; took three notes for the
purchase money retained the note first
due; transferred the other two to COM
plainant; says he was to make the title
when the first payment of seven hundred
dollars should be made; admits that he
caused the land to be surveyed, and
states that he was to have executed title
bond if he did not, in fact, do so.
After Summer had conveyed, or agreed
W NOAfCJ) IuO lSuu W IIduClS, uG SAGCu-
ted deed on the seth of June, 1861, to
William Barton as trustee for 1924 acres
and 18 rods, with the reservation herein
after mentioned, to secure debt therein
specified due D. M. Jarrett; and Jarrett
insists, in his answer, that if any title
bond was executed, it does not include
land, or any considerable part thereof,
conveyed in said deed of trust.
After the fling of complainant's bill,
A. nj. Alexander recovered judgment in
the Circuit Court of Cannon county, on
the 18th October, 1865, against Summer
for $S78.1 II and costs; under which, and
the execution issued thereon, he pur-
chased the land containing by estima-
ton 81 acres at Sheriff's sale on the 4th
December, 1865, and took Sheriff's
deed on the goth August, 1867, convey
ing the same by the metes and bounds set
forth in the plat and certificate; and he
and his agent, Fare, who made the pur-
chase for him, insist that the contract
between Summer and Francis was by
parol, and deny the existence of the
vendors lien claimed in the bill and
amended bill
A deed from Summer to Jas. F. Floyd
for the 62t acres described in the trust
deed to Barton, and bearing date 28th
February, 1867, is contained in the tran
script but as it does not appear to have
been put in issue by the pleadings, its
provisions need not be here stated.
The questions principally discussed be-