Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-22
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph Il. HeiskeII, AuOrney-Gen-
eraI and Reporter.
No. 81.

Nv. o.
william Carter VS.. Lucinda J. Gins ct ais
In March, 1859, Daniel Beard sold to
P. J. Sims a tract of land in Wilson
county of one hundred and thiTty-one
acres for the sum of S.. $40, two hundred
dollars in cash, the balance secured by
three notes Of Sims wi William Garter
and Alfred Bass securities, due respect
fully 25th December, 1860 81, the first
for 1878. 33, and the other two for SS73.-
80 each. Beard made deed to Sims,
retaining a lien for the security Of the
purchase money. The deed was executed
and registered 18th March, 1859. In
October, 1859, Sims sold sixty-fiY acres
of the land to David OiOm for Sic
Odom executing his notes for the pur-
chase money and taking bond for title
OdOm sold to William Smart.
On the Both of August, 1850, P. J.
Sims transferred and delivered 70 Besrd
two Of the notes of Olom, each for
S541. So, in part payment of the money
owing on his purchase. Sims died in
testate and insolyent ia 1863. Carter,
one Of the securities, paid off one of the
notes OF Sims to Beard, 10 an assignee Of
Beard, ard from an imperfect record we
thirk il probable he paid an additional
amount as security for Sims. In March,
1866, Carter filed his bill, charging that
he had paid the second and third notes il
part, asking that hen for his benefit 70
the amount paid by him be declared On
the tract Of land, and that it be sold, etc.
Odom, who is made defendant, an
swers and resists the lien of Carter until
be shall have been Unidentified for the
payments made by him or for which he
may be liable On acc punt Of his notes to
! Sims transferred to Beard.
Beard filed a cross bill, in which he
claims lien on the entire tract for the
| original purchase money, and insists that
the two notes of Odom, transferred by
Sims, are lien on the sixty-tiVe acres.
An account was stated, ascertainiDg the
amount due Beard. The report shows
that there is due him Beard) 81, 1896,
| and that the amount consists of the two
OdQm notes.
The pleadings all show that Beard re-
ceived these notes in part payment, and
actually entered them as credits On the
| notes of Sims on which Carter was Sc
| curity.
The Chancellor decreed that for these
Beard had the prior lien. This was error.
Beard received them as payments, ard is
bound by it. The security of Sims and
Sims himself were discharged from la
bility to that extent.
1t appearing that these notes were the
only outstanding debts due to Beard,
and that Carter as security had
| paid portions of the purchase mon
ey agreed to be paid by
! Sims to Beard, be is entitled to be substi-
| tuted to the lien of Beard to the extent of
the payments by him, and this lien is
| superior to all Others. Beard hes his lien
upon such equity as Odom acquired by
| his purchase and title bond from Sims,
but must be postponed to Carter.
The sale without the equity of redemp
| ton is not authorized as appears from the
| decree itself, and is void.
The land will be re sold and the pro
Ceeds applied, first 10 the payment to
Carter OF the amount paid by him for
Sims. The bill of Beard as to Carter is
dismissCd with costs-it may be retained
to reach such interests as Odom may have
after Carter is paid.
It's intimated the proper parties are not
all before the court. The cause is re-
| manded for the execution of a decree
under this opinion and if deemed neces-
sary any nominal party may be brought
in. TURNEY, Judge.
A true copy:
J G. FRAZER, Clerk.