69 Tenn. 308 | Tenn. | 1878
delivered the opinion of the court.
The prayer of this bill is, that it be entertained-as a bill of ■ review, also a bill of revivor, and if ne
A demurrer, assigning numerous causes of objection, is filed, which was sustained by the Chancellor. The correctness of this decree dismissing the bill is the question now before us. The complainants are, Reuben Arnold in his own right, and as heir-at-law of T. D. Arnold, deceased, who was his father, and Frank A. Arnold, as administrator of said T. I). Arnold, and one of his heirs, together with the other heirs-at-law •of said Thomas D., and seeks to have a certain decree made in the case mentioned reviewed and set aside for their benefit.
The case of Reuben Arnold in his own right may be shortly disposed of. He claims to be the purchaser of a tract of land at execution sale, sold as the property of Alfred Moyers. This sale was made under a judgment in his favor, he purchasing, and then advancing his bid to the amount of his entire debt and •costs, but' has received no deed, the sale having been made in 1869. Reuben Arnold claims that the decree •complained of, under which the land was sold, is void as to himself, and also Alfred Moyers, under whom he claims his title or equity, because neither of them were parties to the same. If this be so, it is clear his •remedy is not by a bill of reyiew, but by an origi
The next question is, whether the bill can be sustained as to the heirs of Thomas D. Arnold on the> facts charged, either as a bill of review, or treating-
In December, 1857, while said suit was pending,. T. D. Arnold, the ancestor, had judgment in the Circuit Court against Silas Moyers, and levied execution on Silas’ share in said land, had it sold, purchased it,, and took a sheriff’s deed for the same.
In 1861, Snoddy and others, creditors of Hiram and John Moyers, with parties who were creditors of Silas, filed their bill to enforce a deed of trust made to one McCampbell, for the benefit of McFarland, Barton et als., and to enforce the debts of the other parties against Silas, attaching the lands of the parties for said purpose. This included the land bought by T. D. Arnold, therefore be was made a party under the allegation that he had some claim, or pretended claim, to the share of Silas. This suit probably was consolidated or heard with the original case, though this is not very clear. It could not change the rights of the parties if done, however, as the bill would still stand on the same issues, as we have repeatedly held.
However, the case proceeded to a decree in the Chancery Court, and on appeal to. this court in Octo
The case, however, was remanded to the Chancery Court, where an order was made referring the matters of account to the clerk, who reported debts due from Hiram, John and Silas, and the whole land was sold by decree of the court, the report being unexcepted to and confirmed, as to the debts. To have this decree reviewed and set aside is the object of this bill.
It goes on two grounds. First, That Thomas D. Arnold died in the year 1870, and no proper revivor was ever had against his heirs in the case, and the decree is subject to review for this objection, adding it was fraudulent and void, and subject to be impeached also for this cause. Second, It is claimed,
As to the first question, the matter charged does not make a case for a bill of review. The error, if any, does not appear on the face of the decree, that is, the death of Th'omas D. Arnold before the rendition of the decree; nor does the bill show that it had been suggested and proven to the court. An inference might be drawn that it had been done, from the recitals of the bill, but we are not informed how the fact is. This being so, it is simply the case of a decree rendered after the death- of a party, without his death being suggested or proven. This could not furnish the basis for a bill of- review, as it is not matter that has arisen in time after the decree, but was in existence, had arisen before the decree was made.
If we take the contrary assumption, (an inference that might be drawn from the recital of the decree of this court), as quoted above from the bill, referring to the rights of the heirs of Arnold and excepting them from its operation, then we would be bound to assume they had been made parties regularly, and this defeats the ground on which complainants’ bill rests, that the decree was void because they were not parties. We cannot draw an inference contrary to the allegations of the bill, and then predicate error on the face of the decree based on such inference, in order to sustain the bill. That is to say, the recitals of the decree quoted refers to the rights of the heirs, excepting them from the operation of the decree. If this
.The next question is, can the bill be sustained as an original bill in the nature of a bill of review, to impeach a decree for fraud ? The only fraud alleged, is the taking the decree without proper revivor, and in contravention, as is assumed, of the decree of this court. This may be error, which would render the decree void in the first case, as made against parties not before the court — for which a bill would lie to remove cloud from title, but not for a bill of review, on the principles heretofore stated.
In the second case, if the heirs were parties, it might, and probably would, be error on the face of the decree, provided the decree of this court should be construed to adjudge the title to Silas’ share in favor of the heirs of T. D. Arnold. We need not definitely decide that question, as it is alleged they were not parties, and so are not in condition to have-the decree reversed or reviewed on this ground, by bill of review.
The only other question is, whether disregarding the specific prayer of the bill, the facts stated in it furnish a sufficient basis on which to treat the bill according to its substance, as a bill to remove a cloud? Upon careful examination of it, we conclude we may
The result is, that the decree of the court will bo-modified as herein indicated, and the cause remanded to be proceeded in under this opinion, with leave to make proper amendments as indicated.
The costs of the court below will be paid one-half by Reuben Arnold, the other half divided between complainants in the bill and the complainants in the Snoddy bill. The costs of this court will be divided equally between the complainants in this bill and the complainants in the Snoddy bill, who are defendants.
Reverse and remand.