107 Tenn. 560 | Tenn. | 1901
On September 23, 1895, T. E. Bryant, who was the owner of a ninety-five acre tract of land, lying in Bradley County, by a deed duly executed, acknowledged, and delivered, conveyed it to one C. L. Carmack, and as a consideration for the same received from the grantee a payment in cash and his four promissory notes, maturing one, two, three, and four years after date. In this deed the wife of T. E. Bryant joined for the purpose of relinquishing all homestead right in the land conveyed.
The present bill is filed by the complainants, who are the owners of these notes by assignment from the payee, T. E. Bryant, against the Bank of Charleston, which, at the time of its filing, was proceeding to the execution of a decree for sale, pronounced
The defense set up by the bank is that, at the time of the delivery of the deed by the Bryants to Carmack, the vendor failed to make any reservation of a lien to secure the payment of these notes, but that afterwards when Carmack, the vendee, fell into financial trouble, and the bank and other creditors were either pressing him, or threatening to do so, these complainants and Carmack entered into a fraudulent agreement by which there was interpolated a clause reserving this express lien, and that, without other or further, acknowledgement upon the part of the grantors, the deed, with this interpolation, was registered. Within a day or two after this was done the bank filed its bill, and suing out a writ, of attachment, caused it to be levied on this property as that of their debtor, Carmack.
The facts on the issue thus raised, as found by the Court of Chancery Appeals, are, that it was the
There is no question but that upon the discovery of the discrepancy between the deed as drawn and the agreement of the parties, that upon the refusal of Carmack or of the vendor to correct the instrument so that it might conform to this agreement, that the present complainants might have filed their bill in equity, and upon the facts found in this record they would have been entitled to a decree for reformation. This right to reformation, upon the authority of the text of Mr. Jones, in his work on Mortgages, Vol. 1, Sec. 99, might have been asserted, as against any one standing below a Iona fide purchaser, without notice. According to this author, it might “be reformed as against a junior
If a Court of equity could have preserved the rights of these complainants upon a proper bill filed against the vendor and vendee, one or both being recusant, why may they not be made equally secure by voluntary action of all parties in interest? It is difficult to see, and certainly no good reason has been furnished in argument, why this might not be done; that this interlineation, made in good faith, by the consent of the parties interested, so as to make the instrument speak the real contract, does not invalidate it, is well sustained by authority. Malarin v. U. S., 1 Wall, 282; Doe v. McArthur, 2 Hawk (N. C.), 33 (S. C., 11 Am. Dec., 738); Wooley v. Constant, 4 John., 54 (S. C., 4 Am. Dec., 246); Bassett v. Bassett, 55 Me., 125; Prettyman v. Goodrich, 23 Ill., 330; Stiles v. Probst, 69 Ill., 382. And certainly the Bank of Charleston,
It is unnecessary here to determine the effect of this subsequent change in the frame of the deed so far as the homestead right of the wife is concerned, inasmuch as she was not consulted with regard to nor in any way gave her consent to it.
The decree of the Court of Chancery Appeals is affirmed.