Building & Loan Ass'n v. Rodgers

104 Tenn. 437 | Tenn. | 1900

Caldwell, J.

J. F. Rodgers gave bis promissory note to tbe Southern Building & Loan Association for $600, and executed a deed of trust on a certain lot in the town of Huntingdon to secure its payment. Thereafter the same lot was condemned for sale under an execution issued by a Justice of the Peace on a judgment in favor of Jo R. Hawkins and against J. P. Rodgers. The original bill in this case was filed by the Southern Building & Loan Association, to restrain the sale in favor of Hawkins, to correct the defective registration of the deed of trust, and to foreclose that instrument by a judicial sale of the lot for the payment of the $600 note.

Hawkins answered the original bill, and filed a cross bill, in which he assailed the deed of trust as void against creditors because not properly registered, and sought to have the lot sold to satisfy his judgment and order of sale.

The original bill was dismissed as to Hawkins, and the relief prayed for in the cross bill was granted. The original complainant appealed.

This Court’s conclusions in regard to the questions raised may be briefly stated.

1. That registration of the deed of trust was fatally defective, in that it described no property at all, but only gave some inconsistent calls and unclosed lines.

Tbe first line called for in tbe registered description runs north 163 feet; tbe second one runs back on tbe first south 109 feet; tbe third and last one runs east 263 feet, forming two right angles, without more, thus:

Tbe spreading of sueb a description upon tbe Register’s book gave tbe grantee nothing and interposed no obstruction against creditors of tbe grantor.

2. Tbe fact that tbe registration of tbe deed of trust was preceded by statutory notation, under §567 of Shannon’s Code, could be of no avail to tbe original complainant after Hawkins bad levied on tbe lot.

Tn tbe first instance, and while tbe instrument remained. in tbe office unregistered, tbe notation stood in tbe place of full and accurate registration as to all the world, and gave tbe grantee priority over all subsequent claimants, according to tbe legal import of tbe conveyance (Shannon’s Code, §§ 3749, 3750, 3751; Flowers v. Wilkes, 1 Swan, 408; Swepson v. Bank, 9 Lea, 714; Hughes v. Powers, 99 Tenn., 480); but when the deed of trust was registered and withdrawn, the notation no longer performed so large a function. After that, and when Hawkins made his levy, the registration stood for itself, and the failure of the' instrument, as registered, to describe the property conveyed in the original, became conclusive upon the grantee, and left that property open to seizure by creditors of the grantor.

This ruling is not in conflict with the decision 'made in the case of Phillips v. Erwin, 1 Overton, 235. The suggestion there made, to the effect that the negligence of the Register would not be allowed to injure the owner of a deed left with him for registration, was purely arguendo, and could not have been intended to give a deed other force against creditors than that emanating properly from its registered terms.

3. The accurate registration of the deed of trust, pending this litigation, gave the Southern Building & Loan Association no advantage as against Hawkins, Avho had previously levied on the property conveyed. Re-registration does not relate back to the date of notation or to the original registration as against creditors of the grantor, but as to them it takes effect from the time it is made only. Bank v. McCarty, 99 Tenn., 469.

4. The Court erroneously failed to grant the original complainant a personal recovery against Rodgers for the balance due on the $600 note. To ascertain the amount of that balance the cause will be remanded for an account.

Modify and affirm.