48 Tenn. 754 | Tenn. | 1870
delivered the opinion of the Court.
This is a bill of review. The original bill was filed by Ewing McClure, in his life-time, against Bur-son, Henry R. Lutz, A. A. Broyles, Osceola Sitgreaves and John Andes. The object of the bill was to assert a vendor’s lien upon a tract of land for unpaid purchase money, upon' the following state of facts: About the year 1858 or 1859, said McClure sold the land in question to Henry R. Lutz, upon a credit extending for several years, and gave to said Lutz an ordinary title bond,
Lutz having paid part of the purchase money, sold part of the land to Adam Andes and one Holms, and McClure executed a deed for this part of the land, and as to this, there is no controversy. On the 2d of August, 1861, Lutz sold the balance of the land to John Andes, and McClure made to Andes a deed for the same, and took from him a new note for the unpaid purchase money, which note was executed also by Lutz. It is clearly shown, that in this transaction, it was the intention of the parties, that McClure’s lien for the payment of this note, should remain upon the land. He caused the note to be registered, assuming, that, as the note upon its face, showed it to be for the purchase money for the land, that this would constitute notice of the lien to third parties. On the 2d of May, 1863, McClure accepted another new note in the place of the one last mentioned, executed by A. A. Broyles, O. Sit-greaves and John Andes.
Andes had loaned to Broyles & Sitgreaves, a sum of money, for which they, at his instance, executed this note, directly to* McClure. On the 8th of July, 1863, Andes conveyed the land to Burson.
After McClure had accepted the note of the 2d May, 1863, but whether before or after the date of Bur-son’s deed, does not appear, McClure, at the instance, and in the presence of Burson, wrote, or had written across the face of the note on the Register’s books, “satisfied,” and signed his name thereto. • It was conceded that Burson, before he bought or paid
McClure asked witness’s opinion, and witness thought as Burson did; and upon this, witness wrote the word “satisfied,” and McClure signed his name on the books. Bryrson was very anxious, and McClure reluctant, to make this transaction. For Burson, A. A. Broyles proved that Andes loaned the firm of Broyles & Sit-greaves $1,830, for which they,' with Andes, executed to McClure the note of 2nd of May, 1863, in the place of the one McClure then held upon Andes for the balance of the land. His understanding was, that McClure, on receiving this note, was to release his lien upon the land, so as to enable Andes to sell it; but he got this under
McClure died pending the suit, and the same was revived in the name of his personal representatives, and on the 27th of November, 1867, a final decree was rendered in their favor, declaring their lien upon the land. Hereupon this bill of review was filed, to review said decree, both for errors apparent upon the face ^of the decree, and also for newly discovered matter. The errors which this bill charges as apparent on the decree, are:
1. That the decree erroneously assumes that, by the registration of the note of the 2nd of August, 1861, McClure had a valid lien upon the land, when such was not its effect; and because it is apparent that, by accepting the new note of the 2nd of May, 1863, and marking the former one satisfied, McClure’s lien was lost, and that the Court, in refusing to so hold, committed an error of law, and this error “is error apparent.” The executors of McClure answered, insisting upon matters of demurrer. The action of the Court upon a demurrer to a bill of review, for errors apparent upon the face of the record, necessarily disposes of the whole case. Whether or not the error appears must, be determined from the bill and the original record, and cannot be changed by an answer to the bill of review, or proof. We think it clear that this is not a case of error apparent upon the face of the record. It has been held by this Court, that, for the purpose of ascertaining whether or not error of this character exists, the pleadings and decree may be looked to, but not the proof at large. Eaton v. Dickinson, 3 Sneed, 397.
As we have seen, the question in the original cause was, whether or not McClure held a lien upon the land for unpaid purchase money, or whether, by the act of accepting the new note of the 2nd of May, 1863, and marking the former one satisfied, he waived or abandoned this lien. "Whether or not a vendor who sells and conveys his land, intends to waive his lien by taking personal security, is a question of fact, upon which evidence may be heard. Ordinarily, the law presumes that the lien is retained; but when personal security is taken, the rule is changed, and the law presumes that the vendor intended to waive his lien and rely upon his personal security. But this presumption may be rebutted by proof, showing that such was not the object and intention of the parties. Campbell v. Baldwin, 2 Hum., 248; Marshall v. Christmas, 3 Hum., 616; 2 Head, 128; 3 Head, 384.
It was not assumed as a matter of law, by the decree
If the Chancellor erred in this, the error consisted in drawing erroneous conclusions .of fact from the evidence and circumstances in the record. An error of this character, if one existed, is not “error apparent” upon the face of the record, for which a. bill of review will lie. And besides, we should have arrived at the same conclusions the Chancellor did.
This bill is also filed upon the ground of newly-discovered matter, and leave of Court to file the bill upon this ground was obtained. The question whether the Court acted properly in granting this leave, is probably not before us, for the reason that no motion was made to dismiss; and the affidavits upon which the leave was granted, if any were made, are not made part of the record. The allegation of new matter in the bill is this: “The facts which your orator believes he can certainly establish by credible and reliable testimony, are, that before your orator had taken, a deed for the land, but after he had
•We are of opinion that the “new matter” should be so stated as to enable the Court to determine upon a demurrer, whether or not the newly-discovered testimony, when produced, will be of such a character as will make it controlling in the cause, or whether it will be merely cumulative, and such as will not necessarily change the result, and so that the Court may
Furthermore, where the new matter is, from its nature, such as that complainant, with proper diligence, might have had it upon a former trial, no relief will be granted upon it. Young v. Forgey, 4 Haywood, 189, 190. In that case, the principal witnesses by whom the complainant proposed to establish the new matter, were his neighbors and one, bis brother. The Court held that this showed such negligence upon his part, as that he was not entitled to the benefit of the evidence upon a bill of review. The allegation of newly-discovered testimony in this cause amounts to nó more than an averment, that he can establish that McClure had admitted to him that his purchase money was satisfied, and that he distinctly waived his lien upon the land for unpaid purchase money. This, as we have seen, was the proposition controverted in the original cause. The bill does not state the nature of the newly-discovered testimony, by which this proposition is to be
Ve think the demurrer should have been sustained and the bill dismissed. This is the more evident, when we consider the newly-discovered testimony which was taken in the cause. • The principal witness, by whom complainant attempts to make out the newly discovered facts, is John Andes, from whom he bought the land, and who bought from McClure, and who, of all others, was cognizant of the facts, as the complainant must have well known; as he states in his answer to the original bill, that Andes procured McClure to release his lien. His failure to procure the testimony of Andes upon the former hearing, was such negligence as should not be excused. Without dis
The Chancellor dismissed the bill, and we affirm his decree.