43 Tenn. 505 | Tenn. | 1866
delivered the opinion of the Court.
The complainants, at the March Term, 1865, of the Butherford Circuit Court, recovered two judgments against T. H. Carney — one on the 14th of March, 1865, and one on the 15th of the same month, for about
There is no charge or allegation of fraud in the bill. They allege that they have a lien in equity upon the lands, and seek to enforce it, and the cloud created by the deed and defective probate upon this lien removed; that an attachment issue, and the lands be sold for the payment of this debt. An attachment and injunction were granted by the Chancellor, and the lands were attached. The defendants, in their answer, insist upon the validity of their purchase; exhibit their deed; that the registration of it under the probate was valid; that if the original certificate of probate was invalid, the amended certificate relates back
1st, Was the original probate of the deed of the 4th March, 1865, defective, and did- the subsequent correction and registration of the probate, under the provisions of sections 2080 and 2081 of the Code, relate back, so as to defeat any intervening rights that may have attached?
2nd, Did return of the execution, and registration of the judgments, create such v an equitable lien as would give a Court of Chancery jurisdiction of the case?
The first question depends upon the construction to be given to sections 2080 and 2081 of the Code. By section 2080, the unintentional omission by the Clerk, of any words in a certificate of an acknowledgment, or a probate of any deed, shall, in no wise, vitiate the validity of such deed, but the same- shall be good and valid, to all intents and purposes, if the substance of said authentication required by law is in the certificate. By section 2081, if the omission be matter of substance, the Clerk, on application of either party interested, may correct such mistake or omission of words in such certificate, or any such deed or instrument. Section 2083 provides, the Register shall record the correction in the proper book of his office. In the case under consideration, the Clerk omitted to state in
2nd, The probate being defective, the complainants had a lien for the satisfaction of their judgments at law. They failed to take out execution, as provided by section 2982 of the Code, and sell within twelve months, but registered their judgments, as provided by section 2984 of the Code, -which is, “a judgment or decree shall not bind the equitable interest of a debtor in real estate or other property, unless within sixty days from its rendition, a memorandum of the judgment or decree, stating the amount and date thereof, with the names of the parties, is registered in the Register’s office;” and by section 2986, the lien shall cease, unless the bill is filed within thirty days from the return of the execution. The executions in this case were returned nulla bona. The object and purpose of these sections of the Code, was to reach the equitable interest of the debtor in the property.
This bill was filed under the provisions of these sections of the Code. Upon the rendition of the judgments, the complainant had a lien on the land, plain and unembarrassed by provisions of section 2980; and unless the land was levied upon by execution and sold
The judgment debtor, Carney, by his deed of 4th March, 1865, conveyed his entire interest in the land to the defendants. The deed was for a valuable consideration, and he had no equity in the lands conveyed. It was good and valid as between him and the defendant. The Statute rendered it void as to judgment creditors, and the complainants, upon the rendition of their judgment, had a plain and unembarrassed remedy at law. The deed and defective probate, was no cloud upon the title. The judgment debtor, Carney, had no equity in the lands, that would authorize the filing of a bill to subject that interest. Why file a bill when the remedy was plain and unembarrassed at law? Ho lien was created by the registration of the judgment, under the provisions of the Code referred to. Ho demurrer having been filed, and the parties having amended, it is insisted, under section 431 of the Code, it is a waiver of the jurisdiction, and the court will try the matters involved, though they are of legal cognizance. The principle is correct; but the court taking jurisdiction, it does not necessarily follow, that the complainants are entitled to relief. The lien was purely a legal one, given by section 2950 of the Code, and provides the mode by which it shall be enforced — that is, by execution and sale of the property within twelve months. The aid of a Court of Chancery, was not necessary to enforce it; the filing of the bill in the case, did not continue
We are of the opinion, therefore, there is no error in the decree of the Chancellor dismissing the bill; and it will be affirmed.