Hill v. Moore

| Tenn. | Sep 15, 1908

MR. Justice Neil

delivered the opinion of the Court.

This action was brought in the chancery court of Jefferson county to recover a part of a 15-acre tract of land described in the pleadings. The complainant de-raigned a complete title from the State. The defendants, however, insist that one link in the chain of title, consisting of a clerk and master’s deed, is defective, because that deed is not supported by the record of the cause in which the land Avas sold; hence that, within the rule laid doAvn in Castleman v. Land Co., 1 Tenn. Ch. App., 9, 12, 13, the complainants cannot recover. The case stated • does fall within the authority cited, and the point would be fatal to the recovery, but for the fact that the rule referred to is met by Acts 1907, p. 1131, c. 334. This act reads as follows:

“Section 1. Be it enacted,” etc., “that all instruments of conveyance executed in official capacity by any public officer of this State, or by any person occupying a position of trust or acting in fiduciary relation shall be admitted, held and construed in and by the courts of this'State as -prima, facie evidence of the facts in.such instruments recited in so far as such facts relate to the execution of the power of such office or trust.

“Sec. 2. Be it further enacted, that all such instruments now of record shall be admitted, held, and construed in accordance with section 1 of this act; provided, further, this act shall not apply to any pending litigation.”

The deed referred to, so far as necessary to be quoted, reads as follows:

“This indenture, made this the 21st day of January, A. D., 1902, between G. W. Holtsinger, clerk and master of the chancery court at Dandridge,. for Jefferson county, Tennessee, of the first part, and J. H. Ferguson, of Jefferson county, State of Tennessee, of the second part, witnesseth that by a decree of said court, rendered at the May term, 1899, in the cause of J. H. Carey, Adm’r, et al., complainants, v. J. L. Kirby et al., defendants, and entered on page 567 of Minute Book 11, the said clerk and master did, on the 14th day of November, 1899, sell at public auction the real estate hereinafter described to the said J. H. Ferguson, for $1,211.85, as appears from the report of said clerk and master, made in said cause to the November term, 1899, and entered on page 37 of Minute Book 12, the said J. H. Ferguson having paid said sum of $1,211.85 as required by the decree of said court, confirming said report: Now, therefore, in order to carry into effect said sale, in pursuance of said decree, and in consideration of the sum of $2 paid to the clerk and master, the receipt of which is hereby acknowledged, the said G. W. Holtsinger, as such clérk and master, doth hereby transfer and convey to the said J. H. Ferguson, and to his heirs and assigns, forever, said tract or parcel of land” — describing the land.

From these recitals the court would presume, under the statute referred to, that the court that ordered the land sold Rad jurisdiction of the parties and subject-matter, and, in short, that the clerk acted under due authority in making the deed. Under the statute referred to the burden would rest upon any one questioning such authority to file a copy of the record to overturn the prima facie case made by the deed.

Other errors assigned have been examined and overruled orally. They need not be referred to in this opinion.

The chancellor committed no error in decreeing the land to the complainants, and his decree is affirmed, with costs.