49 Tenn. 560 | Tenn. | 1871
delivered the opinion of the Court.
The complainant, as executor of the last will and testament of Ephraim King, deceased, brings his bill for the specific performance of a contract by the purchasers of the land and slaves of his testator, alleged to have been sold by him, under the directions of the will, on the 18th of February, 1862, and for an account of advancements, and the settlement of said estate. The defendants are the heirs and devisees of the testator, a part of whom were the purchasers of said land and slaves.
It is alleged in the bill, that the will, after disposing of some specific legacies, gave the entiré estate, both real and personal, to the testator’s widow, for life, and directed, after her death, the whole to be equally divided among “all the testator’s heirs;” . that, following the instructions of the will, the complainant, after the termination of the life estate, proceeded to sell the land and slaves to the highest bidder — the land on a credit of one and two years, and the slaves on a credit of one year from the date of the sale; that said land was composed of two tracts, one known as the home place, and the other known as the Cunningham tract, both lying in Lincoln County; that the same was sold in lots as follows: Of the home place, Lot No. 1, 175 acres and 38 poles, was sold to E. C. King, for $5,081.88; Lot No. 2, 138 acres, 138-J poles, to S. A. King, for $2,082.98. and Lot No. 3, 183 Acres, 120 poles, to Martha G.
“A list of the land and negroes sold at the residence of Ephraim King, deceased, sold as the property of the said Ephraim King, deceased, on the 18th day of February, 1862:
HOME PLACE.
Lot No. 1, 175 a., 38 poles, $29, E. C. King,...$5,081.88 Lot No. 2,138 a., 138J poles, $15, .S. A. King,... 2,082.98 Lot No. 3, 183 a., 120 poles, $30, M. Gi Moore,... 5,512.50
CTJNNTNG-HAM PLACE.
Lot No. 1,138 a., 139-| poles, $23, W. A. King,...$3,194.06 Lot No. 2, 201 a., 98 poles, $15, M. A. Harkins,... 3,024.18 Lot No. 3, 88 a., 80| poles:, $19, 'A. J. King,... 1,681.56 No. 1, negro boy, Green, $1,050, A. J. King,... 1,050.00 No. 2, negro boy, Anthony, $950, John Holly,... 950.00
“I certify that the above list is correct, to the best of my knowledge and belief. This, 7th August, 1865.
“James P. HudsoN, “Surviving Executor.”
It is alleged in the bill that all the purchasers took possession of the land respectively bought by them, and the slaves, and that they hold the land to the present
The defendants, Joshua Gambrel, and wife, Theodosia, first answer. They admit all the allegations of the bill, the purchase by W. A. King, and the subsequent continued possession. They assent to the specific performance of the contract, and are willing to comply with the terms and conditions thereof as assumed by W. A. King in his lifetime. They insist that the land bought by the defaulting purchasers be re-sold, and if it do not bring as much as they bid, then that they be required to contribute the deficit; that, according to the intention of the testator’s will, the sale of the real estate was a conversion into personalty; and the said Joshua insists that the interest of the said W. A. King be paid over to him as administrator, and that the descendants of the child or
The answer of John W. Barham, Nancy Barham and Lauretta King, minors, by their guardian ad litem, submits the rights of said wards, and claims for them and Lethe Foster, and another, whose name is not given, all minors and descendants of the testator, one-eighth of said estate, to three-fourths of which the three first named minors would be entitled. It insists that all the heirs of the testator had an interest in the estate devised in remainder, which vested at his death, and that Lauretta had inherited all the rights of her father in said purchase, subject to the dower of her mother, Theodosia.
The answers of E. 0. King, and G. W. R. Moore and wife Martha, admit the sale, purchase and possession, as charged in the bill, but resist the enforcement of the contract, upon the ground that the • land was sold during the late civil war, at “Confedérate prices,” which were based upon fictitious values, and that they bid them off at largely more than their value, in order to secure homes near the old family homestead; that they are now poor, and utterly unable to pay the amount bid for the land, and interest, and that if compelled to do so they will be deprived of all share in the estate of their father; and in view of the changed condition of the country, the general impoverishment of the people, and of the peculiar circumstances under which the purchase was made, with the impression, it is stated, that the land would be paid for in the abundant currency of the time, they pray
The answer of S. A. King admits the purchase and possession, as charged, and the execution of his note for the purchase money, and insists upon the specific performance, as prayed for in the bill, as against himself and all others. He avows his readiness to comply with the terms of the Contract, and prays for a general account and settlement of the estate.
Neither of the purchasers of the land, who resist the bill, rely upon the statute of frauds as a defense, in their answer.
The defendant, John Holly, and wife, file an answer and cross bill. They admit the purchase of the slave, Anthony, the execution of the note, and that they took possession of him under their purchase, and held him until public events had made him free. They insist that the executor made a bill of sale to the slave, expressly reserving in himself the title until the purchase money was paid; that he, the said John Holly, tendered the price at the maturity of the note, but the complainant declined it, and refused to make him a title. They charge in the cross bill, that the complainant was guilty of great negligence in attending to the affairs of said estate; that he was slow to enter upon the duties of his trust, and
The complainant answers the cross bill, denying all its charges. He states that there was no lien reserved, and that the title passed to the said John Holly by the sale and delivery and bill of sale; that the said Holly, on his purchase, took the title, possession and risk of the property, and that he retained' no lien upon said slave.. He denies the alleged tender of the money, but states that the said Holly did once propose to him to exchange the bill of sale for his note, but he declined. The bill of sale is not exhibited, and there is no proof in the cause.
The Chancellor held the sale of the land and negroes to be a valid sale, and decreed, a specific performance of the terms thereof. An account is ordered against the purchasers, and against the executor, as to the debts and assets of the estate, and a settlement of all matters between the heirs and devisees and the executor, allowing due compensation to the latter, and an account of solicitor’s fees. In construing the will, which is not exhibited in the record, the Chancellor held that the intention of the testator was to convert all his property into money, and thus to have it distributed among his heirs and legatees, upon the termination of the life estate; that all the living children and descendants of deceased children were
. The defendants, E. C. King, G. W. R. Moore and wife, Martha, and John Holly and wife, Mahala, presented, after the decree, a petition for re-hearing,' setting forth the great hardship of the case as against them, in view of all the circumstances, and relying upon the statute of frauds as a defense against said bill, so far as it sought to enforce said contract for land. The prayer of the petition was disallowed, and the petition dismissed. The defendants appealed, but only the defendants King and Moore and wife gave bond.
The will is not copied into the transcript, and we can not, therefore, judge of the correctness of that part of the Chancellor’s decree which interprets the intention of the testator as to the manner of the transmission of his estate.
But in other respects, there must be a modification of the decree.
The jurisdiction of a court of equity, in decreeing a specific performance of an agreement, is a peculiar jurisdiction, in the exercise of which that forum becomes, of its own inherent strength, a court of conscience. It is said that equity follows the law, and this proposition is abstractly
The sale of the real estate will be set aside, and the executor will re-scll the same in pursuance of the will. The notes executed for purchase money will be surrendered for cancellation. The purchasers of the slaves will be required to pay for them. In such case, the law is well settled in this State. The purchasers of the land will be required to account for rents, and be entitled to credit by the value of all permanent improvements. The costs of the cause will be paid by the executor out of the funds of the estate; and in all other respects, except as hereinbefore indicated, the decree of the Chancellor will be affirmed. With these modifications, the cause is remanded for further proceedings.
Qu., “fact?”