1 Thompson 278 | Tenn. | 1869
delivered the opinion of the Court.
It appears by the bill, that some years prior to his decease, John Waters made a deed of trust to one Murphy, nominally to secure an indebtedness to his sons George and Adam F., which deed of trust is charged to have been without consideration, and that it was never intended by the parties that it should be executed.
Murphy, the grantee in the deed of trust, and the heirs of John Waters, are made parties to the bill; and it is prayed that the title be divested out of Murphy, or the deed of trust be declared void, and that partition may be made.
Murphy, the trustee, and George Waters, one of the cestas que trust in the deed of trust, answer the bill, and state that the deed of trust was not made to secure any valid indebtedness, and was not intended to be executed; and that it was made to hinder one Fagala in the collection of a debt owing to him by John Waters.
Adam F. Waters, a son of John Waters, and one of the beneficiaries in the deed of trust, answers the bill,
The Chancellor decreed that the complainants were entitled to have partition made of the premises; and from this decree Adam F. Waters has appealed to this court.
It is now insisted that no decree for partition can be made in this case, because the title is not clear and indisputable; and Groves vs. Groves, 3 Sneed, 187, is cited to sustain this position. A number of decisions have been made by this court, of which that above cited is one, to the effect that a Court of Chancery will not entertain a suit for partition of land, if it appear that the title is in dispute. These decisions were all made, however, upon the law of this State, as it stood previous to the enactment of the statute of 1852, (Code, § 4321,) which provides that the filing of an answer shall be a waiver of objection to the jurisdiction of the court.
But, under our present system of pleading, where the objection is not taken by demurrer, and the defendant answers, and the parties carry on the cause to a final hearing upon pleadings and proofs, and no obstacle exists to a decree which shall be a complete and final settlement of the case, the Court will not turn the parties out of court to go through another process of litigation, merely because they have attempted to clear the title, and to obtain partition in the same suit.
Upon the facts oí the case the complainants are entitled to relief. The trust deed is not produced or accounted for, and there is no proof of its contents, or what indebtedness it purports to secure. It must have been about or before the year 1840. If any bona fide
There is no proof of the existence of any contract between John Waters and Adam F. Waters, such as is alleged in the answer of the latter, nor of the existence of any valid lien or claim in favor of Adam F. Waterá upon the property.
The decree must be, that said deed of trust constitutes no valid claim or lien upon the property in question; and the Chancellor’s decree directing a partition, will be affirmed, and the cause remanded for further proceedings.