69 Tenn. 55 | Tenn. | 1878
delivered the opinion of the court.
A preliminary point is presented in this case, that an order was made by the Chancery Court of Grain-ger county, in which the cause was then pending, to transfer the record to the Chancery Court of Hamblen county, a new county, under the 14th section of the act of June, 1870, ch. 6, establishing that county, and under the Code, sec. 84. Both the act and the Code, however, require that the suit shall be between parties residing within the limits of the new county, to authorize the transfer/ The order under consideration recites that “most of the complainants and defendants” reside in Hamblen County. The venue of a pending suit can only be changed under express statutory authoi’ity, which must be rigidly pursued. Ex parte Williams, 4 Yer., 579; McHenry v. Wallen, 2 Yer., 441; Weakley v. Pearce, 5 Heis., 401; Walker
Jesse Livingston died in 1860, leaving a widow, sis sons, Wesley, Galen, Alfred, John, Isaac, Jacob, one daughter, the wife of Wm. Chaney, and a grandson, W. N. Lacy. James K. McAnally became the administrator of the decedent’s estate, and, deeming the personal property other than slaves ample to pay debts, joined the heirs in a petition to the County Court to sell land and slaves for division, and as commissioner of the court, sold the slaves and paid out the proceeds. One R. P. Moore seems, as commissioner, to have sold the land and paid out the proceeds. The lands in Grainger county, after allotting dower, were purchased by Wesley, Alfred, and Galen, and the lands in Overton by Jacob and Isaac. McAnally died in 1863, and, in 1865, Parrot Godwin administered on his estate, and also became administrator de bonis non of Livingston’s estate. In 1866, he resigned the latter administration, and John F. Noe was appointed in his place. On the 16th of October, 1866, Noe, as administrator, filed his bill against the heirs of Livingston to sell lands to pay debts. At that time Wesley had died without other heirs than his brothers and sister and nephew, Lacy; Galen, Alfred, Isaac, and Mrs. Chaney had also died, eacb leaving children. These children, together with John and Jacob, the still living children of Jesse Livingston, were made defendants, as was also D. S. Noe as administrator of Wesley, and W. N. Lacy. The allegation of the bill is that Galen, Alfred, Isaac,
Such proceedings were had in this suit that an account of the administrations of McAnally, Godwin and Noe was taken, the debts of the estate ascertained, showing an excess over the personal assets, and a decree rendered for the sale of the lands descended. The lands were sold; the lands in Grainger county to Thomas Hill, a stranger, and the lands in Overton county to Jacob Livingston. The sale was confirmed, and titles divested out of the parties and vested in the purchasers respectively. But before the payment of the whole of the purchase money, or the disposition of any part of it, the bill before us was filed on the 9th of January, 1872.
The complainants to this bill are the children, all infants, of Galen, Alfred, and Isaac Livingston, the children of Mrs. Chaney, also infants, the surviving husband, of Mrs. Chaney, and Jacob Livingston, against the administrators of John F. Noe, he having died, Jonathan L. Noe, administrator de bonis non of Jesse Livingston’s estate, Honor Livingston, the widow of
The main object of the bill as an original bill is to surcharge and falsify the accounts of John F. Roe as administrator, on the ground of items of charge and discharge wrongfully claimed or suppressed by him with knowledge of the facts. The bill shows-that Roe was examined on the taking of the account,, and it does not appear that the report of the master was excepted to. It is doubtful whether the allegations show a mala mens, a meditated and intentional contrivance to keep the opposite party and the court in ignorance of the real facts, which has been thought essential to sustain a bill for fraud. Patch v. Ward, L. R., 3 Ch. App. 203. But the charges of fraud are denied in the answers, and no proof has been taken to sustain them.
The new matter upon which a bill of review is rested must be so stated as to enable the court to determine that the evidence, when produced, will be-controlling, and that the party has been guilty of no negligence in not discovering and producing it on the former hearing. It is not sufficient that the complainant expects to prove certain facts, but he must
The present bill simply avers that the complainants will show the following errors of fact in the master’s report, setting out the items of supposed error. There is no statement of the evidence relied on to establish the errors. The bill does mention incidentally a receipt given by Noe to his predecessor in the administration for assets of the estate, but it also shows that this receipt had been spread upon the records of the County Court long before, and was actually on file in the suit sought to be reviewed. The bill is materially defective in those requisites which iudicial wisdom has deemed essential in order to prevent interminable litigation. It is, in reality, a bill to retry the matters of account, and not a bill of review proper.
Errors apparent, for which a bill of review 'will lie, are errors patent on the face of the pleadings and ■decrees without looking to the evidence, and, of course, without requiring new evidence to be introduced to show them. Eaton v. Dickinson, 3 Sneed, 401. Eight of the ten specific errors relied on by the bill require the court to go outside of the pleadings and decrees, and seven of these eight to go behind confirmed reports not excepted to, in order to determine upon their existence. The remedy was by appeal or writ of error, not by bill of review.
The two remaining errors are, that decrees were rendered and accounts taken without the infant com
It has been the misfortune of the heirs of Jesse Livingston and their children, that the assets on which the original administrator no doubt confidently relied for the payment of debts, were rendered worthless by the war, and that the debts were increased by the accumulation of interest during the same disastrous years. Nothing would probably’ be gained by opening the accounts taken, and less reluctance need be felt in adhering strictly to the law regulating bills of review. That law, on the soundest considerations and in order to prevent experimental litigation, has determined that no errors can be noticed except those which are specifically pointed out by the bill. Moore v. Moore, 2
After taking the necessary administration accounts, ascertaining the debts, and finding that the personal assets would fall short of paying the debts, the court declared that the complainant was entitled to sell the lands descended for the satisfaction of the liabilities, and to a lien on the lands therefor because the heirs had pui’chased with knowledge of the existence of the creditor’s claims, and decreed “that each tract should contribute its proper proportion of the said sum on the basis of the prices paid at the sale under the decree of the County Court.” The master was directed to sell on one year’s credit, free from the equity of redemption. He ' did sell the lands on the 5th of October, 1870, and the sale was confirmed on the 22d of December, 1870, without objection. The lands in Grainger county were sold to Thomas Hill, and the Overton county land to Jacob Livingston, as before stated. The present bill alleges as * to these sales that “the purchasers have paid no part of the price, or if paid, the fund has not been disposed of.” And it states all the facts necessary to raise the question as to the correctness of the Chancellor’s decree, and does impeach it for adjudging that the creditors had a lien on the land.
It is doubtful whether the question is so presented in the specification of errors as to justify its consideration under the bill treated as a bill of review, but the point is, perhaps, not very material. As long
There is error in the decree of the Chancellor in holding that the administrator was entitled to sell the lands descended in satisfaction of the debts, and to a lien on the lands therefor simply because the heirs had purchased under the decree of the County Court, with knowledge of the existence of the unpaid claims. The old rule, under the acts of 1784 and 1789, was, that the lien of the creditor on the realty commenced with the recovery of judgment against the personal representative by virtue of the one act, and with the issuance of process against the heirs under the other. Smith v. Stump, Peck, 281; Boyd v. Armstrong, 1 Yer., 55; Peck v. Wheaton, M. & Y., 353; Combs v. Young, 4 Yer., 218. What change in the law has been worked by the Code it is not necessary now to determine. The controlling consideration in this case is, that the lands were sold by proper proceedings in
Whether the land allotted to the widow of Jesse Livingston in dower was sold at the County Court sale, does not appear. It was sold, it seems, to Hill at the last sale. If it still belonged to Livingston’s estate at the time of the chancery sale, the title of the purchaser would be good, and the proceeds would go to the creditors.
Nearly all the costs having accrued by reason of the bill having been filed as a bill of review, on which branch of the case the complainants have failed,