91 Tenn. 532 | Tenn. | 1892
The defendant, Jesse Meacham, as appears from the record, on July 24, 1890, recovered a judgment against the complainant before
The complainant alleges in the bill that, prior to the levy of said execution, he and Defendant Nor-vel partitioned the said land by a farol partition, and set apart their shares thereof in severalty. The bill sets forth by proper description the part of the land which was, under that partition, allotted to the complainant as well as that which was assigned to Norvel.
It is further averred that the said land, so allotted to complainant, is worth less than $1,000, and that he is the head of a family residing in this State, and is entitled to hold the same as his homestead, exempt from levy and sale under execution.
Upon the allegations of the bill, the sale of the-land was enjoined in limine. The defendant, Jesse Meacham, demurred to the bill, on the ground that the' alleged farol partition of the land was ineffectual as against a creditor of either of the tenants in common, which demurrer was by the Chancellor overruled.
Under that decree the injunction, modified to the extent of allowing the_ land to be sold subject to the homestead of complainant, was made perpetual.
The defendant, Jesse Meacham, appealed to this Court, assigning for error the action of the Chancellor in adjudging the paroh partition good, and allowing complainant a homestead in the land. Of course, if the contention to the effect that the parol partition was invalid, is correct, the decree of the Chancellor must be reversed. This is so because the homestead exemption does not apply to lands held by the debtor in common with another or others. The J. I. Case Company v. Joyce, 5 Pickle, 337. This contention of the appellant is put on the propositions that a parol partition contravenes the statute of frauds, and the registration statutes in force in Tennessee.
First. — Our statute of frauds (Code, § 1758) provides that “no action shall be’ brought upon any
Is a parol partition within this section of our statute of frauds? A partition is not a sale. It is a separation between joint owmers or tenants in common of their respective interests in land, and setting apart such interests, so that they may enjoy and possess the same in severalty. Partition, when procured by one tenant in common in invi-twm by judicial sentence, has never been treated as a sale or involving any of the elements of a sale.
At common law, tenants in common might make partition by parol. 17 Am. and Eng. Ency. -Law, 667. Our statute of frauds has not changed this rule of the common law, and, consequently, it is yet in vogue in Tennessee. However, if a parol partition did fall within our statute of frauds, it ought not to be subject to attack by a creditor of one of the parties thereto. A vei’bal sale is not void, but only voidable, and can only, as a general rule, be avoided by the grantor or grantee.
Second. — Are the registration laws in the way of a parol partition as against a creditor of one of the tenants in common? The statute provides that instruments comprehended therein, not registered,
Conceding that a parol partition is good between the parties thereto, it would operate unjustly to permit creditors of one of the parties to disturb or set aside the partition, especially creditors who obtained judgments after the partition.
The decree of the Chancellor is correct, and his decree ' is affirmed.