83 Tenn. 169 | Tenn. | 1885
delivered the opinion of the court.
Ejectment bill to recover land, or an undivided part thereof, and to have partition, with, an account
"Winney Morelock, the complainant, was divorced from her husband, Yancey Morelock, by a decree of the chancery coart, and afterwards by a settlement with her late husband and the decree of same court, rendered May 30, 1855, the title to certain lands was divested out of him and vested in her and her children, Henry, Prissy, William, George and Sam,“as tenants in fee and co-parceners in common, to-share and share alike.” The land consisted, as described in. the decree, of three tracts, first, a tract of 108 acres on which complainant resided at the date of the compromise; second, a tract of 158 acres on which the defendant resided; and third, a tract of 75 acres acquired under a distinct title. All of the witnesses who speak on the subjeet, including the complainant, agree that shortly after the decree vesting title as aforesaid, the land was treated as divided into two tracts, known as the upper and lower place, and that complainant and her two children, Henry and Sam, went into possession of the lower place, and William, Prissy and George, of the upper place, Yancey Morelock, the father and late husband, residing
Sam, the youngest son, committed a criminal offense,, and was sent to the penitentiary for a term of years. On July 28, 1869, Yancey, William, George and Prissy, in order to secure the services of one Murrell, in an, effort to release Sam from the penitentiary through an executive pardon, joined in a deed conveying by certain boundaries 243 acres of the land in trust to-secure a note to Murrell for $500. A pardon was. secured by Murrell, and Sam was released from the
The original bill in this cause was filed December 4, 1878, by Yancey and Winney Morelock, and sought in ■effect to set up an agreement with Kyle and Mc-Dermott to extend the time of redemption of the land under the foreclosure sale. This bill was, upon demurrer, dismissed by the chancellor, who afterwards, during the term, .gave leave to Winney Morelock to file an amended bill. The amended bill was, accordingly, filed June 7, 1879, against Polly Bernard, William, George, Sam and Prissy, the children of •complainant, the husband of Prissy,- and the children
The bill seeks to impeach the title of the defendant, Polly Bernard, to the land in controversy upon the ground that the foreclosure decree under which she claims was void. But it can be a matter of no consequence to the complainant and her rights whether the decree in question was valid or invalid. For, if valid the salé thereunder would not affect her interest in the land, she being no party to the proceedings; and, if invalid, the decree confirming the sale wmuld be, even if void, a sufficient assurance of title to enable the defendant to connect her possession of the land with the possession of those persons whose titles Avere thereby divested out of them and vested in her. In either view the question would still be whether the titles of those persons Avere perfected or protected by the statute of limitations.
The objection to the validity of the decree is that it was made Avithout being asked for in the bill, and Avithout any cross-bill. The bill was filed to enjoin a sale under the trust deed until the true amount of the secured debt was ascertained. The grantors, trustee and beneficiary were before the court, and we are not prepared to say that it would not have been of course, after the debt Avas ascertained, to foreclose the
It is suggested also that the court improperly declared a lien in favor of the counsel of the complainants in that case for their fees. But the lien was declared on the land or the surplus proceeds of sale, and the record of the case shows that the sale was made under the decree of foreclosure for the trust debt, and the lawyers’ fees, with the assent of the clients, paid out of the surplus proceeds of sale. The complainant has no interest in the matter.
In the case now before us, the decree of the chancellor, the report of the Referees, and the argument of the complainant’s counsel assume that the trust deed, the decree of foreclosure and sale thereunder cover all the land settled upon Winney Morelock and her children. In this view the chancellor and the Referees hold that the defendant, Polly Bernard, is entitled to three-sixths or one-half of the land. The complainant has not excepted to the finding of the Referees. The result would be that the defendant
But the decree in the divorce suit vests the complainant with the title to land described as containing 341 acres, and the trust deed conveys land described as containing only 243 acres. And every single witness in this suit, who deposes on the subject, recognizes the existence of an upper and a lower place, occupied as hereinbefore mentioned, and that the trust deed covers the land known as the upper, place. There cannot be a particle of doubt that the possession of the defendant, Bernard, and those under whom she claims has never interfered with the possession of the complainant of the lower place. The complainant herself, in her deposition, distinctly recognizes the separation of the two places. “Henry, Sam and myself,” she says, “ were to work on the lower place, and the other three on the upper place.” To the question, who claims to own the lower place? she answers: “ William has the management of it, but I claim it while I live.” She concedes the occupation of these places by her several children and her late
Yancey Morelock does testify, however, that he never set up any claim while on the land “in opposition to "Winney Morelock’s right.” t He had previously testified that he had bought Prissy’s interest in the upper place and always claimed it. George Morelock also testifies that he did not hold in opposition to his mother. The general character of both of these witnesses is impeached and not sustained. The complainant also testifies that Yancey and George “never held the land from her, nor tried to; I never' heard that they did.” But this, and other testimony inconsistent with the facts admitted by the witnesses themselves, should be read in the light of the complainant’s claim to the land as set up in her deposition. She is asked: “ Do you- claim that you have entire control of all the land (both places) decreed to you and the children, and that they are only entitled to it after your death?” Her answer is: “I do claim that, and always did claim it.” The witnesses might well say that they never held in opposition to such a claim, for the claim was without any foundation. And no doubt they have resorted to some such pretext as an excuse for their language. If they are to be understood as saying, without mental reservation, that they never held the land adversely to the complainant as their co-tenant, the statement is in diieet conflict with the facts deposed by them, as well • as the other witnesses, and palpably untrue.
The exceptions to the report of the Referees will .be sustained, the chancellor’s decree reversed, and the •bill dismissed with costs.