81 Tenn. 461 | Tenn. | 1884
delivered the opinion of the court.
Under an attachment bill filed in the year 1865 by one Scruggs against W. R. Ueilson, the land of Ueilson
That bill was filed March, 1, 1879, by W. S. Smith, as testamentary trustee for Mary J. Neilson, the wife of W. R. Neilson, and . her children, under the will of her father, Wm. Smith, against Neilson and wife, and their children, James P. Evans as trustee, and the two Harrises. The object of the bill was to set up a prior right to the land under the mortgage to Wm. Smith of December 25, 1869. Wm. Smith, as surety for Neilson on the note 'to Foster, had been compelled to pay the money. Wm. Smith died in 1874, in South Carolina, having first made a last will, which was duly proved and admitted to record in that State. By the sixth clause of his will he
■ W. and T. ■ Harris and Evans answered this bill, and filed their answer as a cross-bill against the other parties to the original bill, claiming priority of satisfaction out of the land, and asking a foreclosure of their trust deed by sale. The chancellor, on final hearing, gave the complainants in the 'cross-bill the preference claimed by them, and the original complainant, and two of the Neilson children appealed.
A copy of the will of W. Smith was filed in evidence, but the certificate was defective. The complainants in the cross-bill waived all objection to the certificate of authentication, and agreed that the copy of
A correct certificate of the authentication of a foreign’ will should include the probate: Harris v. Anderson, 9 Hum., 799; Marr v. Gilliam, 1 Cold., 512. The waiver of objection to the certificate of authentication necessarily implied that the will was proved according to_ the laws of this State, as required by the Code, sec. 2182. A foreign will so proved is sufficient to pass lands and other estate: Code, sec. 2185. And a copy of such a will duly authenticated in the manner prescribed by the act of Congress is-made evidence in this State: Code, secs. 2186, 2188-The copy of the will of ¥m. Smith in the record must be, under the waiver of objection, considered as thus authenticated. The will bequeathes the debt secured by the mortgage, and devises the land conveyed for its security to. W. S. Smith as trustee, specifying the mode in which each, in certain contingencies, shall be held and used for the benefit of Mary J. Neilson for life, and after her death to go to her children absolutely. If the bill seeks a personal judgment against W. R. Neilson for the debt, which it does not in terms, no defense has been made by Neilson, and
The provisions of the Code, sec. 2182, ei seq., which bear upon this point, and of the statute from which they were taken, are, it has been said, somewhat obscure: Williams v. Saunders, 5 Cold., 60, 68. The obscurity will be to some extent expelled by considering the pre-existing law, and how far it was intended to be changed. It was the settled rule of English law, recognized by our courts as in force in this State, that a devise of land was in the nature of a conveyance and special appointment, passing only the title to the testator at the date of publishing the will: Brydges v. Duchess of Chandos, 2 Ves., Jr., 427; Wynne v. Wynne, 2 Swan, 407. There was no-provision in England, until recently, for the probate of wills of realty by the probate courts so as to conclude all parties in interest, and it was necessary to establish such a will by proof whenever any ques
By the contract of October 22, 1868, between Easterly and Neilson, the latter acquired an equitable right to one-half of the land bought from Hancher, charged with the payment of one-half, the purchase money. He did actually pay $2,965.61. of the purchase money, the greater part of which was borrowed from Foster upon the suretyship of ¥m. Smith. The surety was indemnified by the mortgage of the 25th of December, 1870. That conveyance carried all the interest of Neilson in the land under his contract with Easterly. This interest was formally recognized by Bell and Easterly, after the conveyance of the land to them by Hancher, by their title bond of December 15, 1870, which was for the half of the land set apart to Neilson by agreement. This bond was conditioned for the making of a title upon the payment of the balance of the purchase money due 'from Neilson for his half of the land, and between three and four hundred dollars of Neilson’s personal-indebtedness to Bell on other accounts. As between' Bell and Easterly, and ¥m. Smith, the former could only claim priority of satisfaction to the extent of the unpaid purchase money. The mortgage would give a superior right to the mortgagee over Bell for the residue of his debt over the unpaid purchase money.
The original complainant is entitled, as trustee, to subject the land to the satisfaction of the mortgage debt, and to be first paid out of the proceeds of sale. But inasmuch as Neilson and wife have been in possession of the land since the death of ¥m. Smith, and up to the appointment of a receiver in this case, and the wife has enjoyed the rents, issues and profits, no interest will be calculated on the mortgage debt between, these dates. The complainants in the cross-bill will be entitled to the net rents, after deducting, ■the expenses of the receivership, in the hands of the receiver, the rents having been impounded on their motion. They will also be entitled to any surplus proceeds of the sale of the land after satisfying the mortgage debt and the costs of the case. The covenants of the trust conveyance made to secure the debt to W and T. Harris are, of course, not binding on the wife of Neilson, and her interest under the will of her father was in the mortgage debt, not in the land. Her life estate in the fund did not, therefore, pass to the trustee by virtue of the trust conveyance. The entire costs, other than those arising out of the receivership, will be first paid out of the proceeds of the sale of thé land.
The decree of the chancellor will be reversed, and .a decree entered in accordance with this opinion.