85 Tenn. 430 | Tenn. | 1887
Thos. S. Steele, being largely indebted to A. Erierson, executed and delivered to him the following assignment:
“ Eor value received, I, T.' S. Steele, of the County of Bedford, *and the State of Tennessee, do hereby bargain, sell, transfer, and convey unto Albert Erierson, of the same county and State, all my interest in ■ the estate of my father, P. C.*432 Steele, Sr., also of Bedford County, Tenn., of every kind and character whatever, in real, personal, and mixed property. The true consideration being the following: ° I am indebted to said Frierson in a large amount, and the foregoing sale and conveyance is made by me in part payment of said indebtedness. The precise amount of my said interest is not known, as my father is still alive; but when ascertained the said Frierson is to credit my indebtedness to him with the amount received by him from the said estate. Witness my hand and seal, this December 1st, 1876.”
This paper was acknowledged before the Clerk of the County Court on the 2d of December, 1876, and delivered without being registered to Mr. Frierson. P. C. Steele, Sr., the father of the grantee, Thos. S. Steele, was then living, and was the owner of a large estate, real and personal. On the - of July, 1880, P. C. Steele, Sr., died intestate, his heirs and distributees being ten sons and daughters, one of whom was Thos. S. 'Steele. Immediately upon his death Mr. Frierson caused the assignment above set out to be registered. This bill was filed by the administrators of P. C. Steele, against said Albert Frierson and the heirs of P. C. Steele, to have an account between the estate and Thos. S. Steele, of advancements claimed to have been made to him by his father; but if the claims in favor of the estate are held to be debts, and not advancements, then it seeks to have the interest of said Thos. S. Steele in the estate
The ground upon which such assignments are enforced in equity is stated most satisfactorily by Professor Pomeroy:
“The doctrine, of equitable assignment of property to be acquired in future is much broader than the jurisdiction to compel the specific performance of contracts. In truth, although a sale or mortgage of property to be acquired in future does not operate as an immediate alienation at law, it operates as an equitable assignment of the present possibility, which changes into an assignment of the equitable ownership as soon as the property is acquired by the vendor or mortgageor; and because this ownership thus transferred to the assignee is equitable and not legal, the jurisdiction by which the right of the assignee is enforced, and is turned into a legal property accompanied by the possession, must be exclusively equitable. A court of law has no jurisdiction to enforce a right which is purely equitable.” Pomeroy Eq., Section 1288.
Again, he says legislation recognizing such assignments as legal being out of the way, “that according to the general course of decision (such rights) are assignable in equity for a valuable consideration; and equity will enforce the assignment when the possibility has changed into a vested interest or possession.” Idem, Section 1287.
Even at law the sale of an interest in the lands of an ancestor living has been enforced, but gen
Such an assignment was enforced by this Coui’t against an attaching creditor, the Court saying that “the question was too well settled to require or even allow debate at this day.” Fitzgerald v. Vestal, 4 Sneed, 257. The fact that such sales or assignments will be closely scrutinized by courts to prevent frauds upon expectant heirs or persons in 'necessitous circumstances does not at all affect the power of the courts to give effect to such sales when fairly made and for full consideration.
Thos. S. Steele at the time he made this assignment was probably forty years of age, a lawyer by profession, and the Clerk of -the Chancery Court. No advantage is pretended to have been taken of him, and neither he nor his representatives have sought to set it aside. Upon the death of P. 0. Steele, Sr., and the registration of this conveyance, it operated to at once vest in the grantee the interest of the grantor as an heir and distributee in the estate of his father. So far as P. 0. Steele had made advancements to his son, they must be accounted for in diminution of
But on the other hand the indebtedness of an heir' to the intestate is not a lien upon the interest of the heir in the estate, and such share is therefore subject to the creditors of the heir, or to sale or assignment by the heir; and if the creditor obtain the first lien either by levy or attachment, or obtain an assignment before the administrator has taken steps to fix a- lien upon such interest, the creditor’s right, in either case, will be superior. Towles v. Towles, 1 Head, 601; Mann v. Mann, 12 Heis., 246.
There is no doubt of the correctness of the decree of the Chancellor in holding that the item of $1,000 paid by the intestate for his son, Thomas, was an advancement. It was a debt of the son paid by the father. ' No note or other obligation was taken by the father, and there is no circumstance indicating an intent that it should become a debt. In such case it is well settled that it will be charged as an advancement. Johnson v. Hoyle, 3 Head, 56.
The Chancellor should have allowed interest on this advancement from the date of the testator’s
The item of $8,000 paid by the intestate upon the liabilities of T. S. Steele as Clerk and Master, we think, under the facts of this case, was not an advancement, but is a debt. This fund was paid into the hands of Col. Edmund Cooper, to be by him applied in the payment of the official liabilities of Thos. Steele. Colonel Cooper gave a receipt for this fund to the intestate, in which he stated that this was paid as an advancement. This receipt was not accepted by the intestate, for he proposed another, an exact copy of the original, omitting the words “as an advancement,” and sent it to Colonel Cooper for his signature, and returned at the same time the original receipt. The second was signed by Colonel Cooper and sent, to the intestate, and this was found among his valuable papers. This is a most significant circumstance, indicating very clearly that he desired to retain this as a claim or liability and did not intend it as an advancement. The evidence of the agent who carried this second receipt to Colonel Cooper, even if sufficient to explain the objection to the first receipt, is not before us. The evi
There is no other competent evidence sufficient to affect the result reached in holding this matter a debt and not an advancement. There can be no question but that the other two items are likewise debts.
The decree of the Chancellor will be affirmed except in the matter of interest upon the advancements. The report of the Referees is likewise confirmed, except as modified in the same matter. The costs will be paid by appellants.