86 Tenn. 376 | Tenn. | 1888
Complainants filed this bill in the Chancery Court of Montgomery County on February 25th, 1884, alleging that, prior to the year 1874, Complainant Patrick Sullivan was the owner of considerable real and personal property in the city of Clarksville, and that in the month of February, 1874, he executed a mortgage to one John Sullivan to secure an indebtedness of $650, which mortgage was afterward transferred to M. Sullivan; and that he, on the 9th of February, 1874, executed a mortgage on all of his property to secure an indebtedness of $2,700 to said M.
Complainants further allege in their bill that on the day of sale it was agreed by Complainant Patrick Sullivan and M. Sullivan that the latter should purchase the property and - that the former should take and retain the possession of it; and when said M. Sullivan should be paid his money, he would re-convey the property as Complainant Pat. Sullivan should direct.
The defendants are the minor children of M. Sullivan, who, the record discloses, died in 1881, and they appear and defend by guardian ad litem. They deny all the material allegations in the bill, and particularly deny that M. Sullivan agreed with complainants that he would purchase the property at the sale by the Clerk and Master and allow
The evidence is voluminous. Bpon consideration of the whole case, the Chancellor granted the relief prayed for in the bill. The defendants have assigned errors raising all the material questions made in the pleadings.
We are met at the threshold by the question as to whether the indorsement on the back of the deed of the Clerk and' Master to M. Sullivan of November 26th, 1879, is genuine. This indorsement purports to have been witnessed by one John Sullivan, a brother of M. Sullivan, and who had lived for a time in his house. He was called as a witness, and proved positively that the indorsement in question was written by M. Sullivan at the date it purports to have been, and signed by M. Sullivan, and that he witnessed it at the request of M. Sullivan, and that the latter then delivered the deed, so indorsed, to Pat. Sullivan, with directions for him to take it home to his wife.
An attempt was made by defendants to discredit the testimony of this witness by showing that he was a man of vei’y intemperate habits. Defendants also introduced witnesses who were acquainted with the handwriting of M. Sullivan, and who
But by far the more serious question arises as to whether the complainants have sustained by proof the allegations made in the bill, viz.: That on the day of the sale of the property in question, by the Clerk and Master, it was agreed by Complainant Pat. Sullivan that M. Sullivan should buy the property; that Pat. Sullivan should take and retain the possession of it, and when Mike Sullivan should be paid his money he would re-convey the property as Pat. Sullivan should direct. The' record does not contain any express proof of such an agreement.
It is well settled, as contended by counsel for
These facts lead the Court to the conclusion that there was an agreement between Mm and complainants at the time of the chancery sale that he (M. Sullivan) was to purchase the property in his name, and hold it till the indebtedness from Pat. Sullivan to him was paid, and then he was to re-convey to Pat. Sullivan, or to whom he should direct. It is also clear from the proof that it was the intention of M. Sullivan, when he made the indorsement on the back of the Clerk and Master’s deed within a few days after its execution and before it was registered, to convey Ms entire interest in the property embraced in the deed to the Complainant Ilonora, and that the parties to it all regarded that all had been done that was necessary to perfect such conveyance; and while it is equally clear that such attempted conveyance could not legally have such effect, it serves very strongly to show what was the agreement of the parties at-the time of the sale.
The result is that the decree of the Chancellor is in all respects affirmed.