51 Tenn. 674 | Tenn. | 1871
delivered the opinion of the court.
The original hill in this case was filed the 24th Hovember, 1858, against John C. Cooper and others, but in consequence of the deaths of the principal parties, and other supposed causes not' • appearing upon the record, no final decree was pronounced until 22nd April, 1869. It was alleged, in the original bill, that Jesse C.’ Cooper was indebted to
In view of these singular and somewhat extraordinary proceedings, it has been earnestly maintained by complainant’s counsel, that it was error
What, then, are the rights of the parties resulting from these anomalous proceedings? There can be no question as to the general principles governing the vendor’s lien in this State. It is now the well established doctrine, that when the legal title has been conveyed by the vendor by a deed of conveyance, his lien does not pass to the assignee of the vendee’s obligation for purchase money; but when he retains the legal title, and executes a title-bond, or covenant to convey merely, he holds the legal title as security for the payment of the purchase money, in analogy to a mortgagee; and his assignment of the vendor’s note carries with it the security: Green v. Demoss, 10 Hum., 373, 375; Lincoln v. Purcell, 2 Head, 151; Thompson v. Pyland, 3
Although the record states that the two cases were consolidated, there is no other evidence of the fact than the loose and imperfect statement above quoted. The decree setting up the trust deed, was pronounced, in Dawson’s case, the 7th December, 1867, and the decree, in this case, on the 22d April, 1869. It does not purport to be a decree in two causes, and they can not be considered and heard together as one cause, in consequence of the supposed consolidation. The record in Dawson’s case,
Regarding it as evidence merely, its effect can only be determined by looking to the condition of the two causes, when it was pronounced. The bill of Tharpe was filed something more than fourteen months before that of Dawson. His judgment pro covfesso, was entered more than eight years before the decree in Dawson’s case, although Dawson was not a party to the suit. . Yet the record shows that a person of the same name appeared before the Clerk and Master, and made an affidavit, as agent of complainant Tharpe, for the purpose of having a guardian ad litem appointed for the minor heirs of Howlen, and the deposition for complainant herein before referred to, was given by a witness styled J. 8. Dawson — who, in the absence of any proof' to the contrary, may be considered the same person as the complainant in the second bill. On this state of facts, we hold in accordance with the familiar maxim — “ qid prior, est tempore potior est jure” — that the suit of Tharpe having been first commenced, and he having obtained a decree pro confesso, establishing the allegations in his bill, his suit operated as notice to Dawson and all others, and that any decree to which he is entitled, although' posterior in point of time, is superior in point of right to the intermediate decree obtained by Dawson. If Dawson is the same person who
The decree in Dawson’s case declares that a valid lien was ci'eated by the deed of trust in favor of Pitman and Tennctt, Joseph C. Grubb & Co., John M. and Janies Stokes, J. B. Lippincott & Co., and John II. Dunlap, but not in favor of the numerous other beneficiaries in the deed; it ap
In the answer of J. B. Lippincott and others, John M. and James Stokes, Pitman and Tennett, and Grubb and McLaughlin to Dawson’s bill, it is stated that their attorneys at Paris had notice of the intention of John C. Cooper to execute the deed of trust, but there is no proof of this fact, nor does it clearly appear who were the attorneys referred to. But as the creditors named in the trust deed are numerous, let a decree be entered, in order to avoid error or misapprehension, declaring the amount due to John H. Dunlap on the two notes mentioned in the deed of trust, each for one thousand four hundred and seventy-two dollars and thirty cents, bearing date 18th December, 1855,