101 Tenn. 88 | Tenn. | 1898
These two causes, presenting the same questions, were consolidated in the Court below and heard together. The bills were filed by creditors of J. W. Fowler for the purpose of subjecting to the satisfaction of their claims a house and lot situated in the town of Gleason. This property is claimed by Mrs. M. A. Fowler, the mother of J. W. Fowler, under a conveyance from her son, the said J. W. Fowler, at a time anterior to the creation of the complainant’s debts. The theory of the bill is, that said conveyance from J. W. Fowler to his mother, the said M. A. Fowler, was never recorded, and that the title remaining in J. W. Fowler, the property is still liable for his debts.
The record discloses that in January, 1893, the said J. W. Fowler, desiring to embark in the
Complainants claim, under these facts, there was no legal registration of the instrument, and that the
It is a disputed question of fact upon, this record, whether J. W. Fowler gave the instructions to the Register in respect of the nonregistration of this instrument. J. W. Fowler strenuously denies that he gave such instructions. He states that when he delivered the deed to the Register, something was said about the payment of the registration fees, and he thereupon told him to record it and he would allow the fees in the settlement of a store account which the Register owed him! Fowler states the Register assented to this, and thereupon, in his presence, marked the deed filed. Fowler claims he had no knowledge the deed had not been recorded, until the present bills were filed.
On the other hand, the Register testifies as positively, that when the deed was left with him, Fowler directed him not to record it until further instructions. The witness admits that he noted the instrument for registration on same day it was filed, namely, May 9, 1896, at 6:30 p.m. The witness admits that he owed Fowler a small store account, and that it might have been understood at the time that the fees for recording this deed were to be allowed in this settlement, but that a settlement was afterwards made and these fees were not brought
It is insisted, on behalf of defendant, that the Register failed to record this deed through oversight, but this is denied by the Register, who testifies that he frequently saw this deed in looking over the unrecorded instruments. There is evidence tending to show that after this deed was left with the Register, J. W. Fowler still regarded this as his property, and exercised acts of ownership over it. It is shown, that, when he went to St. Louis, he appointed his cousin, W. O. Deason, as his agent, to rent it out and collect the rents. Some of the rents were sent to J. W. Fowler at St. Louis, but the larger part was turned ‘over to Mrs. M. A. Fowler. It is further shown that J. W. Fowler authorized his agent to sell the property if he could procure a purchaser at a figure fixed. The agent testified that he supposed, during all this time, that J. W. Fowler was the owner of the property, and never heard that Mrs. M. A. Fowler had any interest in it. All these circumstances tend to strengthen the testimony of the Register in respect to the request of J. W. Fowler for the nonregis-tration of the instrument, and to show that J. W. Fowler intended to retain title to the property. It is insisted, however, that under the Act of 1841, ‘ ‘ every deed or other instrument shall be considered as registered, and take effect at the time it is noted.” In Flowers v. Wilkes, 1 Swan, 408, it was said
But in the present case, it is insisted by counsel for complainant that the deed in question was not legally registered, although noted for registration, for the reason that Fowler instructed the Register, at the time he delivered the deed, not to record it until further notice from him. It was held in the case of Brown v. Fassett, 37 Ark., 507, that an instrument which is left with the Recorder, with instructions not to record it until notified, will not be considered as filed for record until directions to record it are given. To the same effect is Dedman v. Earl, 52 Ark., 164; and in Town v. Griffith, 17 N. H., 164, it was said that this is so, although the Clerk may have noted thereon the time of receiving it. And in Haworth v. Taylor, 108 Ill., 725, and Brigham v. Brown, 44 Mich., 59, it was
It is insisted herein that J. W. Fowler was a special agent, charged with the duty of delivering the deed to the Register for registration, and that he had no power to bind his mother, the vendee, by such instructions, conceding that he gave them to the Register. We do not find from this record there had ever been any delivery of this deed to Mrs. Fowler, and, hence, J. W. Fowler could not have been intrusted with it as a special agent for the purpose of having it recorded. It seems that the original unexecuted deed was at one time in the keeping of Mrs. Fowler, but this instrument was executed by J. W. Fowler, without any agreement with his mother, and, we believe, without her knowledge. The general rule is, that a delivery of a deed to the Register- to be ■ recorded is a sufficient delivery to the vendee; but where, as in this case, there has been no actual delivery to the vendor, and the Register is instructed by the vendee not to record it until further notice, there is no constructive delivery.
For these reasons we think the complainants, as creditors of J. W. Fowler, are entitled ‘to subject this property to the payment of their debts, and the decree of the Chancellor is affirmed.