97 Tenn. 458 | Tenn. | 1896
The records in these consolidated causes present a. series of transactions which are certainly unique in character. The defendant, C. P. Robertson, seems at one time to have been a man of some mercantile reputation in the city of Chattanooga. Whether as the result of bad habits or not does not appear, but he finally passed out of business, and at the same time his condition was such that for awhile he was under treatment in a sanitarium or asylum. On his release, his need of money being great, a plan, according to his statement, was submitted to him for raising enough to relieve this need. The plan thus suggested was that Robertson, who was the owner of certain lots in Chattanooga, should bond these, a method which he was made to understand was very prevalent, and which, if adopted in this case, could work no injury to anyone; This plan commended itself to Robertson as possessing superior advantages, and, therefore, he set about carrying it out. The details of the scheme were as follows: Robertson had prepared a deed, which was executed by himself and wife, conveying these lots to one C. Phillips for an expressed con
Within a very short time thereafter, using these bonds as collateral security, Robertson obtained advances of money from various parties. From the complainants, Wiehl, Probasco & Co., he obtained a loan of §>1,000, and gave one of these bonds, with coupon attached, as security; four he gave to the complainant, the Cleveland National Bank, to secure a debt of $2,400, and one to\ C. L. Hardwick & Co., of Dalton, Ga., as security for $1,000. Robertson defaulted on the interest coupons, and the beneficiaries, seeing that it was best to foreclose the trust deed, thereupon directed that this be done.
Accordingly, Mr. Grayson (entirely ignorant of the method adopted in the execution of these papers), as trustee, advertised the property for sale, in accordance with the terms of the trust deed, and at the sale made by him a third party, acting under the agreement already reached by the beneficiaries, bought the property in the name of Wiehl, of Wiehl, Probasco & Co., who was to hold it in trust for
Soon afterwards, Wield, Probasco & Go., being-informed that the deed of trust and bonds were executed as has been before detailed, filed their bill in one of these consolidated causes, in which they charge that the deed from Robertson to Phillips was ineffectual to convey title, as there was no such grantee, and that the deed of trust was equally ineffectual in conveying title to Grayson, trustee,' because the name of C. Phillips was forged to that instrument by Robertson. They allege that as the owner of Robertson’s note, and by reason of his nonresidence, they have a right to treat these conveyances as of no force and value, and attach the lots in question and appropriate them, as far as might be necessary, to the payment of their debt. They especially repudiate the trust deed, and decline to take any benefit from it, or the sale made under it by Grayson as trustee. Subsequently the Cleveland National Bank filed its bill in the other of said causes, setting up its ownership of the Sjp2,400 note of Robertson and its possession of four of these coupon bonds, and charging bad faith upon the part of Wiehl, Probasco & Co. in repudiating the sale made in the interest of all the beneficiaries of the trust deed, and insisting that the legal effect of the execution of this deed of trust to Grayson was that the title to this property passed out of Robertson to said trustee, although the maker used in its execution the false name of C. Phillips, and
All necessary parties were made defendants to these respective bills. The Chancellor, on the hearing of these causes, dismissed the bill of Wiehl, Probasco & Co., and decreed that the effect of the deed of trust to Grayson, trustee, was to' vest the title to this property for the benefit of all the bondholders, directed a foreclosure sale for their benefit, and, in effect, declined to exclude Wiehl, Pro basco & Co. from a participation in the proceeds of the trust property. From this decree Wiehl, Probasco & Co. alone appeal. The Court of Chancery Appeals have affirmed the Chancellor’s decree, and the case is now before us by appeal from this decree of affirmance.
The theory of the bill of Wiéhl, Probasco & Co., as has been stated, is, that the grant from Robertson and wife to C. Phillips, there being no such grantee, was waste paper, leaving the title in the grantors, and that the trust deed from C. Phillips to Grayson, trustee, being a forgery, communicated
But we do not agree with appellant’s counsel in their insistence that the deed of trust which Robertson executed in the name of C. Phillips, was a nullity. On the contrary, we are satisfied, on reason and authority, that it as effectually conveyed the title to this property to Grayson, trustee, as if Robertson had used his own name in the conveyance. We think there can be no doubt but that if the grantor had used, in the execution of this deed, his surname simply, that, his identity being established, it would have been operative to convey title; and we think it equally free from doubt, that, using his Christian name, as the grantor did, and intending it to take effect as a perfect deed, and delivering it as such, that it will be taken as conclusively binding upon
Mr. Devlin, in his work on Deeds, Yol. I., Sec. 191, states the law to be that “a patent issued to a person under an assumed name is not void, and a conveyance by such persop under his assumed name will transfer title.” And again, in Sec. 188, the same author says: £i Between the parties, a conveyance of property by the owner, by any name, will transfer the title. And, when executed in a different name from that in which he acquired title, it will, when recorded, operate as constructive notice of the transfer of title, and will be entitled to precedence over a deed to the same land executed in the name by which title to it was acquired, but subsequently recorded,” citing to this proposition Fallen v. Kehoe, 38 Cal., 44.
This exact question has been carefully, and on authority", considered by the Supreme Court of New York, in David v. Williamsburg Fire Ins. Co., supra, and the same conclusion was reached there as is announced by Mr. Devlin. In that case Henry J. David conveyed real and personal property to Marx David, a fictitious person, and then, in the name of this fictitious grantee, conveyed the same property to the plaintiff in the action, who undertook, in her own name, to protect it with insurance policies. It was subsequently burned, and the in
But appellants earnestly insist that, however this may be where a party, without fraud or wrongdoing, assumes a name other than his own in making a contract, yet in this case Robertson, in using the name of C. Phillips, was guilty of the crime of forgery; that no contract can spring from a felony. Forgery, at common law and under our statute, is the fraudulent making or alteration of any writing to the prejudice of another’s rights. 1 Whar. Cr. L., Sec. 653; Code (M. & V.), § 5492. While this transaction was highly discreditable, yet we do not think it falls within this definition. Whose right's were prejudiced by the assumption of this name? Not those of C. Phillips, because he was a mythical personage. Nor were those of Mr. Gray-son, the trustee, for he had none in the property
We do not think this objection was well taken. It is true the bill of complainant bank alleged that it was the owner of a note of Robertson’s for $2,500 and that this averment was denied by the defendants, Wiehl, Probasco & Co., but it was admitted to be
The Cleveland National Bank did not appeal, and we therefore cannot consider the question whether, having repudiated this trust deed, the Chancellor was in error in letting Wíehl, Probasco & Co. in to participate in this trust fund.
Affirmed.