81 Tenn. 353 | Tenn. | 1884
delivered the opinion of the court.
The facts on which the solution of this case mainly •depends are as follows: In 1870, C. S. Severson executed his three promissory notes to Malcolm McMel, a resident of the State of Kentucky. Two of these notes were for $5,000 each, the other for $10,000. At the same time Severson executed a deed of trust
M. J. Wicks, after this entered into an agreement-in writing with McNiel, the substance of which we copy,, so far as it bears on the questions to be decided. After reciting the facts we have stated as to the notes and deed of trust, and purchase by Wicks of the land under the junior encumbrance, of Maynard, the trustee, in favor of Hill, Fontaine & Co. by Wicks, it is added “ and wishes,. to avail himself' of any benefit to be derived from the lien under the deed of trust to said Carutliers for the benefit of said McNiel. Now, therefore, this agreement witnesseth, that in consideration of the transfer and assignment by the said McNiel to said Wicks of the notes of said Severson above mentioned, and the lien of the
It is then stipulated that Wicks shall pay taxes •■and do some other things, among which is to keep the title protected until the agreement is performed, “ the said Wicks supposing the lien of said' deed of trust to be now prior and paramount to all. others.” The notes were to be presented at a specified bank in Memphis as they fell due. The date is October •5, 1872. At the date of making this agreement ■there is no doubt that M. J. Wicks expected, and with good reason, to be able to meet his engagement to take up the notes. But owing to the suspension of the bank of which he was president, and probably use of his private means to pay depositors when
But as no such question is, made by the learned counsel, we pass this without deciding any thing either way on the point suggested.
The theory of complainant is, that the mother, under the advice of her son, purchased the note with this money, paying what it called for on its face, with accrued interest, the total being $5,275.50, and that as such purchaser she takes the note with the security of the deed of trust independent of the agreement between McNiel and M. J. Wicks, the husband.
It may have been that she and her son and agent so understood it at the time, but it is equally certain that Malcolm McNiel, the agent of the owner of the note, had no such understanding; on the contrary, it is clear he simply understood the note was being paid, and that the son had obtained the money for his father, and met his engagement. In this view we may say here that complainant’s theory can receive no aid based on the idea of an assent or agreement on the part of McNiel that she was' a purchaser simply of the note. It is beyond doubt that he had no knowledge of the fact that she was to be the owner of the note or have any rights in it in any way. The note was simply endorsed “ without recourse on me or my heirs, Malcolm McNiel, by Malcolm McNiel, Jr., agent,” he' refusing to endorse it in blank as requested, and endorsing -it as directed by his grandfather. It now becomes necessary to state the case as presented by the pleadings.
This bill states the agreement or substance of it, -and charges that the husband had been unable to comply with his agreement, and had abandoned it, -and she had taken up the note with funds belonging to her in her individual right,” and therefore she -asserts the equity to have a beneficial interest to the •extent of the note, and whatever interest McNiel had under said deed of trust before said note was paid •to him passed to her. On this footing she prayed that Caruthers be restrained from selling the land ■without first providing for said note under a proper •advertisement, etc.'
This bill was demurred to on several grounds, among others, want of equity on its face, and the demurrer sustained, and bill ordered dismissed, with leave to file an amended bill.
In the meantime, when the bill was dismissed and injunction dissolved, the trustee proceeded to sell the land, when McNiel became the purchaser, bidding his •debt, and perhaps costs, amounting to upwards of twenty-one thousand dollars, and took a deed from the trustee.
Soon after this McNiel died in Kentucky, leaving a will, which has never been probated here, in which this land is devised to parties assumed to be before
It then charges that since the dissolution of the-injunction, the master had sold the land under the deed of trust for the benefit of McNiel, not noticing her rights, and McNiel had bought the land, and had the trustee’s deed. She charges that her rights under the trust have not been impaired by this sale, and the sale void as to her, but has delayed her in the collection of her note, and was a fraud on her. rights. On fhis footing she claims that McNiel and the trustee are personally liable to the payment of the whole of complainant’s debt, and she entitled to the-payment of the note out of proceeds of the land. On this she asks a personal decree for the amount of the note, payment also out of the proceeds, and if the decree is not satisfied otherwise, then the «ale be declared void, and the court order a resale according to the terms of the deed of trust for the payment of the debt.
The chancellor held her entitled to a pro rata. share of the proceeds, gave a decree against an administrator of McNiel, who had been appointed in
The Eeferees report that Mrs: Wicks is entitled to-recover the entire amount of her note of McNiel personally or his representative, and also against Caruth-ers, the trustee, and also give her a lien on the land-to be enforced, provided the parties necessary are-within the jurisdiction of the court, a point reserved however, who are the present owners of the land,, being one of the matters included in the reference-ordered.
The land is shown to belong under the will of McNiel to three or four grandchildren, minors, and non-residents of the State of Tennessee, who have had publication made as to them, and an answer. by guardian ad litem. As we have stated, J. P. Caruthers, the trustee, was served with process, it is true,, in Shelby county, but by proof is shown to be a resident of Chicago, Illinois.
We have stated the position taken in the pleadings, and the facts of the case as shown by the proof. It is difficult to say from the amended bill, which is the case of complainant, what is the position of complainant. While a claim is made on the proceeds-
A personal decree is sought against McNiel and the trustee for making the sale, and if this does not ■satisfy the debt claimed, then a sale of the land is asked in accord with and under the deed of trust. How all this is to be reconciled and made consistent we are- at a loss to see.
The chancellor has held in accord with these views ■as to the pro rata, and the Referees substantially affirm this decree, only modifying it so as to give a •decree for the whole amount of the note instead of a pro rata part of price of land at sale. We need but say, that if a personal decree is to be had, and proceeds of land sale given complainant, it necessarily goes on the idea of an affirmance of the sale. McNiel and Caruthers can only be held liable for the money, on the ground that they have received the money of complainant to which she is entitled -as money had to her use, or else on the ground that they had wrongfully deprived her of her assumed security under the deed of trust, and therefore must make good her loss. Complainants cannot assume and maintain contrary and antagonistic positions on ■such a question, and ask the proceeds of a sale, or personal decree, because it had been made, and at the ■same time treat the sale as void, and enforce rights as if never made. We will look at the case in both ■aspects suggested, on the theory that by the sale money or value has been received by McNiel rightfully belonging to complainint. Do the facts warrant
This act however, has not, if her contention is correct in the slightest degree, affected her rights under the deed, by virtue of her ownership of the paper. She has but to go to the State of Mississippi where the land lies, and file her bill or institute proper proceedings, and enforce whatever right she has acquired against the land. Nothing "that has been done has impaired or weakened any right she claims by virtue •of the ownership of the note secured by the deed of
Assuming that whatever rights Mrs. Wicks has are-against the land — that she got no more by the transfer' is certain — McNiel refusing to endorse or transfer except free from all personal liability, the question remains, can this court enforce the right thus claimed,, even if sustained? We take it, the land lying in another State is beyond our control, and the parties-
It is true the trustee is before the court by source of process of the court in fact in this case, but is out of the jurisdiction, but that does not give jurisdiction over the land, the subject-matter on which the charge is to- be enforced, nor enable the court to compel the trustee to sell or convey. Our decree ordering him to sell, would only give authority in Tennessee, and be waste paper, as soon as he crossed the line of Mississippi, probably, but as he is out of this jurisdiction he cannot be so ordered. A mere declaration of right which we could not enforce, is what a court could not do, a decree which we have no jurisdiction to execute, would be tristem fulmen and a useless form not in accord with the course of judicial proceedings nor the dignity of such tribunals.
Courts of equity act in personam in most cases, where it has jurisdiction of the person, and compel parties to perform contracts for conveyance ,of lands in foreign countries, but the essential qualification of the rule is, “if the parties are resident within the territorial jurisdiction of the court: Sto. Eq. J., Ed. by Perry, sec. 743.
“So it seems,” says same authority, section 744, “a court of equity has no jurisdiction to order a defend
There is nothing in the contention as res adjudieata when demurrer was overruled by arbitration court. The-decree simply overruled the demurrer and remanded for answer and further proceedings: . Rodgers v. DeBell, 6 Lea, 69.
The result is, the report of the Referees is set aside, the decree of the chancellor reversed and bill dismissed with costs. It may be added, without prejudice as to any assumed rights of Mrs. Wicks against the land, if any she has.