Hardin v. Chapman

255 S.W.2d 707, 36 Tenn. App. 343, 1952 Tenn. App. LEXIS 122
CourtCourt of Appeals of Tennessee
DecidedNovember 19, 1952
StatusPublished
Cited by6 cases

This text of 255 S.W.2d 707 (Hardin v. Chapman) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardin v. Chapman, 255 S.W.2d 707, 36 Tenn. App. 343, 1952 Tenn. App. LEXIS 122 (Tenn. Ct. App. 1952).

Opinion

HOWARD, J.

This suit was filed by the complainant, Trixie Brown Hardin, against her sister Nellie [345]*345Brown Chapman, and her husband, Dan Chapman, to set aside a deed dated July 12, 1946, and executed by Mrs. Mary Brown, mother of complainant and Nellie Brown Chapman, in which the mother conveyed to defendants a tract of land consisting of several acres.

Complainant’s hill alleges that her mother lacked mental capacity when the deed was executed; that the deed was procured by fraud, undue influence and over persuasion, and was without consideration; that the defendants claimed that said deed conveyed approximately 150 acres when it called for only 50' acres more or less.

The bill further alleges that practically all the lands held by Mrs Mary Brown at her death were previously acquired by her husband, who predeceased her, as tenants in common; that by deed dated April 17, 1893, and executed by R. J. McAmis, et al., Mrs. Brown and her husband acquired approximately eighty acres of land as tenants in common, the deed conveying said land “unto H. H. Brown and his wife, Mary Brown, equally and jointly”; that the language used in said deed precluded the right of survivorship in either husband or wife, and showed no intention of creating an estate by the entireties, and the bill sought to have the land owned by H. H. Brown sold for partition.

In their sworn answer the defendants denied that the deed was without consideration; denied that the grantor lacked mental capacity to make the deed, and denied there was any fraud or undue'influence. They averred that as a consideration they had left their home in the State of Illinois, at the grantor’s request, and had gone to the grantor’s home in G-reeneville, Tennessee, where they cared for her during the last years of her life. They further averred that the grantor and her husband acquired [346]*346title to the land as tenants by the entirety, and not as tenants in common, as insisted by the complainant.

Upon the hearing the Chancellor held that Mrs. Mary Brown and her husband took title as tenants in common to the eighty acres of land they purchased from B». J. Amis, et al., and that complainant and the defendant, Nellie Brown Chapman, being the daughters and only heirs of H. H. Brown, succeeded to their father’s estate. A sale of the land for partition was ordered, but the order provided that the sale should be held in abeyance pending the final disposition of the suit.

The Chancellor also found that Mrs. Brown was in full possession of her mental faculties at the time she executed the deed on July 12, 1946; that there was no fraud, coercion or undue influence in connection with the transaction, and that there was consideration for the deed, namely: (1) That the defendants “left their home in Illinois and moved to Tennessee in order to care for the * * * decedent for the remainder of her life,” and (2) that the defendants were to pay the funeral expenses of Mrs. Brown.

The Chancellor further held that the deed to defendants conveyed only forty-nine and one-half acres.

From the Chancellor’s decree the defendants have appealed to this Court, assigning errors in which insistence is made that the Court erred in holding, (1) that the deed from the McAmises dated April 17, 1893, to H. H. Brown and wife, Mary Brown, conveyed title to the grantees as tenants in common instead of by the entirety; (2) that the deed from Mrs. Mary Brown to defendants executed and delivered on July 12, 1946, conveyed to the defendants only forty-nine and one-half acres instead of all of the lands north of a boundary designated by the [347]*347deed, and (3) that defendants were liable for the fnneral expenses of Mrs. Mary Brown.

Taking up the assignments in their regular order, the first question presented is whether or not under the deed executed by the McAmises on April 17,1893, the Browns took title to the land described therein as tenants in common or tenants by the entirety.

“An estate by entirety which is a form of co-ownership held by husband and wife with right of survivorship, is defined as an estate held by husband and wife by virtue of title acquired by them jointly after marriage.” 41 C. J. S., Husband and Wife Section 34, page 458. And “an estate by the entireties involves the unities of time, title, interest, and possession, as well as the husband and wife unity of ownership.” 26 Am. Jur., Sec. 71, p. 698.

It is the general rule governing the construction of deeds, when it is sought to determine what estate was conveyed thereby, to ascertain the intention of the parties, if possible, by giving to each word of the deed its appropriate meaning and enforce that intention. Myers v. Comer, 144 Tenn. 475, 234 S. W. 325, 326.

In Myers v. Comer, supra, a conveyance made to husband and wife, “jointly and severally in equal moieties” was held to create a tenancy in common.

In the present case the McAmis deed makes no reference to the words ‘ ‘ severally in equal moieties ” as in Meyers v. Comer, supra, and we think that the rule stated therein is not controlling here. The following are the pertinent parts of the McAmis deed:

“We, B.. J. McAmis and wife, Fannie W. McAmis, and J. E. McAmis and wife, Florence McAmis, have bargained, and sold, and do hereby transfer and con-[348]*348yey unto H. IT. Brown and Ms wife, Mary Brown, equally and jointly the following described real estate. ’ ’

The habendnm clause reads as follows:

“To have and to hold the same to the said H. H. Brown and Mary Brown, their heirs and assigns forever. ’ ’

Under the covenants of warranty appears the following-language :

“We hereby bind ourselves, our heirs and representatives to warrant and defend the title thereof to the said H. H. Brown and Mary Brown, their heirs and assigns, forever, * * *”

No extrinsic evidence was introduced showing that the title to the lands was acquired by the Browns as tenants in common, as in the case of Faulkner v. Ramsey, 178 Tenn. 370, 158 S. W. (2d) 710, where the Court held that the grantees acquired title as tenants in common. Therefore, we can only consider the deed and the language used therein in ascertaining the true intent of the parties.

Besides conveying title to Brown and his wife, the deed also recites that they jointly executed four notes securing the unpaid purchase money, which were subsequently paid by their joint efforts. Neither Brown nor his wife ever indicated that the title to the land was acquired by them as tenants in comon, and after Brown’s death in 1928 his wife continued to occupy the property as sole owner until her death in 1949. Complainant at no time prior to her mother’s death ever raised the question that the land involved was held by her mother and father as tenants in common, and said question probably never would have been made had it not been for the deed exe[349]*349cuted by Mrs. Brown on July 12,1946, which deed by this proceeding complainant seeks to set aside.

It is generally held that a tenancy by the entirety is created when a husband and wife take an estate to themselves jointly, and such will be presumed where words do not appear to the contrary or, as in the instant case, where the language used is ambiguous. Bost v. Johnson, 175 Tenn. 232, 133 S. W. (2d) 491.

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Bluebook (online)
255 S.W.2d 707, 36 Tenn. App. 343, 1952 Tenn. App. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardin-v-chapman-tennctapp-1952.