Hyder v. Butler

52 S.W. 876, 103 Tenn. 289
CourtTennessee Supreme Court
DecidedSeptember 30, 1899
StatusPublished
Cited by11 cases

This text of 52 S.W. 876 (Hyder v. Butler) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hyder v. Butler, 52 S.W. 876, 103 Tenn. 289 (Tenn. 1899).

Opinion

Caldwell, J.

Hyder brought this action of ejectment to recover possession of a small tract of land in Carter County. The Circuit Judge, who tried the ease without a jury, rendered a judgment in his favor, and Butler, the defendant, appealed in error.

The plaintiff’s title depends upon a Sheriff’s deed, which the defendant assails as void upon its face. The deed recites that the present plaintiff, Hyder, and others, filed a bill in the Chancery Court of Carter County against Pressley Maupin and others, to enforce a vendor’s lien on certain tracts of land sold to these defendants — that separate decrees were rendered against them for the amount of purchase money due from them, respectively, that against Maupin being for the sum of $448.11; that these decrees were declared to be liens upon the respective tracts of land, which the Master was directed to sell, unless the recoveries should be paid within sixty days; that in default of payment, sales were duly made, reported, and confirmed; that the amount for which Mau-pin’s land was sold was insufficient to satisfy the decree against him, in consequence of which an execution was issued against him for the balance; that this execution came into the hands of v the Sheriff, and was by him levied on the -land now [292]*292in question as the property of Maupin, and that, after proper advertisement, the land so levied on was sold to the plaintiff, Hyder.

The contention of Butler is that these recitals show a lack of authority for the -issuance of the execution under which the present land was sold, and, hence, that the deed is a nullity.

If the premise be true, the conclusion is inevitable..

To be valid, the deed of a Sheriff must show a proper judgment, execution, levy, and sale. Byers v. Wheatley, 3 Bax., 160; Harlan v. Harlan, 14 Lea, 120.

Does the deed here impeached show a lack of authority to issue the execution ?

As has been seen, it recites ■ that a bill was filed in the Chancery Court to enforce a vendor’s lien on other land; that the vendor’s debt was' ascertained, the lien declared and enforced by a sale of the land, and that the execution here involved was .thereafter issued for the unpaid balance of the decree, but it does not follow from these recitals that the execution was issued without authority. They in no sense negative the existence of the requisite authority. It is true that the recitals of the deed imply, and that the record upon which it is based distinctly shows, that the Chancellor did not, in terms, order the issuance of the execution. Such order, however, was not • necessary to the validity of the writ. [293]*293Both, the deed and. the supporting record show a formal decree for $448.17, a specific sum; that it was adjudged to be a lien on the land involved in that cause, and that a part of that decree remained unsatisfied after the enforcement of that lien. More than this was not essential to authorize the Master to issue an execution for the unpaid balance of the decree. ' It is not required in a money recovery, whether a decree in chancery or a judgment at law, that the Court shall, in terms, direct the issuance of an execution. Such a decree or judgment, without more, is, in and of itself an award of execution. The Court adjudges the party’s right to recover a sum certain, and the law awards the writ for its collection. Johnson v. Ball, 1 Yer., 291; Daley v. Perry, 9 Yer., 442; Bank v. McClung, 9 Hum., 95; Hist. Lawsuit, Sec. 442; Ib. Martin’s edition, pp. 166, 167; Battle v. Bering, 7 Yer., 529; Freeman on Executions, Sec. 23; 8 Ency. Pl. & Pr., 313; 11 Ency. Pl. & Pr., 957.

Though most of these authorities refer to judgments at law, the rule’ is equally applicable to unqualified money decrees in chancery. “A decree in equity for money has the same force and effect as a judgment at law.” Battle v. Bering, 7 Yer., 529. “All judgments and decrees of any of the judicial tribunals of this State, for money, may be enforced by execution.” Code, Sec. 2998; M. & Y., Sec. 3714; Shannon, Sec. 4728. And [294]*294it is the duty of the respective clerks of the different Courts rendering such judgments and decrees to issue executions thereon within the time prescribed by law, and without demand of the parties obtaining the recoveries. Code, Secs. 3002-3007; M. & V., Secs. 3718-3722; Shannon, Secs. 4732-4736. “Judgments” is the word used in these sections, hut recoveries in all of the Courts are expressly included, and, besides, by a positive enactment, the words “judgment” and “decree” are declared to be “interchangeable” in the Code, and to embrace each other “unless limited expressly or by the context.” Code, Sec. 2970; M. & V., Sec. 3684; Shannon, Sec. 4698.

The rule that the law awards an execution on a decree or judgment for a specific sum of money is not entirely superseded by the Court’s declaration of a lien on particular property and an order of sale. The only effect of such declaration and order upon that rule is to delay the issuance of the execution until the order of sale is complied with and the net proceeds of the sale credited. This delay fully meets the provisional portion of the decree or judgment, and finds the unsatisfied balance of the recovery in the same legal plight as the whole recovery would have been in originally if there had been no declaration of lien and order of sale, and, this being true, the clerk is authorized to issue an execution for such balance without the Court’s special [295]*295direction to do so. This rule is embodied in the statute, which says the clerk may issue execution for unsatisfied- balance of the Justice’s execution in condemnation proceedings (Code, Sec. 3076; M. & V., Sec. 3789; Shannon, Sec. 4804), and in the other statute, which says like authority exists 'in attachment cases. Code, Sec. 3538; M. & V., Sec. 4272; Shannon, Sec. 5298. The latter statute .expressly recognizes the rule, in that it provides that execution may issue for the residue of the recovery “as in other cases.”

It should he further stated that the original decree, which appears at large in the supporting record, concludes with the statement that if the land directed to he sold should not bring enough to satisfy the indebtedness previously adjudged, “the Court reserves the right to enter a decree enforcing any balance remaining as a lien,” on other land. This reservation without more, however, did not change the character of the money decree, nor render it improper for the Master to issue the execution for so much thereof as remained unpaid after the enforcement of the lien already adjudged. The reservation, as such, had no effect whatever on the other portions of the decree, or the rights and liabilities of the parties thereunder. It adjudged nothing, directed nothing, suspended nothing. 3STo such decree as that suggested in the reservation was ever rendered, nor [296]*296does it appear that there was other land on which the complainants had a lien.

It is said in still further impeachment of the Sheriff’s deed, that there were three defendants in the chancery proceeding against whom recoveries were had, and that the execution under which the sale was made ran against only one of them. This is true, and it is also true, as recited in' the deed, and as appears from the decree itself, that separate recoveries were had against the three defendants.

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Bluebook (online)
52 S.W. 876, 103 Tenn. 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hyder-v-butler-tenn-1899.