Massachusetts Mut. Life Ins. v. Taylor Implement & Vehicle Co.

138 Tenn. 28

• Court: Tennessee Supreme Court
• Decided: April 15, 1917
• Status: Published

Opinion

Ms. Justice Greek

delivered the opinion of the Court.

The bill in this case was filed to enjoin the sheriff of Shelby county from selling certain real estate under an execution from the chancery court. ■ A demurrer was interposed, which was overruled by the chancellor, and an appeal allowed to the court of civil appeals. That court affirmed the decree below, and the case is before us on petition for certiorari filed by the defendant.

On April 1, 1914, the defendant, Taylor Implement & Vehicle Company, obtained a decree against Ford N. Taylor in the chancery court of Shelby county for about $7,000. Ford N. Taylor appealed from said decree to this court, and gave an appeal bond, with W. F. Taylor as surety, on April 2, 1914. This bond was in the usual form,, and for $8,000. On the bond appears the following affidavit from W. F. Taylor, the surety:

“W. F. Taylor, surety on this bond, makes oath in due form of law that he is worth twenty thousand dollars in property subject to execution in his own right, free and unincumbered after paying all debts, within the jurisdiction of this court, consisting in the following described real estate, to wit:

1071 Poplar avenue, worth.$15,000.00

130x150 feet, corner "Watkins and Linden Ave., worth.:. 4,000.00

“W. F. Taylor.

“Subscribed and sworn to 1st day of April, 1914.

“Lamar Heiskell, C. & M.”

The decree of the chancery court was affirmed in this court on June 29, 1915, and a decree rendered here against Ford N. Taylor and W. F. Taylor, his surety, for the amount of the debt, interest, and costs.-

A procedendo from this, court went down and was filed in the office of the clerk and master of the chancery court of Shelby county on July 7, 1915. On July 30, 1915, a decree was rendered «by the chancery court upon said procedendo, making the decree of this court the decree of that court.

Meanwhile, on July 9, 1915, W. F. Taylor and wife borrowed from complainant, the Massachuetts Mutual Life Insurance Company, $7,500, and to secure the payment of this sum executed a deed of trust upon the Poplar street property referred to in the aforesaid affidavit. The said trust deed was filed fox-record in the register’s office of Shelby county, July 16, 1915.

The execution sought to be enjoined herein issued in the case of Taylor Implement & Vehicle Company against Ford N. Taylor to satisfy the recovery decreed in that case. Some other facts appear in the record which it is not necessary to detail.

It is conceded that the complainant insurance company had no actual notice of the decree against W. F. Taylor, rendered by this court, at the time the trust deed on the Poplar street property was recorded. The question presented for determination is whether the proceedings mentioned and the decree of this conrt fixed any lien npon the said property of which the insurance company was bound to take notice.

Judgment liens on real estate are purely statutory. No such liens existed at common law. Gardenhire v. King, 97 Tenn., 585, 37 S. W., 548; Weaver v. Smith, 102 Tenn., 47, 50 S. W., 771.

Our statutes bearing on this controversy, as reproduced in Thompson’s-Shannon’s Code, are as follows:

“4708. Lien on Land. Judgments and decrees obtained in any court of record of this Stale, in the county where the debtor resides at the time of rendition, shall he a lien upon the debtor’s land from the time the same were rendered.

“4709. Upon Registration, When. If rendered in any other county than that in which the debtor resides, the lien shall take effect only from the time-when a certified copy of the judgment or decree shall be registered in the county where the debtor resides, if he resides in the State, or if not, then in the county where the land lies.”

“4711. Unless Prevented by Injunction. If the sale within the twelve months is prevented by injunction, writ of error, appeal in the nature of a writ of error, or other adverse proceeding in court, or by appeal from judgments and decrees of courts of equity in this State to the supreme court; the lien will be continued, provided the creditor shall issue execution and sell the land within one year after the injunction is dissolved, the judgment or decree affirmed,. or adverse legal proceeding dismissed.”

As stated above, W. P. Taylor was surety on the appeal bond, and no judgment was rendered against him until the case was disposed of on appeal by this court sitting at Jackson. It is insisted'for the complainant that said judgment against W. F. Taylor was a judgment rendered in a county other than the county in which the debtor resided, and that no lien could have fastened on the real estate of "W. F. Taylor as a result of said judgment until a certified copy or an abstract thereof was registered in Shelby county.

The contrary contention is that the jurisdiction of the supreme court covers Shelby county, and that the judgments of this court in eases appealed from Shelby county have the same force and effect as the judgments of courts actually sitting in that county. In other words, that the lien of a judgment of this court is coextensive with the jurisdiction of the court.

It is not necessary to consider authorities from other States in determining this question. The language of our own statutes must control. As a matter' of fact, we think our statutes have long since been given a construction that upholds the contention of the complainant.

In Reid v. House, 21 Tenn. (2 Humph.), 576, the question arose as to the lien of a judgment of the federal court sitting in Nashville, Davidson connty, npon lands in Williamson county, and this court held that no lien followed such a judgment into Williamson county until a certified copy of. the judgment was registered in that county, where the judgment debtor resided.

The court quoted from certain of our statutes, including the sections above set out, and said:

“The question is whether judgments rendered in the federal courts are included in these provisions. Obviously they are included by the terms used, ‘all judgments obtained in any court of. record in this State,’ and they are as certainly embraced by the purpose and policy of the statute. If they are not embraced by these terms, and the lien be not given to them by this or • any other Tennessee statute, then they have either no lien at all, or else a lien uncircumscribed in point of time or territory. The object of the statute was that by going to the county where the land lies a purchaser might know whether there were prior conveyances or. mortgages, and by going to the county where the owner resided he might, from the courts of record.there and from the register’s office, know whether the lien of any judgment had attached, and thereupon safely buy.” Reid v. House, supra.

Continuing,- the court said:

“But it is argued that, with reference to the jurisdiction of the federal courts, it may be said of a debtor who resides in Williamson County that he resides in the county in which the judgment was rendered. Of this distinction it may be observed, not only that it contradicts the letter and contravenes the object of the statute, but that it is too attenuated to be either very tangible or very visible. Besides, it would alike apply to the judgments of the supreme and chancery courts. ...” „

The court further said:

“In truth, the lien of judgments by our system is not predicated upon the more extensive or more limited territorial jurisdiction of the court rendering them. The records of the courts rendering the judgment constitute a lien upon the lands of the debtor, wherever situated, without further registration, if the county where rendered contains the domicile of . the debtor; if it does not, then a certified copy of the judgment, registered in the county of the domicile, creates a lien upon by the land of the debtor wherever situated.” Reid v. House, supra.

Prom the foregoing it seems that this court-thought that its judgments, no more than the judgments of the federal courts, would fix a lien on real estate when rendered in counties other than the county in which the debtor resided, until such judgments were duly registered, as provided by statute. While the decision only related to a judgment of the federal court, the soundness of the dictum as to the lien of a judgment of this court is fully demonstrated by the reasoning of the opinion.

Referring to Reid v. House, on the point decided some years later, this court said:

“And upon this point we deem it only necessary to add that, upon reviewing that case, we are at least prepared to express our entire and deliberate approval of the principle it decides.” Vance’s Heirs v. Johnson, 29 Tenn. (10 Humph.), 214, 217.

We think the views expressed in the foregoing cases as to the lien of a federal court judgment have been generally accepted by the profession as applicable to judgments of this court, and it has not been supposed that a judgment rendered in this court was, without registration, a lien on the land of a judgment debtor residing' in a county other than the county in which the court was sitting. When it is remembered that a judgment was not a lien upon land at common law, and that the lien of a judgment arises from the statute, and is limited by the statute, it would seem that no other conclusion could be reached. This is a court of record, and judgments rendered when the court is sitting at Jackson are “judgments obtained in a court of record” in a county other than Shelby, and, unless an unnatural construction is given to the statute, such judgments cannot fix a lien on the land of a resident of Shelby county until they are recorded in that county.

Bearing in mind that the object of our statutes is to enable a purchaser to ascertain from the records of the county of the landowner’s residence whether or not there were any judgment liens on his land, it is manifest that this object would be defeated if judgments of this court were held to be liens upon the land of those domiciled in counties where the court was not sitting. The purpose of our statutes having been ascertained and judicially declared long ago, it is the duty of this court to effectuate such purposes.

It is urged, however, in behalf of the Taylor Implement & Vehicle .Company, that the judgment of this court became the judgment of the chancery court of Shelby county when the procedendo reached the latter court, and was there filed on July 7, 1915, nine days before the trust deed to complainant was recorded.

This argument is not sound. While the proce-dendo from this court reached the chancery court of Shelby county on July 7, 1915, the decree of this court was not made the decree of that court until July 30, 1915, fourteen days after registration of the trust deed.

Until our decree was adopted and made the decree' of the chancery court of Shelby county, and entered upon the minutes of the latter court, it did not become a decree of that court. There was no decree of that court against W. P. Taylor prior to July 30th. Only a mandate was on file directing a decree against him.

The action of a court is not complete nor effective for any purpose until a record thereof has been spread upon the minutes of the court, and the minutes duly signed or authenticated. Fralter v. Brazelton, 80 Tenn. (12 Lea), 280; State v. True, 116 Tenn., 294, 95 S. W., 1028.

It follows, therefore, that there was no judgment of a court of record against W. F. Taylor rendered in the county where he resided, nor any record of any judgment rendered elsewhere recorded in the county of W. F. Taylor’s residence, until July 30, 1915, several days after the trust deed to the complainant was registered. There was accordingly no judgment lien resting on the land of W. F. Taylor at the time when said trust deed was filed for record.

We think no lien or notice by reason of lis pendens arose, in respect to the lands of W. F. Taylor in Shelby county.

' It is said that by signing the appeal bond and setting out in his justification the land here in controversy, W. F. Taylor became a party to the judgment or suit, and a lien was fastened on the land scheduled for the satisfaction of said judgment.

W. F. Taylor did not become a party to the judgment rendered aganst Ford N. Taylor in the chancery court of Shelby county nor liable for its satisfaction unless affirmed. It is true he became a party to the ease under Thompson’s-Shannon’s Code, sections 4873, 4893, and 4901, hut his responsibilitv was for the judgment of this court. The. mere fact that one is a party to a case, without more, does not fix a lien on his real estate.

A purchaser or mortgagee of property is not affected by the pendency of an action, under the rule of Us pendens, unless the pleadings in said suit described said property with respect to which the rule is invoked so as to enable the purchaser to ascertain its identify.

This court has said:

“The principle of Us pendens is that the proceedings must he of such character as to point out to all the world the propriety or right affected by them. 2 Kent, 101, (note). In Adams’ Eq., p. 157 (note), it is said: ‘The.principle of lis pendens is that the specific property must he so pointed out hy the proceedings as to warn the whole world that they meddle with it at their peril.” Boshear v. Lay, 53 Tenn. (6 Heisk.), 163.

To the same effect see 25 Cyc., 1462, and authorities collected in note 8.

Nowhere in the former proceedings in any pleading or in any authorized part of the court record was any land of W. F. Taylor identified or indicated as being involved. In fact, no specific property of W. F. Taylor was involved.

We cannot look to the affidavit which the clerk and master took from W. F. Taylor. This affidavit forms no part of the pleadings or of the record proper. . It was the duty of the clerk to require a solvent, surety on the appeal bond in the former case. The clerk was authorized to make the intending surety justify as to his financial worth. The clerk need not have done this, however, if he otherwise knew oí the surety’s solvency. This affidavit was a thing taken for the convenience and perhaps for the protection of the clerk, but it never constituted a part of the pleadings in the cause. The circumstance that the surety listed certain realty in the affidavit did not fix any lien on the land.

Moreover, a surety does not impound his property by signing an appeal bond. An argument is made by learned counsel for the defendant herein that such a result is to be desired, but we are referred to no authority declaring this to be the law. We know of no such rulei If such were the law, it would be well-nigh impossible for a judgment debtor to procure a surety.

We do not think that chapter 96 of the Acts of 1897 carried into Thompson ’s-Shannon’s Code, at section 4709a et seq., has any bearing on this controversy.

That act was passed to regulate the lien acquired by judgments, lis pendens, etc., on land in counties other than the county in which the judgments were rendered or the Us pendens arose. It requires an abstract of said judgment or proceedings to be filed in the register’s office of the county where the land sought to be reached is situated. Under the Act of 1897 it would have been necessary for an abstract of a judgment of this court to be recorded in Shelby county in order to charge the lands of W. F. Taylor, had not the judgment of this court been made the judgment of the chancery court of Shelby county. When our judgment was made the judgment Of the latter court, it became’ the judgment of a court of record in the county of the debtor’s residence, and there was'no necessity for filing any abstract of our judgment in the register’s office. Inasmuch as the property here involved was never described or identified in any pleading, in the former case, the principle of lis pendens has no application, as we have heretofore seen.

What we have said covers the assignments of error interposed to the action of the court of civil appeals. Other points made do not require special notice. Johnson v. Ball, 9 Tenn. (1 Yerg.), 291, 24 A. M. Dec., 451; Miller’s Lessee v. Estill, 16 Tenn. (8 Yerg.), 453; Porter v. Earthman, 12 Tenn. (4 Yerg.), 359, and other decisions of this court relied on by defendant, do not seem to bear on this controversy.

The petition for certiorari is denied.