Roper v. Roper

Court of Appeals of Tennessee

Roper v. Roper

3 Tenn. Ch. R. 53

DecidedApril 15, 1875

StatusPublished

This text of 3 Tenn. Ch. R. 53 (Roper v. Roper) 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

Roper v. Roper, 3 Tenn. Ch. R. 53 (Tenn. Ct. App. 1875).

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Opinion

The Chancellor :

Bill by the wife and children of -John Y. Roper, Jr., against the said John Y. Roper, Robert Smith, administrator with the will annexed of John Y. Roper, Sr., deceased, and against Mary, John, and Zack Martin, sole devisees under the will óf John Y. Roper, Sr. The bill is filed to set aside a sale of a certain tract of land :in the county of Trousdale, sold and conveyed by John Y. Roper, Jr., and wife, to John Y. Roper, Sr., upon the .ground that the sale was in violation of a deed of settlement of the same land by John Y. Roper, Sr., and Henry S. French on complainant and her children; but if the sale •cannot be set aside, then to charge the estate of John Y. Roper, Sr., with the purchase-money, and have the same declared a lien upon the land. The complainants and John Y. Roper, Jr., are residents of Davidson County, Tennessee ; all the other defendants are residents of Trousdale 'County ; but Smith, being temporarily in Davidson County, was served with process in said county.

Smith demurs to the bill because (1) the land lies in the •county of Trousdale; (2) the material defendants reside in that county; (3) the bill is multifarious; (4) want of ■equity.

The bill clearly contains equity, and is not multifarious because it asks for relief in the alternative. All the material defendants do not reside in Trousdale County, because John Y. Roper, Jr., is a material defendant, he having joined his wife in the conveyance sought to be set aside, and received the consideration paid, and being by law a [55]*55trustee for Ms wife in tbe absence of any other trustee. The fact that the land lies in the county of Trousdale would have given the Chancery Court of that county jurisdiction under the Code, sec. 4311, subsec. 2. But that fact does not deprive this county of jurisdiction as the county in which a material defendant resides, under the same section, subsection 1. Moreover, the suit is properly instituted in this county as against the defendant Smith, under section 4305, he being a material defendant found in this county. If it be inconvenient for the defendants to make defence in this county, it would be equally inconvenient for the complainants to assert their rights in Trousdale. But this is a matter with which the court has nothing to do. Overrule the demurrer. (See, now, Act of 1877, ch. 107.)

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The Chancellor :

Bill by the wife and children of -John Y. Roper, Jr., against the said John Y. Roper, Robert Smith, administrator with the will annexed of John Y. Roper, Sr., deceased, and against Mary, John, and Zack Martin, sole devisees under the will óf John Y. Roper, Sr. The bill is filed to set aside a sale of a certain tract of land :in the county of Trousdale, sold and conveyed by John Y. Roper, Jr., and wife, to John Y. Roper, Sr., upon the .ground that the sale was in violation of a deed of settlement of the same land by John Y. Roper, Sr., and Henry S. French on complainant and her children; but if the sale •cannot be set aside, then to charge the estate of John Y. Roper, Sr., with the purchase-money, and have the same declared a lien upon the land. The complainants and John Y. Roper, Jr., are residents of Davidson County, Tennessee ; all the other defendants are residents of Trousdale 'County ; but Smith, being temporarily in Davidson County, was served with process in said county.

Smith demurs to the bill because (1) the land lies in the •county of Trousdale; (2) the material defendants reside in that county; (3) the bill is multifarious; (4) want of ■equity.

The bill clearly contains equity, and is not multifarious because it asks for relief in the alternative. All the material defendants do not reside in Trousdale County, because John Y. Roper, Jr., is a material defendant, he having joined his wife in the conveyance sought to be set aside, and received the consideration paid, and being by law a [55]*55trustee for Ms wife in tbe absence of any other trustee. The fact that the land lies in the county of Trousdale would have given the Chancery Court of that county jurisdiction under the Code, sec. 4311, subsec. 2. But that fact does not deprive this county of jurisdiction as the county in which a material defendant resides, under the same section, subsection 1. Moreover, the suit is properly instituted in this county as against the defendant Smith, under section 4305, he being a material defendant found in this county. If it be inconvenient for the defendants to make defence in this county, it would be equally inconvenient for the complainants to assert their rights in Trousdale. But this is a matter with which the court has nothing to do. Overrule the demurrer. (See, now, Act of 1877, ch. 107.)

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Bluebook (online)

3 Tenn. Ch. R. 53, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roper-v-roper-tennctapp-1875.