Wilkins v. McCorkle

112 Tenn. 688

• Court: Tennessee Supreme Court
• Decided: April 15, 1904
• Status: Published

Opinion

Mr. Justice Neil

delivered the opinion of the Court.

On the twenty-sixth of December, 1854, the State of Tennessee granted to Jno. L. Webb and J. W. Howard, by grant No. 23,685, a tract of 5,000 acres of land lying in Perry county. On the fourth of March, 1855, the said Webb and Howard conveyed the same land to the Newcastle & Danville Railroad Company. On the seventeenth of May, 1861, the railroad company conveyed this land to John B. Hamilton. On the twenty-eight of November, 1866, the latter conveyed to Looney &Wright against whom the vendor’s lien was enforced, and at the sale, had on April 17, 1871, Isaac Milner became the purchaser, and he conveyed it again on the tenth of January, 1872, to John B. Hamilton. The latter was adjudicated a bankrupt on November 12, 1872, and the property was conveyed on January 7, 1873, to his assignee, pursuant to the bankruptcy laws then in force. On the third day of November, 1873, the assignee in bankruptcy sold the land, and. John B. Hamilton again became the purchaser, and it was conveyed to him by the assignee. In 1887 John B. Hamilton died, having first made his will, which was probated during that year. John B. Wilkins, the complainant in the present cause, was one of the devisees, and in 1891 all of the other de-visees conveyed to him their interest in the above-mentioned land, and in numerous other tracts to which they claimed title, in consideration of an agreement on Ms part, in substance, to look up the titles, remove clouds, and sue for and recover the lands, and account to them for one-half of such lands. Wilkins accordingly brought the present bill to recover the above-mentioned 5,000 acres from the defendants, M. 0. McCorkle and sons.

Their chief defense is based upon the following facts:

The deed which the Newcastle & Danville Eailroad Company made to John B. Hamilton was not registered until January 16, 1867. In the meantime, on the seventh of April, 1866, John L. Webb and the heirs at law of J. W. Howard, he having died, filed their bill in the chancery court of Perry county, against the Newcastle & Danville Railroad Company, to obtain a rescission of the deed of the fourth of March, 1855, on the ground of fraud practiced upon them by the railroad company in procuring the said deed from them. On June 15, 1866, a decree was pronounced in that case adjudging that the deed referred to had been procured by fraud, and thereupon rescinding the sale, and divesting title out of the defendant thereto, the Newcastle & Danville Railroad Company, and vesting it in the complainants therein, John L. Webb and the Howard heirs.

Upon these facts it is insisted by the defendants that inasmuch as the deed wMch the Newcastle & Danville Eailroad Company had made to John R. Hamilton on May 17, 1861, was not registered until after the above-mentioned suit was begun, and indeed not until after it was ended, Jolin B. Hamilton in Ms lifetime was, and those who claim under him now are bound by the results of that suit, under the law of lis pendens, and hence that the defendants, claiming through a series of intermediate deeds from Webb and Howard, haye the better title. On the other hand, the complainant insists that inasmuch as John B. Hamilton was not a party to the suit referred to, and had obtained his deed before that suit was begun, neither he nor those claiming under him were or are bound by those proceedings, regardless of the fact of the nonregistration of the Hamilton deed. This is the first question to be determined.

The general rule is that one who acquires rights in property prior to the bringing of a suit in respect thereof is not affected by the proceedings in such suit, or the lis pendens thereof, unless he be made a party thereto. Rodgers v. Dibrell, 6 Lea, 69, 76-77; Fitzgerald v. Cummings, 1 Lea; 232, 239-240; Thomasson v. White, 6 Baxt., 148; 21 Am. and Eng. Encyc. Law, 648.

But this rule is materially narrowed in its application by the registration laws. Under our Code, while instruments that are required to be registered “have effect between the parties to the same, and their heirs and representatives, without registration,” vet “as to other persons not having actual notice of them” they have effect “only from the noting thereof for registration on the books of the register.” Shannon’s Code, section 3749. When such instruments are registered, it is provided they “shall be notice to all the world from the time they are noted for registration,” and .they “shall take effect from said time.” Id., section 8750. In case there are rival instruments, the instrument “first registered, or noted for registration, shall have preference over one of earlier date, hut noted for registration afterwards, unless it is proven in a court of equity, according to the rules of said court, that the party claiming ■ under the subsequent instrument had full notice of the previous instrument.” Id., section 3751. “Any of said instruments not so proved, or acknowledged, and registered, or noted for registration, shall be null and void as to existing and subsequent creditors of, or bona ficle purchasers from, the makers, without notice.” Id. section 3752.

It is perceived there are five leading propositions embraced in the foregoing sections: (1) That, as between the parties themselves and their heirs and representatives, such instruments take effect and are good without regard to registration; (2) that they also take effect and are equally good as to all persons who have actual notice of them from the date of such notice, except creditors; (3) that as to creditors (that is, of the vendor) they are inoperative, ineffective, and practically nonexistent nntil they are noted for registration on the books of the register; (4) that as to all other persons (that is, all not embraced in the preceding classes) they are equally inoperative, ineffective, and nonexistent until so noted for registration; (5) that upon being so “noted for registration” they become at once “notice to all the world,” and so effective as to all the world.

These propositions are really all embraced in sections 8749 and 8750, while the two following sections, 3751 and 3752, are but special applications of the two' preceding sections, or of the principles contained in them; section 3751 applying them to the case of rival instruments, and section 3752 to the case of creditors and bona ficle purchasers.

Some confusion has arisen from the use of the term “bona fide purchasers,” by reason of the technical meaning of that expression as used, ordinarily, in courts of chancery; but this matter was considered and determined many years ago in the cases of Simpkinson v. McGee, 4 Lea, 432, 435-436, and Martin v. Lincoln, 4 Lea, 334, 349. In these cases it was held, in substance, that the term was not to be understood in the technical sense above referred to, but as the equivalent of “purchasers without notice.” This construction harmonizes all of the sections, and we deem it the true one.

The general construction which we have above given of the sections of our registration law quoted is the substance of all of our decisions upon the subject. They aré too numerous to justify us in even making out a tabulation or list of them here. Suffice it to’ say that we have re-examined them all.

We need refer specifically to only a few of them, cited in the brief of complainant’s counsel.

It is insisted (1) that, “if the legal title be not perfect -in. the Tendee nntil registration, it does not remain in the vendor;” (2).that “upon registration the perfect and entire legal title, by relation and operation of law, vests in the vendee from the execution of the deed;” (3) that, “if it is never registered, it does not vest in the vendor.” For these propositions the following cases are cited: Shields v. Mitchell, 10 Yerg., 1; High v. Batte, 10 Yerg., 337; Montgomery v. Hobson, Meigs, 454; Baldwin v. Baldwin, 2 Hum., 486; Hale v. Darter, 10 Hum., 96; Ward v. Daniel, 10 Hum., 607; Rogers’ Lessee v. Cawood, 1 Swan, 146, 55 Am. Dec., 729; Wilkins v. May, 3 Head, 174; Green v. Goodall, 1 Cold., 413.

All of these propositions are quoted from language used by the court arguendo, in Shields v. Mitchell, and all of them are correct when understood in the sense in which the court used them in relation to the facts then under consideration. The question under discussion in Shields v. Mitchell was whether land held by unregistered deed was subject to execution for the debts of the vendee. This question was resolved in favor of the liability, and in announcing this result the court stated that while the title of the vendee was, for want of registration, not perfect, but only inchoate yet that the position of the vendor in respect hereof was such as is set forth in the three propositions quoted. High v. Batte, Montgomery v. Hobson and Baldwin v. Baldwin are in substantial accord. In Hale v. Darter and Ward v. Daniel the question was whether a deed executed before but registered after, the commencement of an action of ejectment, could be read in evidence. In disposing of this question, the court said, in Hale v. Darter:

“The twelfth section of the act of 1831 (Laws 1831, p. 112, c. 90), which declares all such deeds and other instruments mentioned in the first section, and not proven and registered as required, null and void- as to existing and subsequent creditors and bona fide purchasers without notice, leaves the relation of thé parties to the deed unaffected by the neglect to register according to the provisions of the act.

“It has been held in North Carolina, and repeatedly in this State, that an unregistered deed conveys an inchoate legal title, which may at any time be made perfect by registration, and this by relation from the date of the deed. In the ease of Hays v. McGuire, reported in 8 Yerg., 92, the plaintiff in deraigning his title offered in evidence a deed executed before the passage of the act of 1831, but registered afterwards, and after the commencement of the suit. In that case, it was held that the deed passed the title from the present date, as between the parties, and was admissible in evidence before the jury.”

Ward v. Daniel is in accord. The question in Rogers v. Cawood was as to the admissibility in evidence in an ejectment suit of an unregistered deed. The court held such a deed inadmissible, and in disposing of the question said: “We are of opinion that a perfect legal title does not vest in the grantee or vendee until the deed be registered. It is true that a deed not registered has a greater force and effect than a mere agreement to convey, because it vests in the vendee an equitable title, and more — an inchoate and imperfect legal title also.’ The title is in its nature legal; but it is not a pure and perfect legal title until the deed be registered, because the deed has force and effect to convey the legal title under our own registry acts, and not under the statute of uses, or as a conveyance at the common law. Until, therefore, these acts be complied with by the registration of the deed, a perfect title does not pass to the purchaser.” In Wilkins v. May (a later case) the court bad before it a bill filed to protect a purchase .of land, made under execution issued against one who held the land (one William Clark) by unregistered deed. In adjudging the matter the court said: “The weight of the evidence sufficiently establishes, in our judgment, that the land was purchased and paid for by William Clark some ten or- twelve years prior to the execution salé, and that the same was in fact conveyed by the vendor, Hugh M. Clark, to William, about the time of the purchase. These facts being, established, it matters not that the deed was omitted to be registered. As between the parties, registration of the deed was unimportant. The legal title passed from Hugh M. Clark by the execution of the deed; and though the deed was never registered, yet between him and his vendee the divestiture of title was as complete as if registration had taken place. In this view the case is a plain one for the relief sought by the bill.” In Green v. Goodall, it appeared that the bill was filed to quiet title to certain slaves field under an unregistered deed, executed wfiile Acts 1819, cfiapter 47, section 2, was in force, wfiicfi act fiad been construed by certain decisions of tfiis court as making imperative tfie registration of deeds, even between tfie parties. In passing upon tfie question so raised tfie court said: “It was uniformly field, prior to tfie act of 1819, and subsequent thereto under Acts 1827, cfiapter 59, and Acts 1831, page 108, cfiapter 90, tfiat as between tfie parties registration was not necessary, and tfiat tfie deed took effect from its delivery. Hays v. McGuire, 8 Yerg. 92. Even as to land, in a court of equity the deed was efficacious upon its execution; and as to slaves and other personalty, whether in a court of law or equity, it operated without registration. There was nothing, perhaps, in tfie language of tfie act of 1819 tfiat made it necessary to hold tfiat, as between tfie parties, registration was imperative, any more than in our other registration laws. . . . But, tfiis view aside, tfie act of 1827, above mentioned, relieves tfiis deed of all difficulty growing out of its nonregistration. It applies to deeds executed anterior to its passage, as well as to those to be made in tfie future, and so far repeals or modifies tfie act of 1819 as to restore tfie established law making registration between tfie parties unnecessary,” etc.

Tfie error, as we conceive, in tfie position assumed by counsel, is in giving a universal application to propositions wfiicfi are good only in a particular aspect; tfiat is, in making them applicable as to all persons, when they are true only as between the parties to the instruments referred to. That their proper use is so restricted is apparent from the excerpts we have taken from the authorities referred to. That all of the instruments required to be registered are good between the parties, without registration, is now without doubt. It is true that some misconception has arisen out of what has been said in the cases as to the title being “inchoate” prior to registration, and concerning the effect of registration in making the deed or other instrument “perfect ... by relation from the date of the deed.” Instruments that, the law requires to be registered are said to be “inchoate” prior to registration, in that they are then good only between the parties and their privies, and persons having notice of them. Upon registration being had, or upon noting for registration, they are said to become “perfect,” because they are then good as to all the world from that time. Really, the theory of “relation” adds nothing to the subject. Without it, the instruments referred to are good between the parties and their privies, and persons having notice from the date of their execution; and under it, or by virtue of it, intervening rights acquired by creditors or strangers or purchasers without notice cannot be displaced. We have no case, since the act of 1819 went into effect, holding that there could be such displacement, and to so hold now would result in the nullification of all of our registration laws. The true doctrine upon the subject, and the history of the question, are thus stated in Self v. Haun, 2 Tenn. Cas., 125-127: “Before the act of 1819 it was held that the deed, when registered, would relate to its date, and be superior to any intervening conveyance. Vinson’s Lessee v. Huddleston, Cooke, 254. After the act of 1819 deeds registered under its provisions were held to take effect only froin the registration. The acts of 1827 and 1831 were then passed. The result of these was that, as between the parties, deeds took effect without registration, and, when registered, related, as between them, to the time of its execution, and prevailed against all persons except the creditors of the maker or purchasers without notice Hays v. McGuire et al., 8 Yerg., 92. . . . We hold simply, in the language of the statute, that as between the parties, their heirs, and representatives, the deed is good, and passes the title without registration, saving the right of strangers, creditors, and bona fide purchasers.”

Recurring, now, to the proposition that, as to creditors of the vendor and purchasers from him without notice, the deed or other instrument in question must be treated as nonexistent, which we have found to be true, it follows that as to such persons it cannot be properly said that the vendee has the title at all. Therefore, nothing whatever can be based upon that assumption. ■ On the contrary, as to such persons, the case must always be treated as if the title still rested in the vendor.

The proposition, therefore, insisted upon by the complainant’s counsel, that no rights could be acquired under the chancery proceedings in the case of James L. Webb et al. v. Newcastle & Danville Railroad Company, because the railway company had already made its deed to Hamilton, is unsound; that deed remaining unregistered at the time the railway company was bi ought into court in the above-mentioned case. That is to say, the position so insisted upon by the complainant’s counsel is unsound, if it be true that the complainants in that case could be treated, in conformity with law, as creditors of the railway company, or as purchasers without notice, from it.

We shall now briefly consider this question.

They were not creditors. This much is clear.

Were they purchasers? As already stated, they had filed a bill against the railway company for rescission on the ground of fraud, under which they obtained , a, decree setting aside the deed previously made by Webb and Howard to the railway company, and divesting title out of the railway company, and vesting it -in the complainants themselves.- That decree was in all respects equivalent to a deed executed by the railway company to the complainants. Shannon’s Code, section 6301, reads: “The decree may divest the title to property, real or personal, out of any of the parties, and vest it in others, and such decree shall have all the force and effect of a conveyance by such parties, executed in due form of law.” See, also', Behrn v. White, 108 Tenn., , 67 S. W., 810, and Bleidorn v. Pilot Mountain Company, 89 Tenn., 166, 196, 15 S. W., 737.

Such conveyances need not be recorded in the register’s office,..in order to be effective. Their entry upon the record books of the court in which they are rendered is sufficient, answering all the purposes of registration.

There is no testimony showing that the complainants in the case referred to had notice of the conveyance to John B. Hamilton. The burden of proof was upon the complainants in the present case to show such notice, if any existed. “By the weight of both reason and authority it is incumbent upon one claiming under an unrecorded conveyance to* prove that the junior claimant took with notice of the prior conveyance.” 24 Am. and Eng. Encyc. of Law (2 Ed.), p. 137, citing Gratz v. Land, etc., Imp. Co., 82 Fed., 381, 27 C. C. A., 305, 40 L. R. A., 393; Walter v. Brown, 115 Iowa, 360, 88 N. W., 832; Hooper v. DeVries, 115 Mich., 231, 73 N. W., 132; Hull v. Diehl, 21 Mont., 71, 52 Pac., 782; Paul v. Kerswell, 60 N. J. Law, 273, 37 Atl., 1102; Protection Bldg., etc., Ass’n v. Knowles, 54 N. J. Eq., 519, 34 Atl., 1083; Beman v. Douglas, 1 App. Div., 169, 37 N. Y. Supp., 859; Varwig v. Cleveland, etc., Co., 54 Ohio St., 455, 44 N. E., 92; Advance Thresher Co. v. Esteb, 41 Or., 469, 69 Pac., 447.

It results that Webb and the heirs of Howard must be considered as purchasers without notice of the prior unregistered deed of John B. Hamilton. From this it necessarily follows that the rights of those who claim under Webb and Howard’s heirs (that is, under the chancery proceedings in the case of J. L. Webb et al. v. Newcastle & Danville R. R. Co.) are superior to the rights of those claiming under John B. Hamilton (that is, under the unregistered deed).

This result is reached, as we have seen, not under the law of lis pendens, as technically understood, inasmuch as the suit in question had ended when the deed was registered, but was found to follow as the necessary sequence of a true construction of our registration laws.

In what we have said to this point, we have assumed the validity of the chancery proceedings referred to. Complainant however insists that those proceedings were void. We now proceed to an examination of that question.

John B. Hamilton having registered his deed after the complainants in the case of J. L. Webb et al. v. Newcastle & Danville R. R. Co. had obtained their decree, he, claiming under the railroad company, must be treated as privy to it, in respect of that litigation, and bound by the result of it, and standing in the same position in respect of a . collateral attack upon the proceedings therein. The present complainant claims under John B. Hamilton, and stands upon no higher-ground than he would have occupied if he were bringing the present suit.

On collateral attack upon a judgment or decree of a court of general jurisdiction by parties or privies thereto, the rule is that such judgment or decree cannot be questioned except for want of authority over the matters adjudicated upon; and this want of authority must he found in the record itself. In the absence of anything in the record to impeach the right of such a court to determine the question involved, there is a conclusive presumption that it had such right. Reinhardt v. Nealis, 101 Tenn., 169, 172, 173, 46 S. W., 446. This rule presupposes, of course, that the court has acquired jurisdiction of the persons appearing to be parties to the cause. This fact must also be determined from the face of the record, and in conducting such examination every reasonable presumption will be indulged in favor of the jurisdiction. Robertson v. Winchester, 85 Tenn., 171, 183-186, 1 S. W., 781; Hopper v. Fisher, 2 Head, 253, 254. The evidence on which the court acted cannot be looked to. If the bill or other pleading make a case, and the court in its judgment or decree assume the case to have been established, that is sufficient. Kindell v. Titus, 9 Heisk., 727; Pope v. Harrison, 16 Lea, 82.

There can be no doubt that in the case of J. L. Webb et al. v. Newcastle & Danville Railroad Company the court acquired jurisdiction of the land, the subject-matter of the controversy, if it obtained jurisdiction of the party appearing to be defendant thereto. The objections made are directed to the latter point.

These objections rest upon the following facts:

The defendant thereto was proceeded against as a nonresident. The bill charged that it had been created a corporation under the laws of the State of Indiana, that its corporate name was the “President, Directors, and Company of the Newcastle & Danville Eailroad,” and that it was a nonresident. In the publication no>-tice the case was styled “John L. Webb and others v. The Newcastle and Danville Eailroad Company,” and in the body of the notice the defendant was referred to by the same name as that appearing in the style. In the order pro confesso the defendant was spoken of and referred to as “the President and Directors of the Newcastle and Danville Eailroad Company.” In the decree adjudging the rights of the parties it is recited that the cause came on to be heard “upon complainants’ bill, and the order pro confesso> and proof in the cause.” All through the decree the defendant is referred to under the name of the “Newcastle and Danville Eailroad Company,” and title is divested out of it in that name. It is clearly inferable, also', from that decree, that the defendant commonly used that name, that the conveyance of the land in question was made to it in that name, and that its stock certificates were issued in that name. Prom the face of the record, then, we are authorized to infer that, while the charter name of the corporation was the “President and Directors of the Newcastle and Danville Eailroad Company,” the corporation was accustomed to use, and had acquired by usage, the shorter name of “the Newcastle and Danville Eailroad* Company.” The question of identity being thus settled., it might be proceeded against in either name. 1 Thornp-son on Corporations, sections 285, 286, 291-293; 3 Thompson on Corporations, section 3729; 6 Thompson on Corporations, sections 7610-7612. And see 10 Cyc., 151. In the case referred to, the defendant having been proceeded against in both of its names, there can be no doubt that it was properly before the court. We attach no importance to the slight variation between the corporate name as stated in the bill and in the order pro confesso.

Another point made against the proceedings is that there was no oath to the bill. It is not necessary that the oath should be attached to the bill. It may be on a separate piece of paper. We must presume, on collateral attack, that the proper oath was filed.

Other questions are made in the briefs of counsel, as that the deed to John B. Hamilton was void for want of a seal, and that he procured the deed from the Newcastle & Danville Railroad Company in pursuance of a conspiracy between him and the railroad company to defraud Webb and Howard and others of their lands. But, the questions already disposed of being decisive of the case, we need not consider these questions, or others made by counsel.

We shall add, only, that the complainant is in error in assuming that we determined at the last term, in favor of complainant’s contention, in the case of J. B. Wilkins v. Poe Caldwell and others (not for publication), the questions now held to be decisive in the present casé. Those questions were expressly pretermitted in the opinion filed in that case.

For the reasons stated here, the decree of the chancellor must be affirmed, with costs.