26-1-101. Writs to secure property.

If a judgment or decree be that the party recover or be put in possession of the specific property, real or personal, the court may carry the same into effect by writ of possession or other process sufficient for the purpose.

Code 1858, § 2997; Shan., § 4727; Code 1932, § 8861; T.C.A. (orig. ed.), § 26-101.

Cross-References. Effect of writ in forcible entry and detainer, § 29-18-123.

Writ of possession in ejectment, § 29-15-114.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 301.

Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 2; 20 Tenn. Juris., Possession, Writ of, § 1.

Law Reviews.

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta), 28 No. 5 Tenn. B.J. 26 (1992).

Judicial Reform at the Lowest Level: A Model Statute for Small Claims Courts, Part III, 28 Vand. L. Rev. 747.

Power of Sale Foreclosure in Tennessee: A Section 1983 Trap (Jack Jones and J. Michael Ivens), 51 Tenn. L. Rev. 279 (1984).

26-1-102. Attachment in nature of execution.

In all cases where judicial process or execution, according to the principles of the common law, cannot be made to apply to the purpose of carrying into effect any judgment or decree of a court of record, the court may enforce the judgment or decree by attachment for contempt, in the nature of an execution. The proceedings under this writ are the same as are prescribed by this Code for the enforcement of the decrees of the chancery court, in §§ 21-1-801 — 21-1-809.

Code 1858, §§ 3104, 3105 (deriv. Acts 1801, ch. 6, § 22); Shan., §§ 4832, 4833; Code 1932, §§ 8963, 8964; T.C.A. (orig. ed.), § 26-102.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 102.

Law Reviews.

Forms of Relief, 4 Mem. St. U.L. Rev. 400.

26-1-103. Enforcement of money judgments.

All judgments and decrees of any of the judicial tribunals of this state for money may be enforced by execution.

Code 1858, § 2998 (deriv. Acts 1787, ch. 22, § 2); Shan., § 4728; Code 1932, § 8862; T.C.A. (orig. ed.), § 26-103.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 307.

Law Reviews.

Enforcement of Judgments in Tennessee, 22 Tenn. L. Rev. 873.

26-1-104. Property subject to execution.

Executions issue against the goods and chattels, lands and tenements, of the defendant.

Code 1858, § 2999 (deriv. Acts 1787, ch. 22, § 2; 1794, ch. 1, § 23); Shan., § 4729; Code 1932, § 8863; T.C.A. (orig. ed.), § 26-104.

Cross-References. Order of liability of parties stated, § 26-3-107.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 11.

Law Reviews.

Enforcement of Judgments in Tennessee, 22 Tenn. L. Rev. 873.

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

26-1-105. Distringas or fieri facias against corporate property.

The party, in whose favor a judgment or decree is rendered against a corporation, may sue out a distringas or fieri facias, to be levied as well on the choses in action as on the goods, chattels, lands, and tenements of the corporation, and, in case of a levy on choses in action, the court may appoint a receiver to collect the same.

Code 1858, § 3000 (deriv. Acts 1845-1846, ch. 55, § 4); Shan., § 4730; Code 1932, § 8864; T.C.A. (orig. ed.), § 26-105.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 301, 307, 310.

Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 11; 21 Tenn. Juris., Receivers, § 7.

Law Reviews.

Enforcement of Judgments in Tennessee, 22 Tenn. L. Rev. 873.

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

26-1-106. Execution for benefit of executive officer's sureties.

1. Whenever a judgment by motion or action at law is had against a sheriff, coroner, or constable, and the official sureties of such officer, for a failure of duty in and about an execution, and the amount of such judgment has been paid by the sureties, the sureties are entitled, at their cost and risk, to issue an execution for their benefit on the original judgment.
2. The clerk shall, in such case, endorse upon the execution at whose instance it is sued out, and take from such persons bond with security in a sufficient amount for the costs and damages which may accrue.

Code 1858, §§ 2994, 2995 (deriv. Acts 1849-1850, ch. 145, § 1); Shan., §§ 4724, 4725; Code 1932, §§ 8858, 8859; modified; T.C.A. (orig. ed.), §§ 26-106, 26-107.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Judgments and Decrees, § 68.

26-1-107. Setting aside satisfaction after recovery of property by defendant.

In all cases in which property, real or personal, is recovered from the purchaser at execution or master's sale, by the defendant, heirs or representatives of the defendant, or by third persons, the court rendering the judgment or making the sale, may, in its discretion, upon application of such purchaser, and scire facias sued out, set aside the satisfaction entered, and revive the original judgment or decree for the benefit of the purchaser.

Code 1858, § 2996 (deriv. Acts 1849-1850, ch. 119); Shan., § 4726; Code 1932, § 8860; T.C.A. (orig. ed.), § 26-108.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 50; 16 Tenn. Juris., Judgments and Decrees, § 68.

26-1-108. Return of original before issue of alias execution.

No alias or pluries execution shall issue until the previous execution is returned, or satisfactorily accounted for by affidavit.

Code 1858, § 3020 (deriv. Acts 1794, ch. 1, § 17); Shan., § 4748; Code 1932, § 8882; T.C.A. (orig. ed.), § 26-109.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 10, 53.

26-1-109. When executions tested.

Court executions are tested the day of issuance.

Code 1858, § 3001; Shan., § 4731; Code 1932, § 8865; Acts 1975, ch. 95, § 1; impl. am. Acts 1979, ch. 68, §§ 2, 3; modified; T.C.A. (orig. ed.), § 26-110; Acts 1985, ch. 131, § 1.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 714.

Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 7, 10, 15, 22.

Law Reviews.

Enforcement of Judgments in Tennessee, 22 Tenn. L. Rev. 873.

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

26-1-110. Garnishee unable to identify defendant.

1. A garnishee who:
   1. Receives an execution without the defendant's social security number, if an individual, or federal taxpayer identification, if a corporation, partnership, trust or other entity; and
   2. After reasonable effort is otherwise unable to identify the defendant or to distinguish the defendant from other individuals or entities based on the information provided on the execution;

      may return the execution with the statement “Defendant cannot be identified or distinguished from information provided on the execution.”

2. The failure to include a social security number or taxpayer identification number shall not invalidate the execution.

Acts 1994, ch. 836, § 1.

Attorney General Opinions. A state may not provide a garnishee with a defendant's social security number without the defendant's authorization, OAG 02-016, 2002 Tenn. AG LEXIS 17 (2/6/02).

26-1-111. Suspension of foreclosure proceedings for active military personnel.

1. Notwithstanding any provision of law to the contrary, if a member of a reserve or Tennessee national guard unit entered into a mortgage or deed of trust for the purchase of a home, or a contract for the purchase of a motor vehicle, and the person is subsequently called into active military service of the United States, as defined in § 58-1-102, and is stationed outside the United States during hostilities, then any provision of the contract or mortgage or deed of trust providing for foreclosure on the property or repossession of the motor vehicle shall be suspended until ninety (90) days following the military personnel’s return to this state.
2. 1. 1. To exercise the benefits of this section, a service member shall, at any time prior to or during deployment, provide a written notice to the holder of the indebtedness stating the following:
         1. The person is a member of the reserve or Tennessee national guard;
         2. The member has been called to active duty;
         3. A copy of the deployment order is attached; and
         4. The anticipated date of return to the state.
      2. In any action to foreclose or repossess as provided in this section, the holder of the indebtedness is entitled to rely on the anticipated date of return or discharge stated in either the deployment order or in the statement provided in subdivision (b)(1)(A)(iv) when seeking to foreclose or repossess.
   2. At any stage before a final foreclosure sale or a final sale of repossessed property under the Uniform Commercial Code, compiled in title 47, chapters 1-9, the sale shall be stayed; provided, that the service member gives notice as provided in § 202 of the Servicemembers Civil Relief Act (50 U.S.C. Appx. § 522).
3. This section shall not apply to a service member who executes a waiver pursuant to § 107 of the Servicemembers Civil Relief Act (50 U.S.C. Appx. § 517).

Acts 2006, ch. 677, § 1.

Cross-References. Notice of foreclosure on home equity conversion mortgages, § 47-30-113.

Redemption of real estate sold for debt, title 66, ch. 8.

Part 2
Time for Issuance

26-2-101. Short title.

This chapter shall be known and may be cited as the “Personal Property Owner's Rights and Garnishment Act of 1978.”

Acts 1978, ch. 915, § 2; T.C.A., § 26-201.

Cross-References. Attachment at commencement of action, §§ 29-6-101 et seq.

Exemption of materials subject to materialmen's lien, § 66-11-113.

Priority of assignment of income for child support, § 36-5-501.

Surviving spouse and minor children, §§ 30-2-101 — 30-2-102.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 943.

Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, § 10; 13 Tenn. Juris., Exemptions From Execution and Attachment, § 2.

Law Reviews.

An Introduction to the Proposed Bankruptcy Act of 1973: From Revision to Revolution (John A. Walker, Jr.), 41 Tenn. L. Rev. 635.

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

Forms of Relief, 4 Mem. St. U.L. Rev. 400.

Inheritance and Gift Taxes — Revised (Steven A. Rajtor), 16 Tenn. B.J., No. 2, p. 25.

Judicial Reform at the Lowest Level: A Model Statute for Small Claims Courts, Part III, 28 Vand. L. Rev. 747.

The New Bankruptcy Code, Part II: The Interests of Secured Creditors Under the New Bankruptcy Code (Howard B. Pickard), 10 Mem. St. U.L. Rev. 215.

The 1978 Tennessee Inheritance and Gift Tax Reform Act (R. Wayne Peters and Steven A. Rajtor), 14-3 Tenn. B.J. 4.

26-2-102. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Earnings” means the compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program;
2. “Disposable earnings” means that part of the earnings of an individual remaining after the deduction from those earnings of any amounts required by law to be withheld; and
3. “Garnishment” means any legal or equitable procedure through which the earnings of an individual are required to be withheld for payment of any debt.

Acts 1978, ch. 915, § 8; T.C.A., § 26-207, T.C.A., § 26-2-105.

Compiler's Notes. Former § 26-2-102, concerning personal property selectively exempt from seizure, was transferred to § 26-2-103 in 2000.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 146; 13 Tenn. Juris., Exemptions From Execution and Attachment, § 12.

26-2-103. Personal property selectively exempt from seizure; exception.

1. Personal property to the aggregate value of ten thousand dollars ($10,000) debtor's equity interest shall be exempt from execution, seizure or attachment in the hands or possession of any person who is a bona fide citizen permanently residing in Tennessee, and such person shall be entitled to this exemption without regard to the debtor's vocation or pursuit or to the ownership of the debtor's abode. Such person may select for exemption the items of the owned and possessed personal property, including money and funds on deposit with a bank or other financial institution, up to the aggregate value of ten thousand dollars ($10,000) debtor's equity interest.
2. An item shall not be eligible, in whole or in part, for the personal property exemption provided by this part, if the item has been purchased with or maintained by fraudulently obtained funds or if ownership of the item has been maintained using fraudulently obtained funds. A court shall be required to find by a preponderance of the evidence that an item was purchased with or maintained by funds obtained by defrauding another person or that ownership of an item was maintained by funds obtained by defrauding another person in order to disqualify the item from eligibility for the personal property exemption.

Acts 1978, ch. 915, § 3; 1980, ch. 919, § 2; T.C.A., § 26-202, T.C.A., § 26-2-102; Acts 2010, ch. 787, § 1; 2014, ch. 803, § 1.

Compiler's Notes. Former § 26-2-103, concerning absolute exemption of additional personal property, was transferred to § 26-2-104 in 2000.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 956.

Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, §§ 26, 31; 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 2, 11, 12; 18 Tenn. Juris., Liens, § 7.

Law Reviews.

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta), 28 No. 5 Tenn. B.J. 35 (1992).

A Second Look at the Proposed Uniform Bankruptcy Exemptions: Tennessee as an Example (The Honorable William Houston Brown, Lawrence Ponoroff), 28 U. Mem. L. Rev. 647 (1998).

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

Tennessee's Bankruptcy Exemptions are Valid: Rhodes v. Stewart (Bruce D. Fisher), 19-No. 4 Tenn. B.J. 7 (1983).

26-2-104. Additional personal property absolutely exempt.

1. In addition to the exemption set out in § 26-2-105, there shall be further exempt to every resident debtor the following specific articles of personalty:
   1. All necessary and proper wearing apparel for the actual use of debtor and family and the trunks or receptacles necessary to contain same;
   2. All family portraits and pictures;
   3. The family Bible and school books.
2. The exemption under this section is absolute, and may be exercised by the judgment debtor before or after issuance of any execution, seizure or attachment by a judgment creditor, unless a judgment creditor, is by execution, foreclosing a security agreement on such property.

Acts 1978, ch. 915, § 5; T.C.A., § 26-204, T.C.A., § 26-2-103.

Compiler's Notes. Former § 26-2-104, concerning exemption of state pension moneys and certain retirement plan funds or assets, was transferred to § 26-2-105 in 2000.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy §  31; 6 Tenn. Juris., Conflict of Laws, Domicile and Residence, § 37; 10 Tenn. Juris., Employer and Employee § 6; 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 2, 12.

Law Reviews.

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta), 28 No. 5 Tenn. B.J. 35 (1992).

A Second Look at the Proposed Uniform Bankruptcy Exemptions: Tennessee as an Example (The Honorable William Houston Brown, Lawrence Ponoroff), 28 U. Mem. L. Rev. 647 (1998).

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

Tennessee's Bankruptcy Exemptions are Valid: Rhodes v. Stewart (Bruce D. Fisher), 19-No. 4 Tenn. B.J. 7 (1983).

26-2-105. State pension moneys, certain retirement plan funds or assets, exempt — Claims under qualified domestic relations order.

1. All moneys received as pension from the state or a political subdivision as defined in § 4-58-102, before receipt, or while in the recipient's hands or upon deposit in the bank, shall be exempt from execution, attachment or garnishment other than an order for assignment of support issued under § 36-5-501 or a qualified domestic relations order as provided in subsection (c), whether such pensioner is the head of a family or not.
2. Except as provided in subsection (c), any funds or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan which is qualified under §§ 401(a), 403(a), 403(b), 408 and 408A, or an Archer medical savings account qualified under § 220 or a health savings account qualified under § 223 of the Internal Revenue Code of 1986, as amended, are exempt from any and all claims of creditors of the participant or beneficiary, except the state. All records of the debtor concerning such plan and of the plan concerning the debtor's participation in the plan, or interest in the plan, are exempt from the subpoena process.
3. Any plan or arrangement described in subsection (b),  is not exempt from the claims of an alternate payee under a qualified domestic relations order. However, the interest of any and all alternate payees under a qualified domestic relations order are exempt from any and all claims of any creditor, other than the state. As used in this subsection (c), “alternate payee” and “qualified domestic relations order” have the meaning ascribed to them in § 414(p) of the Internal Revenue Code of 1986, as amended. Notwithstanding this subsection (c) to the contrary, an optional retirement program established pursuant to title 8, chapter 25, part 2 shall honor claims under a qualified domestic relations order that complies with § 8-25-210.

Acts 1978, ch. 915, § 7; T.C.A., § 26-206; Acts 1986, ch. 890, § 8; 1988, ch. 854, § 1; 1997, ch. 303, § 2, T.C.A., § 26-2-104; Acts 2001, ch. 260, § 1; 2005, ch. 204, § 25; 2007, ch. 176, § 1; 2015, ch. 440, § 1; 2016, ch. 931, §§ 1–4; 2016, ch. 962, § 2.

Compiler's Notes. Former § 26-2-105, concerning the definition of “earnings,” “disposable earnings” and “garnishment,” was transferred to § 26-2-102 in 2000.

Sections 220, 223, 401(a), 403(a), 403(b), 408, and 408A of the Internal Revenue Code, referred to in this section, are codified at 26 U.S.C. § 220, 223, 401(a), 403(a), 403(b), 408, and 408A, respectively.

Cross-References. Assignment of income by a court for child support, § 50-2-105.

Garnishment at commencement of action, title 29, ch. 7.

Public employees' retirement benefits, § 8-36-111.

Vocational rehabilitation benefits exempt, § 49-11-611.

Welfare grants, §§ 71-2-216, 71-3-121, 71-4-117, 71-4-609, 71-4-1112.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 151; 4 Tenn. Juris., Bankruptcy, §§ 9, 25, 31; 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 2, 12; 20 Tenn. Juris., Pensions, § 1.

Law Reviews.

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta), 28 No. 5 Tenn. B.J. 33 (1992).

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

Selection and Removal of Fiduciaries (Robert L. McMurray), 26 No. 3, Tenn. B.J. 22 (1990).

Tennessee's Bankruptcy Exemptions are Valid: Rhodes v. Stewart (Bruce D. Fisher), 19-No. 4 Tenn. B.J. 7 (1983).

Attorney General Opinions. Constitutionality, OAG 88-161, 1988 Tenn. AG LEXIS 160 (9/1/88).

Application of domestic relations orders to benefits under the City of Knoxville Pension Plan, OAG 92-31, 1992 Tenn. AG LEXIS 33 (4/13/92).

City utility system, a department of the city, fell within the term “municipality” as formerly used in T.C.A. § 26-2-105(a), OAG 07-118, 2007 Tenn. AG LEXIS 118 (8/9/09).

26-2-106. Maximum amount of disposable earnings subject to garnishment — Garnishment costs.

1. The maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed:
   1. Twenty-five percent (25%) of the disposable earnings for that week; or
   2. The amount by which the disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage at the time the earnings for any pay period become due and payable, whichever is less.
2. In the case of earnings for any pay period other than a week, an equivalent amount shall be in effect.
3. The debtor shall pay the costs of any and all garnishments on each debt on which suit is brought.

Acts 1978, ch. 915, § 9; modified; T.C.A., § 26-208; Acts 2003, ch. 53, § 1.

Cross-References. Exemptions for dependent children, § 26-2-107.

Installment payments to obtain stay of garnishment, service of garnishment summons, § 26-2-216.

Textbooks. Tennessee Jurisprudence,  4 Tenn. Juris., Bankruptcy  § 31; 13 Tenn. Juris., Exemptions From Execution and Attachment, § 12.

Law Reviews.

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta), 28 No. 5 Tenn. B.J. 32 (1992).

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

Attorney General Opinions. Deducting from employee's wages employer's fee for processing child support wage assignment, OAG 84-004, 1984 Tenn. AG LEXIS 345 (1/4/84).

Applicability to withholding payments to debtors of state, OAG 84-164, 1984 Tenn. AG LEXIS 185 (5/15/84).

Multiple garnishments from a single execution; costs to be charged by clerk on garnishments after an original garnishment, OAG 92-10, 1992 Tenn. AG LEXIS 10 (2/19/92).

Even if an existing writ of garnishment is deducting the maximum amount, a later-filed writ would run concurrently with the first writ as long as the second writ seeks to deduct an amount that is less than the maximum allowable amount.  Accordingly, the second writ would run concurrently with the first writ, but the second writ would generate no payments to the judgment creditor as long as the first writ remains in effect because the first writ is deducting the maximum amount allowable.  Similarly, if an existing writ of garnishment is deducting less than the maximum amount allowable, a later-filed writ would run concurrently with the existing writ as long as the second writ seeks to deduct an amount that is less than the maximum allowable amount. The second writ could generate only up to the difference between the maximum allowable amount and the first writ.  For instance, if Tenn. Code Ann. § 26-2-106(a) establishes the maximum allowable amount that may be garnished from a particular judgment debtor’s disposable earnings at 25% and the first writ is garnishing 15% of the debtor’s disposable earnings, the second writ could garnish only 10%. Once the first writ of garnishment is satisfied or expires, though, the second writ adjusts upward, as long as the amount being garnished does not exceed 25%.  Adjusting the second writ of garnishment upward does not alter when the six-month time period prescribed in T.C.A. § 26-2-214 begins. The lien created by the second writ would begin at the time of its service. OAG 19-10, 2019 Tenn. AG LEXIS 12 (7/3/2019).

26-2-107. Exemptions for dependent children.

1. To the above allowances, there shall be added as exempt to the judgment debtor the sum of two dollars and fifty cents ($2.50) per week for each dependent child under sixteen (16) years of age and a resident of this state.
2. It is the responsibility of the judgment debtor to inform the employer of each dependent child claimed under this section.
3. This section shall not apply if the debtor fails to so inform the employer.

Acts 1978, ch. 915, § 11; T.C.A., § 26-210; Acts 1989, ch. 538, § 1.

Cross-References. Installment payments to obtain stay of garnishment, service of garnishment summons, § 26-2-216.

Maximum amount of disposable earnings exempt from garnishment, garnishment costs, § 26-2-106.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 3, 12.

Law Reviews.

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. Rev. 65.

26-2-108. Personal earnings not exempt from order for alimony or child support.

The personal earnings of the debtor shall not be exempt from an order, judgment, decree, installment thereof, or assignment for support as provided in title 36, chapter 5 and/or § 50-2-105, when such order, judgment or decree is rendered for the support of such debtor's minor child or children; nor when such order, decree or judgment is for alimony and the party in whose favor such order was rendered has not remarried.

Acts 1978, ch. 915, § 12; T.C.A., § 26-211; Acts 1981, ch. 61, § 2; 1990, ch. 789, § 3.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 3, 12; 20 Tenn. Juris., Pensions, § 1.

26-2-109. Debtor deserting family — Property exempt in hands of spouse or children.

When a debtor absconds or leaves such debtor's family, the exempted property shall be set apart for the use of the spouse and family, and shall be exempt in the hands of the spouse or children.

Acts 1978, ch. 915, § 14; T.C.A., § 26-213; Acts 1985, ch. 140, § 5.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 12.

26-2-110. Insurance benefits exempt.

1. There shall be exempt from the claims of all creditors, and from execution, attachment, or garnishment, any sum or sums of money which may hereafter become due and payable to any person, who is a resident and citizen of this state, from any insurance company or other insurer, under the terms and provisions of any contracts of accident, health, or disability insurance insuring the assured against loss by reason of accidental personal injuries, or insuring the assured against loss by reason of physical disability resulting from disease.
2. In the event of the death of any such person so insured as set out in subsection (a), any sum or sums of money so due and payable at the time of the death of the insured shall likewise be exempt from the claims of all creditors and from execution, attachment or garnishment, in the same manner as provided in §§ 56-7-201, 56-7-203.
3. As regards those cases where disability may have begun prior to May 21, 1937, the exemptions granted in subsections (a) and (b) shall apply to installment payments under such contract or contracts of insurance which may become due and payable for such weekly, monthly or other installment term (as determined by the contract of insurance) as may have commenced on or after such date.

Acts 1978, ch. 915, §§ 15-17; T.C.A., §§ 26-214 — 26-216.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 636.

Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, § 31; 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 3, 12.

Law Reviews.

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta) 28 No. 5 Tenn. B.J. 35 (1992).

Creditors' Rights and Security Transactions — 1963 Tennessee Survey (Forrest W. Lacey), 17 Vand. L. Rev. 970.

Decedents' Estates, Trusts and Future Interests — 1963 Tennessee Survey (Herman L. Trautman), 17 Vand. L. Rev. 1027.

Enforcing Money Judgments in Tennessee (Lonnie C. Rich), 4 Mem. St. U.L. 65.

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

Tennessee's Bankruptcy Exemptions are Valid: Rhodes v. Stewart (Bruce D. Fisher), 19-No. 4 Tenn. B.J. 7 (1983).

26-2-111. Additional exemptions — Certain benefit payments — Awards — Tools of trade — Health care aids — Child support obligations.

In addition to the property exempt under § 26-2-103, the following shall be exempt from execution, seizure or attachment in the hands or possession of any person who is a bona fide citizen permanently residing in this state:

1. The debtor's right to receive:
   1. A social security benefit, unemployment compensation, a Families First program benefit or a local public assistance benefit;
   2. A veterans' benefit;
   3. A disability, illness, or unemployment benefit, or a pension that vests as a result of disability;
   4. 1. To the same extent that earnings are exempt pursuant to § 26-2-106, a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of death, age or length of service, unless:

1. Such plan or contract was established by or under the auspices of an insider that employed the debtor at the time that the debtor's rights under such plan or contract arose;
2. Such payment is on account of age or length of service; and
3. Such plan or contract does not qualify under §§ 401(a), 403(a), 403(b), 408, 408A, or 409 of the Internal Revenue Code of 1954 (26 U.S.C. §§ 401(a), 403(a), 403(b), 408, 408A or 409);

The assets of the fund or plan from which any such payments are made, or are to be made, are exempt only to the extent that the debtor has no right or option to receive them except as monthly or other periodic payments beginning at or after age fifty-eight (58). Assets of such funds or plans are not exempt if the debtor may, at the debtor's option, accelerate payment so as to receive payment in a lump sum or in periodic payments over a period of sixty (60) months or less;

Alimony to the extent that payment becomes due more than thirty (30) days after the debtor asserts a claim to such exemption in any judicial proceeding; and

Child support payments to the extent that payment becomes due more than thirty (30) days after the debtor asserts a claim to such exemption in any judicial proceeding;

The debtor's right not to exceed in the aggregate fifteen thousand dollars ($15,000) to receive or property that is traceable to:

An award not to exceed five thousand dollars ($5,000) under a crime victim's reparation law;

A payment, not to exceed seven thousand five hundred dollars ($7,500) on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or

A payment not to exceed ten thousand dollars ($10,000) on account of the wrongful death of an individual of whom the debtor was a dependent;

A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;

The debtor's aggregate interest, not to exceed one thousand nine hundred dollars ($1,900) in value in any implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor;

Professionally prescribed health care aids for the debtor or a dependent of the debtor; and

Liquid assets, stocks or bonds, to the extent of the amount of any obligations owed by the debtor pursuant to any final court order or judgment for child support. The exemption shall be effective as of the date such exemption is claimed by the debtor or by an intervening representative of the child or children to whom such support is owed. Further, this exemption is only valid if such assets are immediately deposited into court by the debtor or immediately executed upon, seized or attached on behalf of the child or children for the partial or full satisfaction of child support obligations.

Acts 1980, ch. 919, § 3; T.C.A., § 26-217; Acts 1994, ch. 880, §§ 1, 2; 1996, ch. 932, § 1; 1999, ch. 103, § 1; 2001, ch. 260, § 2.

Compiler's Notes. The Internal Revenue Code, referred to in this section is codified in 26 U.S.C. § 1 et seq.

Cross-References. Assignment of income by a court for child support, § 50-2-105.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, § 31; 13 Tenn. Juris., Exemptions From Execution and Attachment, § 12.

Law Reviews.

A Comparison of Classification and Treatment of Family Support Obligations and Student Loans: A Case Analysis (William Houston Brown and Katherine L. Evans), 24 Mem. St. U.L. Rev. 623 (1994).

A Review of Tennessee Exemptions in Light of the Bankruptcy Code (Jennie D. Latta), 28 No. 5 Tenn. B.J. 32 (1992).

A Second Look at the Proposed Uniform Bankruptcy Exemptions: Tennessee as an Example (The Honorable William Houston Brown, Lawrence Ponoroff), 28 U. Mem. L. Rev. 647 (1998).

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

Making a Bad Situation Worse: Going Against the Current, Have Tennessee and Mississippi Floundered in Their Approach to the “Tools of the Trade” Exemption?, 31 U. Mem. L. Rev. 401 (2001).

Tennessee's Bankruptcy Exemptions are Valid: Rhodes v. Stewart (Bruce D. Fisher), 19 No. 4 Tenn. B.J. 7 (1983).

26-2-112. Exemptions for the purpose of bankruptcy.

The personal property exemptions as provided for in this part, and the other exemptions as provided in other sections of the Tennessee Code Annotated for the citizens of Tennessee, are hereby declared adequate and the citizens of Tennessee, pursuant to section 522 (b)(1), Public Law 95-598 known as the Bankruptcy Reform Act of 1978 (11 U.S.C., §  522 (b)(1)), are not authorized to claim as exempt the property described in the Bankruptcy Reform Act of 1978 (11 USC § 522 (d)).

Acts 1980, ch. 919, § 4; T.C.A., § 26-901.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, § 21; 13 Tenn. Juris., Exemptions from Execution and Attachment, § 12.

Law Reviews.

A Second Look at the Proposed Uniform Bankruptcy Exemptions: Tennessee as an Example (The Honorable William Houston Brown, Lawrence Ponoroff), 28 U. Mem. L. Rev. 647 (1998).

Consumers to Benefit by Recent Inflationary Adjustments to the Bankruptcy Code (Wesley H. Avery), 37 No. 9 Tenn. B.J. 30 (2001).

Efficiency Justifications for Personal Property Security (James J. White), 37 Vand. L. Rev. 473 (1984).

Individual Debtors in Tennessee (Bruce D. Fisher), 32 No. 1 Tenn. B.J. 10 (1996).

The New Bankruptcy Code, Part I: A Review of Some of the Significant Changes in Bankruptcy Law (Howard B. Pickard), 10 Mem. St. U.L. Rev. 177.

26-2-113. Exemptions in criminal cases — Exemptions not applicable in certain cases.

Property exempted by this part shall be exempt from seizure in criminal as well as in civil cases, but the same shall not be exempt from distress or sale for taxes; or for fines and costs for voting out of the civil district or ward in which the voter lives; or for carrying deadly or concealed weapons contrary to law; or for giving away or selling intoxicating liquors on election days.

Acts 1978, ch. 915, § 13; modified; T.C.A., § 26-212.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 2, 11.

26-2-114. Procedure for exercising exemption — Notice.

1. Should a bona fide citizen permanently residing in Tennessee become a judgment debtor, such debtor must exercise the exemption as provided in § 26-2-103 by filing a list of all the items owned, constructive or actual, which the judgment debtor chooses to declare as exempt, together with the value of each such item. Such listing shall be on oath and filed with the court having jurisdiction. Furthermore, the judgment debtor may modify or amend the listing from time to time as the individual deems necessary.
2. Such claim for exemption by way of listing, modification or amendment thereto may be filed either before or after the judgment in the case has become final and shall have effect as to any execution issued after the date such claim for exemption is filed. However, subject to such exemption as is further set forth herein, a claim for exemption filed after the judgment has become final will have no effect as to an execution which is issued prior to the date the claim for exemption is filed, and as to such preexisting execution the claim for exemption shall be deemed waived.
3. It is the duty of the clerk of the court from which process is issued to cause to be stapled to, printed upon or otherwise securely affixed to the warrant, summons or other leading process in the action a typed or printed notice which shall read as follows:

   NOTICETO THE DEFENDANT OR DEFENDANTS:

   Tennessee law provides a ten thousand dollar ($10,000) personal property exemption from execution or seizure to satisfy a judgment. If a judgment should be entered against you in this action and you wish to claim property as exempt, you must file a written list, under oath, of the items you wish to claim as exempt with the clerk of the court. The list may be filed at any time and may be changed by you thereafter as necessary; however, unless it is filed before the judgment becomes final, it will not be effective as to any execution or garnishment issued prior to the filing of the list. Certain items are automatically exempt by law and do not need to be listed; these include items of necessary wearing apparel for yourself and your family, and trunks or other receptacles necessary to contain such apparel, family portraits, the family Bible, and school books. Should any of these items be seized, you would have the right to recover them. If you do not understand this exemption right or how to exercise it, you may wish to seek the counsel of a lawyer.

Acts 1978, ch. 915, § 4; impl. am. Acts 1980, ch. 919, § 2; modified; T.C.A., § 26-203; Acts 2011, ch. 60, § 1.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 11.

Attorney General Opinions. Effect of § 26-2-407 on this section, OAG 90-89, 1990 Tenn. AG LEXIS 98 (10/1/90).

Garnishment priority and duration of liens, OAG 95-072, 1995 Tenn. AG LEXIS 85 (7/6/95).

Applicability of this title to collection of court costs, OAG 99-003, 1999 Tenn. AG LEXIS 11 (1/19/99).

26-2-115. Examination of judgment debtor and others.

1. Upon proper application by the judgment creditor, the judgment creditor may examine any person, including the judgment debtor, in order to determine the truth and correctness of the facts stated in the judgment debtor's listing as provided in § 26-2-114.
2. Upon application of the judgment creditor, the court may inquire into the truth and sufficiency of the debtor's claim for exemption, and may, where the debtor knowingly makes false claim for exemption, enter an order denying the debtor the right to make further claim for exemption as to that creditor's judgment. The clerk shall immediately forward a copy thereof to the employer. The creditor may likewise challenge the employer's answer in the manner now provided by law.

Acts 1978, ch. 915, §§ 6, 10; T.C.A., §§ 26-205, 26-209.

Part 2
Garnishment

NOTES TO DECISIONS

1. Levy of Execution and Attachment — Same Property Subject to Each.

Whatever is subject to levy of execution is subject to levy of attachment at law, and whatever is not subject to levy of attachment at law is not subject to levy of execution; and the lien of the attachment levy has the same effect as the lien of the execution levy. Nashville Bank v. Ragsdale, 7 Tenn. 296, 1823 Tenn. LEXIS 61 (1823); Hervey & New v. Champion, 30 Tenn. 569, 1851 Tenn. LEXIS 106 (1851); Sharp v. Hunter, 47 Tenn. 389, 1870 Tenn. LEXIS 160 (1870), superseded by statute as stated in, W. & O. Constr. Co. v. IVS Corp., 688 S.W.2d 67, 1984 Tenn. App. LEXIS 3187 (Tenn. Ct. App. 1984); Lane v. Marshall, 48 Tenn. 30, 1870 Tenn. LEXIS 10 (1870).

2. Levy on Personalty.

3. —Waiver of Right to Sale of Personalty First.

The defendant in the execution may waive the benefit of the statutory requirement that the personalty shall be first sold, and have the land first sold, and the sale of the land will be valid, though there was no return of “No goods and chattels found,” but the plaintiff in the execution cannot direct the officer to sell the defendant's land before the personalty. Trigg v. McDonald, 21 Tenn. 386, 1841 Tenn. LEXIS 22 (1841).

4. —Levy on Both Land and Personalty.

Land and personalty may be levied on at the same time, but the personalty must be first sold. Swingle v. Boyler, 1 Tenn. 226, 1807 Tenn. LEXIS 5 (1807); McGavock v. Schneider, 54 Tenn. 467, 1872 Tenn. LEXIS 73 (1872).

5. —Chattels Jointly Owned.

A levy and sale of the entire property in a chattel, under an execution against one of the joint owners, is a conversion, for which the other owner may sue in trover. Rains v. McNairy, 23 Tenn. 356, 1843 Tenn. LEXIS 111 (1843); Logan v. Hartford City & Syracuse Coal Co., 56 Tenn. 689, 1872 Tenn. LEXIS 193 (1872).

6. —Personalty Discovered After Levy on Land.

Personalty discovered after levy upon land must be levied upon, and sold to make the money before the land can be sold. Hogshead v. Carruth, 13 Tenn. 226, 13 Tenn. 227, 1833 Tenn. LEXIS 147 (1833); Overton v. Perkins, 18 Tenn. 328, 1837 Tenn. LEXIS 29 (1837); McGavock v. Schneider, 54 Tenn. 467, 1872 Tenn. LEXIS 73 (1872).

After an execution issued by a justice (now general sessions court) has been levied upon land and returned to the circuit court and an order of condemnation has been obtained, if personalty of the defendant is discovered, a procedendo should be awarded for an alias execution to be levied on such personalty. McGavock v. Schneider, 54 Tenn. 467, 1872 Tenn. LEXIS 73 (1872); Crabtree v. Bank of Winchester, 108 Tenn. 483, 67 S.W. 797, 1901 Tenn. LEXIS 49 (1902).

7. —Partnership Property.

A partner may replevy, but cannot replevin, personalty levied on under an execution against his copartner. Jones v. Richardson, 99 Tenn. 614, 42 S.W. 440, 1897 Tenn. LEXIS 71 (1897).

An execution may be levied upon the interest of one partner or joint owner in the common property for his individual debt. The levy is effected by seizure of the entire common property or some considerable portion of it sufficient to warrant further proceedings by sale of the interest, or by bill in chancery, before sale, to wind up the partnership. Jones v. Richardson, 99 Tenn. 614, 42 S.W. 440, 1897 Tenn. LEXIS 71 (1897).

8. —Scholarship.

A perpetual scholarship in a college, granted in recognition of a donation thereto, entitling the donor to keep one pupil in the college, free of charge, is not such property as can be taken and sold for debt. Cleveland Nat'l Bank v. Morrow, 99 Tenn. 527, 42 S.W. 200, 1897 Tenn. LEXIS 63, 63 Am. St. Rep. 853, 38 L.R.A. 758 (1897).

9. —Choses in Action.

A direct levy of an execution against a person in business, on his books, notes, and accounts is a nullity, and a sale thereunder will communicate no title to the purchaser. Only the choses in action of corporations can be levied on. Hillman v. Moore, 3 Cooper's Tenn. Ch. 454 (1877); Smith v. United States Fire Ins. Co., 126 Tenn. 435, 150 S.W. 97, 1912 Tenn. LEXIS 68, 45 L.R.A. (n.s.) 266 (1912).

10. —Money.

Money may be levied on, even if received by the officer officially, and may be applied to an execution in his hands. Dolby v. Mullins, 22 Tenn. 437, 1842 Tenn. LEXIS 119 (1842); Simpson v. Sparkman, 80 Tenn. 360, 1883 Tenn. LEXIS 180 (1883).

11. —Fixtures.

Fixtures not becoming a part of the realty are subject to levy as personalty; but if they are so permanently attached and fixed to the land as to become a part of it, they are not subject to levy as personalty, or as separate from the land. These rules are deduced from the principles of the cases cited. Pillow v. Love, 6 Tenn. 109, 1818 Tenn. LEXIS 38 (1818); Degraffenfeid v. Scruggs, 23 Tenn. 451, 1844 Tenn. LEXIS 136 (1844); Childress v. Wright, 42 Tenn. 350, 1865 Tenn. LEXIS 74 (1865); Memphis Gas-Light Co. v. State, 46 Tenn. 310, 1869 Tenn. LEXIS 60, 98 Am. Dec. 452 (1869); Saunders & Aycock v. Stallings, 52 Tenn. 65, 1871 Tenn. LEXIS 234 (1871); McDavid v. Wood, 52 Tenn. 95, 1871 Tenn. LEXIS 240 (1871); Cannon v. Hare, 1 Cooper's Tenn. Ch. 22 (1872).

12. Levy on Land.

13. —Sufficiency of Exhaustion of Personalty.

In an action of ejectment involving the validity of a sale of land by execution against several persons, the sale was held to be good, although the officer's return only showed the exhaustion of the personal property of the defendant whose land was levied on and sold, saying nothing as to the personalty of the other execution debtors. Crowder v. Sims, 26 Tenn. 257, 1846 Tenn. LEXIS 116 (1846).

14. —Return of No Personal Property Found.

To authorize a levy of execution on land, the return must show “No personal property found.” While a return of “No personal property to be found in my county” would be a better return, still a return of “No personal property found” is sufficient to authorize a levy on land. Puckett's Lessee v. Owen, 7 Tenn. 167, 1823 Tenn. LEXIS 28 (1823); Frogg v. Haggard, 10 Tenn. 577, 1831 Tenn. LEXIS 18 (1831).

15. —Remainder Estates.

Remainder interest in a live chattel is not subject to levy under execution at law. Allen v. Scurry, 9 Tenn. 36, 1821 Tenn. LEXIS 10 (1821).

Remainder interest in a living chattel may be reached by a creditor's bill in equity. Lockwood & Co. v. Nye, 32 Tenn. 515, 1852 Tenn. LEXIS 107 (1852).

A vested estate in remainder in land or personalty is subject to levy of execution or attachment at law, but a contingent remainder is not so subject. Lockwood & Co. v. Nye, 32 Tenn. 515, 1852 Tenn. LEXIS 107 (1852); Perkins v. Clack, 40 Tenn. 734, 1859 Tenn. LEXIS 213 (1859); Puryear v. Edmondson, 51 Tenn. 43, 1871 Tenn. LEXIS 133 (1871); Sturm v. White, 67 Tenn. 197, 1874 Tenn. LEXIS 354 (1874).

A devise of lands for life, with remainder over to such members of a class as may be alive at the death of life tenant, does not vest interest in such remaindermen expectant on the death of the life tenant as is subject to execution, because such remaindermen have no interest, legal or equitable, in the land devised until the termination of the life estate. Nichols v. Guthrie, 109 Tenn. 535, 73 S.W. 107, 1902 Tenn. LEXIS 91 (1903).

16. —Equitable Estates.

Estates held by resulting trust are subject to levy and sale under execution. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816); Shute v. Harder, 5 Tenn. 293, 1818 Tenn. LEXIS 6 (1818); Hurt v. Reeves, 6 Tenn. 49, 6 Tenn. 50, 1818 Tenn. LEXIS 21 (1818); Hamilton v. Bradley, 6 Tenn. 127, 1818 Tenn. LEXIS 48 (1818); Shute v. Harder, 9 Tenn. 3, 1818 Tenn. LEXIS 59 (1818); Smitheal v. Gray, 20 Tenn. 491, 1840 Tenn. LEXIS 8, 34 Am. Dec. 664 (1840); Thomas v. Walker, 25 Tenn. 93, 1845 Tenn. LEXIS 29 (1845); Gaugh v. Henderson, 39 Tenn. 628, 1859 Tenn. LEXIS 293 (1859); Butler v. Rutledge, 42 Tenn. 4, 1865 Tenn. LEXIS 2 (1865); Sandford v. Weeden, 49 Tenn. 71, 1870 Tenn. LEXIS 193 (1870).

Equity of redemption or other equity in chattels is not subject to levy. Wilson v. Carver, 5 Tenn. 90, 1817 Tenn. LEXIS 59 (1817); Childs v. Derrick, 9 Tenn. 78, 9 Tenn. 79, 1824 Tenn. LEXIS 2 (1824); Planters' Bank v. Henderson, 23 Tenn. 75, 1843 Tenn. LEXIS 21 (1843); Stark v. Cheathem, 2 Cooper's Tenn. Ch. 300 (1875).

Constructive trusts are not subject to levy and sale under execution. Shute v. Harder, 9 Tenn. 3, 1818 Tenn. LEXIS 59 (1818).

Execution may be levied upon trusts raised by a conveyance, but not upon trusts covenanted to be raised. Shute v. Harder, 9 Tenn. 3, 1818 Tenn. LEXIS 59 (1818).

Equitable estates in land or personalty are not subject to levy under execution or attachment at law, and only legal estates are subject to levy. Shute v. Harder, 9 Tenn. 3, 1818 Tenn. LEXIS 59 (1818); Combs v. Young's Widow & Heirs, 12 Tenn. 218, 1833 Tenn. LEXIS 57 (1833); Benton v. Pope, 24 Tenn. 392, 1844 Tenn. LEXIS 90 (1844); Birdwell v. Cain, 41 Tenn. 301, 1860 Tenn. LEXIS 67 (1860); Lane v. Marshall, 48 Tenn. 30, 1870 Tenn. LEXIS 10 (1870); Garretson v. Brien, 50 Tenn. 534, 1871 Tenn. LEXIS 110 (1871); Johnson v. Roland, 61 Tenn. 203, 1872 Tenn. LEXIS 360 (1872); Ament v. Brennan, 1 Cooper's Tenn. Ch. 431 (1873); Springer v. Smith, 71 Tenn. 737, 1879 Tenn. LEXIS 141 (1879); Henderson v. Hill, 77 Tenn. 25, 1882 Tenn. LEXIS 10 (1882); Henson v. Wright, 88 Tenn. 501, 12 S.W. 1035, 1889 Tenn. LEXIS 71 (1890); Porter v. Lee, 88 Tenn. 782, 14 S.W. 218, 1890 Tenn. LEXIS 21 (1890); Evans v. Belmont Land Co., 92 Tenn. 348, 21 S.W. 670, 1892 Tenn. LEXIS 82 (1893).

Real and personal property held in trust under deed, mortgage, or assignment is not subject to levy of execution or attachment at law, either directly or by garnishment, nor is personalty or money held in trust or as a pledge. Killdrew v. Elliott, 27 Tenn. 515, 1847 Tenn. LEXIS 120 (1847); Ross v. Young, 37 Tenn. 627, 1858 Tenn. LEXIS 81 (1858); Williams v. Whoples, 38 Tenn. 401, 1858 Tenn. LEXIS 201 (Tenn. Dec. 1858); Withers v. Pemberton, 43 Tenn. 56, 1866 Tenn. LEXIS 15 (1866); First Nat'l Bank v. J. T. Pettit & Co., 56 Tenn. 447, 1872 Tenn. LEXIS 158 (1872); Hurst, Purnell & Co. v. Jones, 78 Tenn. 8, 1882 Tenn. LEXIS 132 (1882).

The interest of the equitable owner is not subject to levy where there is an active trust, and no merger of the legal and equitable estate; but where the legal and equitable estates are merged by law in the same person, or so combined in him that he has a right to call for an immediate conveyance of the legal estate, his interest is subject to levy. However, there can be no merger nor right to call for the legal estate, where the legal and equitable estates are not commensurate, or where their union would be contrary to the intent of the grantor. Henderson v. Hill, 77 Tenn. 25, 1882 Tenn. LEXIS 10 (1882); Jourolmon v. Massengill, 86 Tenn. 81, 5 S.W. 719, 1887 Tenn. LEXIS 27 (1887); Henson v. Wright, 88 Tenn. 501, 12 S.W. 1035, 1889 Tenn. LEXIS 71 (1890); Porter v. Lee, 88 Tenn. 782, 14 S.W. 218, 1890 Tenn. LEXIS 21 (1890); Evans v. Belmont Land Co., 92 Tenn. 348, 21 S.W. 670, 1892 Tenn. LEXIS 82 (1893).

Land of a debtor, held under an active trust for him by a trustee, in whom the legal title is vested, is not subject to levy or other proceedings to subject it to the payment of his debts. Henson v. Wright, 88 Tenn. 501, 12 S.W. 1035, 1889 Tenn. LEXIS 71 (1890).

17. —Undivided Interests in Land.

The interest of a tenant in common in land is subject to levy and sale under an execution against him. Earles v. Meaders, 60 Tenn. 248, 1872 Tenn. LEXIS 482 (1873).

Where an execution against two joint judgment debtors is levied upon their respective undivided interests in land, and both interests are sold together for a single sum, the sale will be void. Ballard v. Scruggs, 90 Tenn. 585, 18 S.W. 259, 1891 Tenn. LEXIS 47, 25 Am. St. Rep. 703 (1891); Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902).

18. —Reserved Use of Land for Life.

The right of possession and enjoyment of profits of land reserved by the grantor for his life is not subject to levy of execution at law as against him, and a levy and sale of the land as his property will pass no title to the freehold to the purchaser at the execution sale. Daugherty v. Marcum, 40 Tenn. 323, 1859 Tenn. LEXIS 88 (1859).

19. —Land Subject to Vendor's Lien.

Land held under a deed of conveyance reserving a lien for the purchase money may be levied on and sold subject to the reserved lien. Chitwood v. Trimble, 61 Tenn. 78, 1872 Tenn. LEXIS 342 (1872); Ament v. Brennan, 1 Cooper's Tenn. Ch. 431 (1873); Exchange & Deposit Bank v. Bradley, 83 Tenn. 279, 1885 Tenn. LEXIS 50 (1885).

20. —Land Under Decree Vesting Title.

Land held under decree vesting title is leviable, because such decree is equivalent to a deed of conveyance; but such levy is subject to the lien reserved for the purchase price. Vaughn v. Vaughn, 59 Tenn. 472, 1873 Tenn. LEXIS 94 (1873); Wilkins v. McCorkle, 112 Tenn. 688, 80 S.W. 834, 1904 Tenn. LEXIS 64 (1904).

21. —Land Possessed for Seven Years.

Land held under seven years' naked possession is not leviable, because such possession, without color of title, does not vest title in the possessor. Norris v. Ellis, 26 Tenn. 463, 1846 Tenn. LEXIS 159 (1846); Crutsinger v. Catron, 29 Tenn. 24, 1848 Tenn. LEXIS 33 (1848), overruled in part, Heirs of Marr v. Gilliam, 41 Tenn. 488, 1860 Tenn. LEXIS 96 (1860); Heirs of Marr v. Gilliam, 41 Tenn. 488, 1860 Tenn. LEXIS 96 (1860).

22. —Fraudulently Conveyed Property.

Lands fraudulently conveyed are not subject to levy of execution or attachment at law against the fraudulent conveyor. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816); Williams v. Lowe, 23 Tenn. 62, 1843 Tenn. LEXIS 16 (1843); Gaugh v. Henderson, 39 Tenn. 628, 1859 Tenn. LEXIS 293 (1859); Smith v. Hinson, 51 Tenn. 250, 1871 Tenn. LEXIS 155 (1871); Hoyal v. Bryson, 53 Tenn. 139, 1871 Tenn. LEXIS 332 (Tenn. Sep. 27, 1871).

23. —Land Under Title Bond.

Land held under title bond is not leviable, although it has been held for more than seven years, and this is so whether the bond was registered or unregistered; but if the bond be registered, the land is not subject to levy against either the seller or purchaser or his assignee, and the interest of either can only be reached in equity by making both the seller and the purchaser or his assignee parties. Shute v. Harder, 9 Tenn. 3, 1818 Tenn. LEXIS 59 (1818); Norris v. Ellis, 26 Tenn. 463, 1846 Tenn. LEXIS 159 (1846); Merriman v. Polk, 52 Tenn. 717, 1871 Tenn. LEXIS 302 (1871); Lyle v. Longley, 65 Tenn. 286, 1873 Tenn. LEXIS 346 (1873).

24. —Naked Legal Title — Without Beneficial Interest.

A naked legal title to land held in trust for another who owns the entire beneficial interest, or legal title of a mortgagee or of a trustee under a deed of trust or assignment for creditors, is not leviable as the property of the holder of such legal title, for it has no value in itself. Thomas v. Walker, 25 Tenn. 93, 1845 Tenn. LEXIS 29 (1845); Gaugh v. Henderson, 39 Tenn. 628, 1859 Tenn. LEXIS 293 (1859); Click v. Click, 48 Tenn. 607, 1870 Tenn. LEXIS 122 (1870); Gass v. Gass, 48 Tenn. 613, 1870 Tenn. LEXIS 123 (1870); Sandford v. Weeden, 49 Tenn. 71, 1870 Tenn. LEXIS 193 (1870); Ament v. Brennan, 1 Cooper's Tenn. Ch. 431 (1873); Harris v. Gaines, 70 Tenn. 12, 1878 Tenn. LEXIS 177 (1878); Cheek v. Anderson, 70 Tenn. 194, 1879 Tenn. LEXIS 155 (1879); Turley v. Massengill, 75 Tenn. 353, 1881 Tenn. LEXIS 127 (1881), overruled in part, Jourolmon v. Massengill, 86 Tenn. 81, 5 S.W. 719, 1887 Tenn. LEXIS 27 (1887); Henderson v. Hill, 77 Tenn. 25, 1882 Tenn. LEXIS 10 (1882); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883).

25. Sheriff — Liability.

Sheriff is not liable to a purchaser of the debtor's land for false return of execution, in levying on and selling the land where there was personalty, though the land was encumbered with a prior judgment lien. Huffaker v. Greer, 41 Tenn. 160, 1860 Tenn. LEXIS 36 (1860).

26. Sheriff's Deed.

Acts 1794, ch. 1, § 23 as applied to sales of land by sheriff on execution changed the common law requirement that owner out of possession of land claimed by another adversely could not execute a valid deed to the property, hence as result of above mentioned act a deed executed by sheriff on an execution against owner out of possession passed good title though another claimed land by adverse possession. Park's Lessee v. Larkin, 1 Tenn. 101, 1805 Tenn. LEXIS 3 (1799).

NOTES TO DECISIONS

1. Possession by Officer — Necessity.

Where a constable levies an attachment on a growing crop, he must take possession of it by some overt act, and properly guard and protect it. Emmett v. Crawford, 78 Tenn. 21, 1882 Tenn. LEXIS 134 (1882).

2. Nature of Growing Crops — Sale.

Under the common law as applied in this country, growing crops are personal property, and are subject to sale by execution or otherwise, without passing any interest in the land. Langford v. Hudson, 146 Tenn. 309, 241 S.W. 393, 1921 Tenn. LEXIS 21 (1921).

3. Bankrupt's Crops.

Under this section a bankrupt is not entitled to have a growing crop set aside to him as property exempt under the state law. In re T. C. Burnett & Co., 201 F. 162, 1912 U.S. Dist. LEXIS 1017 (D. Tenn. 1912).

The owner of an interest in a growing crop may mortgage or sell the same prior to the time that a levy is made upon it in accordance with the provisions of this section. In re T. C. Burnett & Co., 201 F. 162, 1912 U.S. Dist. LEXIS 1017 (D. Tenn. 1912).

4. Growing Crops.

Purchaser of corn crop growing in field on September 1 was entitled to recover same from sheriff who levied on crop on December 8 when writ bore teste of first day of preceding July term of court, since corn was not subject to levy until after November 15, subsequent to teste. Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887).

Until November 15, the grower owner may do what he pleases with the crop, short of fraud, he not being an absconder. It is error to impound the crop at the instance of a creditor. Layman v. Denton, 42 S.W. 153, 1897 Tenn. Ch. App. LEXIS 32 (1897).

5. Priority of Security Interests.

Since the adoption of Article 9, a creditor who takes a security interest in crops should be able to determine and control the priority of the security interest against other contractual liens and against judgment liens by checking the UCC filings and by filing a financing statement. The creditor should not have to check the real estate records. In re Hill, 83 B.R. 522, 1988 Bankr. LEXIS 269 (Bankr. E.D. Tenn. 1988), superseded by statute as stated in, Wilhite Pure Oil Truck Stop, Inc. v. McCutchen, 115 B.R. 126, 1990 Bankr. LEXIS 1216 (Bankr. W.D. Tenn. 1990).

NOTES TO DECISIONS

1. Change in Common Law Rule by Section.

The issuance of an execution does not, at common law, fix a lien upon the debtor's choses in action; but this rule has been changed, in this state, by this section, as against corporations. Smith v. United States Fire Ins. Co., 126 Tenn. 435, 150 S.W. 97, 1912 Tenn. LEXIS 68, 45 L.R.A. (n.s.) 266 (1912).

2. Registration of Memorandum of Judgment Unnecessary.

An execution against a corporation fixes a lien on its choses in action, just as if they were “goods and chattels,” without registration of a memorandum of the judgment. Smith v. United States Fire Ins. Co., 126 Tenn. 435, 150 S.W. 97, 1912 Tenn. LEXIS 68, 45 L.R.A. (n.s.) 266 (1912).

3. Receiver's Confusion of Proceeds — Effect on Execution Lien.

Where an execution lien was fastened upon the personalty and choses in action of a corporation in the county to which the execution was issued, while it was a going concern, but the execution was wrongly returned “nulla bona,” after which a general creditor's insolvency bill was filed against the corporation and a receiver appointed, and the judgment creditor intervened and sought priority of payment in the distribution of its assets, upon the ground of the lien, which the receiver sought to defeat by the contention that the proceeds of the property of the corporation had become inextricably confused in the receiver's hands, so that such proceeds could not then be identified and subjected to the lien, it was held that no insuperable difficulty in identifying the proceeds of the property affected by the lien could be perceived, and that there was none, if the receiver had properly kept his accounts; and the cause was remanded, with directions for a reference for such purpose. Smith v. United States Fire Ins. Co., 126 Tenn. 435, 150 S.W. 97, 1912 Tenn. LEXIS 68, 45 L.R.A. (n.s.) 266 (1912).

NOTES TO DECISIONS

1. Purpose and Policy.

This statute was intended to protect officers from the peril of disputed titles to property supposed to be liable to execution. State v. Sharp, 34 Tenn. 615, 1855 Tenn. LEXIS 107 (1855).

2. Scope of Statute.

The statute applies to disputed titles based upon the claims of third parties, and does not extend to cases of objection by the defendant in the execution upon the ground that the judgment or execution is void, or that the property is exempt from execution, and the like. Baker v. Agey, 21 Tenn. 13, 1840 Tenn. LEXIS 15 (1840); Hunter v. Agee, 24 Tenn. 57, 1844 Tenn. LEXIS 18 (1844).

The officer is entitled to ask indemnity before levy of execution or sale thereunder in all cases where there is a dispute as to the title to the property about to be levied on or sold; as, where personal property has been conveyed by the execution debtor in trust for creditors, after the execution came to the officer's hands, but before levy. Saunders & Martin v. Harris, 23 Tenn. 72, 1843 Tenn. LEXIS 20 (1843); State v. Sharp, 34 Tenn. 615, 1855 Tenn. LEXIS 107 (1855).

This statute is confined to executions, and does not extend to attachments; and an indemnity bond cannot be demanded before levy of an attachment on disputed property, and the officer cannot escape liability upon that ground, where the disputed title was not well founded. The officer is liable for false return of nulla bona, where property attached is released. Shaw v. Holmes, 51 Tenn. 692, 1871 Tenn. LEXIS 223 (1871); Grigsby v. Manly, 79 Tenn. 636, 1883 Tenn. LEXIS 118 (1883).

3. Indemnity Bond.

4. —Court Ordering Sale.

An order of sale of specific property issued by a court having custody of the property is complete protection to the officer making the sale, and he must execute it, and cannot demand an indemnity bond, though the title to the property is disputed. Grigsby v. Manly, 79 Tenn. 636, 1883 Tenn. LEXIS 118 (1883).

5. —Time for Bond.

A bond of indemnity, executed after levy and seizure of the property, to indemnify the officer against damages resulting from the sale, is valid and binding. Hunter v. Agee, 24 Tenn. 57, 1844 Tenn. LEXIS 18 (1844).

6. —Stranger Executing Bond.

An indemnity bond executed by a stranger is valid and sureties are liable thereon to the officer on motion. Jobe v. Sellars, 28 Tenn. 178, 1848 Tenn. LEXIS 68 (1848).

7. —Persons Liable Upon Improper Sale.

Where, by means of the indemnity bond, the sheriff is induced to sell, and is, by such sale, guilty of a conversion, the surety, as well as the principals on such bonds, is liable with the officer as a cotrespasser. Hunt v. Walker, 59 Tenn. 551, 1873 Tenn. LEXIS 110 (1873).

8. Duty of Sheriff.

9. —Discretion.

In suit by judgment creditor against constable for failing to levy on property of defendant the officer was entitled to introduce evidence that property belonged to father of defendant since acceptance of bond by officer from plaintiff does not require him to seize property not owned by defendant. Hamblet v. Herndon, 22 Tenn. 34, 1842 Tenn. LEXIS 16 (1842).

10. —When No Bond.

An officer is not liable for failing or refusing to levy upon disputed property, or for failing or omitting to sell it when levied upon, unless he be indemnified. His return as to the facts is evidence for him, to be considered by the jury with the other evidence in the cause. State v. Sharp, 34 Tenn. 615, 1855 Tenn. LEXIS 107 (1855).

11. —Release of Levy Though Indemnified.

Where a bond of indemnity is given to an officer, and property is pointed out to him, upon which he levies, he is not bound to sell it, but may release it, and return the execution “nulla bona,” and if sued for false return for this, he may show that the property did not belong to the defendant in the execution, and thus escape liability. Hamblet v. Herndon, 22 Tenn. 34, 1842 Tenn. LEXIS 16 (1842); State v. Sharp, 34 Tenn. 615, 1855 Tenn. LEXIS 107 (1855).

12. —Demand of Indemnity or Notice Unnecessary.

To entitle the officer to the protection of this statute, it is not necessary that he should notify the plaintiff or demand the indemnity, and he may release a levy already made without notice or demand for indemnity. State v. Sharp, 34 Tenn. 615, 1855 Tenn. LEXIS 107 (1855).

NOTES TO DECISIONS

1. Construction.

Pursuant to T.C.A. § 26-3-107, T.C.A. § 26-3-105 does not apply where the judgment does not recite that it is against a principal and surety. Cumberland Bank v. Smith, 43 S.W.3d 908, 2000 Tenn. App. LEXIS 676 (Tenn. Ct. App. 2000).

2. —Provisions Directory.

The provision is merely directory to the officer; and if he disregards it, and thereby the surety is injured, the officer will be liable in damages to the surety aggrieved, but the levy and sale of the property of the surety will be valid, notwithstanding the principal had property that might have been seized. Atkinson v. Rhea, 26 Tenn. 59, 1846 Tenn. LEXIS 56 (1846); Cheatham v. Brien, 40 Tenn. 552, 1859 Tenn. LEXIS 162 (1859); Atnip v. Gilbert, 1 Shan. 119 (1859); Anderson v. Talbot, 48 Tenn. 407, 1870 Tenn. LEXIS 77 (1870); Bryant v. Rudisell, 51 Tenn. 656, 1871 Tenn. LEXIS 218 (1871); Sellars v. Fite, 62 Tenn. 131, 1873 Tenn. LEXIS 153 (1873); Winham v. Crutcher, 2 Cooper's Tenn. Ch. 535 (1875).

T.C.A. § 26-3-105 is directory only; if the sheriff violates the statute, the execution is still good, but the surety may have an action against the officer. Cumberland Bank v. Smith, 43 S.W.3d 908, 2000 Tenn. App. LEXIS 676 (Tenn. Ct. App. 2000).

3. —Benefit of Beneficiary.

The statute is for the sole benefit of the stayor, and he may or may not avail of it at will. Reams v. McNail, 28 Tenn. 542, 1848 Tenn. LEXIS 119 (1848).

Only the surety may complain of noncompliance. Anderson v. Talbot, 48 Tenn. 407, 1870 Tenn. LEXIS 77 (1870).

4. Rights of Surety.

5. —Return of No Property of Principal.

The levy on the land of a surety is not void because the return does not show that there was “no property, real or personal, of the principal, to be found, on which to levy,” before levying on the property of the surety. Anderson v. Talbot, 48 Tenn. 407, 1870 Tenn. LEXIS 77 (1870).

6. —Burden of Showing Suretyship.

A surety or endorser, in order to entitle himself to the right to compel the officer to exhaust the property of the principal debtor before going on his property, must, on the trial, establish the fact of his relation as surety or endorser, and have it recited in the judgment and execution, as provided in § 26-3-107, otherwise he may be proceeded against in the first instance. Beeler v. Hall, 30 Tenn. 445, 1850 Tenn. LEXIS 150 (1850); Grissom v. Moore, 33 Tenn. 361, 1853 Tenn. LEXIS 55 (1853); Chaffin v. Campbell, 36 Tenn. 184, 1856 Tenn. LEXIS 77 (1856); Finley v. King, 38 Tenn. 123, 1858 Tenn. LEXIS 136 (1858); Sellars v. Fite, 62 Tenn. 131, 1873 Tenn. LEXIS 153 (1873); Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874).

7. —Stay Proceedings.

A bill will not lie at the instance of the surety to enjoin the execution of the judgment as against him, when his principal is dead, and his estate declared insolvent, until such estate is wound up. Morris v. McAnally, 43 Tenn. 304, 1866 Tenn. LEXIS 55 (1866).

A surety is not entitled in equity to stay proceedings on an execution against himself until the property of his principal be exhausted. Bryant v. Rudisell, 51 Tenn. 656, 1871 Tenn. LEXIS 218 (1871).

8. —Relief in Chancery.

Relief in chancery granted surety in fact after judgment at law, notwithstanding the provision of §§ 26-3-105 — 26-3-108. Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874); Winham v. Crutcher, 3 Cooper's Tenn. Ch. 666 (1878); Dodds v. Duncan, 80 Tenn. 731, 1884 Tenn. LEXIS 157 (1884).

9. —Release of Surety.

Levy on property of principal sufficient to satisfy the judgment releases the surety, whether the property be land or personalty. Pigg v. Sparrow, 4 Tenn. 143, 4 Tenn. 144, 1816 Tenn. LEXIS 41 (1816); Young v. Read, 11 Tenn. 296, 11 Tenn. 297, 1832 Tenn. LEXIS 45 (1832); Finley v. King, 38 Tenn. 123, 1858 Tenn. LEXIS 136 (1858); Gillespie v. Darwin, 53 Tenn. 21, 1871 Tenn. LEXIS 312 (1871); Woodward v. Walton, 54 Tenn. 50, 1871 Tenn. LEXIS 414 (1871); Watson v. Read, 1 Cooper's Tenn. Ch. 196.

Surety or stayor is released by abandonment of levy on land which was sufficient in value to pay the debt, where by the active interference of the creditor, the burden of the debt has been shifted from the property of the principal debtor, after a specific lien was fixed upon it, so as to throw it upon the surety or stayor. Lindsey v. Thompson, 60 Tenn. 463, 1872 Tenn. LEXIS 535 (1873); Watson v. Reed, 63 Tenn. 49, 1874 Tenn. LEXIS 203 (Tenn. 1874); Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874); Keeble v. Jones' Comm'r, 1 Shan. 541 (1876); Glenn v. Maguire, 3 Cooper's Tenn. Ch. 695 (1878); Ewing v. Sugg, 80 Tenn. 375, 1883 Tenn. LEXIS 183 (1883).

A surety is not released by the actual levy of the execution on the principal debtor's property, if the levy be invalid, or be released for sufficient cause, as that the principal did not own the property or that his title was in dispute. Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874); McNeilly v. Cooksey, 70 Tenn. 39, 1878 Tenn. LEXIS 184 (1878); Glenn v. Maguire, 3 Cooper's Tenn. Ch. 695 (1878).

10. —Surety Contracts — Construction.

The rule that obligations of suretyship are to be strictly construed and may not be extended by implication beyond the express terms of the undertaking is one for guidance in construction only. Holmes v. Elder, 170 Tenn. 257, 94 S.W.2d 390, 1936 Tenn. LEXIS 11, 104 A.L.R. 1282 (1936).

The rule that contracts of suretyship are to be strictly construed and may not be extended by implication beyond the express terms of the undertaking is confined to cases of volunteer, uncompensated, accommodation sureties, and not extended to corporate or other paid sureties. Holmes v. Elder, 170 Tenn. 257, 94 S.W.2d 390, 1936 Tenn. LEXIS 11, 104 A.L.R. 1282 (1936).

11. —Principal's Estate Not Leviable.

The statutes have no application, where, from the death of the principal or other cause, his estate has ceased to be subject to the execution in the hands of the officer. Atnip v. Gilbert, 1 Shan. 119 (1859). See Cabiness v. Garrett, 9 Tenn. 490, 9 Tenn. 491, 1831 Tenn. LEXIS 30 (1831); Atkinson v. Rhea, 26 Tenn. 59, 1846 Tenn. LEXIS 56 (1846); Reams v. McNail, 28 Tenn. 542, 1848 Tenn. LEXIS 119 (1848); Cheatham v. Brien, 40 Tenn. 552, 1859 Tenn. LEXIS 162 (1859).

12. —Principal's Property Not Subject to Immediate Levy.

If the property of the principal be encumbered, or in the custody of the law; or, if by the death of the principal, it cannot be reached without reviving the judgment against the personal representative; or, for any other cause, it is not subject to the immediate requirement of the process in the officer's hands, it is his duty to proceed at once against the property of the stayor or other surety. Cheatham v. Brien, 40 Tenn. 552, 1859 Tenn. LEXIS 162 (1859); Morris v. McAnally, 43 Tenn. 304, 1866 Tenn. LEXIS 55 (1866); Gillespie v. Darwin, 53 Tenn. 21, 1871 Tenn. LEXIS 312 (1871).

13. —Endorser as Surety.

An endorser, whether for accommodation or for value in negotiation is a “surety.” Bryant v. Rudisell, 51 Tenn. 656, 1871 Tenn. LEXIS 218 (1871).

NOTES TO DECISIONS

1. Showing and Recital of Suretyship — Necessity.

All parties will be considered as equally liable, in all cases, unless the order of liability is shown to the court or justice, and recited in the decree or judgment; and, unless this is done, the chancery court has no jurisdiction to control the plaintiff in the collection of his judgment or decree. Whiteside v. Latham, 42 Tenn. 91, 1865 Tenn. LEXIS 23 (1865).

2. Judgment Against Principal and Surety as Joint Debtors — Stay by Principal.

Where judgment is rendered against principal and surety as joint debtors, without showing the true relationship, and is stayed at request of the principal and not of surety, the stayor is liable before surety; but surety as to creditor is to be treated as principal and cannot supersede an execution levied on his property before exhausting that of the stayor. Stafford v. Montgomery, 85 Tenn. 329, 3 S.W. 438, 1886 Tenn. LEXIS 49 (1887).

NOTES TO DECISIONS

1. Levy on Personalty.

2. —Applicability.

Since this section makes no distinction between levies on realty and personalty, the policies that underlie the description requirement apply with equal force to personal property. Municipal Equip. Mfg. v. Newport (In re Hockaday), 169 B.R. 640, 1994 Bankr. LEXIS 1042 (Bankr. M.D. Tenn. 1994).

3. —Description Insufficient.

The absence of any property description on the sheriff's return of creditor's levy on debtor's rendered the levy void. Municipal Equip. Mfg. v. Newport (In re Hockaday), 169 B.R. 640, 1994 Bankr. LEXIS 1042 (Bankr. M.D. Tenn. 1994).

4. —Description Sufficient.

Although judgment debtors argued that execution on a car they had purchased was void because it described the car using the wrong vehicle identification number, the appellate court found that a sufficient description of the property levied on, and the date of the levy, appeared on the face of the execution, thereby satisfying the requirements of T.C.A. § 26-3-108. Ingle v. Head, — S.W.3d —, 2007 Tenn. App. LEXIS 801 (Tenn. Ct. App. Dec. 26, 2007).

5. —Dominion Over Goods.

To constitute a valid levy on personalty, the officer must see the goods and assert a dominion over them, by seizing and taking control of them, and so interfere with them that if he had not the execution or other right to them, his act would be an actual or constructive trespass. While actual manual seizure is not necessary, the officer must assume dominion and control over the goods, and they must be present or subject to his control, and his possession must be actual or what amounts to the same thing. Etheridge v. Edwards, 31 Tenn. 426, 1852 Tenn. LEXIS 134 (1852); Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859).

A valid levy which will vest the title of personal property in the levying officer does not consist alone in writing out the levy on the process, but the property must in fact be seized or taken control of by the officer. Evans v. Higdon, 60 Tenn. 245, 1872 Tenn. LEXIS 481 (1873); Syler v. Denton, 1 Shan. 321 (1874).

6. —Seeing But Not Taking.

The writing of a levy on property under lock and key, seen through a crack, and leaving it, upon the promise of one not having the legal possession thereof to keep it for the officer, is not a sufficient levy as against a subsequent valid levy and seizure. Evans v. Higdon, 60 Tenn. 245, 1872 Tenn. LEXIS 481 (1873).

A levy on bulky articles in a closed cellar, which were seen by the officer through an opening of the cellar door which was fastened, will be good if the article be kept in view by the officer until surrendered by the debtor. Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880).

7. —Breaking In.

Where the property of the execution defendant is in the smokehouse of a third person, within the curtilage of his mansion house, a demand for admittance and a refusal are sary before the sheriff can violently break open such house, for the purpose of levying execution upon the property of such defendant. Douglass v. State, 14 Tenn. 524, 14 Tenn. 525, 1834 Tenn. LEXIS 137 (1834).

A levy of an attachment upon the goods of the debtor is valid and effectual, although the officer effected it in the nighttime, by opening a window or forcing an outer door of a storehouse in which the goods were stored. Solinsky v. Lincoln Sav. Bank, 85 Tenn. 368, 4 S.W. 836, 1886 Tenn. LEXIS 58 (1887).

8. —Noting on Execution After Levy.

The officer need not, at the moment of the levy, endorse his action on the execution, but it is sufficient if he goes into the presence of the property levied upon, with the power and purpose then and there to seize it, and really assuming control of the property with the knowledge of the execution debtor, noting the fact of the levy upon the execution or a separate paper, and subsequently endorsing it properly on the execution. Nighbert v. Hornsby, 100 Tenn. 82, 42 S.W. 1060, 1897 Tenn. LEXIS 91, 66 Am. St. Rep. 736 (1897).

9. —Levy of Second Execution.

The levying officer's title to personalty levied on is not lost or waived by a second levy under an alias execution, nor by delivery bond on the alias without forfeiture. Evans v. Barnes, 32 Tenn. 292, 1852 Tenn. LEXIS 67 (1852); Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859).

Personalty levied on by one officer may be levied on by another officer, by and with the consent of the officer making the first levy, who may agree to hold the surplus proceeds for the second execution. Tyler v. Dunton, 1 Cooper's Tenn. Ch. 361 (1873); Syler v. Denton, 1 Shan. 321 (1874).

Where an execution is levied upon the defendant's personalty which is taken possession of by the levying officer, the subsequent levy of another execution by another officer will be void, in the absence of any agreement between the first and second levying officers as to the joint possession of the property. Syler v. Denton, 1 Shan. 321 (1874).

10. —Sale Under Subsequent Levy.

Where personal property was taken by officer under levy of execution, and because of error in advertising, a new levy was made under which sale was made, such subsequent levy did not render prior levy void as against an intervening mortgage. Sampson v. Maury Nat'l Bank, 8 Tenn. App. 275, — S.W.2d —, 1928 Tenn. App. LEXIS 139 (Tenn. Ct. App. 1928).

11. —Execution and Attachment Distinguished.

The levy of an execution upon personal property invests the levying officer with the title thereto, but the levy of an attachment does not divest the debtor of the title to the property, but simply creates a lien upon it. Herman v. Katz, 101 Tenn. 118, 47 S.W. 86, 1898 Tenn. LEXIS 39, 41 L.R.A. 700 (1897).

12. Execution Lien on Personalty.

13. —Accrual of Lien.

Several executions issued upon several judgments rendered against the same defendant, upon different days of the same term of the court, as shown by the record, will, as between the judgment creditors, equally relate to their testes, though the judgments were rendered on different days of the term; and the court will order the same to be paid to the several creditors pro rata. Porter v. Earthman, 12 Tenn. 358, 1833 Tenn. LEXIS 72 (1833); Longstreet v. Hill, 58 Tenn. 53, 1872 Tenn. LEXIS 227 (1872).

The execution, and not the judgment, creates the lien upon personal property, and the lien is operative from the teste of the execution to its return day, unless sooner returned without levy. Union Bank v. McClung, 28 Tenn. 91, 1848 Tenn. LEXIS 47 (1848).

The lien of an execution on the personal property of the execution debtor commences only from its teste, and never extends beyond it, and ends with its return not levied; and, therefore, an alias execution, tested of the term to which the original execution was returnable, does not operate as a lien upon personal property by relation to the date of the judgment, but only to its teste, the return day of the first execution, and it has no priority of satisfaction out of property levied upon, over executions tested of the same term, and issued on judgments recovered at that term. Union Bank v. McClung, 28 Tenn. 91, 1848 Tenn. LEXIS 47 (1848); Barnes v. Hayes, 31 Tenn. 304, 1851 Tenn. LEXIS 72 (1851); Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887).

If the minutes of the court do not show the time of day at which the court convened, the judgments rendered on that day relate to the first moment thereof, and executions issued thereon, and tested of that term, create liens on the personalty of the execution debtor from that time. Cox v. Hodge, 31 Tenn. 371, 1851 Tenn. LEXIS 84 (1851).

The lien of an execution issued upon the judgment of a court of record relates to its teste, and attaches to all personalty owned by the judgment debtor between the teste and the levy of the execution, so as to defeat all intermediate transfers and purchasers, whether the personalty was owned at such teste or was acquired between the teste and levy, though he may have sold the same before the levy was made. Barnes v. Hayes, 31 Tenn. 304, 1851 Tenn. LEXIS 72 (1851); Mosely v. Baker, 34 Tenn. 362, 1854 Tenn. LEXIS 54 (1854); Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887); Cecil v. Carson, 86 Tenn. 139, 5 S.W. 532, 1887 Tenn. LEXIS 30 (1887).

The relation of the lien of an execution to its teste, so as to overreach intermediate transfers of personal chattels, is a pure fiction of law that ought not to be indulged further than the courts are bound to go by the well settled law; and such fictions should not be extended so as to work injustice. Rocco v. Parczyk, 77 Tenn. 328, 1882 Tenn. LEXIS 58 (1882).

14. —Issuance to Wrong County — Correction.

Where an execution has been, by mistake, misdirected to one county, it may be withdrawn and returned, before action had on it, and the direction may be changed to another county, without losing its lien on personalty in that county. Parrish v. Saunders & Martin, 22 Tenn. 431, 1842 Tenn. LEXIS 117 (1842).

15. —Personalty in County.

The lien of an execution attaches only to the execution debtor's personalty in the county to which the execution is issued. Smith v. United States Fire Ins. Co., 126 Tenn. 435, 150 S.W. 97, 1912 Tenn. LEXIS 68, 45 L.R.A. (n.s.) 266 (1912).

16. —Loss of Lien.

The lien acquired by an execution and levy is stricti juris, and may readily be lost by laches, or release of the property and the giving of time to the defendant by the plaintiff, or by any improper interference on the part of the plaintiff. Porter's Lessee v. Cocke, 7 Tenn. 29, 7 Tenn. 30, 1823 Tenn. LEXIS 2 (1823); Hickman v. Murfree, 8 Tenn. 26, 1827 Tenn. LEXIS 2 (1827); Daley v. Perry, 17 Tenn. 442, 1836 Tenn. LEXIS 82 (1836).

Where an execution creditor had acquired a prior lien on personal property by the levy of an execution tested before that of another execution, and thereafter procured the judgment debtor to convey in trust the property so levied on to secure his debt, which operated to release the levy, the property then became subject to be levied on by a junior execution bearing teste previous to the conveyance. Daley v. Perry, 17 Tenn. 442, 1836 Tenn. LEXIS 82 (1836); Sandeford v. Hess, 39 Tenn. 680, 1859 Tenn. LEXIS 300 (Tenn. Apr. 1859).

The lien of an execution levy on personalty is not destroyed by taking a delivery bond, but continues until the bond is forfeited; but the forfeiture thereof destroys the lien. Malone v. Abbott, 22 Tenn. 532, 1842 Tenn. LEXIS 138 (1842); Lester's Case, 23 Tenn. 383, 1843 Tenn. LEXIS 121 (1843); Dechard v. Edwards, 34 Tenn. 93, 1854 Tenn. LEXIS 19 (1854); James v. Kennedy, 57 Tenn. 607, 1873 Tenn. LEXIS 274 (1873); Haynes v. Jordon, 3 Shan. 29 (1878).

17. —Priority Between State and Federal.

As between executions from the federal and state courts, there is no lien until actual levy and seizure, and the one first levied has priority, for priority of lien depends upon actual seizure under levy, and not upon the testes of the executions, nor the dates of the judgments. Schaller & Gerke v. Wickersham, 47 Tenn. 376, 1870 Tenn. LEXIS 157 (1870); Longstreet v. Hill, 58 Tenn. 53, 1872 Tenn. LEXIS 227 (1872); James v. Kennedy, 57 Tenn. 607, 1873 Tenn. LEXIS 274 (1873).

18. —Priority Between State Courts.

Executions from state courts have priority according to teste, where the executions are tested as of terms after the rendition of the judgments, regardless of the counties from which they may come, for the lien relates to the teste as to all the debtor's personalty in the state, in whatever county it may be, if the execution is sent to that county. Coffee v. Wray, 16 Tenn. 464, 1835 Tenn. LEXIS 108 (1835); Daley v. Perry, 17 Tenn. 442, 1836 Tenn. LEXIS 82 (1836); Berry v. Clements, 28 Tenn. 312, 1848 Tenn. LEXIS 85 (1848), rev'd, 52 U.S. 398, 13 L. Ed. 745, 1850 U.S. LEXIS 1517 (1851); Peck v. Robinson, 40 Tenn. 438, 1859 Tenn. LEXIS 122 (1859); Cecil v. Carson, 86 Tenn. 139, 5 S.W. 532, 1887 Tenn. LEXIS 30 (1887).

19. —Priority Between Judgments.

Where executions are issued from different courts, bearing testes from the terms at which the judgments were rendered, and levies and sales of personalty are made under them, the execution founded upon the oldest judgment is entitled to the first satisfaction, it matters not which execution was in fact issued first. Porter's Lessee v. Cocke, 7 Tenn. 29, 7 Tenn. 30, 1823 Tenn. LEXIS 2 (1823); Porter v. Earthman, 12 Tenn. 358, 1833 Tenn. LEXIS 72 (1833); Coffee v. Wray, 16 Tenn. 464, 1835 Tenn. LEXIS 108 (1835); Daley v. Perry, 17 Tenn. 442, 1836 Tenn. LEXIS 82 (1836); Peck v. Robinson, 40 Tenn. 438, 1859 Tenn. LEXIS 122 (1859); Longstreet v. Hill, 58 Tenn. 53, 1872 Tenn. LEXIS 227 (1872).

20. —Postponement by Replevin Suit.

The lien of the execution levy on personalty is not destroyed by a replevin suit, but is only postponed until its final determination against the title of the levying officer. Hunn v. Hough, 52 Tenn. 708, 1871 Tenn. LEXIS 301 (1871).

21. —Debtor Dying After Teste.

Lien of execution on personalty relates to its teste, unless the judgment or decree is rendered after the teste, and then the relation is to the date of the rendition of the judgment or decree. An execution issued after the death of a judgment debtor, on a judgment rendered previous thereto, but tested before his death, relates to the teste which is the first day of the term preceding its issuance, and binds his personal property from that date, unless the teste antedates the judgment, and then the lien relates to the date of the judgment. This is so, even if the estate of the deceased judgment debtor is insolvent. Harvey v. Berry, Demobille & Co., 60 Tenn. 252, 1872 Tenn. LEXIS 483 (1873); Rocco v. Parczyk, 77 Tenn. 328, 1882 Tenn. LEXIS 58 (1882); Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887); Cecil v. Carson, 86 Tenn. 139, 5 S.W. 532, 1887 Tenn. LEXIS 30 (1887); Nashville Trust Co. v. Weaver, 102 Tenn. 66, 50 S.W. 763, 1898 Tenn. LEXIS 8 (1899).

22. —Debtor Dying Before Teste.

Execution tested after the death of the judgment debtor is void, and constitutes no lien upon the personal property of the deceased, and a sale under it will communicate no title as against the personal representative. Gwin v. Latimer, 12 Tenn. 22, 1833 Tenn. LEXIS 7 (1833); McMahon v. Glasscock, 13 Tenn. 304 (1833).

23. —Plaintiff Dying After Teste.

If the plaintiff die after the teste of the execution, whether before or after it was actually issued, it may be executed, notwithstanding his death, and the money will go to his personal representative, or can be paid into court to await the appointment of one. Black v. Planters' Bank, 23 Tenn. 367, 1843 Tenn. LEXIS 115 (1843); Neil v. Gaut, 41 Tenn. 396, 1860 Tenn. LEXIS 81 (1860); Harvey v. Berry, Demobille & Co., 60 Tenn. 252, 1872 Tenn. LEXIS 483 (1873); Nashville Trust Co. v. Weaver, 102 Tenn. 66, 50 S.W. 763, 1898 Tenn. LEXIS 8 (1899).

24. —Growing Crops.

A growing crop is not subject to levy until the 15th of November, and is not subject to the execution lien by relation to its teste until that date, so as to overreach or defeat a prior bona fide sale thereof by the owner. Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887).

25. —Garnishment Lien.

Where a chose in action is sought to be reached under this doctrine, then since the chose is one for garnishment or a proceeding in the nature of garnishment it seems that the lien on such should date only from the proceeding in the nature of garnishment, and not relate to teste. Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

26. —Time of Sale.

The levy of an execution on personal property of the debtor vests the title to the property in the levying officer, and he is thereby authorized to sell the same at any time, even after the execution has become functus officio. Cook v. Smith, 9 Tenn. 148, 1829 Tenn. LEXIS 29 (1829); Evans v. Barnes, 32 Tenn. 292, 1852 Tenn. LEXIS 67 (1852); Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859); Bradley & Dortch v. Kesee, 45 Tenn. 223, 1867 Tenn. LEXIS 120 (1867); Fry v. Manlove, 60 Tenn. 256, 1872 Tenn. LEXIS 484, 25 Am. Rep. 775 (1872); Syler v. Denton, 1 Shan. 321 (1874).

A sheriff who has levied an execution on personalty may sell the same, after the return day of the writ, and even after the expiration of his term of office, without a venditioni exponas. Overton v. Perkins, 18 Tenn. 328, 1837 Tenn. LEXIS 29 (1837); Lester's Case, 23 Tenn. 383, 1843 Tenn. LEXIS 121 (1843); Barnes v. Hayes, 31 Tenn. 304, 1851 Tenn. LEXIS 72 (1851); Evans v. Barnes, 32 Tenn. 292, 1852 Tenn. LEXIS 67 (1852); Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859).

27. Rights of Other Persons.

28. —Leaving Property with Debtor.

If the goods levied on under an execution are permitted to remain in the possession of the debtor for an unreasonable length of time, or if the creditor, desiring to favor the debtor, instruct the officer to delay and not to proceed with the execution, the goods remaining in the debtor's possession and use, the execution will be deemed fraudulent as to creditors and purchasers. Etheridge v. Edwards, 31 Tenn. 426, 1852 Tenn. LEXIS 134 (1852); Anderson v. Talbot, 48 Tenn. 407, 1870 Tenn. LEXIS 77 (1870); Mann v. Roberts, 79 Tenn. 57, 1883 Tenn. LEXIS 13 (1883).

Leaving property with debtor or another as the officer's agent will not affect levy. Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859); Turney v. Carter, 62 Tenn. 199, 1873 Tenn. LEXIS 168 (1873); Tyler v. Dunton, 1 Cooper's Tenn. Ch. 361 (1873); Syler v. Denton, 1 Shan. 321 (1874); Nighbert v. Hornsby, 100 Tenn. 82, 42 S.W. 1060, 1897 Tenn. LEXIS 91, 66 Am. St. Rep. 736 (1897).

29. —Lien Against Bona Fide Purchasers.

A judgment or decree and execution binds the personal property of the judgment debtor from the rendition of the judgment, where the execution was issued and tested of the term at which the judgment was rendered, so that the execution relates to the date of the judgment, as against a bona fide sale or transfer, or as against a bona fide purchaser or assignee from the debtor, though he purchased before the execution had been issued and levied, but as against the debtor and all other parties from the teste of the execution. Battle v. Bering, 15 Tenn. 528, 15 Tenn. 529, 1835 Tenn. LEXIS 42 (1835); Cox v. Hodge, 31 Tenn. 371, 1851 Tenn. LEXIS 84 (1851); Cecil v. Carson, 86 Tenn. 139, 5 S.W. 532, 1887 Tenn. LEXIS 30 (1887).

30. Objections to Levy — Waiver.

Where the execution debtor gave the officer a description of the property levied upon, assented to the levy as it was made, and executed a statutory bond for its delivery, he thereby waived the objection that the property was not in sight, nor accessible to the officer, nor in any way subject to his dominion, at the time of the levy, and the levy is good as to him, whether it may be so as to others, and he is estopped to attack its validity. Ballard v. Dibrell, 94 Tenn. 229, 28 S.W. 1087, 1894 Tenn. LEXIS 38 (1895).

31. Levy on Land.

32. —Description Sufficient.

A levy upon real estate must be sufficiently definite to enable the purchaser to ascertain the nature and value of the property, and to furnish the means of knowing what land is to be sold; and there must be such ascertainment of identity by description, as shall prevent one piece of land from being sold, and another distinct piece conveyed. Gibbs v. Thompson, 26 Tenn. 179, 1846 Tenn. LEXIS 96 (1846); Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849); Wright v. Watson, 30 Tenn. 529, 1851 Tenn. LEXIS 96 (1851); Trotter v. Nelson, 31 Tenn. 7, 1851 Tenn. LEXIS 2 (1851); Brigance v. Erwin's Lessee, 31 Tenn. 375, 1852 Tenn. LEXIS 120 (1852); Lafferty v. Conn, 35 Tenn. 221, 1855 Tenn. LEXIS 43 (1855); Dobson v. Litton, 45 Tenn. 616, 1868 Tenn. LEXIS 54 (1868); Riley v. Frost, 2 Shan. 333 (1877).

The sale of land based on the levy of a justice's execution is not void upon the ground that it is not stated in the levy or order of sale that the land lies in the county in which the judgment was rendered, where the description is otherwise full and good, and it is stated in the levy that the land lies on a certain named creek. Wright v. Watson, 30 Tenn. 529, 1851 Tenn. LEXIS 96 (1851).

Where the levy describes the land by the lands bounding it on the four sides, when, in fact, there is another small tract lying between the land levied on and one of the tracts given as the boundary lands on one side, the description is sufficient. Easley v. McLaren, 60 Tenn. 1, 1871 Tenn. LEXIS 432 (1871).

The land must be so described in the levy by giving the county and civil district in which it lies, such natural objects, if there be any, as will serve to guide a person to the locality, and the necessary metes and bounds to include the land, or such other description of boundaries as, by reference to other adjoining tracts, will distinguish the tract levied on from any other tract of land owned by the same party in that vicinity, and the name of the owner must be given. Easley v. McLaren, 60 Tenn. 1, 1871 Tenn. LEXIS 432 (1871); Stephens v. Taylor, 74 Tenn. 307, 1880 Tenn. LEXIS 253 (1880).

A levy on land giving the general boundaries, by stating whose lands bound it on three sides, but omitting one side, is sufficient, especially where the number of acres is also given, together with other general local description. Easley v. McLaren, 60 Tenn. 1, 1871 Tenn. LEXIS 432 (1871); Stephens v. Taylor, 74 Tenn. 307, 1880 Tenn. LEXIS 253 (1880).

A levy on “all the defendant's right, title, and interest in the land,” or on “the defendant's undivided interest in the land,” sufficiently describing the land, without stating what his interest is, is sufficient, even to pass his undivided interest in a remainder or reversionary estate in the land, without levying on it and selling it as such, for it passes under the general terms. Davis v. Goforth, 69 Tenn. 31, 1878 Tenn. LEXIS 34 (1878).

33. —Insufficient Descriptions — Examples.

The levy on lands must show their location to a reasonable certainty, and a levy in these words: “Levied on eight thousand acres of land lying in four tracts,” is bad, and a sale under it is void. Pound v. Pullen's Lessee, 11 Tenn. 338, 1832 Tenn. LEXIS 57 (1832).

The levy of an execution in these words: “Levied on lot No. —, in the town of Greenville, with its improvements,” is void for uncertainty, and a sale and deed made by virtue thereof convey no title to the vendee. Brown v. Dickson, 21 Tenn. 395, 1841 Tenn. LEXIS 24 (1841).

A levy upon “all the unsold land of the defendant in a forty thousand acre tract” is entirely too vague, and a sale under it will convey no title. Huddleston v. Garrott, 22 Tenn. 629, 1842 Tenn. LEXIS 166 (1842).

A return as to description in these words: “Levied on 471 acres of land lying in the fifth district, adjoining the land of C. Cannon, H. M. Thomas and others; levied on as the property of James H. P. Porter, Sr.,” is insufficient in description, though it is otherwise good. Porter v. Fine, 1 Shan. 21 (1848).

The levy of an execution in these words: “Levied… on nineteen hundred and fifty acres of land in Henderson County, part of a tract of 2,500 acres located by Daniel Gilchrist,” is void for uncertainty, and a sale thereunder communicated no title to the purchaser. Brigance v. Erwin's Lessee, 31 Tenn. 375, 1852 Tenn. LEXIS 120 (1852).

A levy of an execution in these words: “Levied on three hundred and fifty acres of land, the property of Edmond Collins,” is void for uncertainty. Lafferty v. Conn, 35 Tenn. 221, 1855 Tenn. LEXIS 43 (1855).

Description in levy as follows: “Levied … on one hundred acres of land, the property of Salathiel Riley and Francis Fannin, adjoining lands of Joel W. Jarvis, in fifth district,” is insufficient, and the sheriff's deed upon same is inoperative, and not an assurance of title, or an effective muniment to create a title under the statute of limitations. Riley v. Frost, 2 Shan. 333 (1877).

34. —Sheriff's Deed Aiding Description.

The levy of an execution on land in these words: “Levied on the right, title, claim, and interest that John Doak has in and to seventy acres of land lying on the waters of the west fork of Stone's river,” is sufficient, when followed by the sheriff's deed defining its locality with precision. Parker v. Swan, 20 Tenn. 80, 1839 Tenn. LEXIS 19 (1839); Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849); Riley v. Frost, 2 Shan. 333 (1877); Christian v. Mynatt, 79 Tenn. 615, 1883 Tenn. LEXIS 115 (1883).

The levy of an execution “on one tract of land adjoining the lands of Jas. McDondel, Thos. Cannon and others, containing one hundred and sixty acres,” is too vague and uncertain, and is not sustained by the sheriff's deed, made by a different person, describing the land by metes and bounds, and as “adjoining the lands of James McDonald and Thomas Cannon,” especially where there was a discrepancy or variance between the location and description of the lands in the levy, notice to defendant, and also in the sheriff's deed which distinguish this case from the other cases. Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849).

35. —Incorporating Descriptions by Reference.

Levy void for uncertainty in description is not helped by reference to a newspaper advertisement which forms no part of the record; as, where a levy on land is made in these words: “Levied this execution on three tracts of land; one tract containing 300 acres, one containing 30 or 40 acres, one other containing 110 acres, as the property of Haywood Cozart, all in the county of Carroll. See advertisement in newspapers for description.” Taylor's Lessee v. Cozart, 23 Tenn. 433, 1844 Tenn. LEXIS 128 (1844).

Levy containing defective description of land may be made valid by reference to an attached advertisement containing a sufficient description which is copied into the return, thus becoming a part of the record; and such return makes good what was deficient in the levy. Gibbs v. Thompson, 26 Tenn. 179, 1846 Tenn. LEXIS 96 (1846).

If the levy refer to a deed or other title paper of record, to which convenient access may be had, it thereby incorporates in itself the description contained in the deed or title paper referred to. Brigance v. Erwin's Lessee, 31 Tenn. 375, 1852 Tenn. LEXIS 120 (1852).

36. —Amendment of Sheriff's Return to Aid Description.

After an execution has been returned, an amendment to the sheriff's return, so to give a new or different description of the land levied upon, and thereby substitute a sufficient return for one wholly inoperative, insufficient, and void, will not be allowed by the court. Porter v. Fine, 1 Shan. 21 (1848).

37. Execution Lien on Land.

38. —Adverse Proceedings — Effect.

The lien fixed by the levy of execution is not destroyed, but merely suspended, by an injunction or supersedeas, or such other adverse proceeding that stops its enforcement, unless the same be made perpetual on the hearing, but upon the dismissal of such injunction or supersedeas the lien of the levy may be enforced. The execution creditor may also have a judgment on the injunction or supersedeas bond, in addition to the lien. Porter's Lessee v. Cocke, 7 Tenn. 29, 7 Tenn. 30, 1823 Tenn. LEXIS 2 (1823); Overton v. Perkins, 8 Tenn. 367, 1828 Tenn. LEXIS 14 (1828); Miller's Lessee v. Estill, 16 Tenn. 452, 1835 Tenn. LEXIS 106 (1835); Overton v. Perkins, 18 Tenn. 328, 1837 Tenn. LEXIS 29 (1837); McCamy v. Lawson, 40 Tenn. 256, 1859 Tenn. LEXIS 69 (1859); Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866); Littleton v. Yost, 71 Tenn. 267, 1879 Tenn. LEXIS 73 (1879); McKnight v. Hughes, 72 Tenn. 522, 1880 Tenn. LEXIS 56 (1880); Anderson v. Taylor, 74 Tenn. 382, 1880 Tenn. LEXIS 262 (1880); Rocco v. Parczyk, 77 Tenn. 328, 1882 Tenn. LEXIS 58 (1882).

39. —Delay of Purchaser to Get Deed as Abandonment of Lien.

Where the purchaser at a sale under condemnation by the circuit court after levy of an execution from a judgment delayed getting a sheriff's deed for over eight years, his delay, unexplained, was a gross negligence, amounting to an abandonment of his lien, and a subsequent purchaser without notice, who recorded his deed, had superior title, though the court purchaser finally took a deed, for such deed did not relate back to the levy. Hammock v. Qualls, 139 Tenn. 388, 201 S.W. 517, 1917 Tenn. LEXIS 114 (1918).

40. —Death of Debtor — Effect as to Lien.

Where a lien has been fixed upon land by the levy of an execution or attachment, and the debtor dies before a valid sale, there must be a revivor of the judgment or attachment suit against the personal representative and the exhaustion of personal assets, before the lien can be enforced by a sale of the land; but where there is a judgment lien on the land, it may be enforced after the judgment debtor's death, by an execution bearing teste before his death, though issued and levied on the lands subject to the judgment lien, after such debtor's death. Green v. Shaver, 22 Tenn. 139, 1842 Tenn. LEXIS 47 (1842); Stockard v. Pinkard, 25 Tenn. 119, 1845 Tenn. LEXIS 39 (1845); Perkins' Heirs v. Norvell, 25 Tenn. 151, 1845 Tenn. LEXIS 49 (1845); Bryant v. McCollum, 51 Tenn. 511, 1871 Tenn. LEXIS 197 (1871); Ashworth v. Demier & Boyles, 60 Tenn. 323, 1872 Tenn. LEXIS 500 (1872); Hewgly v. Johns, 62 Tenn. 85, 1873 Tenn. LEXIS 146 (1873); McKnight v. Hughes, 72 Tenn. 522, 1880 Tenn. LEXIS 56 (1880); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880); Montgomery v. Realhafer, 85 Tenn. 668, 5 S.W. 54, 1887 Tenn. LEXIS 9, 4 Am. St. Rep. 780 (1887).

A sale of land under an execution issued and tested after the death of the judgment debtor, without revivor, is void, though the judgment is a lien on the land; but a sale of land under an execution issued after, but tested before, the judgment debtor's death, without revivor, is valid. Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880); Montgomery v. Realhafer, 85 Tenn. 668, 5 S.W. 54, 1887 Tenn. LEXIS 9, 4 Am. St. Rep. 780 (1887).

41. —Effect on Title.

The levy of an execution on land does not divest the owner of his title, nor vest any title or interest on the levying officer. Rutherford v. Read, 25 Tenn. 423, 1846 Tenn. LEXIS 8 (1846); Crutsinger v. Catron, 29 Tenn. 24, 1848 Tenn. LEXIS 33 (1848), overruled in part, Heirs of Marr v. Gilliam, 41 Tenn. 488, 1860 Tenn. LEXIS 96 (1860); Rogers' Lessee v. Cawood, 31 Tenn. 142, 1851 Tenn. LEXIS 36 (1851); Evans v. Barnes, 32 Tenn. 292, 1852 Tenn. LEXIS 67 (1852); Harman v. Hann, 65 Tenn. 90, 1873 Tenn. LEXIS 307 (1873); Watson v. Read, 1 Cooper's Tenn. Ch. 196; Hammock v. Qualls, 139 Tenn. 388, 201 S.W. 517, 1917 Tenn. LEXIS 114 (1918).

42. —Relation of Lien to Levy Date.

The lien on an execution levied upon land is confined to the date of the levy, and does not relate to the teste of the execution. Anderson v. Taylor, 74 Tenn. 382, 1880 Tenn. LEXIS 262 (1880); Montgomery v. Realhafer, 85 Tenn. 668, 5 S.W. 54, 1887 Tenn. LEXIS 9, 4 Am. St. Rep. 780 (1887).

43. —Proper Use of Execution.

The only proper use of an execution is to enforce, with diligence, the collection of a debt; and the creditor cannot use it merely as security for his debt by a levy on the property which creates merely a secret lien. Hammock v. Qualls, 139 Tenn. 388, 201 S.W. 517, 1917 Tenn. LEXIS 114 (1918).

NOTES TO DECISIONS

1. Delivery Bond Formalities.

2. —Necessity of Writing.

Delivery bond must be in writing, and a parol agreement by a person as surety for the delivery of the property is void, and all proceedings thereunder are void. Martin v. England, 13 Tenn. 313, 1833 Tenn. LEXIS 180 (1833).

3. —Signing — Sufficiency.

Bond need not be signed by debtor, and it is sufficient if it be executed by the surety, who thereby becomes liable on the bond, for the execution debtor is liable without bond. Love v. Smith, 12 Tenn. 116, 12 Tenn. 117, 1833 Tenn. LEXIS 24 (1833).

4. Delivery Bond — Effect.

5. —Generally.

The owner of property in the custody of the law may regain possession, upon giving bond to have the property forthcoming at the proper time. Williams v. Noland, 2 Cooper's Tenn. Ch. 151 (1874); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875).

6. —Failure to Take Bond When Debtor in Possession.

It is always safer for the officer to take such a bond; his failure to do so does not affect the validity of the levy. Nighbert v. Hornsby, 100 Tenn. 82, 42 S.W. 1060, 1897 Tenn. LEXIS 91, 66 Am. St. Rep. 736 (1897).

7. —Effect of Bond on Lien of Levy.

The lien of an execution created by levy continues after the execution of the bond, and until the bond is forfeited. On forfeiture, the lien is gone and purchaser from execution debtor protected. Malone v. Abbott, 22 Tenn. 532, 1842 Tenn. LEXIS 138 (1842).

8. —Reformation of Bond.

A recital in the condition of a delivery bond, as to the ownership of the property, unnoticed and signed by mistake inconsiderately, will be relieved against in chancery, by reforming the bond and enjoining the obligee from pleading it as an estoppel against the true owner so signing the bond. Helm v. Wright, 21 Tenn. 72, 1840 Tenn. LEXIS 33 (1840); Decherd v. Blanton, 35 Tenn. 373, 1855 Tenn. LEXIS 74 (1855); Seay v. Ferguson, 1 Cooper's Tenn. Ch. 287 (1873); Harding v. Egin, 2 Cooper's Tenn. Ch. 39 (1874); Bigham v. Madison, 103 Tenn. 358, 52 S.W. 1074, 1899 Tenn. LEXIS 116, 47 L.R.A. 267 (1899), criticized, Acuff v. Allen, 28 Tenn. App. 451, 191 S.W.2d 196, 1945 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1945).

9. —Delivery After Return Day Stipulated.

A bond, stipulating for the delivery of the property on a day subsequent to the return day of the execution, is a valid statutory bond, especially where there was not time to sell before the return day. Cheaires v. Alderson, 26 Tenn. 273, 1846 Tenn. LEXIS 123 (1846).

10. Stayor's Liability — Estoppel to Deny.

Stayor executing bond is estopped to deny his liability as stayor, after the levy on his property and the forfeiture of the bond executed for the delivery of the property. Neil v. Beaumont, 40 Tenn. 627, 1859 Tenn. LEXIS 185 (1859).

11. Liability of Sureties.

12. —Generally.

Where the sureties signed a bond under the impression and belief that there had been a valid levy on the property, created by the misrepresentation of the levying officer, when in fact a valid levy had not been made, they will not be liable for the nondelivery of the property. Bradley & Dortch v. Kesee, 45 Tenn. 223, 1867 Tenn. LEXIS 120 (1867).

The obligors on a bond will be held liable thereon, unless all the property embraced therein be delivered or tendered to the officer at the time and place stipulated. If only a part of the property be delivered or tendered, the court will not consider the question whether this was not ample to satisfy the execution. Galloway v. Myers, 54 Tenn. 709, 1872 Tenn. LEXIS 107 (1872).

13. —Release of Sureties.

A surety on such bond is released by amendment in circuit court of warrant and attachment before justice (now general sessions court) changing action by partners in trade-name to an action by individuals composing the firm. Smith v. Modern Bakery, 165 Tenn. 508, 56 S.W.2d 163, 1932 Tenn. LEXIS 77 (1933).

14. —Subrogation of Surety.

The surety in the delivery bond, by substitution, even before payment of the debt, succeeds to all the equities of the creditor for the protection of the property and for its proper application, and may have his relief in chancery independently of the creditor, or they may sue jointly. Dechard v. Edwards, 34 Tenn. 93, 1854 Tenn. LEXIS 19 (1854); James v. Kennedy, 57 Tenn. 607, 1873 Tenn. LEXIS 274 (1873); Watson v. Sutherland, 1 Cooper's Tenn. Ch. 208 (1873).

15. —Surety's Estoppel to Claim Property.

The mere joining in a bond will not prevent a person from claiming the property, especially where the bond does not recite that the property was levied on as that of the execution debtor. Helm v. Wright, 21 Tenn. 72, 1840 Tenn. LEXIS 33 (1840); Decherd v. Blanton, 35 Tenn. 373, 1855 Tenn. LEXIS 74 (1855); Memphis Water Co. v. Magens & Co., 83 Tenn. 37, 1885 Tenn. LEXIS 15 (1885).

16. —Surety on Original Debt.

Where the principal debtor executes a bond, his surety on the original debt, not signing the bond, is liable after remedies on the bond have been exhausted. Sypert v. Frazier, 1 Shan. 557 (1876).

17. —Several Executions on Same Property.

Where several executions, bearing the same teste and being an equal lien, were levied on the same property, the obligors in a bond executed to the plaintiffs in one of the executions, conditioned to deliver the whole property, will be bound to deliver only so much of it as will be of value sufficient to satisfy the proportion of the execution of the obligees to which they would be entitled as against the plaintiffs in the other executions. Kercheval v. Harney, 19 Tenn. 403, 1838 Tenn. LEXIS 69 (1838).

18. Parties Plaintiff to Bill to Protect Bond.

The parties to a bond and the levying officer have all such an interest therein, as to entitle them to unite in any legal measure for its protection and proper application. The execution debtor, the sureties on the delivery bond, and the levying officer may unite in a bill in chancery to protect the property and to enforce the lien of the levy prior to the issuance and levy of an attachment. Dechard v. Edwards, 34 Tenn. 93, 1854 Tenn. LEXIS 19 (1854).

NOTES TO DECISIONS

1. Extent of Sureties' Liability.

The sureties are not liable for more than the value of the property levied on and stipulated to be delivered. Love v. Smith, 12 Tenn. 116, 12 Tenn. 117, 1833 Tenn. LEXIS 24 (1833); Kercheval v. Harney, 19 Tenn. 403, 1838 Tenn. LEXIS 69 (1838).

NOTES TO DECISIONS

1. Statutory Remedy — Effect on Common Law Remedy.

The bond is the obligation of the parties, and the summary remedy, given upon it by statute, does not take away the common law remedy by action. Fossett v. Turnage, 28 Tenn. 686, 1849 Tenn. LEXIS 107 (1849).

2. Status of Forfeited Bond.

While a forfeited delivery bond is not a judgment, by statute it has the force and effect of a judgment, so as to authorize and sustain an execution. It may be termed a quasi judgment. Malone v. Abbott, 22 Tenn. 532, 1842 Tenn. LEXIS 138 (1842); Lester's Case, 23 Tenn. 383, 1843 Tenn. LEXIS 121 (1843).

3. Showing to Supersede Execution on Bond.

Where the surety seeks to supersede an execution issued on a forfeited delivery bond, he must show a delivery or tender of the property, at the time and place specified in the conditions of the bond, or some legal excuse for nonperformance and delivery. Atkinson v. Rhea, 26 Tenn. 59, 1846 Tenn. LEXIS 56 (1846); Mosely v. Baker, 34 Tenn. 362, 1854 Tenn. LEXIS 54 (1854); Bryan v. Spurgin, 37 Tenn. 681, 1858 Tenn. LEXIS 97 (1858); Green v. Smith, 44 Tenn. 436, 1867 Tenn. LEXIS 67 (1867); Wall v. Pulliam, 52 Tenn. 365, 1871 Tenn. LEXIS 269 (1871); Green v. Lanier, 52 Tenn. 662, 1871 Tenn. LEXIS 294 (1871); Bobo v. Patton, 53 Tenn. 172, 1871 Tenn. LEXIS 338, 19 Am. Rep. 593 (1871); Davenport v. Harbert, 2 Shan. 287 (1877).

4. Officer — Right to Enforce Bond.

An officer cannot enforce a forfeited delivery bond taken by him, unless he has been made liable for and satisfied the judgment, or has suffered loss or injury by the nondelivery of the property as stipulated in the bond. If the officer, as such, has been made liable for the judgment, and has actually satisfied it, it may be that, upon an implied transfer of the judgment to him, by operation of law, he may resort to an action on the bond. Walker v. Howell, 41 Tenn. 238, 1860 Tenn. LEXIS 56 (1860).

NOTES TO DECISIONS

1. Cause for Enactment of Section.

The decisions made under the common law led to the enactment of this section, by which, in certain contingencies, the liability of the surety on the primary obligation is saved. Sypert v. Frazier, 1 Shan. 557 (1876).

2. Relief Against Defendants Not Joining in Bond.

The court was inclined to believe that the levy of an execution upon personal property of one of several defendants in a judgment, and the taking of a delivery bond with security from such defendant, which was forfeited, would not operate as a satisfaction of the judgment, or discharge from liability such of the defendants as might not have joined in the delivery bond; but if it were otherwise, remedy at law by quashing the execution was available. Williams v. Wright, 28 Tenn. 493, 1848 Tenn. LEXIS 109 (1848).

3. Judgment Paid by Surety — Effect.

Where a surety pays a judgment of foreclosure against his principal, he thereby discharges the lien of such judgment and opens the way for the rights of third parties purchasing or loaning money thereon to intervene, and he cannot assert the lien of the judgment by way of subrogation against a bona fide purchaser of the property from the principal after entry of satisfaction of the judgment. Fitts v. Terminal Warehousing Corp., 170 Tenn. 198, 93 S.W.2d 1265, 1935 Tenn. LEXIS 127 (1936).

4. Subrogation.

The doctrine of subrogation is not self-executing. Fitts v. Terminal Warehousing Corp., 170 Tenn. 198, 93 S.W.2d 1265, 1935 Tenn. LEXIS 127 (1936).

The right of subrogation is optional to be waived or enforced, as the paying surety may elect. Fitts v. Terminal Warehousing Corp., 170 Tenn. 198, 93 S.W.2d 1265, 1935 Tenn. LEXIS 127 (1936).

NOTES TO DECISIONS

1. Constitutionality.

2. —Imprisonment for Failure to Answer or Deliver Property.

3. —Retrospective Provisions.

4. Purpose of Enacting Statute.

5. Construction and Interpretation.

6. —Complaint Alleging New Causes of Action.

7. —Corporations.

8. —“Discovery of Any Property” — Meaning.

9. —Not Exemption Statute.

10. —Nulla Bona Return in Another State.

11. —“Return Unsatisfied” — Example.

12. —Stocks and Choses in Action.

13. Construction with Other Acts.

14. —Bankruptcy.

15. —Bill in Chancery.

16. Prerequisites to Chancery Jurisdiction.

17. —Generally.

18. —Issue of Execution and Return Nulla Bona.

19. —Return Nulla Bona.

20. Property Subject to Subjection.

21. —Generally.

22. —Nonresident Debtor of Resident Judgment Debtor as Party.

23. —Tracing Assets — Example.

24. —Money in Custody of Police.

25. —Funds in Court.

26. —Clerk's Fees in Hands of Successor.

27. —Cost of Commissioner in Partition Suit.

28. —Federal Postal Savings.

29. Trust Assets.

30. —Generally.

31. —Unregistered Decree Creating Trust.

32. —Vested Interest in Beneficiary.

33. —Vesting — Intent of Testator.

34. —Active Trusts.

35. —Grantor as Beneficiary.

36. Contributions by Beneficiary.

37. Procedure and Practice.

38. —Parties.

39. —Answer.

40. Nulla Bona Return as Evidence.

NOTES TO DECISIONS

1. Construction.

Notwithstanding this language, a bill will not lie upon nulla bona return to reach an asset or debt leviable at law, where no discovery is sought or needed and there is no impediment to enforcement by garnishment as at law, and there was involved no lien, fraud, trust or equitable interest in the property. Bryan v. Zarecor, 112 Tenn. 503, 81 S.W. 1252, 1903 Tenn. LEXIS 118 (1904).

2. Construction with Other Acts.

3. —Bill in Chancery.

This act should be read in connection with statutes relating to bills in chancery. Edwards v. Hawks, 189 Tenn. 17, 222 S.W.2d 28, 1949 Tenn. LEXIS 396 (1949).

4. —Bill for Assignment of Homestead.

Trustee of bankrupt to whom homestead had never been assigned was entitled to file a bill in chancery for an assignment of homestead rather than by filing bill for discovery of assets, since a bill to compel discovery of homestead was not necessary. Edwards v. Hawks, 189 Tenn. 17, 222 S.W.2d 28, 1949 Tenn. LEXIS 396 (1949).

5. —Declaratory Judgment.

In bill by judgment creditor seeking to reach deposit of judgment debtor in United States postal savings depository system chancellor had jurisdiction to issue declaratory judgment in favor of plaintiff. Bell-Dowlen Mills v. Draper, 169 Tenn. 112, 83 S.W.2d 247, 1935 Tenn. LEXIS 23 (1935), cert. denied, 296 U.S. 633, 56 S. Ct. 156, 80 L. Ed. 450, 1935 U.S. LEXIS 951 (1935).

6. —Federal Postal Savings Law.

Where judgment creditor filed bill in chancery court to reach deposits of debtor in United States postal savings depository system the chancellor was entitled to enjoin debtor from withdrawing deposit until plaintiff was able to proceed under federal law set forth in 39 U.S.C., § 767. Bell-Dowlen Mills v. Draper, 169 Tenn. 112, 83 S.W.2d 247, 1935 Tenn. LEXIS 23 (1935), cert. denied, 296 U.S. 633, 56 S. Ct. 156, 80 L. Ed. 450, 1935 U.S. LEXIS 951 (1935).

7. Property Subject — Widow's Dower.

Since widow's dower is subject to execution after assignment, chancery court can subject unassigned dower right to payment of judgment. North v. Puckett, 164 Tenn. 100, 46 S.W.2d 73, 1931 Tenn. LEXIS 18, 81 A.L.R. 1107 (1932).

8. Unrecorded Chancery Decree — Effect.

An unrecorded decree in chancery, which vests and divests title, is not the equivalent of a registered deed and is ineffectual as against creditors. White v. O'Bryan, 148 Tenn. 18, 251 S.W. 785, 1922 Tenn. LEXIS 77 (1922).

NOTES TO DECISIONS

1. Federal Postal Savings.

Where judgment creditor filed bill in chancery court to reach deposits of debtor in United States postal savings depository system the chancellor was entitled to enjoin debtor from withdrawing deposit until plaintiff was able to proceed under federal law set forth in 39 U.S.C. § 767. Bell-Dowlen Mills v. Draper, 169 Tenn. 112, 83 S.W.2d 247, 1935 Tenn. LEXIS 23 (1935), cert. denied, 296 U.S. 633, 56 S. Ct. 156, 80 L. Ed. 450, 1935 U.S. LEXIS 951 (1935).

In bill by judgment creditor seeking to reach deposit of judgment debtor in United States postal savings depository system chancellor had jurisdiction to issue declaratory judgment in favor of plaintiff. Bell-Dowlen Mills v. Draper, 169 Tenn. 112, 83 S.W.2d 247, 1935 Tenn. LEXIS 23 (1935), cert. denied, 296 U.S. 633, 56 S. Ct. 156, 80 L. Ed. 450, 1935 U.S. LEXIS 951 (1935).

2. Creditor's Bill Requisites.

3. —Description of Property.

Where the original bill was insufficient in description of the property to fix a lien thereon from its filing, an amendment supplying the defects would only fix the lien from its date, not as of the date of the filing of the original bill. In order to reach and fix lien upon book accounts and choses in action, notice to the debtors is not required. However, no lien is established by a description so general as “all book accounts, bills receivable.” Boorum & Peas Co. v. Armstrong, 37 S.W. 1095, 1896 Tenn. Ch. App. LEXIS 55 (1896).

The idea of reaching certain specific property to be described in the bill runs through all sections of this chapter. There should be a more specific description, as by stating the names of the debtors or some other mode; this in justice to the other creditors as well as the debtor sued. Boorum & Peas Co. v. Armstrong, 37 S.W. 1095, 1896 Tenn. Ch. App. LEXIS 55 (1896).

A creditor's bill is sufficient in its description of a chose in action (fee of attorney in a chancery suit) where it alleges the suit wherein a decree had been rendered allowing the chose, such fee payable out of the recovery, and that an account be taken to ascertain the amount due the defendant attorney and that it be subject to the judgment upon which nulla bona was based. Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

4. —Lack of Nulla Bona.

A creditor's bill may be maintained though there has been no return of nulla bona on the execution, where the judgment debtor was insolvent and so alleged to be. Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

If failure to show a return of nulla bona is a defense, it is one to the jurisdiction and is waived by answer. Stahlman v. Watson, 39 S.W. 1055, 1897 Tenn. Ch. App. LEXIS 18 (1897).

According to the plain language of T.C.A. § 26-1-104, case law, and contents of a creditor's petition, the petition established a lien sufficient to sustain the ensuing proceedings, as there was no priority dispute with competing creditors, and nor did any interests of bona fide purchasers or encumbrancers exist to mandate greater scrutiny for determining the lien's effectiveness as against them; T.C.A. § 26-4-101 conferred subject matter jurisdiction over the action upon the trial court which correctly denied the debtor's motion to dismiss the suit on this basis. Atkins v. Marks, 288 S.W.3d 356, 2008 Tenn. App. LEXIS 349 (Tenn. Ct. App. June 11, 2008), rehearing denied, 288 S.W.3d 356, 2008 Tenn. App. LEXIS 449 (Tenn. Ct. App. July 15, 2008).

5. Lien Lis Pendens.

In bill to subject property the provisions of this section would govern over any possible conflict with § 20-3-101 relating to lis pendens. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

Lot upon which lien lis pendens was fixed was not subject to execution or attachment at law. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

6. —Lien on Filing Bill.

A lien attaches upon the filing of a bill without an attachment. House v. Swanson, 54 Tenn. 32, 1871 Tenn. LEXIS 412 (1871); Cowan, McClung & Co. v. Dunn, 69 Tenn. 68, 1878 Tenn. LEXIS 43 (1878); Brooks v. Gibson, 75 Tenn. 271, 1881 Tenn. LEXIS 111 (1881); Epperson v. Robertson, 91 Tenn. 407, 19 S.W. 230, 1892 Tenn. LEXIS 6 (1892); Jordan v. Everett, 93 Tenn. 390, 24 S.W. 1128, 1893 Tenn. LEXIS 66 (1894).

Where the judgment has not been registered, and the interest of the judgment debtor in the property sought to be reached is equitable, the complainant acquires no lien, except from the filing of the bill. Flannegan v. Stifel, 3 Cooper's Tenn. Ch. 464 (1877).

Lien is created by the filing of the bill, with description of the land, and statement for relief, upon service of process upon the debtor, even before service of process upon his mortgage creditors. Harris v. Beasley, 123 Tenn. 605, 133 S.W. 1110, 1910 Tenn. LEXIS 29 (1911), superseded by statute as stated in, Figlio v. Shelley Ford, Inc., — S.W.2d —, 1988 Tenn. App. LEXIS 425 (Tenn. Ct. App. June 22, 1988).

A bill filed on nulla bona return to reach property or under ch. 4 of this title creates a lien on the property. Robert v. Frogge, 149 Tenn. 181, 258 S.W. 782, 1923 Tenn. LEXIS 91 (1924).

The lien attaches to property fraudulently conveyed upon the filing of a bill to set aside the conveyance. It is the filing of the bill that gives the lien. Bank of Delrose v. Mansfield, 4 Tenn. App. 488, — S.W. —, 1926 Tenn. App. LEXIS 199 (Tenn. Ct. App. 1926).

Although the lien attaches to property fraudulently conveyed upon the filing of a bill to set aside the conveyance, the lien does not have complete vitality and become operative as to strangers to the suit until after there has been service on a material defendant. Bank of Delrose v. Mansfield, 4 Tenn. App. 488, — S.W. —, 1926 Tenn. App. LEXIS 199 (Tenn. Ct. App. 1926).

Where complainant filed bill in chancery under § 16-11-104 to subject property passing to a judgment debtor under the terms of a will to the judgment of the complainant a lien attached to such estate upon the filing of the bill. Hull v. Vaughn, 171 Tenn. 642, 107 S.W.2d 219, 1937 Tenn. LEXIS 146 (1937).

Registration of the abstract is required to protect bona fide purchasers for value and bona fide encumbrancers for value, but as to all other persons a lien lis pendens is fixed by the filing of the bill without more. Cannon Mills, Inc. v. Spivey, 208 Tenn. 419, 346 S.W.2d 266, 1961 Tenn. LEXIS 301 (1961).

7. —Debtor's Equity of Redemption.

A judgment creditor, with execution returned nulla bona, may, without the consent of the mortgagee, foreclose the matured mortgage of his debtor by a sale of the property under a chancery decree, and reach the surplus. Fulghum v. Cotton, 74 Tenn. 590, 1880 Tenn. LEXIS 300 (1880); Bridges v. Cooper, 98 Tenn. 381, 39 S.W. 720, 1896 Tenn. LEXIS 232 (1897).

A judgment creditor acquires a lien upon his debtor's equity of redemption in mortgaged lands from the date of his filing a bill to foreclose the mortgage, and subject the equity to the payment of his debts; and this lien expands to embrace and subject to sale any enlargement of the debtor's interest to the extent of the entire fee resulting from payment in part or full discharge of the mortgage debt made pending the suit. Bridges v. Cooper, 98 Tenn. 381, 39 S.W. 720, 1896 Tenn. LEXIS 232 (1897); Schoolfield v. Cogdell, 120 Tenn. 618, 113 S.W. 375, 1908 Tenn. LEXIS 48 (1908); King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914).

A judgment creditor, with a nulla bona return, by filing a bill to foreclose the matured mortgage or deed of trust of his debtor to another, acquires a lien, and is entitled to the surplus, if any. Schoolfield v. Cogdell, 120 Tenn. 618, 113 S.W. 375, 1908 Tenn. LEXIS 48 (1908); Harris v. Beasley, 123 Tenn. 605, 133 S.W. 1110, 1910 Tenn. LEXIS 29 (1911), superseded by statute as stated in, Figlio v. Shelley Ford, Inc., — S.W.2d —, 1988 Tenn. App. LEXIS 425 (Tenn. Ct. App. June 22, 1988).

8. —Insolvent Corporations Not Covered.

A creditor cannot, under ch. 4 of this title, by filing a bill against an insolvent corporation, not using its franchises, acquire such a lien upon the assets of the corporation as will entitle him to full satisfaction of his demand, to the prejudice of other creditors; but the assets of such corporation remain, as before the above statute, according to the general doctrine of equity, impressed with the character of a pledge or trust for the benefit of all creditors, and in which all are entitled to share ratably, notwithstanding the superior diligence of some. But if the corporation is solvent, its creditor may file his bill in equity against it, to secure his debt, and to compel a discovery. Marr v. Bank of West Tennessee, 44 Tenn. 471, 1867 Tenn. LEXIS 71 (1867); Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

9. —Nature of Attachment.

An attachment sued out under this chapter is not a jurisdictional writ, and abides the event of the suit unless sooner discharged by the court. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

10. Subsequent Bankruptcy — Effect.

The filing of a bill to appropriate specific property to satisfy a judgment, after return of nulla bona, fixes a lien or charge on the property, which is not affected or displaced by an adjudication in bankruptcy within four months after the filing of the bill. The bankruptcy, under such law, only dissolved attachments on mesne process. House v. Swanson, 54 Tenn. 32, 1871 Tenn. LEXIS 412 (1871); Cowan, McClung & Co. v. Dunn, 69 Tenn. 68, 1878 Tenn. LEXIS 43 (1878); Epperson v. Robertson, 91 Tenn. 407, 19 S.W. 230, 1892 Tenn. LEXIS 6 (1892).

11. Land in Another County.

If there be land of the judgment debtor in another county registration of the lien may be there. Massachusetts Mut. Life Ins. Co. v. Taylor Implement & Vehicle Co., 138 Tenn. 28, 195 S.W. 762, 1917 Tenn. LEXIS 3 (1917).

12. Receiver — Appointment upon Fixing Lien.

Upon fixing a lien upon the debtor's property, the creditor is entitled to have a receiver appointed where the debtor who is receiving the rents, refuses to keep down the taxes, and the property is not sufficient to satisfy the complainant's demand. Cone v. Paute, 59 Tenn. 506, 1873 Tenn. LEXIS 100 (1873); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875).

13. Enforcement of Payment of Debt Charged on Separate Estate Unaffected.

The jurisdiction of chancery courts to enforce the payment of debts charged upon the separate estate of a married woman is inherent and exclusive. This chapter has not changed such jurisdiction. Jordan v. Everett, 93 Tenn. 390, 24 S.W. 1128, 1893 Tenn. LEXIS 66 (1894).

14. Sale by Trustee After Creditor's Bill to Foreclose Deed of Trust.

When a judgment creditor, with a nulla bona return, has filed a bill for foreclosure and to reach the surplus by a sale of the debtor's land encumbered with a mortgage trust, the trustee can sell the land, after such judgment creditor has taken a second mortgage trust on the land, by which said suit was to stand continued for some six months and until the date fixed for the foreclosure of the second mortgage, with a provision that if the first mortgage trust was foreclosed by sale before that date, then that the second mortgage trust should be foreclosed, and that such judgment creditor should receive the surplus, especially where there was no injunction. Harris v. Beasley, 123 Tenn. 605, 133 S.W. 1110, 1910 Tenn. LEXIS 29 (1911), superseded by statute as stated in, Figlio v. Shelley Ford, Inc., — S.W.2d —, 1988 Tenn. App. LEXIS 425 (Tenn. Ct. App. June 22, 1988).

NOTES TO DECISIONS

1. Return — Effect.

Where the levy and the advertisement of the sale described the three tracts of land in a similar manner and the tracts were sold separately although the return shows that the sale was according to the levy and notice and that the property was bid off by a single purchaser, the return cannot be taken as meaning that the land was sold in a lump contrary to the law. Hughes v. Helms, 52 S.W. 460, 1898 Tenn. Ch. App. LEXIS 156 (1898).

NOTES TO DECISIONS

1. Liberal Statutory Construction for Debtor.

The failure to give the required notice will be fatal, although the defendant knew of the sale, was present at it, and did not object for want of notice, unless his conduct at the sale amounted to a waiver of his statutory right. Carney v. Carney, 18 Tenn. 491, 1837 Tenn. LEXIS 65 (1837).

The right conferred upon the debtor by the statute should not be taken away by construction; and the duty it imposes on the officer is plain and simple. Richards v. Meeks, 30 Tenn. 455, 1850 Tenn. LEXIS 154 (1850); Hinson v. Hinson, 37 Tenn. 322, 1858 Tenn. LEXIS 7 (1858); Prater v. McDonough, 75 Tenn. 670, 1881 Tenn. LEXIS 165 (1881).

The failure to give the required notice will be fatal, although the defendant knew of the sale, was present at it, and did not object for want of notice, unless his conduct at the sale amounted to a waiver of his statutory right. Carney v. Carney, 18 Tenn. 491, 1837 Tenn. LEXIS 65 (1837); Richards v. Meeks, 30 Tenn. 455, 1850 Tenn. LEXIS 154 (1850); Hinson v. Hinson, 37 Tenn. 322, 1858 Tenn. LEXIS 7 (1858); Prater v. McDonough, 75 Tenn. 670, 1881 Tenn. LEXIS 165 (1881).

2. Notice — Necessity.

3. —Occupancy by Defendant as Basis.

The notice required applies only to the tract of land of which the defendant is in the actual possession; and, where the defendant resided on one tract, and had two other tracts adjoining, all held by separate deeds, and they were all levied on and sold as one tract, without giving him the required notice, the sale was held to be void as to the tract upon which he resided, but valid as to the other two tracts upon which he did not reside. Farquhar v. Toney, 24 Tenn. 502, 1844 Tenn. LEXIS 120 (1844).

Notice of execution sale of land is not necessary, unless the defendant in the execution is in the actual possession and occupancy of the land levied on and to be sold. Farquhar v. Toney, 24 Tenn. 502, 1844 Tenn. LEXIS 120 (1844); Prater v. McDonough, 75 Tenn. 670, 1881 Tenn. LEXIS 165 (1881); Christian v. Mynatt, 79 Tenn. 615, 1883 Tenn. LEXIS 115 (1883).

The notice required by this section is required only where the judgment defendant is in actual possession of the tract of land sold and occupying the same at the time of sale. Hames v. Archer Paper Co., 45 Tenn. App. 1, 319 S.W.2d 252, 1958 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1958).

4. —Lack of Notice — Effect on Sale.

Execution sale of land, without the required notice to the defendant in possession, is voidable. Trott & M'Broom v. M'Gavock & Gordon's Lessee, 9 Tenn. 469, 1831 Tenn. LEXIS 27 (1831); Rogers v. Jennings' Lessee, 11 Tenn. 307, 11 Tenn. 308, 1832 Tenn. LEXIS 48 (1832); Loyd v. Anglin's Lessee, 15 Tenn. 427, 15 Tenn. 428, 1835 Tenn. LEXIS 19 (1835); Mitchell v. Lipe, 16 Tenn. 179, 1835 Tenn. LEXIS 72 (1835); Jones v. Planters' Bank, 22 Tenn. 76, 1842 Tenn. LEXIS 29 (1842); Farquhar v. Toney, 24 Tenn. 502, 1844 Tenn. LEXIS 120 (1844); Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849); White v. Chestnut's Lessee, 30 Tenn. 79, 1850 Tenn. LEXIS 60 (1850); Lafferty v. Conn, 35 Tenn. 221, 1855 Tenn. LEXIS 43 (1855); Henry v. Keys, 37 Tenn. 488, 1858 Tenn. LEXIS 44 (1858); Shannon v. Erwin, 58 Tenn. 337, 1872 Tenn. LEXIS 268 (1872); Anderson v. Lyons, 2 Cooper's Tenn. Ch. 61 (1874); Prater v. McDonough, 75 Tenn. 670, 1881 Tenn. LEXIS 165 (1881); Ryther v. Blackwell, 113 Tenn. 182, 87 S.W. 260, 1904 Tenn. LEXIS 14 (1904); Hames v. Archer Paper Co., 45 Tenn. App. 1, 319 S.W.2d 252, 1958 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1958).

Where the judgment debtor's land was sold under execution sale while he occupied it without the statutory notice of 20 days, the sale was set aside as a nullity. Harris v. Hutchinson, 3 Shan. 455 (1875).

Where the judgment debtor was not served with notice of levy and date and place of sale, the execution sale was set aside. Knight v. Mackey, Nesbit & Co., 8 Tenn. Civ. App. 177 (1917).

5. —Who Not Entitled.

Person to whom conveyance by execution debtor was fraudulent and void, was not entitled to notice of the levy and the time and place of the sale. Cooper v. Cooper, 22 Tenn. App. 473, 124 S.W.2d 264, 1938 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1938).

Only the judgment defendant and not another party claiming title to the land is entitled to notice under this section and such other person cannot question the validity of the execution sale for failure to give notice to the judgment defendant. Hames v. Archer Paper Co., 45 Tenn. App. 1, 319 S.W.2d 252, 1958 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1958).

6. —Remainderman's Permissive Possession.

Remainderman in possession of land by permission of the life tenant is not in actual possession within meaning of statute. He is not in possession of his own right. Davis v. Brown, 62 S.W. 381, 1901 Tenn. Ch. App. LEXIS 50 (1901).

7. —General Sessions Court Execution.

Notice of sale under venditioni exponas from the judgment of condemnation under a levy of a justice's (now general sessions court's) execution is just as necessary as if the execution had been begun and ended by the sheriff. Rogers v. Jennings' Lessee, 11 Tenn. 307, 11 Tenn. 308, 1832 Tenn. LEXIS 48 (1832); Henry v. Wilson, 77 Tenn. 176, 1882 Tenn. LEXIS 33 (1882).

8. —Proof of Want of Possession — When Proper.

Where three tracts of land were levied on and sold as one tract, and the execution defendant seeks to prove that the required notice was not given as the sheriff returned, it may be proved that the defendant was not in possession of two of the tracts in controversy, though he was in possession of the other. Farquhar v. Toney, 24 Tenn. 502, 1844 Tenn. LEXIS 120 (1844).

9. —Waiver of Notice.

Defendant in possession waived written notice where he was present at sale with actual notice and agreed that lessor of plaintiff should purchase the property. Noe's Lessee v. Purchapile, 13 Tenn. 215, 1833 Tenn. LEXIS 142 (1833).

Notice may be waived by express words or acts equivalent thereto; and if the defendant is present, promotes the sale, assists in making it, and has an understanding with the purchaser for his benefit, such conduct will amount to a waiver of the required notice. Noe's Lessee v. Purchapile, 13 Tenn. 215, 1833 Tenn. LEXIS 142 (1833); Wilson v. Hudson, 16 Tenn. 398, 1835 Tenn. LEXIS 94 (1835); Carney v. Carney, 18 Tenn. 491, 1837 Tenn. LEXIS 65 (1837); Richards v. Meeks, 30 Tenn. 455, 1850 Tenn. LEXIS 154 (1850); Hinson v. Hinson, 37 Tenn. 322, 1858 Tenn. LEXIS 7 (1858).

The required notice is not waived by the defendant's requesting the officer to levy upon a particular tract of land. Mitchell v. Lipe, 16 Tenn. 179, 1835 Tenn. LEXIS 72 (1835).

10. —Estoppel.

It was not necessary for a mother and son to have notice in writing of the levy of execution and the time and sale of their property where the mother disclaimed ownership and was therefore estopped, and where the son claimed under a fraudulent conveyance. Cooper v. Cooper, 22 Tenn. App. 473, 124 S.W.2d 264, 1938 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1938).

11. Notice — Requisites.

12. —Service of Notice.

The officer having charge of the execution must serve the notice personally on the defendant, if this can be done, but if not, the notice may be left at his residence in proper hands. White v. Chestnut's Lessee, 30 Tenn. 79, 1850 Tenn. LEXIS 60 (1850); Richards v. Meeks, 30 Tenn. 455, 1850 Tenn. LEXIS 154 (1850).

If the notice be left at the debtor's residence, it should be left with some member of the family; or, if this cannot be done, it should be placed in some conspicuous place in or about the house, so as to attract attention on his return. White v. Chestnut's Lessee, 30 Tenn. 79, 1850 Tenn. LEXIS 60 (1850).

Posting the notice on the front door of the shop used by the debtor, on the lots sold, is not sufficient, though its contents were known by the debtor 20 days before the day of sale. Richards v. Meeks, 30 Tenn. 455, 1850 Tenn. LEXIS 154 (1850).

Leaving notice with a tenant residing on the land, or “with a Mrs. Griffin, a woman with whom said Collins (the defendant) had been living as I (the officer) was informed,” is not sufficient. Lafferty v. Conn, 35 Tenn. 221, 1855 Tenn. LEXIS 43 (1855).

13. —Description of Land.

The notice must correctly and accurately describe the land to be sold, which must be the land levied on and conveyed by the sheriff's deed; and a notice containing wholly false or mistaken description of the premises must be treated as a nullity. Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849).

14. —Time and Place of Sale.

The notice must specify both the time and place of sale. Hinson v. Hinson, 37 Tenn. 322, 1858 Tenn. LEXIS 7 (1858).

15. —Particular Sale.

The notice of the sale of land under execution must be of the particular sale, and its defects cannot be obviated or supplied by notice of a previously advertised sale which did not take place. Prater v. McDonough, 75 Tenn. 670, 1881 Tenn. LEXIS 165 (1881).

16. Proof of Notice.

17. —Sheriff — Testimony as to Giving Notice.

It is competent for the sheriff to give evidence of his own failure to give the required notice of the time and place of sale of land. Valentine v. Cooley, 19 Tenn. 613, 1838 Tenn. LEXIS 97 (1838).

The sheriff's parol testimony in explanation of his return, but not in contradiction thereof, is admissible to show that notice was given to the defendant in actual possession of land sold by him, where the return stated that the advertisement and notice had been waived, which he explained, by his testimony, had reference alone to newspaper advertisement and notice by posters of the sale. Leonard v. O'Neal, 84 Tenn. 158, 1885 Tenn. LEXIS 131 (1885).

18. —Recitals in Officer's Return or Deed.

The recital of the fact of service of notice according to law, made in the sheriff's return or deed, is prima facie evidence that the required notice was given, but this presumption is subject to rebuttal by parol or aliunde evidence; but the burden of proof is on the party denying that the notice was given to show that it was not given. Rogers v. Jennings' Lessee, 11 Tenn. 307, 11 Tenn. 308, 1832 Tenn. LEXIS 48 (1832); Loyd v. Anglin's Lessee, 15 Tenn. 427, 15 Tenn. 428, 1835 Tenn. LEXIS 19 (1835); Mitchell v. Lipe, 16 Tenn. 179, 1835 Tenn. LEXIS 72 (1835); Simmons v. McKissick, 25 Tenn. 259, 1845 Tenn. LEXIS 74 (1845); Elliot v. Schultz, 29 Tenn. 234, 1849 Tenn. LEXIS 55 (1849); White v. Chestnut's Lessee, 30 Tenn. 79, 1850 Tenn. LEXIS 60 (1850); Childress v. Harrison, 60 Tenn. 410, 1872 Tenn. LEXIS 523 (1873); Downing v. Stephens, 60 Tenn. 454, 1872 Tenn. LEXIS 532 (1873); Bledsoe v. McCorry, 68 Tenn. 320, 1878 Tenn. LEXIS 16 (1878); Hutton v. Campbell, 78 Tenn. 170, 1882 Tenn. LEXIS 160 (1882); Burnett v. Austin, 78 Tenn. 564, 1882 Tenn. LEXIS 224 (1882); Christian v. Mynatt, 79 Tenn. 615, 1883 Tenn. LEXIS 115 (1883); Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902); York & Robinson v. Byars, 131 Tenn. 38, 173 S.W. 435, 1914 Tenn. LEXIS 82 (1915); Siler v. Siler, 152 Tenn. 379, 277 S.W. 886, 1925 Tenn. LEXIS 80 (1925).

Marshal's recitation of notice in return and deed is not sustained by his deputy's mere statement, not a written official return endorsed, that the written notice was given to the defendant. Elliot v. Schultz, 29 Tenn. 234, 1849 Tenn. LEXIS 55 (1849).

A recital in the sheriff's return that he sold the land, after giving “due notice by written advertisement, as required by law,” does not import that he had given the required notice to the execution debtor in actual possession of the land. Downing v. Stephens, 60 Tenn. 454, 1872 Tenn. LEXIS 532 (1873); Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902).

If there be no recital of notice in the sheriff's return or deed, notice will not be presumed, and the purchaser must show by proof that, in the particular case, notice was not necessary or not required by law. Downing v. Stephens, 60 Tenn. 454, 1872 Tenn. LEXIS 532 (1873).

19. —Absence of Recital of Notice in Return or Deed.

If the return is not shown, though the sheriff's deed and the proof is silent as to the fact of the service of the required notice, it will be presumed that the officer did his duty and gave the notice. Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902); Siler v. Siler, 152 Tenn. 379, 277 S.W. 886, 1925 Tenn. LEXIS 80 (1925).

20. Sufficiency of Notice — Determination.

The sufficiency of the notice is a question of law and construction for the court to determine, and not for the jury. Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849).

NOTES TO DECISIONS

1. Trust Deeds.

In a sale of lands under a trust deed, where prior to the sale, defendant delivered to the officer conducting the sale a plan of division of the lands levied on, the land covered by the trust deed must be offered in parcels as designated in the plan of division. Doty v. Federal Land Bank, 169 Tenn. 496, 89 S.W.2d 337, 1935 Tenn. LEXIS 75 (1936), rehearing denied, 169 Tenn. 496, 90 S.W.2d 527 (1936).

NOTES TO DECISIONS

1. Construction and Interpretation.

2. —Application of Rule Before Statute.

The rule in the statute was applied and enforced before its enactment. Ellis v. Foster, 54 Tenn. 131, 1872 Tenn. LEXIS 30 (1872); Williams v. Whitmore, 77 Tenn. 262, 1882 Tenn. LEXIS 49 (1882); State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889).

Before the enactment of this statute, and independent of it, a purchaser was entitled to credit for taxes discharged by him, either before or after the confirmation of the report of sale, where the land was not sold subject to the charge of taxes, or where the purchaser did not understand that he was to take the land subject to such burden. Ellis v. Foster, 54 Tenn. 131, 1872 Tenn. LEXIS 30 (1872); Childress v. Vance, 60 Tenn. 406, 1872 Tenn. LEXIS 522 (1873); Williams v. Whitmore, 77 Tenn. 262, 1882 Tenn. LEXIS 49 (1882); Lockhart v. Gee, 2 Cooper's Tenn. Ch. 332 (1877).

3. —Object of Statute.

The first object was to expedite and insure the collection of taxes. Its second object was to settle the controversy as to whether the purchaser was entitled to have the taxes paid out of the purchase money. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889).

4. —State Court Judges Covered.

This statute imposes duties upon the judge of a state court that a state legislature cannot impose upon federal judges; federal judges are vested with full equitable jurisdiction and discretion to fix the terms of sale and impose conditions in the decree confirming the sale, and this equitable jurisdiction must be exercised uniformly throughout the United States and it cannot be limited or controlled by a state legislature. Mercantile Trust Co. v. Tennessee C. R. Co., 294 F. 483, 1923 U.S. App. LEXIS 2510 (6th Cir. Tenn. 1923).

5. —Special Assessment Taxes.

Special assessment taxes of a drainage district were not “taxes” within the meaning of these provisions requiring a reference for taxes in land sales. Obion County use of North Fork Drainage Dist. v. Massengill, 177 Tenn. 477, 151 S.W.2d 156, 1941 Tenn. LEXIS 17 (1941).

6. —Abutting Property Penalties.

Where Abutting Property Act (Public Acts 1907, ch. 341), did not provide for penalties the master was not entitled to impose penalties provided for by city ordinance. State v. Collier, 165 Tenn. 28, 52 S.W.2d 361, 1932 Tenn. LEXIS 22 (1932).

7. Reference for Taxes.

8. —Time for Reference.

The reference may be had after confirmation of sale, at any time while the available funds are under the control of the court. Williams v. Whitmore, 77 Tenn. 262, 1882 Tenn. LEXIS 49 (1882); State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889); Brown v. Timmons, 110 Tenn. 148, 72 S.W. 958, 1902 Tenn. LEXIS 48 (1903).

9. —Effect of Reference and Order on Lien.

Where the taxes are ascertained by the reference, and an order is made for their payment out of the purchase money, the lien is transferred from the realty to the fund, and the state must look to the fund. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889).

10. —Lack of Reference or Order.

Where no reference is made to ascertain the taxes, and no order is made for their payment out of the purchase money, the lien will continue against the property. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889).

11. —Refund of Purchase Money Notes for Payment of Taxes.

Where, after the confirmation of the sale, the court orders the purchase money notes to be delivered to the creditors or their solicitors, and they are so delivered, without the payment of taxes, the court may, at the same term, order funds to be refunded for the payment of the taxes, for such funds are under the control of the court during the term. The omission of the court to perform its duty in making the reference, before the confirmation of the sale, will not prejudice the rights of the purchaser. Williams v. Whitmore, 77 Tenn. 262, 1882 Tenn. LEXIS 49 (1882).

12. —Taxes Covered.

Order of reference in suit to recover taxes covers not only taxes sued upon but also taxes due against property at time of reference. State v. Collier, 160 Tenn. 403, 23 S.W.2d 897, 1929 Tenn. LEXIS 120 (1930), superseded by statute as stated in, Toler by Lack v. City of Cookeville, 952 S.W.2d 831, 1997 Tenn. App. LEXIS 89 (Tenn. Ct. App. 1997).

13. —Intervention of State, County, or City.

Where the state, county, and city are not parties to the suit, they will not be concluded by anything done or omitted to be done therein, as to the taxes due them, without some opportunity to assert their claims. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889); Dunn v. Dunn, 99 Tenn. 598, 42 S.W. 259, 1897 Tenn. LEXIS 70 (1897).

The taxes due on mortgaged lands, at the date of a foreclosure sale made under decree of court, will be ascertained by proper reference, and ordered paid out of the proceeds of the sale, upon the court's own motion, without any intervention of the state, county, or city entitled to the tax. Dunn v. Dunn, 99 Tenn. 598, 42 S.W. 259, 1897 Tenn. LEXIS 70 (1897).

14. Tax Lien.

15. —Status of Tax Lien.

The lien for taxes is superior to the mortgage lien, whether the taxes accrue before or after the mortgage is executed, and the taxes will be paid out of the proceeds of the sale in a foreclosure suit. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889); Dunn v. Dunn, 99 Tenn. 598, 42 S.W. 259, 1897 Tenn. LEXIS 70 (1897).

The tax lien is a superior lien upon the land, and overrides all liens, mortgages, and encumbrances of whatever kind there might be upon the property. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889); Dunn v. Dunn, 99 Tenn. 598, 42 S.W. 259, 1897 Tenn. LEXIS 70 (1897).

16. —Sale of Land Under Decree.

Tax lien is not lost by sale of land under decree. State v. Hill, 87 Tenn. 638, 11 S.W. 610, 1889 Tenn. LEXIS 15 (1889); Dunn v. Dunn, 99 Tenn. 598, 42 S.W. 259, 1897 Tenn. LEXIS 70 (1897).

17. Liability for Taxes.

18. —Purchaser.

Purchaser of land at judicial sale may recover of the owner the taxes that were a lien thereon where he has paid the same. Childress v. Vance, 60 Tenn. 406, 1872 Tenn. LEXIS 522 (1873); Williams v. Whitmore, 77 Tenn. 262, 1882 Tenn. LEXIS 49 (1882); Mayor of Nashville v. Cowan, 78 Tenn. 209, 1882 Tenn. LEXIS 165 (1882).

Taxes accruing between the date of a chancery sale and its confirmation must be paid out of the proceeds of the property sold, and not by the purchaser; and this is true though the purchaser's notes bear the date of the sale, for the day of the sale is the day when the sale becomes complete and effective by confirmation. Rogers v. Rogers, 101 Tenn. 428, 47 S.W. 701, 1898 Tenn. LEXIS 85 (1898).

The delinquent tax laws contemplate that the purchaser at a tax sale shall acquire title free from tax liens, and that a reference should be ordered to determine the amount of taxes due on the property, other than those sued for; but this reference may be made after sale, before confirmation, and, indeed, even after confirmation before distribution of the proceeds of the sale. State v. Southern Lumber Mfg. Co., 165 Tenn. 671, 57 S.W.2d 454, 1932 Tenn. LEXIS 102 (1933).

19. —Application of Purchase Money.

The purchaser of land under a decree of court is entitled to have the property relieved of all encumbrances for unpaid taxes that are a lien thereon; and where, after the confirmation of the sale and the vestiture of the title in the purchaser, the purchase money notes are delivered, by the clerk and master, to the beneficiary entitled to whole proceeds thereof, who was the vendor enforcing the lien, the purchaser, in a settlement with him, is entitled to have the purchase money abated and the notes credited with the amount of such taxes; and where such beneficiary has been overpaid, the purchaser is entitled to recover the same from him. Brown v. Timmons, 110 Tenn. 148, 72 S.W. 958, 1902 Tenn. LEXIS 48 (1903).

20. —Master's Liability.

Master was personally liable for curb and sidewalk taxes where decree directed master to ascertain taxes and pay same. Tarpley v. Marshall, 1 Tenn. Civ. App. (1 Higgins) 215 (1910).

21. Limitations — Effect.

This proceeding is in effect one for the collection of taxes, and the running of the statute of limitations is arrested, upon the filing of the bill seeking a sale of the land, as to taxes properly assessed upon the land and not barred at the time, whether accruing before or after the filing of the bill. Barnes v. Brown, 1 Tenn. Ch. App. 726 (1901).

NOTES TO DECISIONS

1. Deed Requisites.

2. —Necessary Recitals.

Recital in a sheriff's deed of land sold by him that he “legally advertised and made known” the time and place of sale is prima facie evidence of the advertising and giving the required notice to the judgment debtor in possession of the land. Rogers v. Jennings' Lessee, 11 Tenn. 307, 11 Tenn. 308, 1832 Tenn. LEXIS 48 (1832); Loyd v. Anglin's Lessee, 15 Tenn. 427, 15 Tenn. 428, 1835 Tenn. LEXIS 19 (1835); Simmons v. McKissick, 25 Tenn. 259, 1845 Tenn. LEXIS 74 (1845); York & Robinson v. Byars, 131 Tenn. 38, 173 S.W. 435, 1914 Tenn. LEXIS 82 (1915).

The sheriff's deed must recite everything necessary to make a valid title, and if it fails to recite the existence of a judgment, execution, and levy, it is fatally defective. It will not be sufficient to show, by parol or record proof, that in fact there was a judgment, execution, and levy, for their existence must be recited in the deed. Byers v. Wheatley, 62 Tenn. 160, 1873 Tenn. LEXIS 158 (1873); Lemons v. Wilson, 65 Tenn. 143, 1873 Tenn. LEXIS 324 (1884); Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884); Hyder v. Butler, 103 Tenn. 289, 52 S.W. 876, 1899 Tenn. LEXIS 107 (1899).

When the judgment, execution and levy are produced, they must correspond with the recitals of the deed. A material variance between the recitals in the sheriff's deed and the record will be fatal, and cannot be cured by proof. Byers v. Wheatley, 62 Tenn. 160, 1873 Tenn. LEXIS 158 (1873); Lemons v. Wilson, 65 Tenn. 143, 1873 Tenn. LEXIS 324 (1884); Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884); Hyder v. Butler, 103 Tenn. 289, 52 S.W. 876, 1899 Tenn. LEXIS 107 (1899).

3. —Variance of Deed from Sheriff's Return.

If there is any variance between the recitals of the deed and those of the return made after the sale, and forming no part of the levy, the deed prevails. The return of the sale is not necessary to a deraignment of the purchaser's title, is immaterial as evidence of title, and may be averred against, and its recitals in relation to the character of the title conveyed are not evidence. Stinson's Lessee v. Russell, 2 Tenn. 40, 1809 Tenn. LEXIS 3 (1809); Mitchell v. Lipe, 16 Tenn. 179, 1835 Tenn. LEXIS 72 (1835); Rogers' Lessee v. Cawood, 31 Tenn. 142, 1851 Tenn. LEXIS 36 (1851); Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884).

4. —Errors Not Vitiating Deed.

Erroneous recital of dates of judgment and levy will not vitiate the sheriff's deed, where there is enough to identify the record and process with those produced. Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884).

5. —Deputy Sheriff Making Deed.

A deputy sheriff has all the power of the high sheriff, and may lawfully sell land levied upon by him by virtue of an execution in his hands; and he may convey it by deed, without naming the sheriff. State ex rel. Little v. Slagle, 115 Tenn. 336, 89 S.W. 326, 1905 Tenn. LEXIS 67 (1905).

6. Lapse of Time — Effect.

The mere lapse of time does not affect the validity of the sheriff's deed made by any subsequent sheriff; and the sheriff's deed made 34 years after the execution sale of land was held to be valid. Reeve v. North Carolina Land & Timber Co., 141 F. 821, 1905 U.S. App. LEXIS 4050 (6th Cir. Tenn. 1905), cert. denied, Weinreb v. Fink, 203 U.S. 588, 27 S. Ct. 776, 51 L. Ed. 329, 1906 U.S. LEXIS 1697 (U.S. Oct. 15, 1906).

Lapse of nine years held not to affect validity of deed made by subsequent sheriff, where parties did not plead abandonment or raise such question until after the appeal, and no new rights had arisen. Williams v. Williams, 25 Tenn. App. 290, 156 S.W.2d 363, 1941 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1941).

7. Estoppel of Purchaser to Deny Recitals.

Purchaser is estopped to deny recitals in sheriff's deed, or to show, by the records, the true facts in contradiction of such recitals; as, where the deed recites that the sale was made under a certain venditioni exponas, it cannot be shown by the records that the sale was made under that venditioni exponas, conjointly with certain executions, where the sale under the executions operated to transfer title to the purchaser, and the sale under such venditioni exponas did not so operate. Edwards v. Miller, 51 Tenn. 314, 1871 Tenn. LEXIS 168 (1871).

NOTES TO DECISIONS

1. Recitals in Deed — Effect.

The recitals of a collector's deed are prima facie evidence of the facts contained therein; this only applies to the collector who makes the sale and not to his successor. Allen v. Moss, 2 Shan. 317 (1877). But see Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902).

Where the whole proceedings as recited in a sheriff's deed appeared regular and valid the recitals in the deed were prima facie evidence of the truth of all the statements contained therein. Cooper v. Cooper, 22 Tenn. App. 473, 124 S.W.2d 264, 1938 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1938).

Any sheriff may execute a deed for lands sold by a former sheriff, which deed shall be valid, as if executed by such former officer; and such deed shall be prima facie evidence of the recitals therein. Williams v. Williams, 25 Tenn. App. 290, 156 S.W.2d 363, 1941 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1941).

Inaccurate recitation in a sheriff's deed that an execution came to the hands of a certain person as deputy sheriff under a certain sheriff, when he was in fact a deputy under another sheriff, should be construed as a technical error and does not affect the validity of the deed. Raines v. Pile, 182 Tenn. 283, 185 S.W.2d 628, 1945 Tenn. LEXIS 219 (1945).

Deed executed by successor sheriff reciting levy of execution by deputy sheriff under prior sheriff was not void on the ground that deed contained no evidence of notice of sale, since recitals in deed were prima facie evidence that notice had been given. Raines v. Pile, 182 Tenn. 283, 185 S.W.2d 628, 1945 Tenn. LEXIS 219 (1945).

2. Sheriff's Deed — Necessity.

A sheriff's deed is necessary to vest the legal title in a purchaser at an execution sale, and a sheriff's sale without deed conveys only an equitable title which will not support ejectment. Williams v. Williams, 25 Tenn. App. 290, 156 S.W.2d 363, 1941 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1941).

NOTES TO DECISIONS

1. Jurisdiction in Equity.

Equity has inherent jurisdiction to set aside the satisfaction of an execution. Evans & Co. v. Holt & Hart, 63 Tenn. 389, 1874 Tenn. LEXIS 273 (1874); Swaggerty v. Neilson, 67 Tenn. 32, 1874 Tenn. LEXIS 321 (1874).

2. Satisfaction Set Aside.

3. —Bidding Creditor Disappointed.

A judgment creditor, who has satisfied his judgment by a bid on land, cannot have the satisfaction set aside, and the judgment reinstated, in the absence of fraud, upon the ground that he was disappointed in getting a life estate instead of the fee. Gonce v. McCoy, 101 Tenn. 587, 49 S.W. 754, 1898 Tenn. LEXIS 106, 70 Am. St. Rep. 714 (1898).

4. —Prior Adjudication of Plaintiff's Lack of Title.

It is necessary to allege and show a previous adjudication of plaintiff's want of title under his purchase, in case stated. Swaggerty v. Smith, 48 Tenn. 403, 1870 Tenn. LEXIS 76 (1870).

5. —Debtor's Title Failing.

The statute embraces all cases where it turns out that the creditor gets nothing by the sale, on account of debtor's title failing, whether the sale is of realty or personalty. Edde v. Cowan, 33 Tenn. 290, 1853 Tenn. LEXIS 44 (1853).

Satisfaction of judgment may be set aside where lands sold had been purchased by the debtor but by his procurement had been conveyed to his children with intent to defeat creditors. Smith v. Hinson, 51 Tenn. 250, 1871 Tenn. LEXIS 155 (1871).

The creditor is not entitled to relief merely because he is “of the opinion that he obtained no title to the property sold,” but the fact of the want of title must appear at the trial; and it does so appear, if the defendant permitted a judgment by default to be taken upon the scire facias averring the fact. Hayes v. Cartwright, 74 Tenn. 139, 1880 Tenn. LEXIS 220 (1880).

6. —Sheriff Failing to Give Notice of Sale.

This statute applies where sale proves to be void because of sheriff's omission to notify tenant in possession of time and place of sale. Henry v. Keys, 37 Tenn. 488, 1858 Tenn. LEXIS 44 (1858).

Where judgment creditor purchases the debtor's land under execution or condemnation sale, and learns that the sheriff had failed to serve the judgment debtor with notice of the levy and date and place of sale, as required by statute, he may, by petition, have satisfaction of the judgment set aside. Knight v. Mackey, Nesbit & Co., 8 Tenn. Civ. App. 177 (1917).

7. Priority from Pendency of Bill to Set Aside Satisfaction.

The pendency of the bill of a creditor to set aside the satisfaction of his judgment by a sale of land, and to subject the same land by the decree, will give the complainant a lien superior to that of a subsequent judgment creditor of the common debtor, although the land may have been previously sold and conveyed under the execution of a third creditor. Mays v. Wherry, 3 Tenn. Ch. 80 (1875).

8. Scire Facias.

9. —Defects — How Reached.

If scire facias be fatally defective in substance, the defect may be reached by appeal in error or writ of error, in which case the cause may be remanded for another scire facias. Hayes v. Cartwright, 74 Tenn. 139, 1880 Tenn. LEXIS 220 (1880).

10. —Issuance of Writ as of Right.

The writ of scire facias issues, as of right, upon an affidavit setting forth the facts. Hayes v. Cartwright, 74 Tenn. 139, 1880 Tenn. LEXIS 220 (1880).

11. —Judgment by Default on Scire Facias.

If the scire facias be good, and the defendant makes no defense, the plaintiff is entitled to final judgment by default, “as in other cases.” Taylor v. Miller, 70 Tenn. 153, 1879 Tenn. LEXIS 146 (1879); Hayes v. Cartwright, 74 Tenn. 139, 1880 Tenn. LEXIS 220 (1880).

12. Objection to Affidavit.

The affidavit can only be looked to, upon objection made to the scire facias by proper pleading, or by way of evidence on the hearing, if so used by the defendant, in which latter case it must be embodied in the bill of exceptions. Hayes v. Cartwright, 74 Tenn. 139, 1880 Tenn. LEXIS 220 (1880).

13. Necessary Parties to Application.

Satisfaction of a judgment or decree cannot be set aside unless all the parties against whom the judgment or decree was rendered, or their personal representatives, are made parties defendant to the application or proceeding to set aside its satisfaction. Humberd v. Kerr, 67 Tenn. 291, 1874 Tenn. LEXIS 375 (1874); Blackburn v. Clarke, 85 Tenn. 506, 3 S.W. 505, 1886 Tenn. LEXIS 77 (1887).

14. Setting Aside Satisfaction as Prerequisite to Use of Judgment.

A judgment, when once satisfied by payment or by sale under execution, cannot again be used for any purpose until the satisfaction is set aside, and the original judgment revived by proper proceedings; and a sale of land under an execution issued upon a satisfied judgment is void. Finley v. Gaut, 67 Tenn. 148, 1874 Tenn. LEXIS 341 (1874); Gentry v. Wagner, 77 Tenn. 682, 1882 Tenn. LEXIS 122 (1882).

15. Last Redeeming Creditor — Rights.

The last redeeming creditor is entitled to have the satisfaction of his own judgment against the debtor set aside, as well as to have the judgment upon which the original sale was made, and the judgments of all previously redeeming creditors, against the common debtor whose supposed land was sold and redeemed, set aside and have all the judgments other than his own revived for his benefit as against the debtor. Edwards v. Ervin, 2 Shan. 510 (1877).

16. “Good and Valid Title” — What Constitutes.

The title of the defendant to the property sold, to be “good and valid” so as to operate as a defense to the scire facias, must be such as to clothe the purchaser with a beneficial interest, not a mere legal title subject to prior liens which exhaust it. Hayes v. Cartwright, 74 Tenn. 139, 1880 Tenn. LEXIS 220 (1880); Gonce v. McCoy, 101 Tenn. 587, 49 S.W. 754, 1898 Tenn. LEXIS 106, 70 Am. St. Rep. 714 (1898).

17. Prerequisites to Officer's Substitution.

To entitle an officer to be substituted to the rights of the judgment creditor in an execution, two things are necessary, namely, (1) that the officer's liability for the default shall have been fixed by the judgment of a court of competent jurisdiction, and (2) that such judgment has been satisfied by him. Lintz v. Thompson, 38 Tenn. 456, 1858 Tenn. LEXIS 212 (1858); Beal v. Smithpeter, 65 Tenn. 356, 1873 Tenn. LEXIS 364 (1873).

18. Officer Voluntarily Paying — Limited Rights.

A constable or sheriff, after he has voluntarily paid to the plaintiff the amount of an execution in his hands for collection, cannot hold it up as unsatisfied and enforce the collection of the money upon that execution for his own benefit; especially is this so, where the payment was made without reservation or condition, and without any contract of any sort with the plaintiff. By such payment, the execution became functus officio. Harwell v. Worsham, 21 Tenn. 524, 1841 Tenn. LEXIS 61 (1841); Lintz v. Thompson, 38 Tenn. 456, 1858 Tenn. LEXIS 212 (1858); Burt v. Thompson & Warren, 40 Tenn. 534, 1859 Tenn. LEXIS 154 (1859); Beal v. Smithpeter, 65 Tenn. 356, 1873 Tenn. LEXIS 364 (1873).

There can be no alias execution after officer's voluntary payment and satisfaction of execution in his hands, because such payment, without any transfer of the judgment and execution to him, is a satisfaction of the judgment, so that he cannot take out an alias execution for his own benefit, and enforce its payment by the original debtor, though he made the payment to avoid a motion against him for his failure to return the execution, within the time required by law. Lintz v. Thompson, 38 Tenn. 456, 1858 Tenn. LEXIS 212 (1858); Burt v. Thompson & Warren, 40 Tenn. 534, 1859 Tenn. LEXIS 154 (1859).

An officer, voluntarily paying the amount of an execution in his hands, cannot sue the original debtor in assumpsit and recover the amount so paid. Burt v. Thompson & Warren, 40 Tenn. 534, 1859 Tenn. LEXIS 154 (1859).

19. Officer Compelled by Judgment to Pay.

Where a judgment by motion has been taken against an officer and his sureties for his failure to make proper return of an execution, such officer is not entitled to substitution to the rights of the execution creditor against the debtor in the original judgment, because he had incurred an original and personal liability, in the nature of a penalty for the nonperformance of his official duty; and especially is this the rule before he has made payment of such judgment. Doyle v. Glenn, 23 Tenn. 309, 1843 Tenn. LEXIS 90 (1843); Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851).

26-6-101. Short title.

This part may be cited as the “Uniform Enforcement of Foreign Judgments Act.”

Acts 1976, ch. 530, § 7; T.C.A., § 26-807; Acts 2019, ch. 278, § 2.

Compiler's Notes. Acts 2019, ch. 278, § 5 provided that the act  applies to all actions commenced on or after July 1, 2019, in which the issue of  recognition of a foreign-country judgment is raised.

Amendments. The 2019 amendment substituted “part” for “chapter”.

Effective Dates. Acts 2019, ch. 278, § 5. July 1, 2019.

Cross-References. Enforceability of authenticated foreign order for assignment of income for support, § 36-5-101.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 1-8-14, 1-9.05-2.

Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 2; 16 Tenn. Juris., Judgments and Decrees, § 103.

Law Reviews.

Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 193.

26-6-102. Construction for uniformity.

This part shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Acts 1976, ch. 530, § 6; T.C.A., § 26-806; Acts 2019, ch. 278, § 2.

Compiler's Notes. Acts 2019, ch. 278, § 5 provided that the act  applies to all actions commenced on or after July 1, 2019, in which the issue of  recognition of a foreign-country judgment is raised.

Amendments. The 2019 amendment substituted “part” for “chapter”.

Effective Dates. Acts 2019, ch. 278, § 5. July 1, 2019.

Law Reviews.

Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 193.

26-6-103. “Foreign judgment” defined.

As used in this part, “foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.

Acts 1976, ch. 530, § 1; T.C.A., § 26-801; Acts 2019, ch. 278, § 2.

Compiler's Notes. Acts 2019, ch. 278, § 5 provided that the act  applies to all actions commenced on or after July 1, 2019, in which the issue of  recognition of a foreign-country judgment is raised.

Amendments. The 2019 amendment substituted “part” for “chapter”.

Effective Dates. Acts 2019, ch. 278, § 5. July 1, 2019.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 7.

Law Reviews.

Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 193.

26-6-104. Effect and treatment of authenticated foreign judgment — Foreign defamation judgment.

1. A copy of any foreign judgment authenticated in accordance with the acts of congress or the statutes of this state may be filed in the office of the clerk of any circuit or chancery court of this state.
2. The clerk shall treat the foreign judgment in the same manner as a judgment of a court of record of this state.
3. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a court of record of this state and may be enforced or satisfied in like manner.
4. For the purpose of rendering declaratory relief with respect to a person's liability for a foreign defamation judgment and determining whether the foreign defamation judgment should be deemed nonrecognizable under § 26-6-108, this state's courts have personal jurisdiction over any person who obtains a foreign defamation judgment against any person who:
   1. Is a resident of this state;
   2. Is a person or entity amenable to the jurisdiction of this state;
   3. Has assets in this state; or
   4. May have to take action in this state to comply with the foreign defamation judgment.

Acts 1976, ch. 530, § 2; T.C.A., § 26-802; Acts 2010, ch. 900, § 2.

Compiler's Notes. Acts 2010, ch. 900, § 3 provided that the act, which added § 26-6-104(d) and enacted § 26-6-108, shall apply to foreign judgments filed for enforcement on or after July 1, 2010.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 2, 4; 9 Tenn. Juris., Judgments and Decrees, § 101.

Law Reviews.

Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 193.

26-6-105. Service of process — Enforcement proceeding delayed.

1. At the time of the filing of the foreign judgment, the judgment creditor or the judgment creditor's lawyer shall make and file with the clerk of the court an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.
2. Promptly upon the filing of the foreign judgment and affidavit, the clerk of the court wherein the judgment is filed shall issue a summons to be delivered for service to any person authorized to serve process. This person shall serve the summons and return endorsed thereon shall be proof of the time and manner of service.
3. No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until thirty (30) days after the date a summons has been served upon the judgment debtor.

Acts 1976, ch. 530, § 3; 1977, ch. 50, § 1; T.C.A., § 26-803.

26-6-106. Appeal or stay of judgment.

1. If the judgment debtor shows the court of this state that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated.
2. If the judgment debtor shows the court of this state any ground upon which enforcement of a judgment of any court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period.

Acts 1976, ch. 530, § 4; Acts 1978, ch. 550, §§ 1, 2; T.C.A., § 26-804.

Law Reviews.

Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 193.

26-6-107. Creditor's right to bring enforcement action.

The right of a judgment creditor to bring an action to enforce the creditor's judgment instead of proceeding under this part remains unimpaired.

Acts 1976, ch. 530, § 5; T.C.A., § 26-805; Acts 2019, ch. 278, § 2.

Compiler's Notes. Acts 2019, ch. 278, § 5 provided that the act  applies to all actions commenced on or after July 1, 2019, in which the issue of  recognition of a foreign-country judgment is raised.

Amendments. The 2019 amendment substituted “part” for “chapter”.

Effective Dates. Acts 2019, ch. 278, § 5. July 1, 2019.

Law Reviews.

Survey of Civil Procedure in Tennessee — 1977, IX. Miscellaneous (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 405.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 193.

26-6-108. Foreign defamation judgments.

1. For the purposes of this section only, a “foreign defamation judgment” shall mean any judgment for a cause of action equivalent or fundamentally similar to an action for libel or slander that is rendered by a court or tribunal outside the United States or its territories or possessions. This section shall not apply to any judgment for defamation, slander or libel rendered by a federal court or a court or tribunal in this or any other state of the United States, its territories or possessions.
2. In addition to any other defenses that may exist, no foreign defamation judgment shall be authenticated, or execution issued upon, if:
   1. It is determined that the judgment was rendered by a judicial system that does not provide impartial tribunals or procedures substantially compatible with the requirements of due process of law applicable to Tennessee courts;
   2. The court or tribunal issuing the foreign defamation judgment did not have personal jurisdiction over the defendant in accordance with the principles applicable under Tennessee law; or
   3. The court or tribunal issuing the foreign defamation judgment did not have subject matter jurisdiction over the action.
3. A foreign defamation judgment shall not be authenticated by any court of this state until it is established by a preponderance of the evidence that the defamation, libel or slander law applied in the foreign defamation court's jurisdiction provides the same or higher protection for freedom of speech and press as would be provided under both the United States and Tennessee Constitutions. If it is determined that the law in the foreign defamation judgment's jurisdiction provides such same or greater protection, then the court may proceed to consider if the judgment may be authenticated as a foreign judgment. If it is determined that the law in the foreign defamation judgment's jurisdiction does not provide such same or greater protection, or if no finding is made on this point, then the court may not authenticate that foreign defamation judgment and the same shall be void until such time as the court may make or reverse its findings.

Acts 2010, ch. 900, § 1.

Compiler's Notes. Acts 2010, ch. 900, § 3 provided that the act, which added § 26-6-104(d) and enacted § 26-6-108, shall apply to foreign judgments filed for enforcement on or after July 1, 2010.

26-6-109. Applicability of part.

This part does not apply to judgments covered by the Uniform Foreign-Country Money Judgments Recognition Act, compiled in part 2 of this chapter.

Acts 2019, ch. 278, § 3.

Compiler's Notes. Acts 2019, ch. 278, § 5 provided that the act  applies to all actions commenced on or after July 1, 2019, in which the issue of  recognition of a foreign-country judgment is raised.

Effective Dates. Acts 2019, ch. 278, § 5. July 1, 2019.

Part 2
Uniform Foreign-Country Money Judgments Recognition Act