NOTES TO DECISIONS

1. Applicability.

Statute was not applicable to a purchaser's claim that an oral contract was unenforceable because the testimony was clear that the transaction did not involve the sale of real property; rather, a purchaser agreed to lease a building that housed a market. Mesad v. Yousef, — S.W.3d —, 2018 Tenn. App. LEXIS 95 (Tenn. Ct. App. Feb. 22, 2018).

NOTES TO DECISIONS

1. Railroad and Public Utilities Commission.

State court properly refused to enjoin the enforcement of an order of railroad and public utilities commission putting into effect intrastate rates, pending proceedings before interstate commerce commission. Nashville, C. & S. L. Ry. v. Railroad & Public Utilities Com., 161 Tenn. 592, 32 S.W.2d 1043, 1929 Tenn. LEXIS 67 (1930).

Collateral References. 42 Am. Jur. 2d Injunctions § 11.

43A C.J.S. Injunctions §§ 216, 217.

Contingent or defeasible future interest, right of owner of, to injunction against injury to, or trespass on, property. 144 A.L.R. 784.

Encroachment of trees, shrubbery, or other vegetation across boundary line, injunction for. 65 A.L.R.4th 603.

Flood protection measures. 5 A.L.R.2d 57.

Incompetent person, injunction to protect property of, prior to his adjudication as such. 107 A.L.R. 1401.

Injunction as remedy of tenant against stranger wrongfully interfering with his possession. 12 A.L.R.2d 1192.

License to use real property, injunction as proper remedy by licensor after revocation. 38 A.L.R. 1138, 56 A.L.R. 1110.

Injunction 15-18.

NOTES TO DECISIONS

1. Application.

How applied for. Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

Defendant filing counter affidavit has sufficient notice of application for appointment of receiver. Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

2. Appointment.

A receiver may be appointed at any stage of a cause, and without a prayer for that purpose, if the facts stated authorize the appointment; and it may be made at the instance of a mortgagee defendant against a codefendant, if essential to the relief to which the complainant is entitled, in which case the court may decree in favor of one defendant against another, and may compel tenants of a party to a suit to pay rents to the receiver. Henshaw, Ward & Co. v. Wells, 28 Tenn. 568, 1848 Tenn. LEXIS 124 (1848); Williams v. Noland, 2 Cooper's Tenn. Ch. 151 (1874); Bidwell v. Paul, 64 Tenn. 693, 1875 Tenn. LEXIS 160 (1875); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875); Merrill v. Elam, 2 Cooper's Tenn. Ch. 513 (1875); Moore v. Knight, 74 Tenn. 427, 1880 Tenn. LEXIS 270 (1880); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

A receiver will not be appointed where the person in possession is no party to the suit, or where he claims under the party who moves for the appointment. Mays v. Wherry, 3 Cooper's Tenn. Ch. 34 (1875).

The appointment of a receiver was within the sound discretion of the chancellor. Equitable Life Assurance Soc. v. Ellis, 16 Tenn. App. 551, 65 S.W.2d 250, 1933 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1933).

Trial court did not err in dismissing a limited liability company (LLC) member's request for the appointment of a receiver because the member retained bo causes of action for damages against the LLC upon which a request for a receiver could attach. Huggins v. McKee, 500 S.W.3d 360, 2016 Tenn. App. LEXIS 354 (Tenn. Ct. App. May 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 697 (Tenn. Sept. 22, 2016).

3. —Necessity of Appointment.

The burden is on the applicant to establish a proper case, by a strong showing to justify interference with actual possession, by the appointment of a receiver. And an affidavit which does not aver facts, and is not made by a party, but by his solicitor, and only on the affiant's “information and belief,” and not disclosing the solicitor's means of information and belief, is clearly insufficient. Davis v. Reaves, 70 Tenn. 649, 1879 Tenn. LEXIS 213 (1879); Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

4. —Nature and Operation of Appointment.

The appointment of a receiver is an interlocutory order, and is ordinarily in the nature of granting extraordinary process, for it neither settles nor prejudices rights, and is only resorted to for the purpose of preserving the property, pending the litigation, for the benefit of the successful party. It might be otherwise, if the appointment was not within the competency of the court, as when the contest is over the legal title to land, or does not extend to the rents, for then it would affect possession, which is itself a right. State v. Allen, 1 Cooper's Tenn. Ch. 512 (1873); Baird v. Cumberland & Stones River Tpk. Co., 69 Tenn. 394, 1878 Tenn. LEXIS 109 (1878); Bramley v. Tyree, 69 Tenn. 531, 1878 Tenn. LEXIS 134 (1878); Johnston v. Hanner, 70 Tenn. 8, 1878 Tenn. LEXIS 176 (1878); Roberson v. Roberson, 71 Tenn. 50, 1879 Tenn. LEXIS 29 (1879); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

5. —Order of Appointment.

Order appointing is not invalid because entered under the style of the dependent rather than the original cause. Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

A decretal order appointing a receiver with judicial powers in excess of those possessed by the chancellor is irregular if not void. Instances given. Breeden v. Hurley, 13 Tenn. App. 599, — S.W.2d —, 1931 Tenn. App. LEXIS 102 (Tenn. Ct. App. 1931).

6. —Appeal from Appointment.

The appointment of a receiver is a matter of sound discretion with the chancellor; and, ordinarily, the order of appointment in a case clearly within the competency of the court, cannot be superseded, nor will a bill of review lie to revise the appointment when made by an order of court on its minutes. Cone v. Paute, 59 Tenn. 506, 1873 Tenn. LEXIS 100 (1873); Baird v. Cumberland & Stones River Tpk. Co., 69 Tenn. 394, 1878 Tenn. LEXIS 109 (1878); Bramley v. Tyree, 69 Tenn. 531, 1878 Tenn. LEXIS 134 (1878); Johnston v. Hanner, 70 Tenn. 8, 1878 Tenn. LEXIS 176 (1878); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883).

If a receiver is appointed where the person in possession is no party to the suit, the order of appointment may be superseded, and the supersedeas will not be discharged by the appellate court. Richmond v. Yates, 62 Tenn. 204, 1873 Tenn. LEXIS 170 (1873).

Where the appointment of a receiver is not within the competency of the court, as where the contest is over the legal title to land, or the right of complainant does not extend to the rents, or the receivership would deprive the defendant of his homestead right, such appointment will be superseded under § 29-1-102. The distinction is between the want of power and the discretionary exercise of a conceded power, and a motion to discharge such supersedeas will be disallowed. Cone v. Paute, 59 Tenn. 506, 1873 Tenn. LEXIS 100 (1873); Richmond v. Yates, 62 Tenn. 204, 1873 Tenn. LEXIS 170 (1873); Morford v. Hamner, 62 Tenn. 391, 1874 Tenn. LEXIS 65 (1874); Hoge v. Hollister, 67 Tenn. 533, 1876 Tenn. LEXIS 2 (1876); Baird v. Cumberland & Stones River Tpk. Co., 69 Tenn. 394, 1878 Tenn. LEXIS 109 (1878); Christian v. Clark, 78 Tenn. 291, 1882 Tenn. LEXIS 178 (1882); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883).

A receiver may be appointed after final decree and after an appeal, while the suit is still in court, the appeal being set aside, and the appellant allowed to appeal from such final decree and the order appointing the receiver, and without any supplemental bill being filed, in cases of emergency. Merrill v. Elam, 2 Cooper's Tenn. Ch. 513 (1875); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883).

An order appointing a receiver is interlocutory, no matter at what stage of the case it may be made, and can neither be appealed from directly, nor superseded under the special provisions authorizing the supersedeas of certain interlocutory orders; but such an order is brought up for revision by a general appeal from the final hearing, and will remain in force if executed, unless otherwise ordered by the appellate court, and, if not executed, it may be executed by the appellate court, upon application, either directly or by procedendo to the court below. Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883); Downing v. Dunlap Coal, Iron & R.R., 93 Tenn. 221, 24 S.W. 122, 1893 Tenn. LEXIS 49 (1893); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

Supersedeas will be denied where appointment of receiver is in accord with the “ends of substantial justice.” Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

7. — —Effect of Appeal.

Where a party is only entitled to a receiver upon the recovery of a judgment, but obtains an order appointing one after judgment, but before an appeal is perfected by the defendant, which he afterwards prays and perfects, such appeal annuls and vacates the judgment, and with it the order for a receiver. Allen v. Chadburn, 62 Tenn. 225, 1873 Tenn. LEXIS 178 (1873).

8. — —Review of Appointment.

Sufficiency in law of grounds for appointment of receiver is reviewable by Supreme Court, when. Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

Objections to matters of form in application for receiver are not reviewable on collateral attack in the appellate court, when. Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

Great weight is given to conclusions of lower court as to facts found. Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

9. — —Appointment of Receiver.

Where it is alleged in the bill “that the security is scarcely sufficient to pay the debt claimed, and the appeal is in forma pauperis,” receiver may be appointed in the appellate court, when asked for in the bill, though none was appointed by the court below, and no steps taken in that direction. Bidwell v. Paul, 64 Tenn. 693, 1875 Tenn. LEXIS 160 (1875); Hoge v. Hollister, 67 Tenn. 533, 1876 Tenn. LEXIS 2 (1876).

Appellate courts may appoint receivers. Fleming v. Fleming, 8 Tenn. App. 315, — S.W.2d —, 1928 Tenn. App. LEXIS 145 (Tenn. Ct. App. 1928).

10. — —Remand.

Neither the remand of a cause after a decree by the appellate court, nor the death of the receiver appointed by that court, will take the property out of the custody of the court; and a purchaser from one of the litigants pending the litigation will not be allowed to interfere with the possession of a new receiver, by independent suit, without leave of the court first obtained by permission pro interesse suo. Brien v. Paul, 3 Cooper's Tenn. Ch. 357 (1877).

11. Purposes of Appointment.

12. —Real Estate.

A receiver may be had for the protection of the interests represented by a trust deed, at least where the debtor is insolvent and the land will bring less on foreclosure than the debt secured by the deed. Equitable Life Assurance Soc. v. Ellis, 16 Tenn. App. 551, 65 S.W.2d 250, 1933 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1933).

13. — —Growing Crops.

The interest of a deed of trust in growing crops was sufficient ground for the appointment of a receiver. Equitable Life Assurance Soc. v. Ellis, 16 Tenn. App. 551, 65 S.W.2d 250, 1933 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1933).

14. — —Rents and Taxes.

A judgment creditor, who has filed his bill to reach the equitable interest of his debtor in land previously mortgaged to another, is entitled to a receiver if the rents are required for the payment of his debt, subject to the right of the prior mortgagee to take possession; but the receiver will be dispensed with, upon the owner's giving bond and security to account for the rents. Cone v. Paute, 59 Tenn. 506, 1873 Tenn. LEXIS 100 (1873); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875).

The failure of the party in possession of land in litigation to pay the taxes is sufficient to authorize the appointment of a receiver to take charge of the property, rent it out, and collect and hold the rents, and to pay the taxes to save the property from loss by sale for taxes. Cone v. Paute, 59 Tenn. 506, 1873 Tenn. LEXIS 100 (1873); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875); Hamilton v. Wynne, 3 Shan. 33 (1878); Darusmont v. Patton, 72 Tenn. 597, 1880 Tenn. LEXIS 67 (1880); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

15. — —Vendor's Lien.

Where a complainant seeks to enforce his vendor's lien, a receiver will not be appointed if it is no part of the contract of sale, either express or implied, that the vendor shall appropriate anything but the land itself, by sale, for the satisfaction of his purchase money. Morford v. Hamner, 62 Tenn. 391, 1874 Tenn. LEXIS 65 (1874); Seat v. Knight, 3 Cooper's Tenn. Ch. 262 (1876); Lockhart v. Gee, 3 Cooper's Tenn. Ch. 332 (1877); Baird v. Cumberland & Stones River Tpk. Co., 69 Tenn. 394, 1878 Tenn. LEXIS 109 (1878); Roberson v. Roberson, 71 Tenn. 50, 1879 Tenn. LEXIS 29 (1879); Moore v. Knight, 74 Tenn. 427, 1880 Tenn. LEXIS 270 (1880); Pearson v. Gillenwaters, 99 Tenn. 446, 42 S.W. 9, 1897 Tenn. LEXIS 51, 63 Am. St. Rep. 844, 63 Am. St. Rep. 844 (1897); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

16. — —Legal Title.

The court is slow to appoint a receiver of land in the peaceable possession of one party under a claim of right, when the contest is between claimants of the legal title; but this rule does not apply where the property is already in the custody of a receiver in suits between adverse claimants, and a third party, claiming adversely to all the other litigants, asks that the receivership be continued. State v. Allen, 1 Cooper's Tenn. Ch. 512 (1873); Cassetty v. Capps, 3 Cooper's Tenn. Ch. 524 (1877); Baird v. Cumberland & Stones River Tpk. Co., 69 Tenn. 394, 1878 Tenn. LEXIS 109 (1878); Davis v. Reaves, 70 Tenn. 649, 1879 Tenn. LEXIS 213 (1879); Roberson v. Roberson, 71 Tenn. 50, 1879 Tenn. LEXIS 29 (1879); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903); Fleming v. Fleming, 8 Tenn. App. 315, — S.W.2d —, 1928 Tenn. App. LEXIS 145 (Tenn. Ct. App. 1928).

17. — —Mortgagor and Mortgagee.

If mortgagor does not retain right to possession, and the property is inadequate, receiver may be appointed, at the instance of the mortgagee or beneficiary in a deed of trust, during the progress of a necessary suit to foreclose, especially where the mortgagor is insolvent. Henshaw, Ward & Co. v. Wells, 28 Tenn. 568, 1848 Tenn. LEXIS 124 (1848); Williams v. Noland, 2 Cooper's Tenn. Ch. 151 (1874); Bidwell v. Paul, 64 Tenn. 693, 1875 Tenn. LEXIS 160 (1875); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875); Bramley v. Tyree, 69 Tenn. 531, 1878 Tenn. LEXIS 134 (1878); Hamilton v. Wynne, 3 Shan. 33 (1878); Moore v. Knight, 74 Tenn. 427, 1880 Tenn. LEXIS 270 (1880).

Where the maker of a mortgage, by its express stipulations, is allowed to retain possession of the property until a foreclosure of the same, he is entitled to the possession and rents, and it is error for the court to appoint a receiver in such case as the condition of a continuance. Chadbourn v. Henderson, 61 Tenn. 460, 1873 Tenn. LEXIS 206 (1873).

18. — —Sale of Land.

Real estate, in the hands of a receiver pendente lite, deteriorating and depreciating in value, requiring funds to insure and guard it, and no one being obliged to advance such funds, and which must be ultimately sold, may be sold before final hearing. Cleaves v. Ferguson, 2 Shan. 560 (1877). See Stewart v. Love, 71 Tenn. 374, 1879 Tenn. LEXIS 92 (1879), approving this case, but holding that the sale will not be made in advance of the final hearing in a suit to enforce a lien, where the property is not in the custody of the court.

19. — —Partition.

Chancery will not, pending a suit for a sale of land for division among cotenants, interfere, by the appointment of a receiver, with the lawful possession of one of the tenants, where it does not appear that he disputes the title or interferes with the possession of his cotenants, especially if there be no sufficient averment of insolvency. Cassetty v. Capps, 3 Cooper's Tenn. Ch. 524 (1877); Davis v. Reaves, 70 Tenn. 649, 1879 Tenn. LEXIS 213 (1879); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

20. —Personal Property.

Upon a bill to foreclose a mortgage of personalty by sale, a receiver will not be appointed where the property is adequate to meet the debt, and the mortgagor gives bond for the forthcoming of the property to answer the decree. Williams v. Noland, 2 Cooper's Tenn. Ch. 151 (1874); Johnson v. Tucker, 2 Cooper's Tenn. Ch. 398 (1875); Hughes v. Tennison, 3 Cooper's Tenn. Ch. 641 (1878).

The defendant in an attachment suit is like the mortgagor in possession upon a bill to foreclose, and, in such case, the rule is to leave him in possession, or to appoint him receiver upon giving good security, in the absence of anything tending to show that this course would, in the particular instance, be improper. Williams v. Noland, 2 Cooper's Tenn. Ch. 151 (1874); Hughes v. Tennison, 3 Cooper's Tenn. Ch. 641 (1878).

Appointment of receiver to impound trust or mortgaged property, in advance of the maturity of the debt, is within the competency of the chancery court, and will be made upon a bill filed by the trustee and beneficiaries, where the defendant is insolvent, the property inadequate to secure the debts, taxes unpaid and accumulating, or it is hazardous to leave the property in the possession of the defendant, or where he has absconded and left the state; and the appellate court has no power to supersede such action of the chancery court, upon an application for a supersedeas; nor can the grantor's capacity to contract be determined on a motion to appoint a receiver. Johnston v. Hanner, 70 Tenn. 8, 1878 Tenn. LEXIS 176 (1878); Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883); Downing v. Dunlap Coal, Iron & R.R., 93 Tenn. 221, 24 S.W. 122, 1893 Tenn. LEXIS 49 (1893); Troughber v. Akin, 109 Tenn. 451, 73 S.W. 118, 1902 Tenn. LEXIS 87 (1903).

21. —Administration of Estates.

Receiver will be appointed until administration can be granted, where litigation or other impediments exist. Smiley v. Bell, 8 Tenn. 378, 1828 Tenn. LEXIS 15 (1828); Slover v. Coal Creek Coal Co., 113 Tenn. 421, 82 S.W. 1131, 1904 Tenn. LEXIS 34, 106 Am. St. Rep. 851, 68 L.R.A. 852 (1904).

In a suit or proceeding in chancery for the administration of a decedent's insolvent estate, the chancellor may appoint a receiver and take the assets out of the hands of the administrator, when in danger of being lost, without a bill being filed for the purpose of removing him, making the direct charge of mismanagement and breach of trust, and giving the opportunity to answer and defend. Roberson v. Roberson, 71 Tenn. 50, 1879 Tenn. LEXIS 29 (1879).

22. —Actions at Law.

A receiver will not be appointed, at instance of complainant, to secure expected judgment in action of tort against a corporation. Slover v. Coal Creek Coal Co., 113 Tenn. 421, 82 S.W. 1131, 1904 Tenn. LEXIS 34, 106 Am. St. Rep. 851, 68 L.R.A. 852 (1904).

23. —Management of Business.

While a chancery court has the power to appoint a receiver to manage and conduct the publication of a newspaper, it “will not take upon itself the responsibility of continuing the publication of a political paper by a receiver any longer than is absolutely necessary to prevent a sacrifice of the property.” Gwynne v. Memphis Appeal-Avalanche Co., 93 Tenn. 603, 30 S.W. 23, 1894 Tenn. LEXIS 5 (1894).

24. Office of Receiver.

A receiver is a person indifferent between the parties, appointed by the court to receive the rents, issues, or profits of lands or thing in question in a court of chancery, pending the suit, when it does not seem reasonable to the court that either party should do it. He is considered as an officer of the court appointed for the benefit of all parties who may establish rights in the property or funds in his hands, which are in the custody of the law for all who can make out title to the same. Waters v. Carroll, 17 Tenn. 102, 1836 Tenn. LEXIS 24 (1836); Berry & Cleveland v. Jones, 58 Tenn. 206, 1872 Tenn. LEXIS 248, 27 Am. Rep. 742 (1872); Ross v. Williams, 58 Tenn. 410, 1872 Tenn. LEXIS 277 (1872).

The effect of the appointment of a receiver is to remove the party in possession of the property where he is a party to the suit, no right remaining in him by virtue of such possession; and any application he may make for the purpose of interfering with the discretion of the receiver must show abuse of his authority to the prejudice of the applicant. Payne v. Baxter, 2 Cooper's Tenn. Ch. 517 (1876).

The appointment of a receiver, in the absence of a statute so providing, does not vest title in him. Maryland Casualty Co. v. McConnell, 148 Tenn. 656, 257 S.W. 410, 1923 Tenn. LEXIS 52 (1924).

A receiver stands in shoes of person over whose property he has been appointed such. McConnell v. McCleish & Thomas, 159 Tenn. 520, 19 S.W.2d 251, 1928 Tenn. LEXIS 114 (1929); French v. Buffatt, 161 Tenn. 500, 33 S.W.2d 92, 1930 Tenn. LEXIS 35 (1930).

The receiver is an officer of the court, appointed by him and subject to his instructions in respect to the property that he deals with. KMC Co. v. Nabors, 572 S.W.2d 255, 1977 Tenn. App. LEXIS 334 (Tenn. Ct. App. 1977).

25. —Suits by Receiver.

The receiver may maintain suit in his own name, and the addition to his name indicating that he is receiver of certain parties is merely descriptio personae. Such suit cannot be maintained in the name of the parties for whom he is receiver, because the legal title is in him. Wray v. Jamison, 29 Tenn. 186, 1849 Tenn. LEXIS 42 (1849).

The dignity of the chancery court, within the same jurisdiction, cannot be asserted by an action of replevin in a common law court, brought by a receiver in chancery, against a person not a party to the chancery suit, having in fact a superior right to the possession of the property. Conley & Harrison v. Deere, Mansure & Co., 79 Tenn. 274, 1883 Tenn. LEXIS 58 (1883).

A receiver is entitled to sue on bond to principal just as the latter could prior to receivership, subject to defenses good against latter. King's, Inc. v. Maryland Casualty Co., 169 Tenn. 404, 88 S.W.2d 456, 1935 Tenn. LEXIS 63 (1935).

26. — —Foreign Receivers.

A foreign receiver, without legal title to the property sued for or to the claim sued on, sues under rule of comity; and the privilege to do so will not be accorded where the suit is inimical to the interests of local creditors or in contravention of local public policy. Hardee v. Wilson, 129 Tenn. 511, 167 S.W. 475, 1914 Tenn. LEXIS 141 (1914).

Where a superintendent of banks of New York has title to assets he cannot as quasi receiver maintain suit for stock assessments until judicial determination of the amounts needed for liquidation. Van Tuyl v. Carpenter, 135 Tenn. 629, 188 S.W. 234, 1915 Tenn. LEXIS 200 (1916).

If a foreign receiver has the legal title to the property sued for or to the claim sued on, he has generally the right to sue in this state. Van Tuyl v. Carpenter, 135 Tenn. 629, 188 S.W. 234, 1915 Tenn. LEXIS 200 (1916).

A foreign receiver with legal title to the property sued for or to the claim sued on sues as a matter of right, not comity, in a federal court. Oakes v. Lake, 290 U.S. 59, 54 S. Ct. 13, 78 L. Ed. 168, 1933 U.S. LEXIS 448 (1933).

27. — —Limitations.

Limitations run and continue to run against a receiver, statutory and contractual. King's, Inc. v. Maryland Casualty Co., 169 Tenn. 404, 88 S.W.2d 456, 1935 Tenn. LEXIS 63 (1935).

28. —Suits Against Receivers.

An original bill against a receiver, by a party to the suit in which the receiver was appointed, is unnecessary, unwarranted, and a contempt of court. Payne v. Baxter, 2 Cooper's Tenn. Ch. 517 (1876).

For persons, not parties to the suit, who claim adversely to the receiver, to enjoin interference with their possession does not constitute contempt of the court of appointment. French v. Buffatt, 161 Tenn. 500, 33 S.W.2d 92, 1930 Tenn. LEXIS 35 (1930).

29. —Liability for Property.

Any loss or injury to the property, without fault of the receiver, must fall on the owner, and not the receiver or party at whose instance he was appointed; nor is a receiver liable for interest, unless he made interest on the fund. Wall v. Pulliam, 52 Tenn. 365, 1871 Tenn. LEXIS 269 (1871); Ross v. Williams, 58 Tenn. 410, 1872 Tenn. LEXIS 277 (1872).

It is the duty of the party, at whose instance a receiver is appointed, to see that he performs his duty and accounts according to law, and he is liable to the party injured for all loss occasioned by the failure of the receiver to do his duty. Terrell v. Ingersoll, 78 Tenn. 77, 1882 Tenn. LEXIS 145 (1882); Downs v. Allen, 78 Tenn. 652, 1882 Tenn. LEXIS 234 (1882).

Where the collection of debts is enjoined or property is impounded, the party at whose instance it is done is bound to see that a receiver is promptly appointed to take charge of such impounded property and effects, and to secure them by proper legal proceedings. Terrell v. Ingersoll, 78 Tenn. 77, 1882 Tenn. LEXIS 145 (1882); Downs v. Allen, 78 Tenn. 652, 1882 Tenn. LEXIS 234 (1882).

30. —Accounting.

It is the duty of a receiver in chancery to make a full report and pass his accounts, at least once a year, and a failure will subject him to the risk of having his claim for compensation excepted to and disallowed. Any party to the cause in which he is appointed, and interested in the property or its incomes, is entitled, upon motion, to have an order for such report, and a reference for an account. Lowe v. Lowe, 1 Cooper's Tenn. Ch. 515 (1873); Stretch v. Gowdey, 3 Cooper's Tenn. Ch. 565 (1877).

31. —Compensation.

A surviving partner appointed receiver at his own instance, under claim of right to wind up the business, is not, ordinarily, entitled to compensation, in the absence of any stipulation therefor. Berry & Cleveland v. Jones, 58 Tenn. 206, 1872 Tenn. LEXIS 248, 27 Am. Rep. 742 (1872); Todd v. Rich, 2 Cooper's Tenn. Ch. 107 (1874); Condon v. Callahan, 115 Tenn. 285, 89 S.W. 400, 1905 Tenn. LEXIS 62, 112 Am. St. Rep. 833, 1 L.R.A. (n.s.) 643 (1905).

Receivers are entitled to such compensation as is usually allowed by law, or by contract between individuals for similar services, to be ascertained by proof of facts, and not by the opinions of witnesses; and the burden of the usual compensation should be borne, ordinarily, by the income, and five percent on the amount received and disbursed seems to be the customary allowance. Stretch v. Gowdey, 3 Cooper's Tenn. Ch. 565 (1877).

There should be payment of compensation to surviving partner for completing construction contract, where the contract contemplated that both parties should render services, and the contract was left unfinished upon the death of one partner. The allowance should be made in view of the large profits realized. Condon v. Callahan, 115 Tenn. 285, 89 S.W. 400, 1905 Tenn. LEXIS 62, 112 Am. St. Rep. 833, 1 L.R.A. (n.s.) 643 (1905).

32. —Fees and Costs.

The party at whose instance land is improperly, but on a correct statement of facts, placed in the hands of a receiver, is liable for the costs of the receivership, and such rents as the receiver would be liable for. Lockhart v. Gee, 3 Cooper's Tenn. Ch. 332 (1877).

Receivers will not be allowed attorney fees for legal services rendered by themselves, though they may be allowed reasonable attorney fees for counsel employed by them. State use of Meriwether v. Butler, 83 Tenn. 113, 1885 Tenn. LEXIS 28 (1885).

A receiver of attached property cannot have fees fixed in chancery court after appeal had been perfected and case disposed of in appellate court without a remand. Recourse is by independent suit on the bond, or in some instances by way of taxation as costs. James v. Williams, 20 Tenn. App. 420, 99 S.W.2d 831, 1936 Tenn. App. LEXIS 33 (Tenn. Ct. App. 1936).

Collateral References. 65 Am. Jur. 2d Receivers §§ 25, 26.

75 C.J.S. Receivers §§ 1, 8, 45.

Conclusiveness of order of one judge appointing receiver on another judge in same case. 132 A.L.R. 85.

Contingent or defeasible future interest, right of owner of, to appointment of receiver. 144 A.L.R. 796.

Jurisdiction of action involving appointment of receiver to foreign corporation. 155 A.L.R. 1246, 72 A.L.R.2d 1222.

Reciprocal insurance association, jurisdiction to appoint receiver for. 141 A.L.R. 785.

Remainderman's right, upon life tenant's failure to make repairs, to appointment of receiver. 128 A.L.R. 228, 175 A.L.R. 1434.

Undivided or successive interests in property or fund, right to appointment of receiver in action between persons owning or claiming to own. 127 A.L.R. 1228.

Valuation of securities in determining question of insolvency justifying appointment of receiver. 133 A.L.R. 1068.

Receivers 15-19.

NOTES TO DECISIONS

1. Jurisdiction Over Surety.

Where a surety on the bond of a receiver appointed by the chancery court gets into his possession a part of the trust fund, the court has jurisdiction of him to make upon him an order to act in personam, for the preservation of the fund. Seidenbach, Swab & Co. v. Denklespeil, 79 Tenn. 297, 1833 Tenn. LEXIS 191 (1883).

Collateral References. 65 Am. Jur. 2d Receivers §§ 102-106.

75 C.J.S. Receivers §§ 76, 77.

Receivers 51, 212-218.

NOTES TO DECISIONS

1. Authority to Issue Injunction.

A court of chancery has jurisdiction to entertain an original bill to restrain the execution of its own decrees in a proper case. Montgomery v. Whitworth, 1 Cooper's Tenn. Ch. 174 (1873); Clark v. Henderson, 1 Cooper's Tenn. Ch. 506 (1873); Anderson v. Mullenix, 73 Tenn. 287, 1880 Tenn. LEXIS 126 (1880).

Taxpayers may enjoin a misappropriation of railroad funds by county officials to the payment of other debts than the railroad debts, for which they were raised, until that is wholly extinguished, where such misappropriation is threatened under an illegal provision of a statute. Kennedy v. Montgomery County, 98 Tenn. 165, 38 S.W. 1075, 1896 Tenn. LEXIS 215 (1897).

By statute, the power to grant injunctions is entrusted to all chancellors and judges interchangeably. The granting of an injunction is within the discretion of the trial court, which discretion is not reviewable except in cases of manifest abuse. Thompson v. Menefee, 6 Tenn. App. 118, — S.W. —, 1927 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1927).

Incumbent sheriff who was defeated at election was not entitled to enjoin victor from taking office pending outcome of contest proceeding. Hagan v. Henry, 168 Tenn. 223, 76 S.W.2d 994, 1934 Tenn. LEXIS 43 (1934).

Where a temporary injunction has been granted pending the hearing and the hearing is resolved against the injunction, it lies in the discretion of the chancellor as to whether or not the injunction remains in force pending the appeal. Bilbrey v. Smith, 25 Tenn. App. 446, 158 S.W.2d 735, 1941 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1941).

2. Causes for Injunctive Relief.

3. —Stay of Proceedings Prior to Judgment.

Injunctions may be issued to stay proceedings at law before judgment. Ragsdale v. Buford's Ex'rs, 4 Tenn. 191, 4 Tenn. 192, 1817 Tenn. LEXIS 5 (1817); Wall & Co. v. Cloud, 22 Tenn. 181, 1842 Tenn. LEXIS 63 (1842); Bell v. Gamble, 28 Tenn. 117, 1848 Tenn. LEXIS 51 (1848); Hough v. Chaffin, 36 Tenn. 238, 1856 Tenn. LEXIS 89 (1856); Huddleston v. Williams, 48 Tenn. 579, 1870 Tenn. LEXIS 116 (1870); McLin v. Marshall, 48 Tenn. 678 (1870); Fort v. Orndoff, 54 Tenn. 167, 1872 Tenn. LEXIS 33 (1872); E. D. Tarbox & Bro. v. Hartenstein, 63 Tenn. 78, 1874 Tenn. LEXIS 210 (1874); Fields v. Carney, 63 Tenn. 137, 1874 Tenn. LEXIS 220 (1874); Pass v. Staples, 2 Shan. 36 (1876); Chadwell v. Jordan, 2 Cooper's Tenn. Ch. 635 (1876); Turner v. Breeden, 70 Tenn. 713, 1879 Tenn. LEXIS 228 (1879).

4. —Stay of Proceedings After Judgment.

Injunctions may be issued to stay proceedings at law after judgment. Donelson v. Young, 19 Tenn. 155, 1838 Tenn. LEXIS 38 (1838); Molloy v. Elam, 19 Tenn. 590, 1838 Tenn. LEXIS 94 (1838); McKoin & Wilkinson v. Cooley, 22 Tenn. 559, 1842 Tenn. LEXIS 144 (1842); Isler v. Outlaw, 23 Tenn. 118, 1843 Tenn. LEXIS 31 (1843); Nicholson v. Patterson, 25 Tenn. 394, 1845 Tenn. LEXIS 110 (1845); Rice v. R.R. Bank, 26 Tenn. 39, 1846 Tenn. LEXIS 48 (1846); Gwinn v. Newton, 27 Tenn. 710, 1848 Tenn. LEXIS 28 (1848); Ridgeway v. Bank of Tenn., 30 Tenn. 523, 1851 Tenn. LEXIS 94 (1851); Lafferty v. Conn, 35 Tenn. 221, 1855 Tenn. LEXIS 43 (1855); Seay v. Hughes, 37 Tenn. 155, 1857 Tenn. LEXIS 97 (1857); Lindsley v. James, 43 Tenn. 477, 1866 Tenn. LEXIS 78 (1866); Schwab v. Mount, 44 Tenn. 60, 1867 Tenn. LEXIS 13 (1867); Powell v. Cyfers, 48 Tenn. 526, 1870 Tenn. LEXIS 104 (1870); Levan v. Patton, 49 Tenn. 108, 1870 Tenn. LEXIS 198 (1870); Burem v. Foster, 53 Tenn. 333, 1871 Tenn. LEXIS 368 (Tenn. Oct. 14, 1871); Greenfield v. Frierson, 54 Tenn. 633, 1872 Tenn. LEXIS 99 (1872); Staunton v. Clark, 56 Tenn. 669, 1872 Tenn. LEXIS 188 (1872); Prater v. Robinson, 58 Tenn. 391, 1872 Tenn. LEXIS 274 (1872); Wagstaff v. Braden, 60 Tenn. 304, 1872 Tenn. LEXIS 495 (1872); Lindsley v. Thompson, 1 Cooper's Tenn. Ch. 272 (1873); Cornelius v. Thomas, 1 Cooper's Tenn. Ch. 283 (1873); Parkes v. Gilbert, 60 Tenn. 97, 1873 Tenn. LEXIS 417 (1873); Hubbard v. Ewing, 63 Tenn. 404, 1874 Tenn. LEXIS 278 (1874); Pulliam v. Wilkerson, 66 Tenn. 611, 1874 Tenn. LEXIS 189 (1874); Cornelius v. Morrow, 59 Tenn. 630, 1874 Tenn. LEXIS 19 (1874); Howe Sewing Mach. Co. v. Zachary, 2 Cooper's Tenn. Ch. 478 (1875); Moore v. Gaha, 3 Cooper's Tenn. Ch. 415 (1877); Pardue v. West, 69 Tenn. 729, 1878 Tenn. LEXIS 169 (1878); Glenn v. Maguire, 3 Cooper's Tenn. Ch. 695 (1878); Nance v. Gregory & Pettus, 74 Tenn. 343, 1880 Tenn. LEXIS 258, 40 Am. Rep. 41 (1880).

5. —Stay of Executions in Law Courts.

Injunctions may be issued to restrain executions at law. Loftin v. Espy, 12 Tenn. 83, 12 Tenn. 84, 1833 Tenn. LEXIS 18 (1833); Hammond v. St. John, 12 Tenn. 106, 12 Tenn. 107, 1833 Tenn. LEXIS 22 (1833); Saunders v. Woods, 13 Tenn. 142, 1833 Tenn. LEXIS 123 (1833); Ross v. McCarty, 22 Tenn. 169, 1842 Tenn. LEXIS 58 (1842); Whitesides v. Rayle, 22 Tenn. 205, 1842 Tenn. LEXIS 68 (1842); Wood v. Cruisman, 25 Tenn. 279, 1845 Tenn. LEXIS 81 (1845); Williams v. Wright, 28 Tenn. 493, 1848 Tenn. LEXIS 109 (1848); Ridgeway v. Bank of Tenn., 30 Tenn. 523, 1851 Tenn. LEXIS 94 (1851); Lockwood & Co. v. Nye, 32 Tenn. 515, 1852 Tenn. LEXIS 107 (1852); Dechard v. Edwards, 34 Tenn. 93, 1854 Tenn. LEXIS 19 (1854); Lafferty v. Conn, 35 Tenn. 221, 1855 Tenn. LEXIS 43 (1855); Thompson v. Meek, 35 Tenn. 271, 1855 Tenn. LEXIS 53 (1855); Wiley v. Bridgman, 38 Tenn. 68, 1858 Tenn. LEXIS 121 (Tenn. Sep. 1858); Rucker v. Moore, 48 Tenn. 726, 1870 Tenn. LEXIS 139 (1870); Hickerson v. Raiguel & Co., 49 Tenn. 329, 1871 Tenn. LEXIS 13 (1871); W.B. Mann & Co. v. Bamberger, Bloom & Co., 51 Tenn. 486, 1871 Tenn. LEXIS 191 (1871); Watson v. Sutherlin, 1 Cooper's Tenn. Ch. 208 (1873); Taylor v. Nashville & C.R.R., 86 Tenn. 228, 6 S.W. 393, 1887 Tenn. LEXIS 43 (1887).

6. —Stay of Executions in Other Chancery Courts.

Injunctions may be issued to restrain executions from another chancery court. Deaderick v. Smith, 25 Tenn. 138, 1845 Tenn. LEXIS 46 (1845); Anderson v. Bank of Tennessee, 37 Tenn. 661, 1858 Tenn. LEXIS 91 (1858); Whiteside v. Latham, 42 Tenn. 91, 1865 Tenn. LEXIS 23 (1865); In re Chadwell, 54 Tenn. 630, 1872 Tenn. LEXIS 98 (1872); Douglass v. Joyner, 60 Tenn. 32, 1872 Tenn. LEXIS 471 (1872); Smith v. St. Louis Mut. Life Ins. Co., 3 Cooper's Tenn. Ch. 502 (1877); Anderson v. Mullenix, 73 Tenn. 287, 1880 Tenn. LEXIS 126 (1880).

7. —Restraining Judgments in Appellate Courts.

Injunctions may be issued to enjoin judgments of appellate courts. Nicholson v. Patterson, 25 Tenn. 394, 1845 Tenn. LEXIS 110 (1845); Coles v. Anderson & Griswell, 27 Tenn. 489, 1847 Tenn. LEXIS 111 (1847); Smith v. Van Bebber, 31 Tenn. 110, 1851 Tenn. LEXIS 28 (1851); Kinzer v. Helm, 54 Tenn. 672, 1872 Tenn. LEXIS 103 (1872).

8. —Restraining Foreign Judgments.

Injunctions may be issued to restrain enforcement of judgments from a sister state. Wilson v. Robertson, 1 Tenn. 266, 1808 Tenn. LEXIS 11 (1808); Turley v. Taylor, 65 Tenn. 376, 1873 Tenn. LEXIS 369 (1873).

9. —Restraining Judgments in Foreign Court.

Injunctions may be issued to restrain judgments in a foreign court. Lockwood & Co. v. Nye, 32 Tenn. 515, 1852 Tenn. LEXIS 107 (1852).

10. —Restraining Appeal to Supreme Court.

Injunctions may be issued to restrain appeals to the supreme court. W. M. Perkins & Co. v. Woodfolk, 67 Tenn. 411, 1874 Tenn. LEXIS 390 (1874).

11. Application for Injunction.

Upon the preliminary application for an injunction, all that the judge should, as a general rule, require is a case of probable right, and probable danger to that right without the interposition of the court, and his discretion should then be regulated by the balance of inconvenience or injury to the one party or the other. Flippin v. Knaffle, 2 Cooper's Tenn. Ch. 238 (1875); Owen v. Brien, 2 Cooper's Tenn. Ch. 295 (1875); Memphis & C.R.R. v. Gaines, 3 Cooper's Tenn. Ch. 478 (1877); Smith v. St. Louis Mut. Life Ins. Co., 3 Cooper's Tenn. Ch. 502 (1877).

Taxpayers cannot maintain, on behalf of themselves and other taxpayers, a bill to enjoin the collection of a railroad tax by a county, although the tax is illegal as being in excess of the amount required for the particular purpose, where they have delayed to bring suit for a whole year, and until the greater part of the tax had been collected. Kennedy v. Montgomery County, 98 Tenn. 165, 38 S.W. 1075, 1896 Tenn. LEXIS 215 (1897).

12. Basis for Injunction.

The practice in this state has always been to grant injunctions upon the ex parte statement, under oath, of the applicant, showing probable cause and probable danger. Flippin v. Knaffle, 2 Cooper's Tenn. Ch. 238 (1875).

13. Effect of Injunction.

Operation as release of errors. Mathews v. Douglass, 3 Tenn. 136, 1 Cooke 136, 1812 Tenn. LEXIS 36 (1812); Overton v. Perkins, 8 Tenn. 367, 1828 Tenn. LEXIS 14 (1828); Henly v. Robertson, 12 Tenn. 172, 12 Tenn. 171, 1833 Tenn. LEXIS 41 (1833); Patterson v. Gordon, 3 Cooper's Tenn. Ch. 18 (1875); Chadwell v. Jordan, 2 Cooper's Tenn. Ch. 635 (1876).

Effect of injunction to quiet possession. Rutherford v. Metcalf, 6 Tenn. 58, 1818 Tenn. LEXIS 22 (1818).

Effect of injunction against execution. Overton v. Perkins, 8 Tenn. 367, 1828 Tenn. LEXIS 14 (1828); Miller's Lessee v. Estill, 16 Tenn. 452, 1835 Tenn. LEXIS 106 (1835); Stinson v. McMurray, 25 Tenn. 339, 1845 Tenn. LEXIS 101 (1845); Farnsworth v. Fowler, 31 Tenn. 1, 1851 Tenn. LEXIS 1 (1851).

Effect on action taken before service of injunction. Boils v. Boils, 41 Tenn. 284, 1860 Tenn. LEXIS 64 (1860).

14. Bill for Ne Exeat.

A bill, praying for the issuance of a writ of ne exeat, must, by positive allegations or by facts, threats, or declarations evidencing such intention, set forth the defendant's intended departure from the state, and that the right or demand sought will be lost or recovery greatly endangered by the defendant's departure; but it is not essential to allege an intent to avoid jurisdiction. Caughron v. Stinespring, 132 Tenn. 636, 179 S.W. 152, 1915 Tenn. LEXIS 58, L.R.A. (n.s.) 1916C403 (1915).

15. Issuance of Ne Exeat.

The writ of ne exeat will be issued out of chancery, upon good cause shown by affidavit, directing the arrest of the defendant and his detention until he give bond, in double the value of the property, conditioned not to remove himself or the property in controversy from this state, so as to defeat the decree which may be given in the cause. Smith v. Koontz, 5 Tenn. 189, 1817 Tenn. LEXIS 87 (1817); Caughron v. Stinespring, 132 Tenn. 636, 179 S.W. 152, 1915 Tenn. LEXIS 58, L.R.A. (n.s.) 1916C403 (1915).

The writ of ne exeat will not issue for demands uncertain or contingent, and either the demand or its enforcement must be of an equitable nature. Caughron v. Stinespring, 132 Tenn. 636, 179 S.W. 152, 1915 Tenn. LEXIS 58, L.R.A. (n.s.) 1916C403 (1915).

16. —Vendor — Vendee.

Where the vendor of land holds the purchase money notes and might remove and negotiate them, and there is a deficiency in the land sold by the acre, the vendee is entitled to the writ of ne exeat against such vendor, so as to preserve his remedies, for the issuance of such writ in such case is not equivalent to imprisonment for debt prohibited by Tenn. Const., art. I, § 18. Caughron v. Stinespring, 132 Tenn. 636, 179 S.W. 152, 1915 Tenn. LEXIS 58, L.R.A. (n.s.) 1916C403 (1915).

17. Divorce.

Writ ne exeat may issue in divorce proceeding solely upon affidavit of wife upon charges based on reasonable grounds that husband is going out of the state or has said he is going out of the state. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

Ne exeat order in divorce proceeding binds sureties until proceeding is determined even though writ was originally granted for purpose of determining support of the children. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

Suit to recover on ne exeat bond in divorce proceeding could be filed directly by wife though bond was payable to the state, since she was the real party in interest. Kirby v. Kirby, 185 Tenn. 408, 206 S.W.2d 404, 1947 Tenn. LEXIS 345 (1947).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 13, 17, 21, 23, 24; 42 Am. Jur. 2d Injunctions §§ 244, 245; 57 Am. Jur. 2d Ne Exeat §§ 8, 9.

48 C.J.S. Judges § 40.

Proceedings for injunction or restraining order as basis of malicious prosecution action. 70 A.L.R.3d 536.

Prohibition as appropriate remedy to prevent allegedly disqualified judge from proceeding with case. 92 A.L.R.2d 306.

Prohibition as appropriate remedy to restrain civil action for lack of jurisdiction of the person. 92 A.L.R.2d 247.

Attachment 70.

NOTES TO DECISIONS

1. Waiver of “First Application.”

The failure of the pleading to state “first application” is waived unless the objection is taken at the proper time and in a proper way, by motion to dismiss. Boyd v. Hickey, 35 S.W. 1024, 1895 Tenn. Ch. App. LEXIS 34 (1895).

Collateral References. 30A C.J.S. Equity § 217.

NOTES TO DECISIONS

1. General Principles.

The general rule is that the statute of frauds does not apply where there has been a substitution of a new contract for the old. Hooper v. Neubert, 53 Tenn. App. 233, 381 S.W.2d 569, 1964 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1964).

The memorandum may be executed at any time after the contract and before the action. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

When an agreement has been reduced to a certainty and the statute complied with in substance the forms have never been insisted upon. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

In equity cases, Tennessee has always recognized that frauds of a certain character will be relieved against even in face of the statute of frauds. Southern States Dev. Co. v. Robinson, 494 S.W.2d 777, 1972 Tenn. App. LEXIS 277 (Tenn. Ct. App. 1972).

This statute has no application to a case alleging fraudulent misrepresentation which induced the execution of a land contract, for such case is sounded in tort and the statute does not apply to tort cases. Haynes v. Cumberland Builders, Inc., 546 S.W.2d 228, 1976 Tenn. App. LEXIS 212 (Tenn. Ct. App. 1976).

The statute of frauds applies only to contract actions, and not to tort claims. Jarrett v. Epperly, 896 F.2d 1013, 1990 U.S. App. LEXIS 2467 (6th Cir. Tenn. 1990).

Trial court should not have dismissed a civil rights case based on the one-year limitations period under state law because the complaint sufficiently alleged post-contract formation conduct, and the four year statute of limitations for federal law applied instead. Neither the parol evidence rule nor the statute of frauds was applicable in this case since an action for discrimination under federal law generally sounded in tort. Belton v. City of Memphis, — S.W.3d —, 2016 Tenn. App. LEXIS 314 (Tenn. Ct. App. May 10, 2016).

Given that appellee was prosecuting this action upon a written instrument, the lease, it could not rely upon the statute of frauds as though it were defending against an action, and appellant had not improperly relied upon an oral agreement to prosecute an action or for any of the conditions outlined in the statute. Tenn. Traders Landing, LLC v. Jenkins & Stiles, LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 397 (Tenn. Ct. App. July 9, 2018).

2. —Purpose of Statute.

Subdivision (4) was designed to protect owners of realty from hasty or inconsiderate agreements in respect to the most valuable species of property, and to guard against misunderstandings as to the nature and extent of the agreement. Whitby v. Whitby, 36 Tenn. 473, 1857 Tenn. LEXIS 39 (1857), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006); Ashley v. Preston, 162 Tenn. 540, 39 S.W.2d 279, 1930 Tenn. LEXIS 121 (Tenn. Dec. 1930), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006); Brandel v. Moore Mortg. & Inv. Co., 774 S.W.2d 600, 1989 Tenn. App. LEXIS 2 (Tenn. Ct. App. 1989), appeal denied, 1989 Tenn. LEXIS 301 (Tenn. June 5, 1989).

Purpose of statute is to prevent fraudulent contracts from being proved by perjured testimony. Yates v. Skaggs, 187 Tenn. 149, 213 S.W.2d 41, 1948 Tenn. LEXIS 421 (1948).

The purpose of the statute is to reduce contracts to a certainty in order to avoid perjury on the one hand and fraud on the other. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

The purpose of the statute of frauds is to reduce contracts to a certainty, in order to avoid perjury on the one hand and fraud on the other. Baliles v. Cities Serv. Co., 578 S.W.2d 621, 1979 Tenn. LEXIS 416 (Tenn. 1979).

The statute of frauds was enacted for the purpose of preventing fraud, and shall not be made the instrument of shielding, protecting, or aiding the party who relies upon it in the perpetration of a fraud, or in the consummation of a fraudulent scheme. Jarrett v. Epperly, 896 F.2d 1013, 1990 U.S. App. LEXIS 2467 (6th Cir. Tenn. 1990).

3. —Construction.

The statute must be rigidly construed and strictly adhered to, and it must be executed as nearly within the letter as possible. Where there are no exceptions in a statute the courts can make none by mere force of construction. Townsend v. Sharp, 2 Tenn. 191, 2 Tenn. 192, 1812 Tenn. LEXIS 13 (1812); Erwin v. Waggoman, 3 Tenn. 401, 1 Cooke 401, 1813 Tenn. LEXIS 46 (1813); Patton v. M'Clure, 8 Tenn. 332, 8 Tenn. 333, 1828 Tenn. LEXIS 11 (1828); Newnan v. Carroll, 11 Tenn. 17, 11 Tenn. 18, 1832 Tenn. LEXIS 11 (1832).

The statute does not affect the mutuality of the contract and obligation between the parties, but simply requires that the evidence of the contract on the part of the owner of the land, or the obligor in the other cases, shall be in writing, while the evidence of the contract upon the part of the lessee or purchaser of the land, or the obligee in the other cases, may be in parol, as at common law before the statute of frauds. Whitby v. Whitby, 36 Tenn. 473, 1857 Tenn. LEXIS 39 (1857), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

The statute does not in terms denounce as void ab initio a contract made in contravention of its terms with respect to alienation of lands. Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

The statute of frauds for the old Uniform Sales Act, the statute of frauds for the UCC — Sales, and this section have a common source, the Statute for the Prevention of Frauds and Perjuries, 29 Charles II, c. 3 (1676), and should be construed alike. Blasingame v. American Materials, Inc., 654 S.W.2d 659, 1983 Tenn. LEXIS 639 (Tenn. 1983), superseded by statute as stated in, Wakefield v. Crawley, 6 S.W.3d 442, 1999 Tenn. LEXIS 576 (Tenn. 1999), overruled in part, Athlon Sports Communs., Inc. v. Duggan, 549 S.W.3d 107, 2018 Tenn. LEXIS 310 (Tenn. June 8, 2018).

An agreement that falls within the statute of frauds is not void but is voidable at the instance of either party. Trew v. Ogle, 767 S.W.2d 662, 1988 Tenn. App. LEXIS 776 (Tenn. Ct. App. 1988).

While the statute of frauds should be strictly adhered to and construed to accomplish its purpose, it should not be used to avoid contracts or to grant a privilege to a person to refuse to perform what he has agreed to do. GRW Enterprises, Inc. v. Davis, 797 S.W.2d 606, 1990 Tenn. App. LEXIS 304 (Tenn. Ct. App. 1990), rehearing denied, — S.W.2d —, 1990 Tenn. App. LEXIS 345 (Tenn. Ct. App. May 16, 1990).

Although the statute of frauds may bar enforcement of an alleged oral agreement, it does not preclude a party from recovering damages for unjust enrichment or detrimental reliance. EnGenius Entertainment v. Herenton, 971 S.W.2d 12, 1997 Tenn. App. LEXIS 759 (Tenn. Ct. App. 1997).

4. —Conflicts of Law.

Where contract was made out of Tennessee, it was held to be governed by lex loci. Eaves v. Gillespie, 31 Tenn. 128, 1851 Tenn. LEXIS 32 (1851).

5. —Declaration or Bill.

The statute has not changed the form or mode of pleading, and in an action upon a promise, agreement, or contract required by the statute to be in writing, it is not necessary that the declaration shall allege that the same is in writing, for that may be shown in the evidence. It is sufficient to allege that the promise, agreement, or contract was made. Townsend v. Sharp, 2 Tenn. 191, 2 Tenn. 192, 1812 Tenn. LEXIS 13 (1812); Carroway v. Anderson, 20 Tenn. 61, 1839 Tenn. LEXIS 14 (1839). The same rule applies to pleadings in chancery Macey v. Childress, 2 Cooper's Tenn. Ch. 438 (1875).

Filing an ejectment bill against one claiming under a verbal contract was a sufficient disavowal of any title defendant was authorized to maintain under any verbal purchase, and allegation by complainant of a verbal contract void because of the statute of frauds was unnecessary. Witt v. Siler, 12 Tenn. App. 116, — S.W.2d —, 1928 Tenn. App. LEXIS 204 (Tenn. Ct. App. 1928).

6. —Defensive Pleading.

7. — —Statute Specially Pleaded.

The statute must be specially pleaded as a defense to a suit upon a promise, agreement, or contract required by the statute to be in writing, where the same is in parol, in order to avoid the contract and defeat the suit. Patton v. M'Clure, 8 Tenn. 332, 8 Tenn. 333, 1828 Tenn. LEXIS 11 (1828); Newnan v. Carroll, 11 Tenn. 17, 11 Tenn. 18, 1832 Tenn. LEXIS 11 (1832); Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856); Hudson v. King, 49 Tenn. 560, 1871 Tenn. LEXIS 44 (1871); Jennings v. Bishop, 3 Shan. 138 (1883); Citty v. Southern Queen Mfg. Co., 93 Tenn. 276, 24 S.W. 121, 1893 Tenn. LEXIS 54, 42 Am. St. Rep. 919 (1893); Barnes v. Black Diamond Coal Co., 101 Tenn. 354, 47 S.W. 498, 1898 Tenn. LEXIS 73 (1898); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911); Huffine v. McCampbell, 149 Tenn. 47, 257 S.W. 80, 1923 Tenn. LEXIS 84 (1923); Gibson County Bank v. Shatz, 12 Tenn. App. 281, 1930 Tenn. App. LEXIS 64 (1930); Stout v. Fuqua, 20 Tenn. App. 608, 103 S.W.2d 28, 1937 Tenn. App. LEXIS 2 (Tenn. Ct. App. 1937).

Where defendants object to the specific performance of a parol contract upon the ground that it would be hard or unreasonable, specific performance will be refused, though the defendants have not relied on the statute. Hudson v. King, 49 Tenn. 560, 1871 Tenn. LEXIS 44 (1871); Starnes v. Newsom, 1 Cooper's Tenn. Ch. 239 (1873).

Seven years' adverse possession of land does not take away the right to plead the statute of frauds in defense to a suit for specific performance of a parol gift or sale. Gaylor v. Gaylor, 1 Tenn. App. 645, — S.W. —, 1926 Tenn. App. LEXIS 7 (Tenn. Ct. App. 1926).

If the statute is to be relied upon as a defense it must be specially pleaded. Love & Amos Coal Co. v. United Mine Workers, 53 Tenn. App. 37, 378 S.W.2d 430, 1963 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1963), cert. denied, 376 U.S. 971, 84 S. Ct. 1137, 12 L. Ed. 2d 85, 1964 U.S. LEXIS 2314 (1964).

The statute must be specially pleaded as a defense to a suit upon a promise, agreement, or contract required by the statute to be in writing, where the same is in parol, in order to avoid the contract and defeat the suit. King v. John A. Denies Sons Co., 56 Tenn. App. 39, 404 S.W.2d 580, 1966 Tenn. App. LEXIS 216 (Tenn. Ct. App. 1966).

8. — —Special Pleading Not Required.

The statute of frauds is not required to be specially pleaded to a bill seeking specific performance, where the defendant denies that the terms of the contract are correctly stated, and files a cross bill insisting upon the invalidity of the contract, and seeking to recover the purchase money paid, and the value of improvements made. Graham v. Weaver, 97 Tenn. 485, 37 S.W. 221, 1896 Tenn. LEXIS 170 (1896).

A special plea of the statute is not necessary, where the defendant repudiates the parol contract by filing a cross bill to recover the purchase money paid, and the value of improvements made. Graham v. Weaver, 97 Tenn. 485, 37 S.W. 221, 1896 Tenn. LEXIS 170 (1896).

9. — —Time for Special Plea.

It is not an abuse of discretion for a chancellor to allow the defendants to file a plea of the statute of frauds after the plaintiff has testified. Boutwell v. Lewis Bros. Lumber Co., 27 Tenn. App. 460, 182 S.W.2d 1, 1944 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1944).

10. — —Demurrer.

Where the bill shows upon its face that the contract sued on is in parol, when it is required by the statute of frauds to be in writing, the objection may be made by demurrer. Macey v. Childress, 2 Cooper's Tenn. Ch. 438 (1875).

Defense that parol agreement was unenforceable by reason of statute of frauds was properly made by demurrer where bill showed that the agreement rested only in parol. Frierson v. Gant, 23 Tenn. App. 428, 134 S.W.2d 193, 1939 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1939).

Question of statute of frauds can be raised by demurrer if bill sets out agreement along with paper writings relied upon by petitioner to prove a valid contract. Yates v. Skaggs, 187 Tenn. 149, 213 S.W.2d 41, 1948 Tenn. LEXIS 421 (1948).

11. — —Failure to Plead Statute.

Where there is no plea of the statute of frauds a parol sale of real property is valid. Bates v. Dennis, 30 Tenn. App. 94, 203 S.W.2d 928, 1946 Tenn. App. LEXIS 108 (1946).

12. — —Waiver.

The statute of frauds is waived if not raised as a defense in the pleadings. Mostoller v. Aspen Marine Group (In re Dorrough, Parks & Co.), 173 B.R. 135, 1994 Bankr. LEXIS 1646 (Bankr. E.D. Tenn. 1994), aff'd, 185 B.R. 46, 1995 U.S. Dist. LEXIS 8207 (E.D. Tenn. 1995).

13. — —Oral Release.

In suit on guaranty an oral release from guaranty could not be pleaded as a defense as it would violate the parol evidence rule. Brewing Corp. of Am. v. Pioneer Distrib. Co., 194 Tenn. 588, 253 S.W.2d 761, 1952 Tenn. LEXIS 425 (1952), superseded by statute as stated in, TBC Corp. v. Wall, 955 S.W.2d 838, 1997 Tenn. App. LEXIS 157 (Tenn. Ct. App. 1997).

14. —Estoppel.

The want of a writing where the statute requires a writing is obviated by a statement of the contract or undertaking in an answer in chancery, in which the party, in effect, insisted that the same was valid and binding on him; and such party is thereby estopped from subsequently relying upon the statute to avoid the contract, even in another and subsequent suit. Mills v. Mills, 40 Tenn. 705, 1859 Tenn. LEXIS 207 (1859).

A deed purporting to be inter partes, conveying land, and imposing an obligation upon the grantee, or making a reservation, if accepted by the grantee, is the deed of both parties, though executed by the grantor only. Caraway v. Caraway, 47 Tenn. 245, 1869 Tenn. LEXIS 37 (1869); Swope v. Jordan, 107 Tenn. 166, 64 S.W. 52, 1901 Tenn. LEXIS 69 (1901).

While in many jurisdictions an executed contract takes the case from under the statute of frauds, that does not seem to be the rule in Tennessee, where the statute is enforced according to its letter with reference to real estate. The courts have, however, upon numerous occasions avoided the letter of the statute by the enforcement in cases of this character of the equitable estoppel rule. Daugherty v. Toomey, 189 Tenn. 54, 222 S.W.2d 197, 1949 Tenn. LEXIS 398, 1949 Tenn. LEXIS 399 (1949).

A partly executed parol agreement for the erection and maintenance of a party wall may be enforced upon the theory of equitable estoppel. Daugherty v. Toomey, 189 Tenn. 54, 222 S.W.2d 197, 1949 Tenn. LEXIS 398 (1949).

The doctrine of estoppel may only be urged to protect a right and never to create one. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

Where plaintiff did not seek to protect its rights to mine coal under coal mining lease or to recover damages in lieu thereof but sought to create the right to recover damages for loss of profits that plaintiff may have realized from such operation, plaintiff sought to create a right by the doctrine of estoppel and was not entitled to assert such doctrine to preclude defendant from pleading the statute of frauds. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

Where throughout a period spanning a number of years, plaintiff was led to believe that oral employment contract he made with defendant corporation would be honored, and in reliance thereon, plaintiff proceeded to perform his part of the bargain, and in doing so, he so altered his position as to suffer an unconscionable loss if the corporation was allowed to rely upon the statute of frauds, doctrine of partial performance of a verbal employment contract was applicable, and defendant would not be heard to invoke the statute of frauds to prevent enforcement of the oral employment contract. Blasingame v. American Materials, Inc., 654 S.W.2d 659, 1983 Tenn. LEXIS 639 (Tenn. 1983), superseded by statute as stated in, Wakefield v. Crawley, 6 S.W.3d 442, 1999 Tenn. LEXIS 576 (Tenn. 1999), overruled in part, Athlon Sports Communs., Inc. v. Duggan, 549 S.W.3d 107, 2018 Tenn. LEXIS 310 (Tenn. June 8, 2018).

Promissory estoppel is explained as follows: a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person, and which does induce such action or forbearance, is binding if injustice can be avoided only by enforcement of the promise. Calabro v. Calabro, 15 S.W.3d 873, 1999 Tenn. App. LEXIS 732 (Tenn. Ct. App. 1999).

The limits of promissory estoppel are: (1) The detriment suffered in reliance must be substantial in an economic sense; (2) The substantial loss to the promisee in acting in reliance must have been foreseeable by the promisor; and (3) The promisee must have acted reasonable in justifiable reliance on the promise as made. Calabro v. Calabro, 15 S.W.3d 873, 1999 Tenn. App. LEXIS 732 (Tenn. Ct. App. 1999).

Trial court properly ruled that a neighbor was equitably estopped from asserting the statute of frauds because the neighbor never denied that the parties had an oral agreement for construction of a private road across their properties and, at all times, acted as if he intended to fulfill his obligations; the neighbor even requested and obtained modifications to the original agreement, which impacted the scope of the owner's performance. Key v. Renner, — S.W.3d —, 2017 Tenn. App. LEXIS 780 (Tenn. Ct. App. Nov. 30, 2017).

15. —Parties.

Application of the statute is not prevented by the mere existence between the parties of relation of husband and wife, upon the theory of agency, in the absence of proof of agency. Henderson v. Henderson, 159 Tenn. 126, 17 S.W.2d 15, 1928 Tenn. LEXIS 69 (1929).

A stranger, even a creditor, cannot plead the statute of frauds. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

The statute of frauds is a defense personal to the party sought to be charged, and is not a defense available to a third party. In re Gatlinburg Motel Enterprises, Ltd., 119 B.R. 955, 1990 Bankr. LEXIS 1998 (Bankr. E.D. Tenn. 1990).

Buyer was sufficiently identified for purposes of satisfying the statute of frauds, T.C.A. § 29-2-101, especially in light of the owner's admission the corporation did business as the truck stop; the trial court's concluding the “buyer” was the corporate entity and that the owner personally guaranteed this corporate debt prevented the unconditional guaranty from being an exercise in futility. Kelso Oil Co. v. E. W. Truck Stop, Inc., 102 S.W.3d 655, 2002 Tenn. App. LEXIS 840 (Tenn. Ct. App. 2002), appeal denied, Kelso Oil Co. v. E. W. Truck Stop, — S.W.3d —, 2003 Tenn. LEXIS 258 (Tenn. Mar. 10, 2003).

16. Promise of Personal Representative.

If a person promise or contract in his own name by note, or other written instrument or obligation, he is personally bound though the promise, contract, or covenant be made in a representative capacity as administrator or executor, and though it be specifically stated in what representative capacity or for whom or what estate he is acting, because such superadded words of designation are simply descriptive of the person. Admin'rs v. Carroll, 9 Tenn. 144, 9 Tenn. 145, 1829 Tenn. LEXIS 27 (1829); Jordan v. Trice, 14 Tenn. 479, 1834 Tenn. LEXIS 119 (1834); Sypert v. Sawyer, 26 Tenn. 413, 1846 Tenn. LEXIS 145 (1846); McWhirter v. Jackson, 29 Tenn. 209, 1849 Tenn. LEXIS 49 (1849); Kain v. Humes, 37 Tenn. 610, 1858 Tenn. LEXIS 75 (1858); Carter v. Wolfe, 48 Tenn. 694, 1870 Tenn. LEXIS 134 (1870); Patterson v. Craig, 60 Tenn. 291, 1872 Tenn. LEXIS 492 (1872); Conn v. Scruggs, 64 Tenn. 567, 1875 Tenn. LEXIS 126 (1875); Wyatt v. Davidson, 1 Shan. 613 (1876); East Tenn. Iron Mfg. Co. v. Gaskell, 70 Tenn. 742, 1879 Tenn. LEXIS 234 (1879); Boyd v. Johnston, 89 Tenn. 284, 14 S.W. 804, 1890 Tenn. LEXIS 49 (1890); Tradesmen's Nat'l Bank v. Looney, 99 Tenn. 278, 42 S.W. 149, 38 L.R.A. 837, 63 Am. St. R. 830, 1897 Tenn. LEXIS 32 (1897).

In order to prevent personal liability, one acting in a representative capacity must define and express on the face of the writing the extent and nature of the covenant or obligation, and must clearly limit the undertaking so as to show that there is no intention to be bound personally. Jordan v. Trice, 14 Tenn. 479, 1834 Tenn. LEXIS 119 (1834); Patterson v. Craig, 60 Tenn. 291, 1872 Tenn. LEXIS 492 (1872); Wyatt v. Davidson, 1 Shan. 613 (1876); East Tenn. Iron Mfg. Co. v. Gaskell, 70 Tenn. 742, 1879 Tenn. LEXIS 234 (1879).

Vendor was entitled to summary judgment as to the personal liability of a president on a company's account because the commercial credit application contained explicit language sufficient to bind the president as an individual guarantor of the contract; the language in the application was unambiguous, and the president both signed in a representative capacity and personally guaranteed the contract. 84 Lumber Co. v. Smith, 356 S.W.3d 380, 2011 Tenn. LEXIS 1142 (Tenn. Dec. 12, 2011).

Executor-administrator clause of the Tennessee Statute of Frauds was not applicable to bar a claim by the decedent's parents that the parents wire-transferred funds to the decedent's account before the decedent's death as a loan to pay off the mortgage on the decedent's home to prevent a foreclosure of the home because there was no special promise on the part of the executor of the decedents'  estate to undertake the disputed debt and there was no proof that the estate was insolvent. In re Estate of Reed, — S.W.3d —, 2016 Tenn. App. LEXIS 604 (Tenn. Ct. App. Aug. 22, 2016).

17. —Sufficiency of Promise.

The endorsement on an account against the intestate in these words: “The within account is accepted, and will be paid when means sufficient come to my hands,” dated and signed by a personal representative, is a valid special promise sufficient to charge him personally with the payment of the debt, upon its being shown that assets sufficient for the discharge thereof subsequently came to his hands; and the sufficiency of such undertaking is not to be tested by the prerequisites and requirements to prevent the bar of the statutes of limitations in favor of the estates of decedents. McWhirter v. Jackson, 29 Tenn. 209, 1849 Tenn. LEXIS 49 (1849); Wyatt v. Luton, 57 Tenn. 458, 1873 Tenn. LEXIS 237 (1873).

18. —Consideration for Promise.

Some consideration, such as the reception of assets of the estate, the creditor's forbearance to sue, or some personal consideration, or the like, is necessary to support the promise of a personal representative to bind himself personally to pay the debt of the decedent. Bedford v. Ingram, 6 Tenn. 155, 1818 Tenn. LEXIS 50 (1818); Wyatt v. Luton, 57 Tenn. 458, 1873 Tenn. LEXIS 237 (1873); East Tenn. Iron Mfg. Co. v. Gaskell, 70 Tenn. 742, 1879 Tenn. LEXIS 234 (1879); Boyd v. Johnston, 89 Tenn. 284, 14 S.W. 804, 1890 Tenn. LEXIS 49 (1890).

The promise of an executor or administrator to pay his decedent's debt does not become an original undertaking not within the statute of frauds merely because the estate is discharged from the claim but where the creditor's release of his remedy constitutes and is given as a new consideration for the promise it will be deemed an original undertaking not within the statute. Hooper v. Neubert, 53 Tenn. App. 233, 381 S.W.2d 569, 1964 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1964).

Creditor's loss of right to make claim for failure to file within period provided by § 30-513 (now § 30-2-310) because of reliance on promise of administratrix to pay claim out of her own estate or personal benefit gained by administratrix as widow of decedent and beneficiary of estate would constitute consideration to sustain agreement as novation and make it binding on both parties. Hooper v. Neubert, 53 Tenn. App. 233, 381 S.W.2d 569, 1964 Tenn. App. LEXIS 97 (Tenn. Ct. App. 1964).

19. — —Presumed Consideration.

Where administrator endorses on decedent's note his promise to pay, it will be presumed that some assets came to the hands of the administrator, as a sufficient consideration to support his promise. Wyatt v. Luton, 57 Tenn. 458, 1873 Tenn. LEXIS 237 (1873); East Tenn. Iron Mfg. Co. v. Gaskell, 70 Tenn. 742, 1879 Tenn. LEXIS 234 (1879); Boyd v. Johnston, 89 Tenn. 284, 14 S.W. 804, 1890 Tenn. LEXIS 49 (1890).

20. — —Rebuttal of Presumption.

The presumption of the reception of some assets of the estate as a sufficient consideration to support the administrator's promise personally to pay the debt of the decedent may, as between the original parties, be rebutted by the representative, and he may show a total or partial deficiency which will exonerate him from liability entirely or pro tanto, as the case may be, unless there was some other consideration moving to him personally. Wyatt v. Luton, 57 Tenn. 458, 1873 Tenn. LEXIS 237 (1873); East Tenn. Iron Mfg. Co. v. Gaskell, 70 Tenn. 742, 1879 Tenn. LEXIS 234 (1879); Boyd v. Johnston, 89 Tenn. 284, 14 S.W. 804, 1890 Tenn. LEXIS 49 (1890).

The rebuttal of the presumption of the reception of assets, as a sufficient consideration for the personal representative's promise and undertaking to bind himself personally to pay the debt of the decedent, shifts the burden to the payee to show other sufficient consideration for the promise and undertaking. Boyd v. Johnston, 89 Tenn. 284, 14 S.W. 804, 1890 Tenn. LEXIS 49 (1890).

21. —Acknowledgment of Debt.

The mere acknowledgment by the executor or administrator of a debt due from the decedent does not render him personally liable for the debt. Bedford v. Ingram, 6 Tenn. 155, 1818 Tenn. LEXIS 50 (1818).

22. —Personal Judgment.

If, upon sufficient consideration, such as having assets, and forbearance and the like, a personal representative promises payment or admits the debt, from whence a promise is inferred, the action must be against him personally, if a judgment against him, to be satisfied out of his own property, is desired. Bedford v. Ingram, 6 Tenn. 155, 1818 Tenn. LEXIS 50 (1818).

23. —Liability of Sureties.

The administrator's note given in renewal of the note of the decedent, which binds him personally, is in accord and satisfaction of the old note, and the sureties on his bond are to that extent released; and, if a distributee pays the debt, he can only be subrogated to the rights of the creditor, and cannot hold the sureties liable for the same. Admin'rs v. Carroll, 9 Tenn. 144, 9 Tenn. 145, 1829 Tenn. LEXIS 27 (1829); Carter v. Wolfe, 48 Tenn. 694, 1870 Tenn. LEXIS 134 (1870); Wyatt v. Davidson, 1 Shan. 613 (1876).

24. Promise to Answer for Debt of Another.

There can be no doubt that subdivision (2) of this section applies to an alleged contract of guaranty. In re Estate of Dickerson, 600 S.W.2d 714, 1980 Tenn. LEXIS 456 (Tenn. 1980).

An oral agreement between the buyer of an interest in an auto dealership and the manufacturer's credit company fell within the statute of frauds but that did not preclude the buyer from filing an action to recover moneys paid pursuant to the agreement based upon an implied assumpsit. Steelman v. Ford Motor Credit Co., 911 S.W.2d 720, 1995 Tenn. App. LEXIS 357 (Tenn. Ct. App. 1995).

25. —Rule Stated.

Suit against defendant based on promise not in writing of defendant to pay account for merchandise sold and delivered to others was barred by statute of frauds. Erwin v. Waggoman, 3 Tenn. 401, 1 Cooke 401, 1813 Tenn. LEXIS 46 (1813).

The parol promise by the maker of a trust assignment for the benefit of creditors to indemnify a person, who, at his request, becomes a surety for the trustee on his bond, given for the faithful performance of his duties, is, it seems, within the statute. Macey v. Childress, 2 Cooper's Tenn. Ch. 438 (1875).

A bill clearly discloses that the promise was verbal, where it alleges that the promisor “said” so and so, and is demurrable. Macey v. Childress, 2 Cooper's Tenn. Ch. 438 (1875).

26. —Promises Not Within Statute.

Promise of employer to pay any judgment obtained by employer against fellow employee if insurance company did not pay same based on employee's forbearance from suing employer was not a promise to answer for the debt or default of another but was a direct obligation of the employer and was not within the statute of frauds. Williams v. McElhaney, 203 Tenn. 602, 315 S.W.2d 106, 1958 Tenn. LEXIS 225 (1958).

Where sellers promised that if stock purchasers took stock on behalf of a third party who was not present sellers would refund money paid if third party did not want stock, such promise was a primary direct obligation of the sellers and not a promise to answer for an obligation of the third party. Hull v. Evans, 59 Tenn. App. 193, 439 S.W.2d 110, 1968 Tenn. App. LEXIS 340 (Tenn. Ct. App. 1968).

An oral agreement among or between cosureties or coguarantors whereby the parties agree to an apportionment of liability as between or among themselves does not fall within the statute of frauds. Squibb v. Smith, 948 S.W.2d 752, 1997 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1997), appeal denied, — S.W.2d —, 1997 Tenn. LEXIS 355 (Tenn. July 30, 1997).

27. — —New Consideration.

Where a chattel, jointly owned by two persons, is levied upon for the debt of one of them, and the other, in whose possession the chattel is, agrees verbally, in consideration of the release of the levy, to pay the plaintiffs in the execution a certain sum, at a given date, the promise is binding. Randle v. Harris, 14 Tenn. 508, 1834 Tenn. LEXIS 131 (1834).

A verbal promise to pay the debt of another is binding when a benefit results to both, the promisor and debtor, or to him alone who makes it, or when it works an injury to him to whom it is made. Randle v. Harris, 14 Tenn. 508, 1834 Tenn. LEXIS 131 (1834).

Where the payee of a note sells and assigns it for a valuable consideration, and, in addition to the written and indorsed assignment thereof, verbally guarantees the payment of the note to the indorsee, this guaranty is not a collateral undertaking, but is a direct promise supported by a valuable consideration, and, therefore, not within the statute, and may be proved by parol. Hall v. Rodgers, 26 Tenn. 536, 1847 Tenn. LEXIS 15 (1847); McCallum v. Jobe, 68 Tenn. 168, 1877 Tenn. LEXIS 11 (1877); Rivers v. Thomas, 69 Tenn. 649, 1878 Tenn. LEXIS 150, 27 Am. Rep. 784 (1878); Taylor v. French, 70 Tenn. 257, 1879 Tenn. LEXIS 171 (1879); Morrison Lumber Co. v. Lookout Mt. Hotel Co., 92 Tenn. 6, 20 S.W. 292, 1892 Tenn. LEXIS 45 (1892); Bank of Jamaica v. Jefferson, 92 Tenn. 537, 22 S.W. 211, 1893 Tenn. LEXIS 10, 36 Am. St. Rep. 100 (1893); Commercial Bank v. Layne, 101 Tenn. 45, 46 S.W. 762, 1898 Tenn. LEXIS 30 (1898).

If the consideration gives to the promisor a benefit or advantage that he did not possess before, and would not have possessed but for the promise, then it will be regarded as an original promise, and will, therefore, be enforced, although not in writing. S. O. Nelson & Co. v. Richardson, 36 Tenn. 307, 1857 Tenn. LEXIS 1 (1857).

Where the promise arises out of a new and original consideration of benefit or harm moving between the newly contracting parties, such promise is not within the statute of frauds, and need not be in writing. Mills v. Mills, 40 Tenn. 705, 1859 Tenn. LEXIS 207 (1859); Murphy v. Renkert, 59 Tenn. 397, 1873 Tenn. LEXIS 81 (1873); Macey v. Childress, 2 Cooper's Tenn. Ch. 438 (1875); Lookout M. R. Co. v. Houston, 85 Tenn. 224, 2 S.W. 36, 1886 Tenn. LEXIS 34 (1886); Christian v. John, 111 Tenn. 92, 76 S.W. 906, 1903 Tenn. LEXIS 6 (1903).

A verbal promise to pay the debt of another, as a new and original undertaking, based upon a valid consideration passing at the time, does not fall within the statute. Lookout M. R. Co. v. Houston, 85 Tenn. 224, 2 S.W. 36, 1886 Tenn. LEXIS 34 (1886).

Where the promise of a garnishee to pay the plaintiff in the garnishment a stated sum to be applied on the judgment, if the plaintiff would continue the case to an agreed date, was direct and clear as between the parties, the statute of frauds as to answering for the debt of another did not apply. Townsend v. Neuhardt, 139 Tenn. 695, 203 S.W. 255, 1918 Tenn. LEXIS 16 (1918).

Promise by owner of 50 percent of stock in corporation to sell 300 shares of stock of corporation to plaintiff was not a promise to answer for debt of another to wit, the corporation, but was a promise directly by the owner to the plaintiff. Buice v. Scruggs Equip. Co., 194 Tenn. 129, 250 S.W.2d 44, 1952 Tenn. LEXIS 359 (1952).

28. — —Promise to Pay Promisor's Debt.

The verbal promise of a debtor to pay to the assignee a debt which has been assigned to him is valid, for it is a promise of the debtor to pay his own debt. Mt. Olivet Cemetery Co. v. Shubert, 39 Tenn. 116, 1858 Tenn. LEXIS 260 (1858).

The acceptance of an order by the drawee who owes, or has funds belonging to, the drawer, is not within the statute. The promise of the drawee is to pay his own debt. Montague v. Myers, 58 Tenn. 539, 1872 Tenn. LEXIS 297 (1872).

Where one person owing another, by agreement as between himself and his creditor, assumes to pay his such indebtedness to a third party in satisfaction of his creditor's debt to such third party, or assumes to pay such debt for his creditor, the promise is not to answer for the debt of another; and such third party as the beneficiary of such contract, though not a party to it, may maintain an action, in equity or at law, directly in his own name, against the promisor. Moore v. Stovall, 70 Tenn. 543, 1879 Tenn. LEXIS 195 (1879); Dinsmore v. Boyd, 74 Tenn. 689, 1881 Tenn. LEXIS 199 (1881); O'Conner v. O'Conner, 88 Tenn. 76, 12 S.W. 447, 1889 Tenn. LEXIS 35, 7 L.R.A. 33 (1889); Christian v. John, 111 Tenn. 92, 76 S.W. 906, 1903 Tenn. LEXIS 6 (1903); Ruohs v. Traders Fire Ins. Co., 111 Tenn. 405, 78 S.W. 85, 1903 Tenn. LEXIS 36, 102 Am. St. Rep. 790 (1903).

Agreement to release defendant from debt and accept brother is not required to be in writing, since novation is a contract substituting a new obligation for an old one, and is not a promise by new debtor to answer for another's debt, but a promise to pay his own debt. Blaylock v. Stephens, 36 Tenn. App. 464, 258 S.W.2d 779, 1953 Tenn. App. LEXIS 134 (Tenn. Ct. App. 1953).

29. — —Assumption of Debt by Grantee.

The grantee's acceptance of a deed of conveyance of land operates as an estoppel to refuse to perform the stipulations therein made. Moore v. Stovall, 70 Tenn. 543, 1879 Tenn. LEXIS 195 (1879).

The grantee's acceptance of a deed reciting that he assumes to pay a lien or encumbrance on the land, or that he is to pay the purchase money, or a certain part thereof, to a third son, makes him liable as for his own debt, and is not within the statute. Such grantee may be sued upon his such undertaking by the third party as the beneficiary thereof. Sanders v. Martin, 70 Tenn. 213, 1879 Tenn. LEXIS 158, 31 Am. Rep. 598 (1879); Moore v. Stovall, 70 Tenn. 543, 1879 Tenn. LEXIS 195 (1879); Thompson v. Thompson, 71 Tenn. 126, 1879 Tenn. LEXIS 46 (1879); Blackmore v. Parkes, 81 F. 899, 1897 U.S. App. LEXIS 1912 (6th Cir. 1897); Rosenplanter v. Toof, 99 Tenn. 92, 41 S.W. 336, 1897 Tenn. LEXIS 13 (1897); Christian v. John, 111 Tenn. 92, 76 S.W. 906, 1903 Tenn. LEXIS 6 (1903); Ruohs v. Traders Fire Ins. Co., 111 Tenn. 405, 78 S.W. 85, 1903 Tenn. LEXIS 36, 102 Am. St. Rep. 790 (1903).

Where a grantee of mortgaged premises assumes the mortgage debt, he renders himself personally liable for the debt, not only to his grantor, but also to the mortgagee, though the grantor was not personally liable for the debt which his grantee assumed. Title Guaranty & Trust Co. v. Bushnell, 143 Tenn. 681, 228 S.W. 699, 1920 Tenn. LEXIS 52, 12 A.L.R. 1512 (1921).

30. — —Credit Transactions.

If the person to whom the goods were furnished is liable at all to the seller, as where the goods were charged to both the purchaser and a third party, the promise of the third party to pay for the same must be in writing to bind him. Matthews v. Milton, 12 Tenn. 575, 1833 Tenn. LEXIS 100 (1833).

Where a son procured goods from a merchant, directing them to be charged to his father, which was done, and upon notice of the fact, the father stated that he would pay for them, the father will be held without a promise in writing. The credit was not given to the son, but to the father. The son assumed to act as agent for his father. Booker & Clarkson v. Tally, 21 Tenn. 308, 1841 Tenn. LEXIS 6 (1841).

Where the credit is given in the first instance to the party receiving the goods, any promise by a third person to pay for those goods must, in order to bind him, be in writing; but where the credit was not given in the first instance to the receiver of the goods, but to the third person without authority, upon the false representations of the party receiving the goods, and no credit was given to the receiver of the goods, and such third person afterwards ratified the act, though only verbally, he will be liable. Booker & Clarkson v. Tally, 21 Tenn. 308, 1841 Tenn. LEXIS 6 (1841); Scott v. Johnson, 52 Tenn. 614, 1871 Tenn. LEXIS 293 (1871); Murphy v. Renkert, 59 Tenn. 397, 1873 Tenn. LEXIS 81 (1873).

The fact that the goods were charged to the party who received them, and not to the promisor, as well as the fact that a sworn account therefor was made out and rendered to the party who received the goods, unexplained, would irresistibly lead to the conclusion that the credit was given primarily, if not solely, to him, and that it was only intended to look to the promisor in the event the other failed, if at all; but these facts are not conclusive, and may be satisfactorily explained, and made consistent with the assumption of the promisor's primary liability. Hazen v. Bearden, 36 Tenn. 48, 1856 Tenn. LEXIS 49 (1856); Murphy v. Renkert, 59 Tenn. 397, 1873 Tenn. LEXIS 81 (1873).

A verbal direction to sell and deliver goods to another, with a promise to pay for them, creates a valid primary liability, and such undertaking is not within the statute, when the credit was given entirely to such promisor. Hazen v. Bearden, 36 Tenn. 48, 1856 Tenn. LEXIS 49 (1856); Murphy v. Renkert, 59 Tenn. 397, 1873 Tenn. LEXIS 81 (1873).

Where a person, upon entering the service of a merchant as a clerk, agrees to be liable for all goods sold by him on a credit without his employer's consent, the agreement is not within the statute. Guggenheim v. Rosenfeld, 68 Tenn. 533, 1877 Tenn. LEXIS 44 (1877).

The oral promise of one who held a mortgage on boring tools that had been lost in an oil well made to an expert to induce the latter to recover, to the effect that if the mortgagor did not pay for the work, he would do so, upon faith in which credit was extended to the mortgagee, the expert may recover the consideration incurred direct of such promisor. Johnson v. Lane, 164 Tenn. 234, 47 S.W.2d 554, 1931 Tenn. LEXIS 27 (1932).

Where defendant brought third persons into plaintiff's store, asked plaintiff to give them credit and agreed to stand good for the purchases, such oral promise was within the statute of frauds and defendant could not be held liable. Yarbrough v. Viar, 39 Tenn. App. 240, 282 S.W.2d 367, 1954 Tenn. App. LEXIS 164 (Tenn. Ct. App. 1954).

31. — —Miscellaneous.

Where a bill of exchange is drawn by a principal and surety, and is accepted and paid by the drawee out of his own funds, there is an implied promise on the part of the surety drawer as well as the principal drawer to reimburse the drawee for the amount of the bill so paid by him, and such implied promise of the surety is not affected by the statute of frauds, and it will be enforced, although not in writing. S. O. Nelson & Co. v. Richardson, 36 Tenn. 307, 1857 Tenn. LEXIS 1 (1857).

The verbal promise of the heir to pay the debt of the ancestor, in consideration of lands descended and forbearance to sue, where there were no personal assets, is not within the statute, and binds him to the extent he was or might have been made liable as heir. Anderson v. Anderson, 2 Shan. 437 (1877).

Oral promise by a person having funds of benefited party in his hands is binding, and the promisor cannot resist payment upon the ground that he subsequently lost the property. Crews v. Gould, 6 Tenn. Civ. App. (6 Higgins) 620 (1915).

An agreement by a bank official, bonded by defendant surety company, by which such official agreed, on behalf of plaintiff bank, to take up paper wrongfully sold to other banks, is not void under statute of frauds as against innocent purchaser banks. Globe Indem. Co. v. Union & Planters' Bank & Trust Co., 27 F.2d 496, 1928 U.S. App. LEXIS 3418 (6th Cir. Tenn. 1928).

A promise made by a surety, to induce another to become his cosurety, to indemnify and repay him for loss, is not a promise to answer for the debt or default of another. Calloway v. O'Neil, 158 Tenn. 7, 12 S.W.2d 364, 1928 Tenn. LEXIS 117 (1928); Gibson County Bank v. Shatz, 12 Tenn. App. 281, 1930 Tenn. App. LEXIS 64 (1930).

Where all parties involved intended to convey all of enterprise located on two tracts of land but one of the defendants created false warranty deed causing false trust deed to be created conveying only one tract of land while inducing grantees and lender to believe that papers conveyed all of enterprise, statute of frauds was inapplicable. Southern States Dev. Co. v. Robinson, 494 S.W.2d 777, 1972 Tenn. App. LEXIS 277 (Tenn. Ct. App. 1972).

32. —Written Promise.

The written promise need not state the consideration, or that there was any consideration for the promise, but the consideration may be proved aliunde or by parol evidence. Taylor & Williams v. Ross, 11 Tenn. 330, 1832 Tenn. LEXIS 55 (1832); Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844); State v. Humphreys, 29 Tenn. 442, 1850 Tenn. LEXIS 9 (1850).

A guaranty upon its face addressed to one person cannot be given in evidence in an action brought by two persons jointly against the guarantor, and parol evidence is inadmissible to add to, vary, or explain it, and it cannot be proved by parol that two were meant. Allison v. Rutledge, 13 Tenn. 193, 1833 Tenn. LEXIS 133 (1833).

Where a guaranty upon its face is addressed to a certain individual who, it otherwise and aliunde appeared, was a member of a firm of real estate agents, guaranteeing a certain payment, if the addressee would rent to a certain person the plantation of a certain other person on certain specified terms, the guarantor is liable on the guaranty, whether the renting was done by the individual member or by his firm as the agents of the owner, because this was an immaterial matter. Anderson v. May, 57 Tenn. 84, 1872 Tenn. LEXIS 402 (1872).

A promise by a third party in a letter to “arrange” a judgment debt, if the creditor will give the debtor or promisor the requested time, which is done, satisfies the statute, and binds the promisor to pay the debt. Abel v. Wilder, 77 Tenn. 453, 1882 Tenn. LEXIS 82 (1882).

In a commercial lease case, a corporate president was not a guarantor of a tenant's obligations because there was no clear intent to bind the president personally; the tenant was identified as the corporation, there was no place for the president to sign as the guarantor, and the president signed in an explicit representative capacity. The only express reference to the president as a “co-tenant” appeared two pages before the signature page. Creekside Partners v. Scott, — S.W.3d —, 2013 Tenn. App. LEXIS 14 (Tenn. Ct. App. Jan. 10, 2013).

33. — —Necessity of Consideration.

The written promise must be supported by a consideration to make it obligatory. Taylor & Williams v. Ross, 11 Tenn. 330, 1832 Tenn. LEXIS 55 (1832); Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844).

The prior consideration for the original obligation will not support the new promise; but it is necessary that there should be a new consideration between the new parties. Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844).

The consideration may be either some benefit or advantage to the promisor, or some detriment or loss connected with or arising out of the agreement itself to the promisee, such as a forbearance with the original debtor, or the acquittance and release of the debt to him. Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844); S. O. Nelson & Co. v. Richardson, 36 Tenn. 307, 1857 Tenn. LEXIS 1 (1857).

34. — —Sufficiency of Consideration.

A promise is binding when a benefit results to both, or is a benefit to him who makes it, or works an injury to him to whom it is made. The extent of the benefit is not to be considered in settling the question whether the promise is binding or not. Randle v. Harris, 14 Tenn. 508, 1834 Tenn. LEXIS 131 (1834); Macon v. Sheppard, 21 Tenn. 335, 1841 Tenn. LEXIS 13 (1841); Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844).

To constitute sufficient consideration, it is not necessary that the benefit conferred or the detriment suffered by the promisee shall be equal to the responsibility assumed, for any consideration, however small, will support a promise; and, in the absence of fraud, the courts will not undertake to regulate the amount of the consideration. Danheiser v. Germania Sav. Bank & Trust Co., 137 Tenn. 650, 194 S.W. 1094, 1917 Tenn. LEXIS 176 (1917); Townsend v. Neuhardt, 139 Tenn. 695, 203 S.W. 255, 1918 Tenn. LEXIS 16 (1918).

Landlord was entitled to recover damages from a guarantor who signed an agreement guaranteeing performance of a lease to the extent of the guarantor's interest in the lessee when the lessee defaulted because the lease was between the lessee, a limited liability company of which the guarantor was a member, and the landlord for the operation of a restaurant. The landlord relied on the guarantor's signed promise to guarantee a percentage of the payment of rent, and the lessee received the benefit of the leased premises for several months. 500 Block, LLC v. Bosch, — S.W.3d —, 2018 Tenn. App. LEXIS 193 (Tenn. Ct. App. Apr. 12, 2018), appeal denied, 500 Block, LLC v. Bosch, — S.W.3d —, 2018 Tenn. LEXIS 487 (Tenn. Aug. 10, 2018).

35. — —Forbearance.

A creditor's forbearance to sue, or extension of time on the debt, under an agreement to that effect, is a sufficient consideration to support the promise in writing of a third person to pay the debt, although the debt was not due when the promise was made. Randle v. Harris, 14 Tenn. 508, 1834 Tenn. LEXIS 131 (1834); Tappan v. Campbell, 17 Tenn. 436, 1836 Tenn. LEXIS 81 (1836); Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844); Cathcart v. Thomas, 67 Tenn. 172, 1874 Tenn. LEXIS 347 (1874); Rivers v. Thomas, 69 Tenn. 649, 1878 Tenn. LEXIS 150, 27 Am. Rep. 784 (1878); Abel v. Wilder, 77 Tenn. 453, 1882 Tenn. LEXIS 82 (1882); Morrison Lumber Co. v. Lookout Mt. Hotel Co., 92 Tenn. 6, 20 S.W. 292, 1892 Tenn. LEXIS 45 (1892).

The release of a son from all damages for personal injuries, or a release of an action for a personal injury against his son, is a sufficient consideration to support the father's promise to pay a certain sum of money to the person injured. McCormick v. Oliver, 15 Tenn. 23, 15 Tenn. 24, 1834 Tenn. LEXIS 6 (1834).

A creditor's agreement to forbear suit, for an indefinite time, which means a reasonable time, and his actual forbearance for a reasonable time in pursuance of the agreement, constitutes a sufficient consideration to support the promise. Tappan v. Campbell, 17 Tenn. 436, 1836 Tenn. LEXIS 81 (1836); Cathcart v. Thomas, 67 Tenn. 172, 1874 Tenn. LEXIS 347 (1874); Rivers v. Thomas, 69 Tenn. 649, 1878 Tenn. LEXIS 150, 27 Am. Rep. 784 (1878); Abel v. Wilder, 77 Tenn. 453, 1882 Tenn. LEXIS 82 (1882).

If any loss or detriment to the creditor in fact followed on account of his forbearance, without his having made any agreement to forbear, this would not be such a loss or detriment as would amount to a consideration. Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844).

In declaring on a promise made by a third person to pay the debt of another in consideration of the creditor's agreement to “wait awhile,” or to forbear suit for an indefinite time, the plaintiff must allege and prove the actual time of forbearance; and if this be adjudged by the court to be reasonable, the action will be sustained. Cathcart v. Thomas, 67 Tenn. 172, 1874 Tenn. LEXIS 347 (1874).

Any forbearance of a right by the party to whom the promise is made, will, in general be sufficient to support any promise which may be voluntarily assumed in consideration thereof. Spitz v. Fourth Nat'l Bank, 76 Tenn. 641, 1881 Tenn. LEXIS 55 (1881).

36. Antenuptial Agreements.

A parol antenuptial agreement made in consideration of marriage is void. Therefore, where the intended husband verbally promised to settle the property of the intended wife upon her after the marriage, the agreement is within the statute, and cannot be enforced by court of chancery, although such promise is clearly proved to have been made with the fraudulent intention of not complying with it, and thus to acquire her property. Hackney v. Hackney, 27 Tenn. 452, 1847 Tenn. LEXIS 105 (1847).

Where the antenuptial marriage settlement is made in consideration of marriage by and between parties then under age, and the marriage is consummated while under age, the settlement is voidable, but capable of affirmance or disaffirmance. Lancaster v. Lancaster, 81 Tenn. 126, 1884 Tenn. LEXIS 12 (1884).

After the engagement to marry has been entered into, the woman has thereby acquired a valuable right, which, in case of a breach of contract, can be enforced and measured in reference to the intended husband's estate; and an agreement entered into then cannot be, upon her part, for the consideration of marriage alone, and must be supported by some other consideration. In such case, the relations of the parties are confidential, and the wife will be relieved of her contract if she has acted in ignorance of her pecuniary rights, superinduced by the husband, although there may have been no intentional fraud. Spurlock v. Brown, 91 Tenn. 241, 18 S.W. 868, 1891 Tenn. LEXIS 98 (1891).

37. Land Contracts.

Trial court did not err in refusing to award specific performance on a contract for sale of land where the sellers owned the lot as tenants by entirety, the contract was not signed by the wife or the auctioneer as her agent, and the auctioneer announced at the auction that the property was offered with reserve, and that bids were subject to confirmation by the sellers. Cunningham v. Lester, 138 S.W.3d 877, 2003 Tenn. App. LEXIS 588 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 74 (Tenn. Jan. 26, 2004).

Trial court erred in granting summary judgment to a contingent beneficiary's siblings because neither the Statute of Frauds nor the Dead Man's Act barred consideration of an affidavit regarding the transfer of a farm to the beneficiary and his then-wife and the affidavit contained admissible evidence that created genuine issues of material fact as to whether the transfer was, or was not, an advancement of trust assets to the beneficiary. In re Estate of Taylor, — S.W.3d —, 2013 Tenn. App. LEXIS 691 (Tenn. Ct. App. Oct. 22, 2013).

38. —Lands, Tenements and Hereditaments.

The terms “lands, tenements, and hereditaments” include land warrants, entries, preemption and occupancy rights, leaseholds, and all equitable estates, and all rights to and interests in land, as well as land and real estate as defined at common law and the legal title therein. Dunlap v. Gibbs, 12 Tenn. 93, 12 Tenn. 94, 1833 Tenn. LEXIS 19 (1833); Neal v. President & Trustees of E. Tenn. College, 14 Tenn. 189, 1834 Tenn. LEXIS 62 (Tenn. Mar. 1834).

A mortgage or deed of trust in its legal aspect is a conveyance of an estate or interest in land and as such is within the meaning of the statute of frauds. Lambert v. Home Federal Sav. & Loan Asso., 481 S.W.2d 770, 1972 Tenn. LEXIS 349 (Tenn. 1972).

39. — —Realty.

The sale of an equitable interest in land, as where the vendor holds the land under a title bond, must be in writing. Newnan v. Carroll, 11 Tenn. 17, 11 Tenn. 18, 1832 Tenn. LEXIS 11 (1832); Dunlap v. Gibbs, 12 Tenn. 93, 12 Tenn. 94, 1833 Tenn. LEXIS 19 (1833).

The conveyance of poles, wires, and the like, erected in a street are realty and governed by the statute. Holston River Electric Co. v. Hydro Electric Corp., 12 Tenn. App. 556, — S.W.2d —, 1930 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1930).

40. — —Hereditaments.

The right of permanently overflowing the land of another is an incorporeal hereditament, and must be in writing. Harris v. Miller, 19 Tenn. 158, 1838 Tenn. LEXIS 39 (1838); Large v. Dennis, 37 Tenn. 595, 1858 Tenn. LEXIS 70 (1858); Bloomstein v. Clees Bros., 3 Cooper's Tenn. Ch. 433 (1877).

A right-of-way over the land of another is an easement in the land, and is an incorporeal hereditament, and a contract creating such right, as well as a conveyance or transfer thereof, must be in writing. Ferrell v. Ferrell, 60 Tenn. 329, 1872 Tenn. LEXIS 502 (1872); Bloomstein v. Clees Bros., 3 Cooper's Tenn. Ch. 433 (1877); Nunnelly v. Southern Iron Co., 94 Tenn. 397, 29 S.W. 361, 1894 Tenn. LEXIS 54, 28 L.R.A. 421 (1894); Long v. Mayberry, 96 Tenn. 378, 36 S.W. 1040, 1895 Tenn. LEXIS 40 (1896); Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928, 1913 Tenn. LEXIS 13 (1913).

41. — —Standing Trees.

A contract for the sale of timber at so much per cord, to be paid for as fast as used, is a contract of sale of personalty, and so is a contract for the delivery of timber by the vendor at a certain mill, already cut, and need not be in writing; but the property in the timber does not pass until it shall be used or received by the purchaser. N. Y. & E. T. Iron Co. v. Greene County Iron Co., 58 Tenn. 434, 1872 Tenn. LEXIS 282 (1872); Dorris v. King, 54 S.W. 683, 1899 Tenn. Ch. App. LEXIS 131 (1899).

A contract of sale of so many cords of wood now standing in the tree at so much per cord must be in writing, with a sufficient description of the land. Knox v. Haralson, 2 Cooper's Tenn. Ch. 232 (1875); Childers v. Wm. H. Coleman Co., 122 Tenn. 109, 118 S.W. 1018, 1909 Tenn. LEXIS 6 (1909).

Standing trees are a part of the land, and a contract to sell or convey them, or any interest in or concerning them, must be evidenced by a writing; and the assignment and the extension of the time limit for the removal thereof operate to transfer an interest in land. Childers v. Wm. H. Coleman Co., 122 Tenn. 109, 118 S.W. 1018, 1909 Tenn. LEXIS 6 (1909).

A sale of standing timber is a sale of an interest in land, and hence a deed therefor is controlled by the rules governing deeds for realty, and the title thereto can be conveyed or transferred only by a written instrument complying with the statute of frauds. New River Lumber Co. v. Blue Ridge Lumber Co., 146 Tenn. 181, 240 S.W. 763, 1921 Tenn. LEXIS 12 (1922).

42. — —Growing Crops.

Growing crops, if fructus industriales (products of annual planting obtained by labor and cultivation, as distinguished from the products of perennials and the products produced by the powers of nature alone), such as growing crop of wheat, are chattels, and an agreement for the sale of them, whether mature of not, whether the property in them is transferred before or after severance, is not an agreement for the sale of land under the statute. Carson v. Browder, 70 Tenn. 701, 1879 Tenn. LEXIS 225 (1879); Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887); Vaughn v. Vaughn, 88 Tenn. 742, 13 S.W. 1089, 1890 Tenn. LEXIS 13 (1890); Dysart v. Hamilton, 11 Tenn. App. 43, — S.W.2d —, 1929 Tenn. App. LEXIS 73 (Tenn. Ct. App. 1929).

43. — —Boundary Agreements.

Where the owner under an older valid grant verbally agreed with the owner under younger grant that he would not disturb the same, and they then verbally agreed upon and marked lines beyond which the claimant under the older grant was not to go, such agreement involved a promise to surrender so much of his grant as was covered by the special entry, and such parol promise could not be noticed in an action of ejectment. Proffit v. Williams, 9 Tenn. 89, 1825 Tenn. LEXIS 11 (1825).

An agreement fixing a doubtful and disputed boundary line between adjoining landowners is not within the statute. Such a line is called a convention line. Houston v. Matthews, 9 Tenn. 115, 9 Tenn. 116, 1826 Tenn. LEXIS 17 (1826); Nichol v. Lytle, 12 Tenn. 456, 1833 Tenn. LEXIS 76 (1833); Wilson v. Hudson, 16 Tenn. 398, 1835 Tenn. LEXIS 94 (1835); Yarborough v. Abernathy, 19 Tenn. 413, 1838 Tenn. LEXIS 70 (1838); Lewallen v. Overton, 28 Tenn. 76, 1848 Tenn. LEXIS 44 (1848); Rogers v. White, 33 Tenn. 68, 1853 Tenn. LEXIS 7 (1853); Merriwether v. Larmon, 35 Tenn. 447, 1856 Tenn. LEXIS 6 (1856); Snoddy v. Kreutch, 40 Tenn. 301, 1859 Tenn. LEXIS 82 (1859); King v. Mabry, 71 Tenn. 237, 1879 Tenn. LEXIS 68 (1879); McColgan v. Langford, 74 Tenn. 108, 1880 Tenn. LEXIS 215 (1880); Galbraith v. Lunsford, 87 Tenn. 89, 9 S.W. 365, 1888 Tenn. LEXIS 39, 1 L.R.A. 522 (1888); Windborn v. Guinn, 7 Tenn. App. 60, 1928 Tenn. App. LEXIS 21 (1928).

The parol agreement fixing and locating the uncertain and disputed dividing line needs not the confirmation of acquiescence. Houston v. Matthews, 9 Tenn. 115, 9 Tenn. 116, 1826 Tenn. LEXIS 17 (1826); Tilghman v. Baird, 34 Tenn. 196, 1854 Tenn. LEXIS 32 (1854).

An agreement changing a certain, known, and well established boundary line between adjoining landowners is within the statute. Nichol v. Lytle, 12 Tenn. 456, 1833 Tenn. LEXIS 76 (1833); Gilchrist v. McGee, 17 Tenn. 455, 1836 Tenn. LEXIS 85 (1836); Horn v. Childress, 19 Tenn. 102, 1838 Tenn. LEXIS 25 (1838); Yarborough v. Abernathy, 19 Tenn. 413, 1838 Tenn. LEXIS 70 (1838); Lewallen v. Overton, 28 Tenn. 76, 1848 Tenn. LEXIS 44 (1848).

Ignorance of the true line is essential to the validity of a parol agreement fixing and locating a line. Yarborough v. Abernathy, 19 Tenn. 413, 1838 Tenn. LEXIS 70 (1838); Galbraith v. Lunsford, 87 Tenn. 89, 9 S.W. 365, 1888 Tenn. LEXIS 39, 1 L.R.A. 522 (1888).

Disputed boundary lines may be established by oral agreement as such agreements do not fall within the statute of frauds, and the parties will thereafter be estopped to question the line thus established even though it may afterwards be demonstrated that such line was erroneous. Webb v. Harris, 44 Tenn. App. 492, 315 S.W.2d 274, 1958 Tenn. App. LEXIS 100 (Tenn. Ct. App. 1958).

44. — —Mortgages.

A parol agreement to receive mortgaged land absolutely in discharge of the debt, at a fair valuation, will not be taken out of the statute by parol agreement to submit the question to arbitration and the written report and finding of the arbitrators fixing the value, in the shape of an award. Rice v. Rawlings, 19 Tenn. 496, 1838 Tenn. LEXIS 80 (1838).

There can be no parol equitable lien or mortgage on real property. A valid lien or mortgage can only be created by an instrument as prescribed by statute. Gilliam v. Esselman, 37 Tenn. 86, 1857 Tenn. LEXIS 81 (1857); Langley v. Vaughn, 57 Tenn. 553, 1873 Tenn. LEXIS 259 (1873).

A mortgage by parol and deposit of title deeds is not valid in this state. Meador v. Meador, 50 Tenn. 562, 1871 Tenn. LEXIS 113 (1871).

A mortgage or deed of trust is a conveyance of an estate or an interest in land and within the meaning of the statute of frauds. Beazley v. Turgeon, 772 S.W.2d 53, 1988 Tenn. App. LEXIS 368 (Tenn. Ct. App. 1988).

Statute of frauds applied to a note, deed of trust, and loan modification agreement entered into by borrowers and a lender, and the statute of frauds prevented these documents from being modified by the oral statements of the lender's representatives regarding the amount that the borrowers needed to pay each month. Asemota v. Suntrust Mortg., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 83744 (W.D. Tenn. June 18, 2012).

In this foreclosure case, an agreement involved a modification as to when certain payment obligations under a note were due, and thus it was required to be in writing and signed by the lender or creditor, or some other person lawfully authorized by such lender or creditor, under T.C.A. § 29-2-101(b)(1). Jones v. BAC Home Loans Servicing, LP, — S.W.3d —, 2017 Tenn. App. LEXIS 464 (Tenn. Ct. App. July 12, 2017).

In this foreclosure case involving a modification as to when certain payment obligations under a note were due, the exception in T.C.A. § 29-2-101(b)(2) did not apply, as the undisputed facts established that no writing existed pertaining to the claimed agreement. Jones v. BAC Home Loans Servicing, LP, — S.W.3d —, 2017 Tenn. App. LEXIS 464 (Tenn. Ct. App. July 12, 2017).

45. — —Agreement to Execute Deed.

A promise to make another the owner of a lien or charge upon land is equivalent to selling him such an interest and is within the statute of frauds. Lambert v. Home Federal Sav. & Loan Asso., 481 S.W.2d 770, 1972 Tenn. LEXIS 349 (Tenn. 1972).

Agreement to execute and deliver a deed at some time in the future that would convey an interest in the property in question was not an expression of the debtor's present and actual intent to convey an interest in the property. Limor v. Daniel (In re Gee), 166 B.R. 314, 1993 Bankr. LEXIS 2142 (Bankr. M.D. Tenn. 1993).

46. — —Contracts to Devise or Donate.

Where, for the purpose of procuring his wife to join with him in a deed conveying her land to a third person, by whom it was to be, and was in fact, reconveyed to them jointly, the husband promised his wife that he, if he survived her, would so provide that, upon his death, her land should go to certain of her heirs, that promise must be in writing. Campbell v. Taul, 11 Tenn. 548, 1832 Tenn. LEXIS 113 (1832).

Every gift, by deed, will, or otherwise, is generally supposed, prima facie, to be beneficial to the donee; and the law presumes, until there is proof to the contrary, that every estate, whether in trust or in one's own right, limited or unlimited, is accepted by the person to whom it is expressed to be given. Goss v. Singleton, 39 Tenn. 67, 1858 Tenn. LEXIS 254 (Tenn. Dec. 1858).

A contract, resting in parol, to execute a will devising land is within the statute. Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 1905 Tenn. LEXIS 21, 6 L.R.A. (n.s.) 703 (1906); Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 1927 Tenn. LEXIS 58 (1927).

A contemporaneous parol agreement made at the time of the execution and delivery of a conveyance of real estate absolute upon its face, that the vendee will hold the property conveyed in trust for a certain person, is not within the statute of frauds, and vests in the beneficiary of the trust a valid equitable title to the property conveyed, which a court of equality will enforce. Insurance Co. of Tennessee v. Waller, 116 Tenn. 1, 95 S.W. 811, 1905 Tenn. LEXIS 1 (1905); Pugh v. Burton, 25 Tenn. App. 614, 166 S.W.2d 624, 1942 Tenn. App. LEXIS 24 (1942).

The word “sale” means alienation and covers a parol contract to donate land. Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

Where petitioners executed deeds to defendants with oral agreement that thereafter defendants were to grant a life estate to plaintiffs in same property by a written conveyance the oral agreement to grant a life estate was not enforceable since it violated statute of frauds. Webb v. Shultz, 184 Tenn. 235, 198 S.W.2d 333, 1946 Tenn. LEXIS 287 (1946).

47. — —Parol Gifts of Land.

An oral contract to devise real estate is within the statute, and an indivisible obligation is entirely unenforceable, if the grant of real estate forms a part thereof. Quirk v. Bank of Commerce & Trust Co., 244 F. 682, 1917 U.S. App. LEXIS 2045 (6th Cir. Tenn. 1917).

Despite subdivision (4) which requires transfers of real estate to be in writing signed by the transferor, a parol gift of land coupled with an entry by the donee and adverse possession by him for more than seven years will vest him with a possessory or defensive right to the land, under § 28-2-103. Choate v. Sewell, 142 Tenn. 487, 221 S.W. 190, 1919 Tenn. LEXIS 76 (1919); Mercy v. Miller, 25 Tenn. App. 621, 166 S.W.2d 628, 1942 Tenn. App. LEXIS 25 (Tenn. Ct. App. 1942).

A parol gift of real estate is not void but only voidable and if accompanied by adverse possession the statute of limitations begins to run against the parol donor. McDonald v. Stone, 45 Tenn. App. 172, 321 S.W.2d 845, 1958 Tenn. App. LEXIS 121 (Tenn. Ct. App. 1958).

48. — —Litigation Promises.

Where, in consideration of the dismissal of a pending ejectment suit, the defendant therein promised to pay the plaintiff therein a certain price per acre for all the land included within certain specified limits and in controversy in the suit, the promise must be in writing. Carroway v. Anderson, 20 Tenn. 61, 1839 Tenn. LEXIS 14 (1839).

49. — —Trustee Sales.

A sale of land made by a trustee, in pursuance of a power of sale under a trust deed, either at public auction or privately, must be in writing. Adams v. Scales, 60 Tenn. 337, 1872 Tenn. LEXIS 503, 25 Am. Rep. 772, 25 Am. Rep. 772 (1872).

The sale of land by a trustee under the authority of a trust deed is within the statute of frauds. Fortner v. Wilkinson, 210 Tenn. 201, 357 S.W.2d 63, 1962 Tenn. LEXIS 424 (1962).

A foreclosure sale of debtor's property before debtor filed a bankruptcy petition was not final because the statute of frauds was not satisfied and consideration had not been exchanged prepetition. In re Johnson, 213 B.R. 134, 1997 Bankr. LEXIS 1509 (Bankr. W.D. Tenn. 1997).

A foreclosure sale is not final in Tennessee until the statute of frauds is satisfied pursuant to T.C.A. § 29-2-101(a)(4) and consideration has been exchanged. In re Bland, 252 B.R. 133, 2000 Bankr. LEXIS 930 (Bankr. W.D. Tenn. 2000).

Where a nonjudicial foreclosure sale of a Chapter 13 debtor's home was orally cried out pre-petition, the home became property of the bankruptcy estate under 11 U.S.C. § 541(a)(1), and the debtor had the ability to cure the prepetition home mortgage default because the state statute of frauds, T.C.A. § 29-2-101, was not complied with until the substitute trustee's deed was executed after the bankruptcy filing. Select Portfolio Servicing, Inc. v. Love (In re Love), 353 B.R. 216, 2006 Bankr. LEXIS 3604 (Bankr. W.D. Tenn. 2006).

Foreclosure sale was completed prepetition under Tennessee law, as consideration was exchanged, and statute of frauds was satisfied by preparation and execution of trustee's deed prior to commencement of debtor's case. Chapter 13 debtor's interest in her property was not reinstated even though her confirmed plan provided for maintenance payments and curing of arrearage, as plan did not specifically address foreclosure sale or reinstatement; further, fact that property was never property of estate precluded reinstatement by curing default in plan. In re Comer, — B.R. —, 2014 Bankr. LEXIS 907 (Bankr. E.D. Tenn. Mar. 7, 2014).

50. — —Option to Buy Real Property.

An option to buy real property comes within the proscription of the statute of frauds. Griese-Traylor Corp. v. First Nat'l Bank, 572 F.2d 1039, 1978 U.S. App. LEXIS 11277 (5th Cir. 1978).

Options to sell real property fall within the statute of frauds; accordingly, the statute of frauds makes options to sell real property unenforceable through suit unless they are evidenced by a signed memorandum or other writing. Anderson v. Hacks Crossing Partners, 3 S.W.3d 482, 1999 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1999).

51. —Contracts Not Covered.

Plaintiff claimed that defendant assigned plaintiff a $30,000 note as collateral for a $30,000 loan, and defendant claimed that plaintiff bought the $30,000 note at a 10 percent discount, and gave defendant only $27,000; contract did not fall within the ambit of the statute of frauds as there was no proof that the parties agreed that the loan would absolutely not be repaid within one year. Rather, the proof was that the parties agreed that the home buyer would send payments directly to plaintiff in repayment for the loan, but that was not to say that defendant could not have paid the loan back in full at any time. Birdwell v. Psimer, 151 S.W.3d 916, 2004 Tenn. App. LEXIS 333 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1057 (Tenn. Nov. 29, 2004).

52. — —Agency.

In respect to sales of land, a distinction is made between a contract to sell and a contract of sale. The agent may be authorized to make the contract to sell without his authority being in writing; but he cannot be authorized to make a contract of sale, which must be by a deed of conveyance of the land, unless he is authorized to do so by a power of attorney in writing. Farris v. Martin, 29 Tenn. 495, 1850 Tenn. LEXIS 21 (1850).

The authority of an agent to sell land and to execute a written contract of sale or to execute a bond binding the principal and owner to convey the land need not be in writing. Farris v. Martin, 29 Tenn. 495, 1850 Tenn. LEXIS 21 (1850); Matherson v. Davis, 42 Tenn. 443, 1865 Tenn. LEXIS 86 (1865); Gheen v. Osborne, 58 Tenn. 61, 1872 Tenn. LEXIS 228 (1872); Cobble v. Langford, 190 Tenn. 385, 230 S.W.2d 194, 1950 Tenn. LEXIS 498 (1950).

Written memorandum of sale of land signed by agent of defendant which described land, recited consideration for sale, and acknowledged receipt of $100 as down payment was sufficient to take case out of this section. Cobble v. Langford, 190 Tenn. 385, 230 S.W.2d 194, 1950 Tenn. LEXIS 498 (1950).

Although subsection (4) requires a contract for sale of land or a memorandum of it to be in writing, such provision does not require the authority of an agent to contract to sell land in the name of his principal to be in writing. Lowe v. Wright, 40 Tenn. App. 525, 292 S.W.2d 413, 1956 Tenn. App. LEXIS 156 (Tenn. Ct. App. 1956).

53. — —Partners.

A parol contract by which it was agreed that the first party should contract for the purchase of mineral lands subject to the approval of the second party, who was to furnish the money to pay for the lands, and take the title to himself as purchaser, to be resold, the first party to receive one-fourth of the profits realized from the speculation, was valid. Harben v. Congdon, 41 Tenn. 221, 1860 Tenn. LEXIS 51 (1860).

Where a partnership acquires land solely for the purpose of speculation and it is not contemplated that there shall be any conveyances between the parties, equity regards it as personal property among the partners and an agreement of one partner to release his interest is not a contract for such an interest in lands as comes within the statute of frauds. Smith v. Guy, 24 Tenn. App. 352, 144 S.W.2d 702, 1940 Tenn. App. LEXIS 41 (Tenn. Ct. App. 1940).

54. — —Partition.

Partition of land held or owned by tenants in common may be made by parol, because partition is not a sale within the meaning of this statute. Farris v. Caperton, 38 Tenn. 606, 1858 Tenn. LEXIS 235 (Tenn. Dec. 1858); Meacham v. Meacham, 91 Tenn. 532, 19 S.W. 757, 1892 Tenn. LEXIS 26 (1892); McBroom v. Whitefield, 108 Tenn. 422, 67 S.W. 794, 1901 Tenn. LEXIS 43 (1902).

55. — —Sheriffs' Sales.

The sale of land by the sheriff is not within the statute. Nichol v. Ridley, 13 Tenn. 62, 13 Tenn. 63, 1833 Tenn. LEXIS 107 (1833); Harvey v. Adams, 77 Tenn. 289, 1882 Tenn. LEXIS 51 (1882).

56. — —Trusts in Real Estate.

The seventh section of the statute of frauds is not in force in Tennessee, and a trust in real estate may rest upon a parol agreement. Hoffner v. Hoffner, 32 Tenn. App. 98, 221 S.W.2d 907, 1949 Tenn. App. LEXIS 81 (1949).

Where father and daughter transferred large farm to deceased in consideration that she assume and pay an existing mortgage and reconvey small portion of tract back to daughter as it was the home place, and deceased prior to her death sold sufficient part of the entire tract to pay the mortgage but failed to reconvey home tract to daughter, parol evidence of agreement to reconvey was admissible in suit by daughter against heirs of deceased since trusts in real estate may be proven by parol evidence. Kelley v. Whitehurst, 37 Tenn. App. 360, 264 S.W.2d 1, 1953 Tenn. App. LEXIS 95 (1953).

A trust in real estate can be based upon an oral agreement. Brantley v. Brantley, 198 Tenn. 670, 281 S.W.2d 668, 1955 Tenn. LEXIS 420 (1955).

The seventh section of the statute of frauds is not in force in Tennessee, and a trust in real estate may rest upon a parol agreement. Vick v. Vick, 60 Tenn. App. 600, 449 S.W.2d 717, 1968 Tenn. App. LEXIS 289 (Tenn. Ct. App. 1968).

57. — —Broker's Contract.

While a broker's contract to sell or find a buyer for real estate does not technically create a trust interest in the real estate, it is similar enough that the court held a broker's contract for the sale of real estate may be oral and, if the same quantum of proof necessary to establish a trust in real estate is proved, the broker may recover his commission. Alexander v. C.C. Powell Realty Co., 535 S.W.2d 154, 1975 Tenn. App. LEXIS 186 (Tenn. Ct. App. 1975).

58. — —Trusts in Personal Property.

A remainder in a chattel, to take effect after the determination of a life interest, cannot be created by parol, and can only be created by some proper written instrument. Payne v. Lassiter, 18 Tenn. 507, 1837 Tenn. LEXIS 70 (1837); Deer v. Devin, 20 Tenn. 66, 1839 Tenn. LEXIS 16 (1839); Hallum v. Yourie, 33 Tenn. 369, 1853 Tenn. LEXIS 57 (1853); Hill v. McDonald, 38 Tenn. 383, 1858 Tenn. LEXIS 196 (Tenn. Dec. 1858).

A parol reservation of a remainder interest in a chattel by the donor, in his parol gift of a life interest therein accompanied by delivery of possession of the chattel to the life tenant, is void. Hallum v. Yourie, 33 Tenn. 369, 1853 Tenn. LEXIS 57 (1853).

A parol sale of a remainder or reversion in a chattel is void, and a valid disposition of such interest can only be made by writing. Hill v. McDonald, 38 Tenn. 383, 1858 Tenn. LEXIS 196 (Tenn. Dec. 1858).

Section 7 of the Statute of Frauds, 29 Charles 2, ch. 3, applies only to “lands and tenements, and hereditaments.” The law, in regard to personal chattels, remains wholly unaffected by the statute, and a valid trust of personal property may not only be created, but may also be established and proved by mere parol declaration. Deakins v. Webb, 19 Tenn. App. 182, 84 S.W.2d 367, 1935 Tenn. App. LEXIS 30 (Tenn. Ct. App. 1935).

59. — —Transfer of Title Bonds.

A sale and transfer of a written contract or title bond for the conveyance of land may be made by the obligee to another purchaser by assignment or by a mere naked, simple, and parol delivery of it, and upon the payment of the original purchase money, such purchaser of the title bond is entitled to demand and receive a deed from the maker of the bond. Simmons v. Tillery, 1 Tenn. 274, 1808 Tenn. LEXIS 14 (1808); Kennedy v. Woolfolk, 4 Tenn. 195,—S.W.3d—, 1817 Tenn. LEXIS 6 (1817); Neal v. Cox, 7 Tenn. 443, 1824 Tenn. LEXIS 23 (1824), questioned, Patton v. M'Clure, 8 Tenn. 332, 8 Tenn. 333, 1828 Tenn. LEXIS 11 (1828), criticized, 8 Tenn. 385, 1828 Tenn. LEXIS 17 (1828); Patton v. M'Clure, 8 Tenn. 332, 8 Tenn. 333, 1828 Tenn. LEXIS 11 (1828); McCoy's Lessee v. Williford, 32 Tenn. 642, 1853 Tenn. LEXIS 99 (1853); Howard v. Moore, 36 Tenn. 317, 1857 Tenn. LEXIS 2 (1857); Wilburn v. Spofford, Tileston & Co., 36 Tenn. 698, 1857 Tenn. LEXIS 71 (1857); Thompson v. Dawson, 40 Tenn. 384, 1859 Tenn. LEXIS 108 (1859); Robinson v. Williams, 40 Tenn. 540, 1859 Tenn. LEXIS 156 (1859); Ocoee Bank v. Nelson, 41 Tenn. 186, 1860 Tenn. LEXIS 43 (1860); Kelly v. Thompson, 49 Tenn. 278, 1871 Tenn. LEXIS 5 (1871); Merriman v. Polk, 52 Tenn. 717, 1871 Tenn. LEXIS 302 (1871); Smith v. Peace, 69 Tenn. 586, 1878 Tenn. LEXIS 142 (1878); King v. Coleman, 98 Tenn. 561, 40 S.W. 1082, 1897 Tenn. LEXIS 145 (1897).

60. — —Assignments of Rights of Occupancy.

The assignment and transfer of the right of occupancy or preference in entering and obtaining a grant from the state, it seems, need not be in writing. Cook v. Shute, 3 Tenn. 67, 1 Cooke 67, 1812 Tenn. LEXIS 21(1812); Danforth v. Lowry, 4 Tenn. 61, 1816 Tenn. LEXIS 21 (1816), overruled, Dunlap v. Gibbs, 12 Tenn. 93, 12 Tenn. 94, 1833 Tenn. LEXIS 19 (1833); Dunlap v. Gibbs, 12 Tenn. 93, 12 Tenn. 94, 1833 Tenn. LEXIS 19 (1833).

61. — —Location of Lands.

A parol contract for locating land warrants, and procuring grants to be issued thereon, for a share of the land, is not within the statute. Smith v. Brooks, 4 Tenn. 248, 1817 Tenn. LEXIS 21 (1817); Davis v. Walker, 5 Tenn. 295, 1818 Tenn. LEXIS 8 (1818).

62. — —Miscellaneous.

Agreement to transfer tract of land by husband though not in writing was enforceable in equity where grantor executed deed but persuaded wife not to sign the deed, since deed was sufficient proof in equity of agreement to transfer property. Espie v. Urie, 4 Tenn. 125, 1816 Tenn. LEXIS 34 (1816).

Agreement by defendants, who purchased land at execution sale, to let land remain in plaintiff if he would advance their expenses and pay book account was not an agreement within the statute of frauds. Danforth v. Lowry, 4 Tenn. 61, 1816 Tenn. LEXIS 21 (1816), overruled, Dunlap v. Gibbs, 12 Tenn. 93, 12 Tenn. 94, 1833 Tenn. LEXIS 19 (1833).

Contract for percentage of operating business is not a contract for sale of real estate. Jarrett v. Epperly, 896 F.2d 1013, 1990 U.S. App. LEXIS 2467 (6th Cir. Tenn. 1990).

Appellate court was unable to find that trial court abused discretion or that overall property distribution was not equitable because trial court correctly valued the husband's 401k as of a date as near as reasonably possible to the final divorce hearing when the wife and the husband were not legally separated prior to trial, and the house was not subject to classification and distribution in the divorce, when the agreement constituted a rent-to-own contract on the house and neither party had any ownership interest in the house; also, the case was not an action seeking to enforce a contract for sale of land and neither party was attempting to enforce the landlord's agreement to deed the house to the husband and wife upon full payment of the note. Bunch v. Bunch, 281 S.W.3d 406, 2008 Tenn. App. LEXIS 374 (Tenn. Ct. App. June 30, 2008), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 171 (Tenn. Jan. 20, 2009).

63. —Writing.

The memorandum in order to satisfy the statute must contain the essential terms of the contract expressed with such certainty that they may be understood from the memorandum itself or some other writing to which it refers or with which it is connected without resorting to parol evidence. Lambert v. Home Federal Sav. & Loan Asso., 481 S.W.2d 770, 1972 Tenn. LEXIS 349 (Tenn. 1972).

Judgment finding that the seller breached a contract with the buyers was reversed because an oral agreement changed the essential terms of the contract, such that it was required to be in writing pursuant to the statute of frauds, and the application of equitable estoppel was not warranted. Davidson v. Wilson, — S.W.3d —, 2010 Tenn. App. LEXIS 393 (Tenn. Ct. App. June 18, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. App. LEXIS 496 (Tenn. Ct. App. July 29, 2010).

Both the statute of frauds, T.C.A. § 29-2-101(b)(1), and the express terms of the plan itself required that any modification to the plan or to the plaintiff's loan documents must be in writing. Although the plaintiff argued that the defendant did not promise a loan modification but promised to make her an offer for a loan modification, which rendered the statute of frauds inapplicable, that alleged oral promise would have essentially extended the duration of the plan beyond its limited duration, and that duration provision could be extended only through a written document; to the extent the plaintiff was seeking to enforce an oral statement by an employee of the defendant regarding the duration or terms of the plan, the statute of frauds barred that claim. Grona v. CitiMortgage, Inc., — F. Supp. 2d —, 2012 U.S. Dist. LEXIS 45876 (M.D. Tenn. Apr. 2, 2012).

Trial court properly granted a lender's motion for judgment on the pleadings because subsection 29-2-101(b)(1) warranted the dismissal of a borrower's claim for breach of an agreement for future loans; the lender never made an actionable promise or commitment in writing, which would satisfy the statute, to provide the lender with any loans beyond the loan secured by real property. Shaw v. FSG Bank, N.A., — S.W.3d —, 2015 Tenn. App. LEXIS 698 (Tenn. Ct. App. Aug. 31, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 12 (Tenn. Jan. 14, 2016).

64. — —Form.

Where the authority to lease or sell land is in writing, the writing need not be formal document. An ordinary letter of general authority is sufficient, even though it does not specifically describe the land. Johnson v. Somers, 20 Tenn. 268, 1839 Tenn. LEXIS 46 (1839); Farris v. Martin, 29 Tenn. 495, 1850 Tenn. LEXIS 21 (1850); Matherson v. Davis, 42 Tenn. 443, 1865 Tenn. LEXIS 86 (1865).

No particular form or artificial arrangement of words is required, but the fact of a sale and its terms, embracing a designation of the parties to it and a description of the land, must appear with reasonable certainty in the writing relied upon or to some other to which it refers. Sheid v. Stamps, 34 Tenn. 172, 1854 Tenn. LEXIS 28 (1854); Case v. Brier Hill Collieries, 145 Tenn. 1, 235 S.W. 57, 1921 Tenn. LEXIS 68 (1921).

Because seller was “the party to be charged” pursuant to T.C.A. § 29-2-101(a), the fact that the purchaser did not sign the contract was immaterial and the purchaser's assent to the terms of the contract was reflected in participation in the action as a plaintiff and participation in deposition testimony. Hillard v. Franklin, 41 S.W.3d 106, 2000 Tenn. App. LEXIS 654 (Tenn. Ct. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 242 (Tenn. Mar. 12, 2001).

The lack of a notary's acknowledgment is not material where no one questioned the validity of the signatures affixed to the contract for the sale of real property. Hillard v. Franklin, 41 S.W.3d 106, 2000 Tenn. App. LEXIS 654 (Tenn. Ct. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 242 (Tenn. Mar. 12, 2001).

64.5. — —Issue of Fact.

Seller submitted evidence in the form of affidavits from two witnesses, who stated that they were present and personally witnessed the purchaser's signing of a promissory note that memorialized the parties'  agreement; although the trial court found that the parties'  oral agreement was unenforceable based on the statute of frauds, the seller established that a dispute existed as to a genuine issue of material fact, whether there was ever a written promissory note, and thus summary judgment was not appropriate. McKinnis v. Hammons, — S.W.3d —, 2014 Tenn. App. LEXIS 700 (Tenn. Ct. App. Oct. 30, 2014).

65. — —Sufficiency.

A contract of landowner and his broker, authorizing the latter to sell land therein described and incorporating an agreement to execute a deed to any purchaser, is not a memorandum of a sale to a purchaser the broker may find, that answers the requirements of the statute of frauds and the same cannot be enforced against a prospective purchaser who accepts such contract. Lusky v. Keiser, 128 Tenn. 705, 164 S.W. 777, 1913 Tenn. LEXIS 85, 1915C L.R.A. (n.s.) 400 (1913).

Check with notation on face “Deposit on Lot 58 by 135 located on east side of Highway 61 S. 216 feet north of Eastman Road, Shelby County, Tenn. Bal. $65.00 per front ft. due $35.00 per month after $500 is paid at closing. Title guaranteed” which was delivered to landowner who cashed the same and retained the proceeds, was sufficient memorandum of description of land and terms of contract to meet requirements of statute of frauds. Brister v. Estate of Brubaker, 47 Tenn. App. 150, 336 S.W.2d 326, 1960 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1960).

Will providing for disposition of real property but containing no language indicating that it was executed pursuant to oral agreement by testator to devise property to plaintiffs and which was later revoked by second will did not constitute a writing sufficient to satisfy statute of frauds. Knight v. Knight, 222 Tenn. 367, 436 S.W.2d 289, 1969 Tenn. LEXIS 446 (1969).

Letter asserting that unsigned lease attached thereto correctly expressed previous oral agreement would satisfy the statute. Batey v. D.H. Overmyer Whse. Co., 60 Tenn. App. 310, 446 S.W.2d 686, 1969 Tenn. App. LEXIS 318 (1969).

Acceptance and endorsement by lessor of remittances computed at exact per square foot rate specified in unsigned lease and endorsement of a subsequent check in the exact amount of monthly rental provided by the lease were sufficient written memoranda to comply with statute of frauds and to complete the agreement. Batey v. D.H. Overmyer Whse. Co., 60 Tenn. App. 310, 446 S.W.2d 686, 1969 Tenn. App. LEXIS 318 (1969).

Where real property was sold at auction by the substitute trustee under a defaulted deed of trust to the small business administration, and no written contract of sale or memorandum of the auction sale prepared, a suit by the trustee for specific performance could not be sustained in view of this section, the court holding that the complaint for specific performance filed by the trustee, which incorporated the terms of the oral agreement of sale and was signed by the trustee's attorney, did not constitute a sufficient writing as required by the statute. Watson v. McCabe, 381 F. Supp. 1124, 1974 U.S. Dist. LEXIS 6858 (M.D. Tenn. 1974), aff'd, 527 F.2d 286, 1975 U.S. App. LEXIS 11386 (6th Cir. 1975).

Two checks totalling $20,000 signed by agent of commercial loan institution and payable to real estate company did not constitute sufficient memorandum of an oral agreement by the loan company to lend the real estate company $20,000 on a land purchase, where no written loan application was made and where the real estate company was the “party to be charged.” Southern Indus. Banking Corp. v. Delta Properties, Inc., 542 S.W.2d 815, 1976 Tenn. LEXIS 524 (Tenn. 1976).

The writing required by the statute of frauds was not supplied by an attorney who, as one of the coadministrators of an estate, filed in the probate court documents containing statements that the decedent had signed the lease in question as guarantor of the tenant's obligations thereunder, since these statements were only legal conclusions, not statements of fact, and were not made by the decedent or by some other person by him thereunto lawfully authorized; moreover, these statements by the attorney did not establish either a waiver or an estoppel against the estate. In re Estate of Dickerson, 600 S.W.2d 714, 1980 Tenn. LEXIS 456 (Tenn. 1980).

Document that simply does not set out an agreement for the sale of a particular tract of land is unenforceable. Massey v. Hardcastle, 753 S.W.2d 127, 1988 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1988).

The receipt and cashing of the check, which did not contain the terms of the agreement, did not satisfy the statute even though the land owner had agreed that she would permit her property to be used as collateral for the loan. Beazley v. Turgeon, 772 S.W.2d 53, 1988 Tenn. App. LEXIS 368 (Tenn. Ct. App. 1988).

Statement in a holographic will was insufficient to satisfy the statute of frauds under T.C.A. § 29-2-101(a) because it did not state the terms of an alleged agreement; it merely stated that a widow was to have one-half of certain property. In re Estate of Jones, 183 S.W.3d 372, 2005 Tenn. App. LEXIS 445 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 1184 (Tenn.2005).

66. — —Prevention of Writing.

The fraud that will take a case from within the operation of the statute is a fraud by which the reduction of it to writing is prevented, where it was intended by the parties to be reduced to writing, and the injured or complaining party is induced to believe that it has been done; and this fraud may be perpetrated in two ways, namely, by signing a false paper, and at the same time inducing the belief that it is the true one; or by inducing the belief that the paper has been signed when in fact it has not. Hackney v. Hackney, 27 Tenn. 452, 1847 Tenn. LEXIS 105 (1847); Interstate Co. v. Bry-Block Mercantile Co., 30 F.2d 172, 1928 U.S. Dist. LEXIS 1676 (D. Tenn. 1928).

The statute has no application to a case where the agreement or declaration of trust was intended by the parties to be reduced to writing, which was prevented from being done by the fraud or breach of promise of one of the parties. Williams v. Conrad, 30 Tenn. 412, 1850 Tenn. LEXIS 140 (1850); Henderson v. Tipton, 88 Tenn. 255, 14 S.W. 380, 1889 Tenn. LEXIS 44 (Tenn. Sep. 1889).

67. — —Several Writings.

It is not necessary that the contract be contained in a single document. It will be sufficient if it can be plainly made out, in all its terms, from any writings of the party, or even from his correspondence. Blair v. Snodgrass, 33 Tenn. 1, 1853 Tenn. LEXIS 1 (1853); Wright v. Cobb, 37 Tenn. 143, 1857 Tenn. LEXIS 95 (1857); Holms v. Johnston, 59 Tenn. 155, 1873 Tenn. LEXIS 41 (1873); Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 1887 Tenn. LEXIS 13, 4 Am. St. Rep. 800 (1887).

Where several papers are relied on for written evidence, they must afford intrinsic proof that they relate to the same contract of sale. Parol evidence is inadmissible to connect them, or to show that they relate to the same transaction. Blair v. Snodgrass, 33 Tenn. 1, 1853 Tenn. LEXIS 1 (1853); Knox v. Haralson, 2 Cooper's Tenn. Ch. 232 (1875).

The contract, memorandum, or note thereof may be made out from the correspondence between the owner and his agent, where the letters refer to and connect with each other, and taken as a whole, show clearly a sufficient description of the land, and the fact and terms of the sale authorized by the principal and effected by the agent. Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 1887 Tenn. LEXIS 13, 4 Am. St. Rep. 800 (1887); Otis v. Payne, 86 Tenn. 663, 8 S.W. 848, 1888 Tenn. LEXIS 21 (1888).

Letters which fail to set out details of alleged contract and fail to recognize the existence of an unsigned agreement are insufficient to take a case out of the statute of frauds. Interstate Co. v. Bry-Block Mercantile Co., 30 F.2d 172, 1928 U.S. Dist. LEXIS 1676 (D. Tenn. 1928).

Circumstances under which four mutual wills were executed by tenants in common may be looked to; and, where the wills are found to have been contemporaneously executed, they may be found to be parts of one transaction, as if in one document, to be construed together. Each will, signed, disposing of property to survivors, constitutes written evidence of a contract so to dispose, that contract appearing from the four instruments. Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 1927 Tenn. LEXIS 58 (1927).

An instrument containing a sufficient description of property may be fortified by reference to other papers, so as to satisfy the requirements of the statute of frauds. Young v. Tuck, 27 Tenn. App. 74, 178 S.W.2d 86, 1943 Tenn. App. LEXIS 132 (1943).

If one of two or more papers are signed and the other or others are not signed there must be proof that the paper writings involved relate to same contract. Yates v. Skaggs, 187 Tenn. 149, 213 S.W.2d 41, 1948 Tenn. LEXIS 421 (1948).

Where bank as trustee listed property for sale with plaintiff real estate broker for $80,000 and plaintiff secured offer of $80,000 with earnest check of $5,000 which was accepted by the bank and minutes of bank showed that sale was authorized for $80,000 or more the requirement of a written memorandum was satisfied and plaintiff was entitled to recover commission for sale though property was thereafter sold to another for $82,000 cash. Loventhal v. Noel, 196 Tenn. 308, 265 S.W.2d 891, 1954 Tenn. LEXIS 380 (1954).

The memorandum required by the statute may be two or more papers signed by the party to be charged. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

The statute of frauds is satisfied by a group of writings as well as a single writing and all of the writings need not be signed if there is sufficient reference therein to establish the necessary connection. Batey v. D.H. Overmyer Whse. Co., 60 Tenn. App. 310, 446 S.W.2d 686, 1969 Tenn. App. LEXIS 318 (1969).

Trustee's claimed agreement with commercial tenants failed to comply with the Tennessee Statute of Frauds because even when e-mails were read together and alongside other documents referenced by the trustee, they failed to establish the terms of the alleged loan guaranty agreement. Moreover, the partial performance doctrine was unavailable to remove the bar imposed by the Statute of Frauds. Smith v. Hi-Speed, Inc., — S.W.3d —, 2016 Tenn. App. LEXIS 638 (Tenn. Ct. App. Aug. 30, 2016).

68. — —Memorandum of Auction Sale.

The rule which holds the memorandum of an auctioneer to be sufficient to take the case out of the statute contemplates an agent for both parties, with authority to act for the seller and buyer. Adams v. Scales, 60 Tenn. 337, 1872 Tenn. LEXIS 503, 25 Am. Rep. 772, 25 Am. Rep. 772 (1872).

The agency of the auctioneer enabling him to sign the memorandum so as to bind the buyer ends with the sale, and a memorandum subsequently signed is inadequate. Wright v. Harrison, 137 Tenn. 157, 192 S.W. 716, 1916 Tenn. LEXIS 63 (1916).

Memorandum of sale of lots at public auction by auctioneer which gave the number of each lot and the price paid, but which contained no description of the lots was an insufficient memorandum, and sale was void. Wright v. Harrison, 137 Tenn. 157, 192 S.W. 716, 1916 Tenn. LEXIS 63 (1916).

The contract between the seller and the auctioneer, the posters advertising the sale and the bid sheet kept by the auctioneer, taken together, satisfy the statute and upon the fall of the hammer at the auction, there was a sale to the plaintiff as evidenced in writing signed by the party to be charged. Johnson v. Haynes, 532 S.W.2d 561, 1975 Tenn. App. LEXIS 196 (Tenn. Ct. App. 1975).

69. — — —Presence of Owner.

Where the owner is himself present managing and controlling the sale of land, except the crying of the bids which is done by a person employed by him for that purpose, such crier is not an auctioneer; and sales of real estate made by a trustee, in pursuance of the deed of trust, are within the statute the same as sales made by the absolute owner. Adams v. Scales, 60 Tenn. 337, 1872 Tenn. LEXIS 503, 25 Am. Rep. 772, 25 Am. Rep. 772 (1872).

Where defendant accepted bid at auction sale for her real estate and drafted a deed which was objected to because it did not contain reference to her source of title and covenants of warranty were not satisfactory, and defendant agreed to execute a new deed with corrections made, and new deed duly executed was delivered by defendant in escrow for delivery to plaintiff, the latter was entitled to specific performance of contract for sale of real estate, even though prior to delivery the defendant obtained possession of deed. Radiophone Broadcasting Station v. Imboden, 183 Tenn. 215, 191 S.W.2d 535, 1946 Tenn. LEXIS 205 (1946).

70. — —Bill in Equity.

A bill in equity to disaffirm a parol land contract cannot itself be treated as a memorandum satisfying the statute. Davis v. Ross, 50 S.W. 650, 1898 Tenn. Ch. App. LEXIS 124 (Tenn. Ch. App. 1898).

State law was applicable to suit for sale of Tennessee land and the complaint of trustee did not constitute a memorandum of sale sufficient to satisfy statute of frauds, absent proof that attorney who signed complaint was authorized to execute a memorandum of sale. Watson v. McCabe, 527 F.2d 286, 1975 U.S. App. LEXIS 11386 (6th Cir. 1975).

71. —Signing.

Trial court erred in ruling that an easement from an original grantor to the county violated the statute of frauds as the grantor, as the party to be charged, signed the document conveying the easement and the county did not have to sign the document for it to have legal effect. Cellco P'ship v. Shelby County, 172 S.W.3d 574, 2005 Tenn. App. LEXIS 9 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 747 (Tenn. Aug. 29, 2005).

72. — —Party to Be Charged.

The phrase “the party to be charged therewith” means the vendor or lessor of the land, and not the vendee or lessee. The statute does not require both parties to sign the lease, but it will be sufficient if signed by the owner. Whitby v. Whitby, 36 Tenn. 473, 1857 Tenn. LEXIS 39 (1857), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006); Frazer v. Ford, 39 Tenn. 464, 1859 Tenn. LEXIS 252 (Tenn. Apr. 1859); Gass v. Hawkins, 1 Shan. 167 (1860); Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 1887 Tenn. LEXIS 13, 4 Am. St. Rep. 800 (1887); Lusky v. Keiser, 128 Tenn. 705, 164 S.W. 777, 1913 Tenn. LEXIS 85, 1915C L.R.A. (n.s.) 400 (1913); Ashley v. Preston, 162 Tenn. 540, 39 S.W.2d 279, 1930 Tenn. LEXIS 121 (Tenn. Dec. 1930), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

Party charged is not required to sign each paper forming a link in chain of evidence. Williams v. Buntin, 4 Tenn. App. 340, 1927 Tenn. App. LEXIS 193 (1927); Yates v. Skaggs, 187 Tenn. 149, 213 S.W.2d 41, 1948 Tenn. LEXIS 421 (1948).

The phrase “signed by the party to be charged therewith” means the owner of the land, and evidence of the acceptance of the contract upon the part of the purchaser may be in parol as at common law before the statute of frauds. Patterson v. Davis, 28 Tenn. App. 571, 192 S.W.2d 227, 1945 Tenn. App. LEXIS 96 (1945); Massey v. Hardcastle, 753 S.W.2d 127, 1988 Tenn. App. LEXIS 189 (Tenn. Ct. App. 1988).

Trial court erred by ordering the specific performance of a contract for the sale of foreclosure property following a successful bid; there was no writing signed by the buyers agreeing to purchase the property for seventy-seven thousand six hundred forty-two dollars and five cents, and without a writing signed by the parties to be charged, the trustee's deed was not sufficient to satisfy T.C.A. § 29-2-101. Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

73. — —Signature.

To make the contract valid, it must be signed by all the owners, by themselves, or someone lawfully authorized; and where it is signed by some of them only, the filing of a bill by all the owners, with an express ratification of the contract therein, and the tender of title, will not remedy the defect, and the purchaser cannot be compelled to take the land by a specific execution of the contract, for the contract must be mutual and binding on both parties to make it obligatory. Frazer v. Ford, 39 Tenn. 464, 1859 Tenn. LEXIS 252 (Tenn. Apr. 1859); Gheen v. Osborne, 58 Tenn. 61, 1872 Tenn. LEXIS 228 (1872).

Where a married woman held a separate estate in land under a deed empowering her to convey the same “by joint deed with her said husband,” and he does not join with her in the deed otherwise than in the testimonium clause, and by his signing, acknowledging, and delivering the deed, the deed is sufficient, and the husband is estopped to set up any claim to the land conveyed, for one reason, if no other, because he had no interest in it. Friedenwald & Co. v. Mullan, 57 Tenn. 226, 1872 Tenn. LEXIS 418 (1872).

A mortgage of land to secure the husband's debt, purporting on its face to be by the husband alone, is not binding upon the wife who merely signs it, although properly acknowledged by her, nor is it binding upon her heirs. Berrigan v. Fleming, 70 Tenn. 271, 1879 Tenn. LEXIS 174 (1879).

Vendee accepting title bond and going into possession of the land is bound for the purchase money recited as due and to be paid, though such bond is signed by the vendor only. Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Hook v. Donaldson, 77 Tenn. 56, 1882 Tenn. LEXIS 13 (1882).

If name of grantor or his agent is inserted in granting clause though not appearing at end of the deed there must be evidence of circumstances showing an intention that signature is final. Saunders v. Hackney, 78 Tenn. 194, 1882 Tenn. LEXIS 163 (1882); Burton v. Jones, 147 Tenn. 624, 250 S.W. 548, 1922 Tenn. LEXIS 69, 28 A.L.R. 1111 (1922).

A deed purporting to convey land, and signed by one whose name is not mentioned in the body of the deed, although it may not pass his title, may operate by way of estoppel. Anderson v. Akard, 83 Tenn. 182, 1885 Tenn. LEXIS 40 (1885).

The name of the vendor's agent, printed in the body of a contract for a deed among the recitals, and not placed there with intent to bind the vendor, was not a “signature” to the memorandum, within the meaning of the statute. Burton v. Jones, 147 Tenn. 624, 250 S.W. 548, 1922 Tenn. LEXIS 69, 28 A.L.R. 1111 (1922).

The signature of a person to a document does not have to be in any specific form, the only question is whether a person has adopted and used as his signature that form, thus a signature may be in writing, by a mark, or by typewriter. Gessler v. Winton, 24 Tenn. App. 411, 145 S.W.2d 789, 1940 Tenn. App. LEXIS 47 (Tenn. Ct. App. 1940).

Name of vendor and wife in body of instrument for sale of land was not a signature within the meaning of the statute. Cartwright v. Giacosa, 216 Tenn. 18, 390 S.W.2d 204, 1965 Tenn. LEXIS 555 (Tenn. May 7, 1965).

The signature at the end of a lease contract of one who, although a principal financial backer and officer of the tenant corporation, was not shown in the contract to have made any promise to answer for the debt, default or miscarriage of the tenant, did not constitute a compliance with the statute of frauds. In re Estate of Dickerson, 600 S.W.2d 714, 1980 Tenn. LEXIS 456 (Tenn. 1980).

Contract for the sale of real property was enforceable under the Statute of Frauds because the parties'  agreement was accurately memorialized in a writing that was signed by the seller, who was properly considered the party to be charged as enforcement of the contract was sought against him. Other terms which were proposed or purported to be imposed by the parties were not the subject of mutual assent. White v. Grimes, — S.W.3d —, 2019 Tenn. App. LEXIS 229 (Tenn. Ct. App. May 13, 2019).

74. — —Omissions.

A deed substantially in the form prescribed by statute, and sufficiently appearing from the whole instrument to be the deed of the signer, and clearly expressing his intention to convey the land described, is sufficient, although the name of the signer does not appear in the body or operative parts of the deed, and the pronoun “I” is, by clerical error, omitted in one place. Insurance Co. of Tennessee v. Waller, 116 Tenn. 1, 95 S.W. 811, 1905 Tenn. LEXIS 1 (1905).

Statute of frauds was not satisfied by written agreement in which name of party seeking to enforce same had been erased and substituted with name of third person, and writing was further deficient as evidence of parol agreement for reason that it was for term of three years while parol agreement was for term of five years. Frierson v. Gant, 23 Tenn. App. 428, 134 S.W.2d 193, 1939 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1939).

75. — —Authorization.

The authority of some other person as agent to sign the writing is not required by the statute to be in writing. Johnson v. Somers, 20 Tenn. 268, 1839 Tenn. LEXIS 46 (1839); Farris v. Martin, 29 Tenn. 495, 1850 Tenn. LEXIS 21 (1850); Matherson v. Davis, 42 Tenn. 443, 1865 Tenn. LEXIS 86 (1865).

Where there was nothing in contract for sale of land held by entireties to show that signature of husband was both for himself and as agent for his wife parol evidence was inadmissible to show such authorization. Cartwright v. Giacosa, 216 Tenn. 18, 390 S.W.2d 204, 1965 Tenn. LEXIS 555 (Tenn. May 7, 1965).

76. — —Time for Signing.

The memorandum required by the statute may be signed after the making of the contract. Huffine v. McCampbell, 149 Tenn. 47, 257 S.W. 80, 1923 Tenn. LEXIS 84 (1923).

77. —Description of Property and Terms.

The memorandum of the sale of lands, to be effectual, must not only be signed by the party to be charged with its performance, but must contain the substantial terms of the contract in itself, or in some other writing to which it refers, with a sufficient description of the land, so it may be determined with reasonable certainty what estate of land is embraced and intended to be sold, and the terms of the sale, without resort to parol evidence to supply other portions of the contract, for parol evidence is inadmissible to supply defects and omissions in such a writing. Pipkin v. James, 20 Tenn. 325, 1839 Tenn. LEXIS 55, 34 Am. Dec. 752 (1839); Blair v. Snodgrass, 33 Tenn. 1, 1853 Tenn. LEXIS 1 (1853); Sheid v. Stamps, 34 Tenn. 172, 1854 Tenn. LEXIS 28 (1854); Wright v. Cobb, 37 Tenn. 143, 1857 Tenn. LEXIS 95 (1857); McCarty v. Kyle, 44 Tenn. 348, 1867 Tenn. LEXIS 55 (1867); Dobson v. Litton, 45 Tenn. 616, 1868 Tenn. LEXIS 54 (1868); Hudson v. King, 49 Tenn. 560, 1871 Tenn. LEXIS 44 (1871); Gudger v. Barnes, 51 Tenn. 570, 1871 Tenn. LEXIS 207 (1871); Johnson v. Kellogg, 54 Tenn. 262, 1872 Tenn. LEXIS 44 (1872); N. Y. & E. T. Iron Co. v. Greene County Iron Co., 58 Tenn. 434, 1872 Tenn. LEXIS 282 (1872); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874); Knox v. Haralson, 2 Cooper's Tenn. Ch. 232 (1875); Cohen v. Woollard, 2 Cooper's Tenn. Ch. 686 (1876); Solomon v. Thatcher, 2 Shan. 37 (1876); Swiney v. Swiney, 82 Tenn. 316, 1884 Tenn. LEXIS 129 (1884); Smith v. Greaves, 83 Tenn. 459, 1885 Tenn. LEXIS 67 (1885); Harriman Land Co. v. Hilton, 121 Tenn. 308, 120 S.W. 162, 1908 Tenn. LEXIS 21 (1908); Wilson v. Calhoun, 157 Tenn. 667, 11 S.W.2d 906, 1928 Tenn. LEXIS 236 (1928).

As to requirement that the pleadings specifically described the land by some general description or appellation, so as to show to what particular tract such general designation is applicable, see Dobson v. Litton, 45 Tenn. 616, 1868 Tenn. LEXIS 54 (1868); White v. Motley, 63 Tenn. 544, 1874 Tenn. LEXIS 302 (1874); Sanders v. Everett, 3 Cooper's Tenn. Ch. 520 (1877).

A certificate of tax sale of land issued by the tax collector of a certain county showing a sale of “11 tracts of land, containing 23,640 acres, lying in the 13th district, sold as the property of Assure Assure,” does not sufficiently describe the land so as to identify it. James A. Quinby & Co. v. North American Coal & Transp. Co., 49 Tenn. 596, 1871 Tenn. LEXIS 49 (1871).

Provisions in a contract for the sale of land whereby plaintiff agreed to convey “five certain lots in North Hills Addition, Knoxville, Tennessee” contained an insufficient description to satisfy the statute of frauds. Schultz v. Anderson, 177 Tenn. 533, 151 S.W.2d 1068, 1940 Tenn. LEXIS 50 (1940).

The memorandum required by the statute of frauds must show an existing and binding contract, as distinguished from mere negotiations, and must disclose the particular contract sought to be enforced rather than some other contract or promise. Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 1947 Tenn. LEXIS 295 (1947), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

Although there was some difference between the parties about the total consideration as reflected on the bid sheet but which was settled at $27,925, there was really no argument on the issue of the sale and, as the terms of payment as announced at the auction were 10% down at the time of sale with either payments over two years plus interest or cash at the time of sale, the buyer could insist on paying cash as the sale, as handled, met all the requirements of the statute of frauds and the contract was enforceable. Johnson v. Haynes, 532 S.W.2d 561, 1975 Tenn. App. LEXIS 196 (Tenn. Ct. App. 1975).

To comply with the statute of frauds, a memorandum of an agreement to sell must show, with reasonable certainty, the estate intended to be sold. Baliles v. Cities Serv. Co., 578 S.W.2d 621, 1979 Tenn. LEXIS 416 (Tenn. 1979).

78. — —Identification.

To make a call in a grant to begin at a tree sufficient, the tree must possess some peculiar qualities distinguishing it from other trees. Rutledge's Lessee v. Buchanan, 21 F. Cas. 98, 3 Tenn. 363, 1 Cooke 363, 1813 Tenn. LEXIS 35.

The conveyance of “a farm in the tenancy of A,” without any further description was held to be a sufficient memorandum by the English courts. Hudson v. King, 49 Tenn. 560, 1871 Tenn. LEXIS 44 (1871).

The object of the statute would be met if the memorandum was sufficiently specific to enable the officers of the court to go into the country and find the land, and enforce its decrees against it. Hudson v. King, 49 Tenn. 560, 1871 Tenn. LEXIS 44 (1871).

The rule of law requires such a description, either general or special, as will enable any one to take the deed, and, from its face, to designate the property described. Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871); Woodward v. Goodman, 3 Shan. 483 (1875).

The description of land is sufficient, if those living in the immediate neighborhood can thereby identify and locate the land intended to be described. Easley v. McLaren, 60 Tenn. 1, 1871 Tenn. LEXIS 432 (1871); Christian v. Mynatt, 79 Tenn. 615, 1883 Tenn. LEXIS 115 (1883).

Whether the description, of itself, is or is not sufficient is immaterial, where there is full proof that the land is well known in the neighborhood by such description; that it is the only land ever owned there by the owner, and can be easily proved and located by the description. Christian v. Mynatt, 79 Tenn. 615, 1883 Tenn. LEXIS 115 (1883).

Conveyance by an heir of “all my undivided interest in the estate of my father,” naming him and giving the time and place of his decease is not void for insufficiency of description, the inference that the lands lay within the state being fairly deductible from the recitation as to the residences, not only of the parties to the conveyance, but of the ancestor through whom the title came. Brummitt v. Brown, 159 Tenn. 612, 21 S.W.2d 626, 1929 Tenn. LEXIS 19 (1929).

Deed by children who inherited under will of father conveying to two disinherited children “undivided one-eighth interest each in all of the real and personal estate of which our deceased father was possessed at the time of his death” sufficiently described lands in Tennessee so as to take the deed out of the statute of frauds. Brantley v. Brantley, 198 Tenn. 670, 281 S.W.2d 668, 1955 Tenn. LEXIS 420 (1955).

Where land was described in an option contract for sale of property as “120 acres located in 7th C.D. of Morgan County,” preceded by seller's covenant “that he is the owner thereof,” the description was not so uncertain as to render the contract unenforceable for failure to satisfy the statute of frauds since the vendors owned only one 120 acre tract of land in that county, and parol evidence was admissible to particularize the description and to require specific performance via conveyance by the metes and bounds description found in the complaint. Branstetter v. Barnett, 521 S.W.2d 818, 1974 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1974).

Where the instrument is so drawn that upon its face it refers necessarily to some existing tract of land, and its terms can be applied to that one tract only, parol evidence may be employed to show where the tract so mentioned is located. But, where the description employed is one that must necessarily apply with equal exactness to any one of an indefinite number of tracts, parol evidence is not admissible to show that the parties intended to designate a particular tract by the description. Baliles v. Cities Serv. Co., 578 S.W.2d 621, 1979 Tenn. LEXIS 416 (Tenn. 1979).

79. — —Reference to Other Instruments.

A conveyance of the grantor's “undivided fourth part of a certain lot of ground and house, situated in the town of Nashville, in the state of Tennessee, late the property of” a person named, where the title papers of that person show that the lot owned by him was composed of the half of each of two town lots, one-half lying behind the other, the description is sufficient. Barker v. Butler, 4 Tenn. 243, 1817 Tenn. LEXIS 20 (1817).

A conveyance of 30 by 180 feet, as part of a particular lot sufficiently described, but shown to be much larger than such part, where the grantor owned only 30 by 180 feet of that lot, is sufficient; especially if it be added that the same was conveyed to the grantor by a certain deed of record, for that is equivalent to saying that the part conveyed is the grantor's land in that lot which he holds under the deed sufficiently describing the part so conveyed or referring to another deed, though unregistered, which does do so. Cohen v. Woollard, 2 Cooper's Tenn. Ch. 686 (1876).

The deed conveying land may refer, for description, to another deed containing a sufficient description of the land. McDonald v. Lusk, 77 Tenn. 654, 1882 Tenn. LEXIS 117 (1882).

A deed describing the land as “two tracts of land adjoining each other, in Marshall County, Tennessee, containing in all about 353½ acres, …(the land being the land on which I [the grantor] now live),” without giving the civil district or any adjoining lands, is sufficient, for there is an implied reference to the conveyor's title papers for the quantity and full description. Swiney v. Swiney, 82 Tenn. 316, 1884 Tenn. LEXIS 129 (1884).

Where for further description of the land intended to be conveyed, reference is made in the conveying deed to deeds never in existence, the fact of the nonexistence of such deeds is immaterial, where the description is otherwise sufficient to identify the land. Smith v. Greaves, 83 Tenn. 459, 1885 Tenn. LEXIS 67 (1885).

The metes and bounds control the estimated acreage in the description of lands in a devise. A devise of a tract of land as 1,407 acres, referring, for “metes and bounds,” to a registered deed from a designated person to the testator, does not cover and pass title to a distinct adjoining tract of 65 acres, although both tracts comprise precisely 1,407 acres, and testator would otherwise die intestate as to the latter tract. Oldham v. York, 99 Tenn. 68, 41 S.W. 333, 1897 Tenn. LEXIS 10 (1897).

Where a deed describes the land as the “Shady tract” merely, but refers, for full or particular description, to other deeds of record containing an accurate description of this identical land, references by which the boundary may be ascertained, such deed is not void for insufficient description, though there is no evidence to prove that the land was ever known by such name. Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902).

Where a deed refers to a prior deed or grant for description, without more or without describing the land by metes and bounds, it incorporates into itself the description contained in that deed or grant; but, if the later deed also sets out the metes and bounds of the land conveyed by it, the reference to the prior deed or grant must be definite and specific, in order to control the specific description which in itself is plain and unequivocal. Byrd v. Phillips, 120 Tenn. 14, 111 S.W. 1109, 1907 Tenn. LEXIS 36 (1907).

Unless the deed contains intrinsic evidence of a reference to a certain prior deed for description, such prior deed cannot be looked to for the purpose of supplying the description. Harriman Land Co. v. Hilton, 121 Tenn. 308, 120 S.W. 162, 1908 Tenn. LEXIS 21 (1908).

A deed is sufficient in its reference to a prior deed in this language: “A 500 acre tract, deed from J. F. Scott to William Lewellyn in the year 1852, lying on the east side of Emory river, in district No. 4,” where it is otherwise described in the deed as situated in the county of Morgan and state of Tennessee. Harriman Land Co. v. Hilton, 121 Tenn. 308, 120 S.W. 162, 1908 Tenn. LEXIS 21 (1908).

A deed conveying land may refer to a prior deed for the description; and, where the reference is sufficiently definite to refer to some particular tract of land, parol evidence is admissible to aid in its identification, and to show that the prior deed is duly recorded, though that fact is not indicated in the reference. Harriman Land Co. v. Hilton, 121 Tenn. 308, 120 S.W. 162, 1908 Tenn. LEXIS 21 (1908).

Where it is sought to identify the land sold by reference to some other instrument, the instrument which contains the description must be clearly referred to and identified by the memorandum or contract. Wright v. Harrison, 137 Tenn. 157, 192 S.W. 716, 1916 Tenn. LEXIS 63 (1916).

A letter which contains no reference by which proof might certainly apply it to particular land is insufficient to evidence a memorandum in writing of a contract of sale of land so as to remove the sale from the statute. Witt v. Siler, 12 Tenn. App. 116, — S.W.2d —, 1928 Tenn. App. LEXIS 204 (Tenn. Ct. App. 1928).

Where recorded instrument contains description sufficient to cover an entire tract, but contains a reference to prior deeds which did not embrace the entire tract, subsequent judgment creditors are put on notice that entire tract was intended to be conveyed and could not properly levy on part of tract not covered by such prior deeds. Phoenix Mut. Life Ins. Co. v. Kingston Bank & Trust Co., 172 Tenn. 335, 112 S.W.2d 381, 1937 Tenn. LEXIS 83 (1938).

80. — —Errors in Recitals.

A mistake in the recital of the number of a grant of the state is immaterial, where the land is otherwise sufficiently identified and described. Fancher v. De Montegre, 38 Tenn. 40, 1858 Tenn. LEXIS 112 (Tenn. Sep. 1858).

It seems that the conveyance of land by the number of the state's grant embracing the same is sufficient. Coal Creek Mining Co. v. Heck, 83 Tenn. 497, 1885 Tenn. LEXIS 73 (1885); Lieberman, Loveman & O'Brien v. Clark, 114 Tenn. 117, 85 S.W. 258, 1904 Tenn. LEXIS 77 (1904).

A grant reciting that the land lies in a certain county, while in fact it lies in another county, is not thereby invalidated, where the land is otherwise thoroughly identified by the description. Stockard v. McGary, 120 Tenn. 180, 109 S.W. 507, 1907 Tenn. LEXIS 42 (1907).

Where the word “north” in the description of land conveyed is clearly shown by the context, the record title, and the physical facts to be a clerical error for the word “south,” it will be so read. Whitaker v. Poston, 120 Tenn. 207, 110 S.W. 1019, 1907 Tenn. LEXIS 44 (1908). See also Augusta Mfg. Co. v. Vertrees, 72 Tenn. 75, 1879 Tenn. LEXIS 7 (1879).

81. — —Excepted Lands.

In a conveyance excepting and reserving “a small lot reserved for a burying ground, two poles square, around the graves where the said William Hodge and his grandchildren are now buried,” the description of the reservation was held to be sufficient. Hodge v. Blanton, 38 Tenn. 560, 1858 Tenn. LEXIS 227 (Tenn. Dec. 1858).

A deed's recital of an exception, exclusion, or reservation of a part of the land conveyed from the operation of the deed must, to be effective or to work an estoppel, be as definite as the description in a deed of conveyance. McDonald v. Lusk, 77 Tenn. 654, 1882 Tenn. LEXIS 117 (1882); Coal Creek Mining Co. v. Heck, 83 Tenn. 497, 1885 Tenn. LEXIS 73 (1885).

82. — —Sufficient Description Examples.

A deed of trust which conveys the grantor's undivided interest in the real estate of his deceased father, late of Sullivan County, wherever situated, is sufficient in description. McGavock v. Deery, 41 Tenn. 265, 1860 Tenn. LEXIS 62 (1860).

Where a tract of land is described by its general boundaries, and there is a small tract on one side between the tract described and the tract called for as bounding it on that side, the description is sufficient. Easley v. McLaren, 60 Tenn. 1, 1871 Tenn. LEXIS 432 (1871).

Description of land in title bond as “a steam mill and distillery … situate in the county of Smith and state (of Tennessee) aforesaid, near the village of Rome, in civil district No. 13, on the banks of the Cumberland river, supposed to contain one and a half acres of land,” is sufficient. White v. Motley, 63 Tenn. 544, 1874 Tenn. LEXIS 302 (1874).

A conveyance of land described as that on which the grantor lives may be sufficient, especially where it is stated to be in a certain county of this state. Swiney v. Swiney, 82 Tenn. 316, 1884 Tenn. LEXIS 129 (1884); Smith v. Greaves, 83 Tenn. 459, 1885 Tenn. LEXIS 67 (1885).

A decree for investment of proceeds in another tract of land to be purchased by reference to a larger tract in which it was included in such manner that, by reference to the description in the larger tract, three boundary lines of the tract (quadrilateral in form) to be purchased were definitely located, was held to embrace a sufficiently definite description of the tract to be purchased, under the maxim, “Id certum est, quod certum reddi potest.” Johnson v. Covington, 148 Tenn. 47, 251 S.W. 893, 1922 Tenn. LEXIS 78 (1923).

Each contract designated the properties as “Country Joy Apartments, 493 Barnett Dr., Kingsport, TN” and “Country Joy Mobile Home Park, 483 Barnett Dr., Kingsport, TN,” and each description clearly pertained to only one tract, and the description satisfied the Statute of Frauds. Hobbs v. Nottingham, — S.W.3d —, 2015 Tenn. App. LEXIS 44 (Tenn. Ct. App. Jan. 30, 2015).

83. — —Insufficient Description Examples.

Examples of insufficient descriptions: Pipkin v. James, 20 Tenn. 325, 1839 Tenn. LEXIS 55, 34 Am. Dec. 752 (1839); Sheid v. Stamps, 34 Tenn. 172, 1854 Tenn. LEXIS 28 (1854); Wright v. Cobb, 37 Tenn. 143, 1857 Tenn. LEXIS 95 (1857); Hudson v. King, 49 Tenn. 560, 1871 Tenn. LEXIS 44 (1871); Johnson v. Kellogg, 54 Tenn. 262, 1872 Tenn. LEXIS 44 (1872); Adams v. Scales, 60 Tenn. 337, 1872 Tenn. LEXIS 503, 25 Am. Rep. 772, 25 Am. Rep. 772 (1872); Langley v. Vaughn, 57 Tenn. 553, 1873 Tenn. LEXIS 259 (1873); Wood v. Zeigler, 99 Tenn. 515, 42 S.W. 447, 1897 Tenn. LEXIS 61 (1897).

A title bond is insufficient in description where it stipulates that, upon the payment of the purchase money, “the said Robert is to make him a deed to 250 acres, where the said Robert Hughes now lives, be the same more or less.” Gudger v. Barnes, 51 Tenn. 570, 1871 Tenn. LEXIS 207 (1871).

A deed purporting to convey land, and calling for the course of a road thereafter to be laid out, and not made definite by other calls and descriptions, is void for uncertainty. Solomon v. Thatcher, 2 Shan. 37 (1876).

A certificate of sale of land for taxes sufficiently describing the whole town lot, and showing a sale of less than the whole of it, and describing the part sold as “84 feet of this lot,” does not sufficiently describe the part and quantity of land so sold, and is void. Wands v. Brien, 81 Tenn. 732, 1884 Tenn. LEXIS 94 (1884).

A mere license to discharge water from ore washers into a stream given by a lower landowner, without words of grant, and without any description whatever of any land in the instrument, without metes, bounds, or limits, and not even giving the state or county of its location, creates no easement. Nunnelly v. Southern Iron Co., 94 Tenn. 397, 29 S.W. 361, 1894 Tenn. LEXIS 54, 28 L.R.A. 421 (1894); Childers v. Wm. H. Coleman Co., 122 Tenn. 109, 118 S.W. 1018, 1909 Tenn. LEXIS 6 (1909).

The description in a mortgage as one house and lot, bounded on the east by East alley, south by Third street, west by Broad street, north by Fourth street, containing the entire block between Third and Fourth streets, known in the plan of town as lots 53, 54, 55, and 56, is insufficient, though it is further provided that, in case of default, the real estate shall be sold at Eaton, in Gibson County, Tennessee, after first advertisement of the sale by posters in three or more public places in Gibson County, in which the land lies, or advertisement for three consecutive weeks in some newspaper published in Gibson County, Tennessee, especially where the mortgage does not mention the residence of the mortgagor or mortgagee, nor locate the real estate in any town, county, or state, nor show where it was executed, the place of acknowledgment, advertisement, and sale not being sufficient. Denison-Gholson Dry Goods Co. v. Hill, 135 Tenn. 60, 185 S.W. 723, 1916 Tenn. LEXIS 14 (1916).

A description of land as the “Jim Smith tract,” which the evidence showed was applied sometimes to a large tract of land and sometimes to a smaller tract therein, where “Jim Smith” had his home, is invalid. Case v. Brier Hill Collieries, 145 Tenn. 1, 235 S.W. 57, 1921 Tenn. LEXIS 68 (1921).

Memorandum describing “land beginning at culvert on Highway 63 running with the middle of the stream and then parallel with the driveway on Mrs. John Y. Moore's property to the Highway fronting on the Highway 63 to include One Acre of land,” was insufficient as not showing to whose land it referred and not locating any of the reference points. Campbell Farmers Coop. v. Moore, 202 Tenn. 215, 303 S.W.2d 735, 1957 Tenn. LEXIS 382 (1957).

A memorandum of an agreement for the transfer of an interest in real property which fails to designate the county and state where the land is located is insufficient under the statute of frauds. Baliles v. Cities Serv. Co., 578 S.W.2d 621, 1979 Tenn. LEXIS 416 (Tenn. 1979).

84. — —Construction of Description.

Where a deed to a lot described it as bounded on its ends by two streets meeting at an acute angle, and as beginning at a point 50 feet east of an adjoining lot, and as running 50 feet along the side of the first street as the beginning point, and as running back to the second street, the description indicated that the side lines were intended to run parallel with the adjoining lot which was at right angles to the second street. Ferguson v. Prince, 136 Tenn. 543, 190 S.W. 548, 1916 Tenn. LEXIS 160 (1916).

85. — —Lots.

The term “lot,” when numbered as in a certain town, means a certain portion originally laid out in the plan thereof by metes and bounds, and includes the compound idea of quantity and situation. Barker v. Butler, 4 Tenn. 243, 1817 Tenn. LEXIS 20 (1817).

The word “lot,” when not so numbered as in any plan, signifies a piece or parcel, and has of itself no precise meaning nor anything determinate, either as to quantity or situation. Barker v. Butler, 4 Tenn. 243, 1817 Tenn. LEXIS 20 (1817).

Written instrument which recited that defendants agreed to extend option to buy house and lot at “403 West Walnut Street, Johnson City, Tennessee” to plaintiff until February 1, 1950 for $10,000 was sufficient memorandum to avoid statute of frauds even though deed which defendants held described property as “Lots 1, 2, 3 and 4 and ten feet off easterly side of Lot No. 5 of Block 16 of the southwest addition of Johnson City, Tennessee … said lot containing thirty-seven hundredths of an acre more or less” where evidence showed that property was always considered as one lot. Pence v. Archer, 191 Tenn. 385, 234 S.W.2d 820, 1950 Tenn. LEXIS 446 (1950).

86. — —Agreement on Sufficiency.

Where the description is clearly insufficient for its identification, the courts will not be bound by the agreement of counsel, though in writing, “that the land mentioned is sufficiently described, or capable of sufficient identification”; for the question is one of law. Holms v. Johnston, 59 Tenn. 155, 1873 Tenn. LEXIS 41 (1873).

87. — —Parol Evidence.

A call in a grant to begin at a tree, without more, is not a sufficient description, and extraneous evidence is not admissible to show the location of the tree. To make such call sufficient, the tree must possess some peculiar qualities distinguishing it from other trees, which qualities must be described in the grant, and their absence cannot be supplied from the entry or location. Rutledge's Lessee v. Buchanan, 21 F. Cas. 98, 3 Tenn. 363, 1 Cooke 363, 1813 Tenn. LEXIS 35.

Parol evidence is admissible to apply the description of land so that the court may see what land is embraced, but not to explain the writing itself so as to make it embrace certain lands. Snodgrass v. Ward, 4 Tenn. 40, 1816 Tenn. LEXIS 15 (1816); Jackson v. Hodges, 2 Cooper's Tenn. Ch. 276 (1875); Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, 1887 Tenn. LEXIS 17 (1887); Staub v. Hampton, 117 Tenn. 706, 101 S.W. 776, 1906 Tenn. LEXIS 74 (Tenn. Dec. 1906).

The descriptive words, “the tract of land … bought of Charles and James McCartney, Lying in Greene County,” are terms of description which naturally and necessarily refer themselves to extrinsic facts and circumstances for ascertainment; and parol evidence is admissible to identify what land was intended to be devised thereby, though the testator never received any deed for them, but purchased their preemptions preparatory to procuring a grant from the state, which was subsequently procured. McCorry v. King, 22 Tenn. 267, 1842 Tenn. LEXIS 87 (1842).

Where several papers are relied on to establish the contract, they must afford intrinsic proof that they relate to the same contract of sale. Parol evidence is inadmissible to connect them or to show that they relate to the same transaction. Blair v. Snodgrass, 33 Tenn. 1, 1853 Tenn. LEXIS 1 (1853); Knox v. Haralson, 2 Cooper's Tenn. Ch. 232 (1875).

Parol evidence is inadmissible to aid a contract for the sale of land described as “a certain tract of land, containing nine acres and 66 poles, near the junction of Broad Street, Nashville, and the Hillsboro turnpike, Davidson County, Tennessee.” Dobson v. Litton, 45 Tenn. 616, 1868 Tenn. LEXIS 54 (1868).

Where an instrument is so drawn that, upon its face, it shows some particular tract of land was intended, and refers necessarily to some existing tract, and its terms can be applied to that one tract only, parol evidence is admissible to show where the tract so mentioned is located. Dobson v. Litton, 45 Tenn. 616, 1868 Tenn. LEXIS 54 (1868); White v. Motley, 63 Tenn. 544, 1874 Tenn. LEXIS 302 (1874); Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, 1887 Tenn. LEXIS 17 (1887); Railroad v. Webster, 106 Tenn. 586, 61 S.W. 1018, 1900 Tenn. LEXIS 194 (Tenn. 1900); Staub v. Hampton, 117 Tenn. 706, 101 S.W. 776, 1906 Tenn. LEXIS 74 (Tenn. Dec. 1906); Harriman Land Co. v. Hilton, 121 Tenn. 308, 120 S.W. 162, 1908 Tenn. LEXIS 21 (1908).

Where the description must necessarily apply with equal exactness to any one of an indefinite number of tracts, parol evidence is inadmissible to show that the parties intended to designate a particular tract. Dobson v. Litton, 45 Tenn. 616, 1868 Tenn. LEXIS 54 (1868); Railroad v. Webster, 106 Tenn. 586, 61 S.W. 1018, 1900 Tenn. LEXIS 194 (Tenn. 1900); Denison-Gholson Dry Goods Co. v. Hill, 135 Tenn. 60, 185 S.W. 723, 1916 Tenn. LEXIS 14 (1916).

Parol evidence is admissible to show where the land is that fills the description or the name given in the writing, but not to supply a material part, terms, or stipulations of the contract. Johnson v. Kellogg, 54 Tenn. 262, 1872 Tenn. LEXIS 44 (1872); Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, 1887 Tenn. LEXIS 17 (1887); Railroad v. Webster, 106 Tenn. 586, 61 S.W. 1018, 1900 Tenn. LEXIS 194 (Tenn. 1900). See also Denison-Gholson Dry Goods Co. v. Hill, 135 Tenn. 60, 185 S.W. 723, 1916 Tenn. LEXIS 14 (1916).

Where a contract between a certain person, a resident of another state, and a railroad company, situs of which is not stated, recites that the party of the first part “is the owner of certain lands fronting 4,574 lineal feet, more or less, on said second party's line of railroad, on mile 295 of Henderson Division,” the description of the land is insufficient, and parol evidence is inadmissible to identify and locate the land. Railroad v. Webster, 106 Tenn. 586, 61 S.W. 1018, 1900 Tenn. LEXIS 194 (Tenn. 1900).

Where a deed of conveyance, by its terms, confers on the grantee a discretion to dispose of the land as he may see fit which is totally inconsistent with a mandatory trust, imposed upon the grantee, to convey the land otherwise than at his discretion, parol evidence is inadmissible to establish the mandatory trust. Mee v. Mee, 113 Tenn. 453, 82 S.W. 830, 1904 Tenn. LEXIS 36, 106 Am. St. Rep. 865 (1904).

Where a deed conveys an absolute title, without more, parol evidence is admissible to show a valid express trust in land, created by a parol agreement at the time of the execution of the conveyance, but not expressed in the deed, that the property should be held and impressed with a beneficial trust in favor of a third person not mentioned in the face of the deed, or held in trust for the grantor, to be conveyed as he might direct. Mee v. Mee, 113 Tenn. 453, 82 S.W. 830, 1904 Tenn. LEXIS 36, 106 Am. St. Rep. 865 (1904); Insurance Co. of Tennessee v. Waller, 116 Tenn. 1, 95 S.W. 811, 1905 Tenn. LEXIS 1 (1905).

If the description on its face is so indefinite as to be applicable to any other tract of land, then parol evidence is not admissible at all, because its effect is to supply by parol a material part of the agreement. Case v. Brier Hill Collieries, 145 Tenn. 1, 235 S.W. 57, 1921 Tenn. LEXIS 68 (1921).

Where the description of property set out in a memorandum fails to state the county and state where the land is located but is otherwise so definite and exclusive that it does not reasonably appear that the description would fit equally any other tract, then parol proof is admissible to locate and designate the tract intended. Baliles v. Cities Serv. Co., 578 S.W.2d 621, 1979 Tenn. LEXIS 416 (Tenn. 1979).

88. — —Boundaries.

The law considers that as certain which is capable of being made certain; and the boundaries, capable of being made certain, are, in contemplation of law, fixed and certain. Ramsey v. Monroe, 35 Tenn. 329, 1855 Tenn. LEXIS 66 (1855).

A deed or writing for the conveyance of land, though not itself giving the boundaries, nor expressly referring to a deed or paper that does, but by descriptive words, whether by metes or bounds or otherwise, conveying an undivided interest in the grant or tract or any particular part of it, the locality and boundaries of which are established and defined, either in law or in fact, so that they may be rendered certain, is sufficient. Heirs of Marr v. Gilliam, 41 Tenn. 488, 1860 Tenn. LEXIS 96 (1860); Sheafer v. Mitchell, 109 Tenn. 181, 71 S.W. 86, 1902 Tenn. LEXIS 68 (1902).

An unascertained or disputed boundary line dividing the lands of adjoining property owners may be permanently and irrevocably established by a parol agreement between the landowners and the agreement does not fall within the prohibition of the statute of frauds. Thornburg v. Chase, 606 S.W.2d 672, 1980 Tenn. App. LEXIS 384 (Tenn. Ct. App. 1980).

89. —Written Contracts.

Parol evidence is admissible to establish that a party to an oral agreement exceeded the powers conferred upon him to complete a written contract. Kimbroe v. Lamb, 22 Tenn. 17, 1842 Tenn. LEXIS 10 (1842); Kimbroe v. Lamb, 23 Tenn. 95, 1843 Tenn. LEXIS 26, 40 Am. Dec. 628 (1843); Taylor v. French, 70 Tenn. 257, 1879 Tenn. LEXIS 171 (1879).

All parol agreements are merged into a subsequent written contract covering the same matters. Bryan v. Hunt, 36 Tenn. 543, 1857 Tenn. LEXIS 49 (1857); Cobb v. Wallace, 45 Tenn. 539, 1868 Tenn. LEXIS 44 (1868).

Oral proof of representations inducing the making of a contract reduced to writing must be limited to matters not otherwise plainly expressed in the writing, for the ultimate test is that of contradiction, which is never permissible. Litterer v. Wright, 151 Tenn. 210, 268 S.W. 624, 1924 Tenn. LEXIS 60 (1925).

Where contract in writing is signed by party to be charged, is fair in all its parts, is for an adequate consideration, and is capable of being performed equity will decree specific performance. Radiophone Broadcasting Station v. Imboden, 183 Tenn. 215, 191 S.W.2d 535, 1946 Tenn. LEXIS 205 (1946).

A valid enforceable contract may be created by the oral acceptance of a written offer to sell real property. Bates v. Dennis, 30 Tenn. App. 94, 203 S.W.2d 928, 1946 Tenn. App. LEXIS 108 (1946).

90. — —Instruments Not Required to Be in Writing.

Where a bill is filed for the reformation of a written contract not required by the statute to be in writing, or of some part of it not required to be in writing, or of that part of it which may be varied by parol proof, or as to the consideration, parol evidence is admissible to vary, change, or reform the writing in cases of mistake, accident, or fraud, in drafting the instrument. Davidson v. Greer, 35 Tenn. 384, 1855 Tenn. LEXIS 76 (1855); Barnes v. Gregory, 38 Tenn. 230, 1858 Tenn. LEXIS 161 (Tenn. Dec. 1858); Talley v. Courtney, 48 Tenn. 715, 1870 Tenn. LEXIS 137 (1870); Witherspoon v. Porter, 1 Shan. 666 (1876); Deakins v. Alley, 77 Tenn. 494, 1882 Tenn. LEXIS 90 (1882); 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); Rich v. Scales, 116 Tenn. 57, 91 S.W. 50, 1905 Tenn. LEXIS 6 (1905).

91. — —Collateral Parol Agreements.

A separate, independent, or collateral agreement or substantive contract made in parol, and not contradicting the written contract may be established by parol proof. Betts v. Demumbrune, 3 Tenn. 39, 1 Cooke 39, 1812 Tenn. LEXIS 17; Perry v. Central S.R.R., 45 Tenn. 138, 1867 Tenn. LEXIS 105 (1867); Hawkins, Butt, Smith & Co. v. Lee, 76 Tenn. 42, 1881 Tenn. LEXIS 7 (1881); Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824, 54 Am. St. Rep. 823, 1895 Tenn. LEXIS 20 (1895), rehearing denied, Hines v. Wilcox, 96 Tenn. 328, 34 S.W. 420, 1895 Tenn. LEXIS 34, 34 L.R.A. 832 (1895); Quigley & Co. v. Shedd, 104 Tenn. 560, 58 S.W. 266, 1900 Tenn. LEXIS 30 (1900), questioned, In re Clairfield Lumber Co., 194 F. 181, 1911 U.S. Dist. LEXIS 42 (D. Ky. 1911).

A subsequent, additional, supplementary, or substitutional parol contract may alter, vary, change, or entirely destroy a written contract or instrument, not required by statute to be in writing. Bryan v. Hunt, 36 Tenn. 543, 1857 Tenn. LEXIS 49 (1857); Lytle v. Bass, 47 Tenn. 303, 1869 Tenn. LEXIS 46 (1869); Meacham v. Herndon, 86 Tenn. 366, 6 S.W. 741, 1887 Tenn. LEXIS 54 (1887).

Where a contract required to be in writing is in writing, an independent collateral agreement with reference to the same subject matter may be in parol where the statute does not require it to be in writing. Brumley v. Miller, 2 Shan. 454 (1877); Lewis v. Turnley, 97 Tenn. 197, 36 S.W. 872, 1896 Tenn. LEXIS 125 (1896); McGannon v. Farrell, 141 Tenn. 631, 214 S.W. 432, 1919 Tenn. LEXIS 16 (1919).

This section does not bar evidence of a subsequent oral agreement changing the form of consideration to be paid to the person who is asserting the statute. Badger v. Boyd, 16 Tenn. App. 629, 65 S.W.2d 601, 1933 Tenn. App. LEXIS 37 (Tenn. Ct. App. 1933).

92. — —Covenants.

Covenant in mortgage did not violate statute of frauds and was not void as uncertain and indefinite in providing that mortgagors may subdivide and sell small tracts of the land from time to time and that mortgagee will release lien of mortgage as to such tracts as may be sold upon receiving equivalent of $200 per acre, such payment to be applied upon indebtedness so secured. Galbraith v. Roddy, 19 Tenn. App. 572, 92 S.W.2d 419, 1934 Tenn. App. LEXIS 7 (1934).

93. — —Conditions.

Parol evidence is admissible to prove that a written contract or instrument was conditional, or that it was to take effect upon contingencies, or to show fraud in its procurement. Littlejohn v. Fowler, 45 Tenn. 284, 1868 Tenn. LEXIS 10 (1868); Waterbury v. Russell, 67 Tenn. 159, 1874 Tenn. LEXIS 343 (1874); Myers v. Lindsay, 73 Tenn. 331, 1880 Tenn. LEXIS 132 (1880); Barnard v. Roane Iron Co., 85 Tenn. 139, 2 S.W. 21, 1886 Tenn. LEXIS 25 (1886); Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824, 54 Am. St. Rep. 823, 1895 Tenn. LEXIS 20 (1895), rehearing denied, Hines v. Wilcox, 96 Tenn. 328, 34 S.W. 420, 1895 Tenn. LEXIS 34, 34 L.R.A. 832 (1895).

94. — —Contracts Partly in Writing.

A contract made partly in writing and partly in parol is an oral contract and the writing and parol testimony are competent to show the entire contract. Leinau v. Smart, 30 Tenn. 308, 1850 Tenn. LEXIS 121 (1850); Cobb v. Wallace, 45 Tenn. 539, 1868 Tenn. LEXIS 44 (1868); Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880); Smith v. O'Donnell, 76 Tenn. 468, 1881 Tenn. LEXIS 35 (1881); Myers v. Taylor, 107 Tenn. 364, 64 S.W. 719, 1901 Tenn. LEXIS 85 (1901).

95. — —Delivery of Instrument.

Notes executed prior to payee's death, but not delivered until after his death, were not sufficient memorandum of a sale. Thompson v. Ford, 145 Tenn. 335, 236 S.W. 2, 1921 Tenn. LEXIS 83 (1921).

A deed, to be operative or effective as such, or as a mere memorandum, must be delivered to the party for whose benefit it purports to be made, but a mere memorandum of a sale is not required to be delivered in order to make it valid; and a deposition voluntarily given, together with the cross-examination, may be connected with and aid a memorandum of a contract to sell and convey land. Huffine v. McCampbell, 149 Tenn. 47, 257 S.W. 80, 1923 Tenn. LEXIS 84 (1923).

96. — —Written Modification.

A written contract, after it is made, may be modified by express words of the parties in writing, as well as by parol, notwithstanding the contract itself provides that it cannot be subsequently modified. Co-operative Stores Co. v. United States Fidelity & Guaranty Co., 137 Tenn. 609, 195 S.W. 177, 1917 Tenn. LEXIS 172 (1917).

A mortgage cannot be modified or extended by an oral agreement to secure further indebtedness. Lambert v. Home Federal Sav. & Loan Asso., 481 S.W.2d 770, 1972 Tenn. LEXIS 349 (Tenn. 1972).

97. —Parol Contracts.

A contract partly in writing and partly in parol is treated as a parol contract, as where the writing is imperfect or incomplete, or where a complete written contract is afterwards changed orally; and in such cases, the writing and the parol evidence are competent to show the entire contract. Turley v. Cooley, 3 Shan. 68 (1879); Myers v. Taylor, 107 Tenn. 364, 64 S.W. 719, 1901 Tenn. LEXIS 85 (1901).

A separate estate in personalty or realty may be charged by parol contract when the whole contract is in parol. Eckerly v. McGhee, 85 Tenn. 661, 4 S.W. 386, 1887 Tenn. LEXIS 8 (1887); Webster v. Helm, 93 Tenn. 322, 24 S.W. 488, 1893 Tenn. LEXIS 59 (1893); National Exch. Bank v. Cumberland Lumber Co., 100 Tenn. 479, 47 S.W. 85, 1897 Tenn. LEXIS 138 (1897).

The application of the statute of frauds prevents the proving of an oral contract to sell land but once the objection of the statute has been met, either by a written memorandum or an exception to the statute, the entire contract may be explained and proved by parol evidence. Southern States Dev. Co. v. Robinson, 494 S.W.2d 777, 1972 Tenn. App. LEXIS 277 (Tenn. Ct. App. 1972).

An oral agreement whereby agent of commercial loan institution promised to lend real estate company $20,000 on the security of a deed of trust on real estate was within the statute of frauds. Southern Indus. Banking Corp. v. Delta Properties, Inc., 542 S.W.2d 815, 1976 Tenn. LEXIS 524 (Tenn. 1976).

Agreement that the individuals sought to enforce in another case was an oral agreement for the sale of real property and not the original written agreement, which was unenforceable; the individuals could not have prevailed in that case, such that the outcome of that case would have been no different had the attorney taken the actions the individuals alleged should have been taken, and thus the attorney was entitled to summary judgment. Lyons v. Atchley, — S.W.3d —, 2015 Tenn. App. LEXIS 21 (Tenn. Ct. App. Jan. 20, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 424 (Tenn. May 14, 2015).

Trial court properly entered summary judgment in favor of a decedent's grandson and his wife because an oral contract was unenforceable under the statute of frauds; none of the quitclaim deeds that transferred ownership of the property contained any reference to a promise, understanding, or agreement that transfer of title was in consideration for future rental income, and the decedent's estate provided no writing regarding the payment of rental income to the decedent. Estate of Elrod v. Petty, — S.W.3d —, 2016 Tenn. App. LEXIS 424 (Tenn. Ct. App. June 23, 2016).

Oral agreement fell squarely within the classic definition of a “sale” of lands because the payment of rental income to the decedent for remainder of her life was the price the grandson agreed to pay in exchange for the property; because the purported contract involved the sale of real property, it was subject to the statute of frauds. Estate of Elrod v. Petty, — S.W.3d —, 2016 Tenn. App. LEXIS 424 (Tenn. Ct. App. June 23, 2016).

Trial court properly ruled that property owners'  cause of action for fraud, fraud in the inducement, and promissory fraud failed as a matter of law because the fraud claims were based on a church's alleged oral promise to purchase owners'  real property and, as such, were barred by the statute of frauds. Harlan v. Cornerstone Church of Nashville, Inc., — S.W.3d —, 2018 Tenn. App. LEXIS 186 (Tenn. Ct. App. Apr. 9, 2018).

98. — —Deeds.

An undelivered deed standing alone in itself is not sufficient to take an oral contract out of the statute of frauds, but if the deed incorporates the terms of a prior oral contract of sale it is a sufficient memorandum, and satisfies the statute. Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 1947 Tenn. LEXIS 295 (1947), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

A duly executed deed and a prepared deed of trust which contained terms of prior oral contract of sale took the oral contract out of the statute though deed and trust agreement was never delivered but subsequently destroyed by grantor. Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 1947 Tenn. LEXIS 295 (1947), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

An undelivered deed can constitute a sufficient memorandum of a parol contract for sale of land. Southern States Dev. Co. v. Robinson, 494 S.W.2d 777, 1972 Tenn. App. LEXIS 277 (Tenn. Ct. App. 1972).

99. — — —Acceptance of Deed.

Where warranty deed issued by grantor of real estate was a sufficient memorandum to satisfy the statute of frauds on the theory that it contains substantially the terms of the oral contract for conveyance of the property it was not necessary that the deed be delivered to take the contract out of the statute. Black v. Black, 185 Tenn. 23, 202 S.W.2d 659, 1947 Tenn. LEXIS 295 (1947), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006).

100. — —Collateral Agreements.

A written contract for the purchase of a lot and improvements to be made thereon, describing the house to be built only as “a five room brick bungalow,” did not purport to cover the entire agreement as to the improvements, and parol agreements as to the plans and specifications, the kind and quality of materials other than brick, the garage, driveway, landscaping, etc., were collateral to the written contract and were the inducement for it, and were enforceable notwithstanding the statute of frauds and the parol evidence rule. Haynes v. Morton, 32 Tenn. App. 251, 222 S.W.2d 389, 1949 Tenn. App. LEXIS 96 (1949).

Where plaintiff entered into an oral agreement with third party to purchase a foundry and necessary papers to complete transaction were prepared on April 30 to be executed on following day May 1, and fire occurred at foundry on evening of April 30, the plaintiff could not enforce a fire insurance contract secured by plaintiff on April 30, since it had no insurable interest at time of fire, as oral contract of purchase was unenforceable by either party since it violated statute of frauds. Cherokee Foundries, Inc. v. Imperial Assurance Co., 188 Tenn. 349, 219 S.W.2d 203, 1949 Tenn. LEXIS 346, 9 A.L.R.2d 177 (1949).

Where written contract for purchase of lot specified that certain type of home would be constructed thereon, but specifications as to plans and quality of materials were not included, oral agreements as to such specifications were collateral, going to the inducement for the purchase of the lot, and were not unenforceable under the statute of frauds. Haynes v. Morton, 32 Tenn. App. 251, 222 S.W.2d 389, 1949 Tenn. App. LEXIS 96 (1949).

It is consistent with the commercial paper statute and with the parol evidence rule that a prior or collateral oral agreement which varies or contradicts the express terms of an instrument is inadmissible in evidence. Continental Bankers Life Ins. Co. v. Bank of Alamo, 578 S.W.2d 625, 1979 Tenn. LEXIS 417 (Tenn. 1979).

101. — —Part Performance.

Part performance of a parol contract required by the statute to be in writing will not take the contract out of the statute so as to make it binding and effective. Townsend v. Sharp, 2 Tenn. 191, 2 Tenn. 192, 1812 Tenn. LEXIS 13 (1812); Patton v. M'Clure, 8 Tenn. 332, 8 Tenn. 333, 1828 Tenn. LEXIS 11 (1828); Washington's Lessee v. Trousdale, 8 Tenn. 385, 1828 Tenn. LEXIS 17 (1828); Crippen v. Bearden & Odell, 24 Tenn. 129, 1844 Tenn. LEXIS 41 (1844); Jennings v. Bishop, 3 Shan. 138 (1883); Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 1905 Tenn. LEXIS 21, 6 L.R.A. (n.s.) 703 (1906); Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 1927 Tenn. LEXIS 58 (1927); Buice v. Scruggs Equip. Co., 194 Tenn. 129, 250 S.W.2d 44, 1952 Tenn. LEXIS 359 (1952).

Part performance of a parol contract for the sale of land will not take the case out of the statute of frauds, as the taking of possession of the land by the parol vendee and his permanently improving it, and paying the purchase money. Jennings v. Bishop, 3 Shan. 138 (1883); Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 1927 Tenn. LEXIS 58 (1927).

A part performance of a verbal contract for the sale of realty, as delivery of possession on the one side and the payment of a part or the entire purchase money on the other side, will not render the contract binding. Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360, 1888 Tenn. LEXIS 54 (1888) and cases cited.

The rule that the partial performance of a parol contract will not relieve from application of the statute has become a rule of property. Goodloe v. Goodloe, 116 Tenn. 252, 92 S.W. 767, 1905 Tenn. LEXIS 21, 6 L.R.A. (n.s.) 703 (1906).

Part performance of a parol contract does not take the contract out of the statute and such rule has been so long applied that it has become a rule of property. Knight v. Knight, 222 Tenn. 367, 436 S.W.2d 289, 1969 Tenn. LEXIS 446 (1969).

Part performance of a parol contract for the sale of land will not take the agreement out of the statute of frauds; the harshness of this rule has been mitigated by the application of the doctrine of equitable estoppel in exceptional cases where to enforce the statute of frauds would make it an instrument of hardship and oppression, verging on actual fraud. Baliles v. Cities Serv. Co., 578 S.W.2d 621, 1979 Tenn. LEXIS 416 (Tenn. 1979).

102. — —Voidable Nature and Election.

A parol contract of sale and purchase of land is not void, but is voidable only at the election of either party, and it may be rescinded by either party at his option, and the vendor cannot enforce it as against a resisting vendee pleading the statute; but such contract may be specifically executed as against either party, if he fails or refuses to rely upon the statute. Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856); Roberts v. Francis, 49 Tenn. 127, 1870 Tenn. LEXIS 202 (1870); Hamilton v. Gilbert, 49 Tenn. 680, 1871 Tenn. LEXIS 64 (1871); Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); McClure v. Harris, 54 Tenn. 379, 1872 Tenn. LEXIS 63 (1872); Biggs v. Johnson, 1 Shan. 138 (1872); Winters v. Elliott, 69 Tenn. 676, 1878 Tenn. LEXIS 155 (1878); Hays v. Worsham, 77 Tenn. 591, 1882 Tenn. LEXIS 107 (1882); Jennings v. Bishop, 3 Shan. 138 (1883); Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360, 1888 Tenn. LEXIS 54 (1888); Citty v. Southern Queen Mfg. Co., 93 Tenn. 276, 24 S.W. 121, 1893 Tenn. LEXIS 54, 42 Am. St. Rep. 919 (1893); Phillips v. Kimmons, 94 Tenn. 562, 29 S.W. 965, 1894 Tenn. LEXIS 69 (1894); King v. Coleman, 98 Tenn. 561, 40 S.W. 1082, 1897 Tenn. LEXIS 145 (1897); Barnes v. Black Diamond Coal Co., 101 Tenn. 354, 47 S.W. 498, 1898 Tenn. LEXIS 73 (1898); Slatton v. Tennessee C., I. & R. Co., 109 Tenn. 415, 75 S.W. 926, 1902 Tenn. LEXIS 85 (1902); Simmons v. Edens, 1 Tenn. Civ. App. (1 Higgins) 56 (1910); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

Upon the repudiation or abandonment of a parol contract for the sale of land, the purchaser may recover the contract price of personal property delivered to the vendor in part payment of the purchase price of the land, where such personalty is not tendered back. Miller v. Jones, 40 Tenn. 525, 1859 Tenn. LEXIS 151 (1859).

Where the parol vendee elects to avoid after the death of the parol vendor, at which time his equitable claim for compensation for improvements comes into existence, it is clear that the liability attaches to the property itself out of which it sprang; and it is not a debt of the estate to be paid by the personal representative. Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871).

Where there is a verbal sale and exchange of lands, with delivery of possession on both sides, the parties will be given a reasonable time in which they may reciprocally elect whether to execute or rescind the contract, with a decree for a proper adjustment in case of rescission. McClure v. Harris, 54 Tenn. 379, 1872 Tenn. LEXIS 63 (1872).

A parol sale of land is voidable after the death of the vendor at the election of his heirs, and their institution of a suit to recover the land is an effective exercise of their right to disaffirm and rescind the contract. Vaughn v. Vaughn, 100 Tenn. 282, 45 S.W. 677, 1897 Tenn. LEXIS 113 (1897); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

Right of election is not that of personal representative. Simmons v. Edens, 1 Tenn. Civ. App. (1 Higgins) 56 (1910).

Where, under the statute of frauds, an oral contract for the sale of property was unenforceable against the seller or purchaser, a bankruptcy trustee, as successor to the purchaser's interests, could not establish an ownership interest in the property by virtue of the doctrine of equitable conversion. Walker v. Elman (In re Fowler), 201 B.R. 771, 1996 Bankr. LEXIS 1293 (Bankr. E.D. Tenn. 1996).

The statute of frauds does not render oral contracts for the sale of land void ab initio, instead such contracts are merely voidable at the election of either party. Anderson v. Hacks Crossing Partners, 3 S.W.3d 482, 1999 Tenn. App. LEXIS 135 (Tenn. Ct. App. 1999).

103. — —Right to Assert Statute.

104. — — —Creditors.

The purchase money paid on a parol contract for the sale of land not repudiated by the vendor is not subject to attachment at the suit of judgment creditors of the vendee. Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856).

Where a judgment creditor of the parol vendor purchases the land at execution sale after the assignee of the purchase money notes, executed under the parol sale, has filed his bill to enforce the vendor's lien, such purchasing creditor cannot interpose the statute as against the completion of the parol sale. Roberts v. Francis, 49 Tenn. 127, 1870 Tenn. LEXIS 202 (1870).

After the payment of the purchase money, but before the execution of the deed made in pursuance of a previous parol contract for sale of land to be conveyed to the parol purchaser as trustee for the use and benefit of his wife and their children, a person becoming a creditor of both the vendor and such purchasing trustee cannot subject the land to the payment of his debt. Mathews v. Massey, 63 Tenn. 450, 1874 Tenn. LEXIS 290 (1874).

105. — — —Subsequent Purchasers.

A subsequent purchaser of land, without notice, actual or constructive, of the making of an extension of a timber contract by his vendor, may question the making thereof, and its validity. Childers v. Wm. H. Coleman Co., 122 Tenn. 109, 118 S.W. 1018, 1909 Tenn. LEXIS 6 (1909).

106. — — —Parties to Contract.

If the parties themselves choose to execute the contract, third persons cannot object. Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360, 1888 Tenn. LEXIS 54 (1888); King v. Coleman, 98 Tenn. 561, 40 S.W. 1082, 1897 Tenn. LEXIS 145 (1897); Jennings v. Bishop, 3 Shan. 138 (1883); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911); Aiken v. Galyon-Crumley Lumber Co., 1 Tenn. App. 702, 1926 Tenn. App. LEXIS 10 (1926).

A parol contract for the sale of land is not voidable by the vendee's administrator, where the vendor and the vendee's heirs are willing to complete the contract, and tender performance, especially where the vendor is willing to look to the land alone for the unpaid purchase money, and waives any right to recover against the personal estate of the vendee. Phillips v. Kimmons, 94 Tenn. 562, 29 S.W. 965, 1894 Tenn. LEXIS 69 (1894); Simmons v. Edens, 1 Tenn. Civ. App. (1 Higgins) 56 (1910); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

A deposition of the defendant taken by the complainant, in which the defendant is forced to give evidence, in writing sworn to and signed by him, will not defeat his right to rely on the statute. Huffine v. McCampbell, 149 Tenn. 47, 257 S.W. 80, 1923 Tenn. LEXIS 84 (1923).

An answer to a bankruptcy trustee's complaint by the seller of property, admitting the existence and validity of an oral contract, constituted a written memorialization of the contract sufficient to satisfy the statute of frauds. Walker v. Elman (In re Fowler), 201 B.R. 771, 1996 Bankr. LEXIS 1293 (Bankr. E.D. Tenn. 1996).

107. — —Rescission.

Parol rescission of an executory written contract for the sale of land, clearly established, can be set up in chancery to defeat an application for specific performance. Walker v. Wheatly, 21 Tenn. 119, 1840 Tenn. LEXIS 43 (1840); England v. Jackson, 22 Tenn. 584, 1842 Tenn. LEXIS 153 (1842); Page v. Meath, 3 Shan. 717 (1876); Chadwell v. Winston, 3 Cooper's Tenn. Ch. 110 (1876).

Where a deed of conveyance of land has been duly executed and accepted with the purpose of passing the title, a rescission of such a contract cannot be made by parol. A redelivery of the deed cannot effect a rescission, however intended by the parties. In an action at law by the vendor for the purchase money, the vendee cannot rely on the defense of a rescission by parol or redelivery of the deed to the vendor. However, in equity, relief might be afforded the vendee, if the facts of the case brought him within the rules of the subject on equitable estoppel, or the enforcement of agreements to rescind. Howard v. Huffman, 40 Tenn. 562, 1859 Tenn. LEXIS 166 (1859); Page v. Meath, 3 Shan. 717 (1876); Poindexter v. Rawlings, 106 Tenn. 97, 59 S.W. 766, 1900 Tenn. LEXIS 137, 82 Am. St. Rep. 869 (1900).

There is no requirement of the statute of frauds, parol evidence rule or other rule of law that prohibits the oral rescission, cancelation, destruction, or abandonment of a written contract for the sale of land. Walker v. Wood, 31 Tenn. App. 196, 213 S.W.2d 523, 1948 Tenn. App. LEXIS 83 (1948).

The statute of frauds does not cover an oral contract to rescind a written contract. McIntosh v. Goodwin, 40 Tenn. App. 505, 292 S.W.2d 242, 1954 Tenn. App. LEXIS 169 (1954).

Oral contract for rescission of transaction involving exchange and conveyance of real property would have been within statute of frauds if it had embraced real property other than that described in the deeds to the property so exchanged. McIntosh v. Goodwin, 40 Tenn. App. 505, 292 S.W.2d 242, 1954 Tenn. App. LEXIS 169 (1954).

108. — — —Mode of Rescission.

The better practice in all cases of rescission, either by suit or vendor to recover the land or by suit of the vendee to recover the purchase money paid, is to file a bill in chancery, disaffirming the contract, and bringing all interested parties before the court, where all the matters can be adjusted in one proceeding. Biggs v. Johnson, 1 Shan. 622 (Tenn. 1876).

The bringing of a suit by the heirs of the deceased parol vendor is an effective exercise of their right to rescind, with all the legal consequences flowing therefrom. Vaughn v. Vaughn, 100 Tenn. 282, 45 S.W. 677, 1897 Tenn. LEXIS 113 (1897).

109. — —Right to Redeem.

Where the right to redeem or repurchase property absolutely conveyed is reserved by parol, the right may be waived by parol. Scott v. Britton, 10 Tenn. 215, —S.W.3d— ,1828 Tenn. LEXIS 3 (1828).

110. — —Recognition of Contract.

Though the parol contract of the sale of land be confessed by the answer, if the statute be insisted on by way of defense, the court will not enforce the contract. Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856); Hays v. Worsham, 77 Tenn. 591, 1882 Tenn. LEXIS 107 (1882).

The agreement of counsel to allow the lien, claimed under writings insufficient under the statute, to be set up without the necessity of a cross bill, does not have the effect of an answer admitting the contract and not relying upon the statute. Langley v. Vaughn, 57 Tenn. 553, 1873 Tenn. LEXIS 259 (1873).

Transactions between the parties, which recognize the validity of a prior parol contract required to be in writing, but fall short of the requirements of the statute, will not estop either party from avoiding the contract. Therefore, transactions by one of the parties with third persons, although in recognition of the prior parol contract, cannot have a greater effect than the transactions between the original parties to such contract. Estoppels must be mutual, and one party cannot be estopped by an act which leaves the other party at liberty. Jennings v. Bishop, 3 Shan. 138 (1883).

111. —Parol Evidence.

Parol evidence is not admissible at law to vary the terms of a written contract. Betts v. Demumbrune, 3 Tenn. 39, 1 Cooke 39, 1812 Tenn. LEXIS 17; Philips v. Keener, 2 Tenn. 329, 1814 Tenn. LEXIS 31 (1814); Richardson v. Thompson, 20 Tenn. 151, 1839 Tenn. LEXIS 33 (1839); Cobb v. O'Neal, 34 Tenn. 438, 1854 Tenn. LEXIS 66 (1854); Ellis v. Hamilton, 36 Tenn. 512, 1857 Tenn. LEXIS 44 (1857); Bryan v. Hunt, 36 Tenn. 543, 1857 Tenn. LEXIS 49 (1857); Perry v. Central S.R.R., 45 Tenn. 138, 1867 Tenn. LEXIS 105 (1867); Littlejohn v. Fowler, 45 Tenn. 284, 1868 Tenn. LEXIS 10 (1868); Cobb v. Wallace, 45 Tenn. 539, 1868 Tenn. LEXIS 44 (1868); Nashville Life Ins. Co. v. Mathews, 76 Tenn. 499, 1881 Tenn. LEXIS 38 (1881); Lewis v. Turnley, 97 Tenn. 197, 36 S.W. 872, 1896 Tenn. LEXIS 125 (1896); American Fruit Growers, Inc. v. Hawkinson, 21 Tenn. App. 127, 106 S.W.2d 564, 1937 Tenn. App. LEXIS 14 (Tenn. Ct. App. 1937).

A deed conveying an absolute, unrestricted, and unconditional title cannot be varied by oral evidence that the grantee agreed to erect only certain kinds of buildings upon the land. McGannon v. Farrell, 141 Tenn. 631, 214 S.W. 432, 1919 Tenn. LEXIS 16 (1919).

Parol evidence is inadmissible to show a trust in contradiction of express term of the instrument. Caprum v. Bransford Realty Co., 4 Tenn. App. 237, 1927 Tenn. App. LEXIS 186 (1927).

Where a certificate of deposit for bonds left with a bank was intended to be a mere receipt or a special deposit, parol evidence is admissible, certificate being partly a receipt and partly a contract. Robertson v. Ramsey, 17 Tenn. App. 248, 66 S.W.2d 1022, 1933 Tenn. App. LEXIS 61 (Tenn. Ct. App. 1933).

Parol evidence is admissible that grantee under a deed absolute on its face took the real estate subject to an oral trust. Brantley v. Brantley, 198 Tenn. 670, 281 S.W.2d 668, 1955 Tenn. LEXIS 420 (1955).

Where written contract shows on its face that there is no ambiguity nor an undisclosed principal, parol evidence is inadmissible to vary its terms. Cartwright v. Giacosa, 216 Tenn. 18, 390 S.W.2d 204, 1965 Tenn. LEXIS 555 (Tenn. May 7, 1965).

Evidence of the acceptance of a land contract upon the part of the purchaser may be in parol as at common law before the statute of frauds. Bush v. Cathey, 598 S.W.2d 777, 1979 Tenn. App. LEXIS 385, 11 A.L.R.4th 881 (Tenn. Ct. App. 1979).

Plaintiff's parol evidence explaining the terms of the agreement was properly admitted as to the acknowledgment, signed by defendant, contained on the note, and while the acknowledgment did not set forth the exact terms of the loan agreement, it did serve as corroboration of plaintiff's testimony regarding the oral terms of the loan agreement between the parties and also sufficed as proof that the agreement was not subject to the statute of frauds. Birdwell v. Psimer, 151 S.W.3d 916, 2004 Tenn. App. LEXIS 333 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 1057 (Tenn. Nov. 29, 2004).

112. — —Ambiguities.

While the ambiguity raised by a state of facts dehors the instrument is called a latent ambiguity, and that produced merely by the words of the instrument is denominated a patent ambiguity; and it is generally said with truth that latent ambiguity admits, and patent ambiguity excludes, parol and extrinsic evidence, yet, the line is very difficult to be drawn in many instances, and there is an ambiguity answering to the terms of the description of a latent ambiguity which nevertheless partakes of the character and consequences of a patent ambiguity, as where, by reference to external circumstances, the intention expressed in the instrument is not only thrown in doubt, but the language used becomes irreconcilable and contradictory, so as to become incapable of expressing any intention with certainty. This sort of ambiguity, whether denominated patent or latent, is such as will not yield to any evidence of extraneous and collateral declarations. Weatherhead v. Sewell, 28 Tenn. 272, 1848 Tenn. LEXIS 82 (1848).

Where the contract or memorandum for the sale of land describes the purchaser by the designation of “Mr. Lee,” the contract is not thereby rendered void for uncertainty, for the description of the vendee is at most but a latent ambiguity. Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 1887 Tenn. LEXIS 13, 4 Am. St. Rep. 800 (1887).

A latent ambiguity exists where the equivocality of expression or obscurity of intention does not arise from the words themselves, but from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by the mere development of extraneous facts, without altering or adding to the written language, or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words and phrases used. Staub v. Hampton, 117 Tenn. 706, 101 S.W. 776, 1906 Tenn. LEXIS 74 (Tenn. Dec. 1906); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Parol evidence is admissible to explain ambiguities; but a distinction runs through the cases between latent and patent ambiguities. The statute of frauds, which, in this particular, is declarative and corroborative of the rule of the common law, virtually forbids, in the cases within its provisions, the resort to extrinsic evidence, in those instances wherein the ambiguity is patent, and only admits it in those cases in which the ambiguity is latent; and, in such cases, the object of the collateral evidence is only by comparison of the words of the instrument with external circumstances, whether consisting of facts or declarations, to attach a meaning and applicability to expressions within the limits of their grammatical or legal acceptation. Staub v. Hampton, 117 Tenn. 706, 101 S.W. 776, 1906 Tenn. LEXIS 74 (Tenn. Dec. 1906).

A patent ambiguity is one produced by the uncertainty, contradictoriness, or deficiency of the language of an instrument, so that no discovery of facts, or proof of declarations, can restore the doubtful or smothered sense without adding ideas which the actual words will not themselves sustain. Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

113. — —Consideration.

Parol evidence is admissible under proper pleading to show a consideration when none is expressed in the contract, and when it is expressed it may be varied by parol evidence. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Gilman v. Kibler, 24 Tenn. 19, 1844 Tenn. LEXIS 4 (1844); Whitby v. Whitby, 36 Tenn. 473, 1857 Tenn. LEXIS 39 (1857), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006); Gass v. Hawkins, 1 Shan. 167 (1860); Perry v. Central S.R.R., 45 Tenn. 138, 1867 Tenn. LEXIS 105 (1867); Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880); White v. Blakemore, 76 Tenn. 49, 1881 Tenn. LEXIS 9 (1881); Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53, 1927 Tenn. LEXIS 58 (1927); Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

114. — —Prior or Contemporaneous Agreements.

A written instrument, importing a legal obligation, containing the terms of the contract between the parties, intelligible in itself, complete in its terms, and without any uncertainty as to the object or extent of the agreement, is presumed to contain the whole agreement, and all parol testimony of previous conversations between the parties, or of declarations at the time when the instrument was executed, tending to substitute a different contract, are inadmissible as evidence. Wood v. Goodrich, 17 Tenn. 266, 1836 Tenn. LEXIS 38 (1836).

Parol evidence is admissible to change the mode or time of payment of a note, or to vary or alter its terms, in accordance with an alleged contemporaneous agreement, under no circumstances, except where the note, either by fraud, accident, or mistake, does not contain the true stipulations of the contract, and then only upon a bill in chancery for the correction and reformation of the instrument. Campbell v. Upshaw, 26 Tenn. 185, 1846 Tenn. LEXIS 98, 46 Am. Dec. 75 (1846); Hancock v. Edwards, 26 Tenn. 349, 1846 Tenn. LEXIS 135 (1846); Bridges v. Robinson, 2 Cooper's Tenn. Ch. 720 (1877); Myers v. Lindsay, 73 Tenn. 331, 1880 Tenn. LEXIS 132 (1880).

In an action upon a note, contemporaneous parol evidence is inadmissible to prolong or extend the date or time of payment thereof beyond the time specified in the note, or to change the mode of payment therein specified, or to otherwise vary the terms or legal import of the note. Campbell v. Upshaw, 26 Tenn. 185, 1846 Tenn. LEXIS 98, 46 Am. Dec. 75 (1846); Blakemore v. Wood, 35 Tenn. 470, 1856 Tenn. LEXIS 11 (1856); Ellis v. Hamilton, 36 Tenn. 512, 1857 Tenn. LEXIS 44 (1857); Self v. Harmon, 1 Shan. 74 (1858); Doherty v. Stevenson, 3 Cooper's Tenn. Ch. 25 (1875); Gregory v. Bohannon, 3 Shan. 479 (1875); Bridges v. Robinson, 2 Cooper's Tenn. Ch. 720 (1877); Fields v. Stunston, 41 Tenn. 40, 1860 Tenn. LEXIS 9 (1860); Ragsdale v. Gossett, 70 Tenn. 729, 1879 Tenn. LEXIS 233 (1879); Myers v. Lindsay, 73 Tenn. 331, 1880 Tenn. LEXIS 132 (1880); East Tenn. Iron Mfg. Co. v. Gaskell, 70 Tenn. 742, 1879 Tenn. LEXIS 234 (1879); Bender v. Montgomery, 76 Tenn. 586, 1881 Tenn. LEXIS 50 (1881); Blizzard v. Craigmiles, 75 Tenn. 693, 1881 Tenn. LEXIS 172 (1881); White v. Blakemore, 76 Tenn. 49, 1881 Tenn. LEXIS 9 (1881); Leech v. Hillsman, 76 Tenn. 747, 1882 Tenn. LEXIS 5 (1882); Sweeney v. Thomason, 77 Tenn. 359, 1882 Tenn. LEXIS 66, 42 Am. Rep. 676 (1882); Jordan v. Keeble, 85 Tenn. 412, 3 S.W. 511, 1886 Tenn. LEXIS 65 (1886), questioned, Sam Levy & Co. v. Davis, 125 Tenn. 342, 142 S.W. 1118, 1911 Tenn. LEXIS 31 (1911); Klein v. Kern, 94 Tenn. 34, 28 S.W. 295, 1894 Tenn. LEXIS 23 (1894); Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824, 54 Am. St. Rep. 823, 1895 Tenn. LEXIS 20 (1895), rehearing denied, Hines v. Wilcox, 96 Tenn. 328, 34 S.W. 420, 1895 Tenn. LEXIS 34, 34 L.R.A. 832 (1895); Jones v. Cullen, 100 Tenn. 1, 42 S.W. 873, 1897 Tenn. LEXIS 86 (1897); McGannon v. Farrell, 141 Tenn. 631, 214 S.W. 432, 1919 Tenn. LEXIS 16 (1919).

Contemporaneous parol evidence is inadmissible to charge the separate estate of a married woman by showing that such was the understanding and intention, where the promissory note or other agreement or contract in writing does not expressly bind the separate estate for the debt. Ragsdale v. Gossett, 70 Tenn. 729, 1879 Tenn. LEXIS 233 (1879); Jackson v. Rutledge, 71 Tenn. 626, 1879 Tenn. LEXIS 124 (1879); Jordan v. Keeble, 85 Tenn. 412, 3 S.W. 511, 1886 Tenn. LEXIS 65 (1886), questioned, Sam Levy & Co. v. Davis, 125 Tenn. 342, 142 S.W. 1118, 1911 Tenn. LEXIS 31 (1911); Warren v. Freeman, 85 Tenn. 513, 3 S.W. 513, 1886 Tenn. LEXIS 78 (1886); Eckerly v. McGhee, 85 Tenn. 661, 4 S.W. 386, 1887 Tenn. LEXIS 8 (1887); Wallace v. Goodlet, 93 Tenn. 598, 30 S.W. 27, 1894 Tenn. LEXIS 4 (1894).

Trial court did not err by finding that a claim by the purported owner to title of a disputed interest in real property was barred by the Statute of Frauds because there was no deed or other written document evidencing any agreement or conveyance to the purported owner. Furthermore, an exception for complete performance, therefore, could not apply to the situation. Logan v. Estate of Cannon, — S.W.3d —, 2016 Tenn. App. LEXIS 708 (Tenn. Ct. App. Sept. 23, 2016).

115. — —Omissions or Defects.

Parol evidence is inadmissible to show a mistake in the bond or record sued on at law. Dibrell v. Miller, 16 Tenn. 476, 1835 Tenn. LEXIS 111, 29 Am. Dec. 126 (1835).

The written evidence of the contract must be reasonably certain in itself, as to the estate intended to be sold, and the terms of sale, as parol evidence to supply a writing defective in this respect is inadmissible. Blair v. Snodgrass, 33 Tenn. 1, 1853 Tenn. LEXIS 1 (1853).

Where a proposition made during the preliminary negotiations is not embraced in the written contract subsequently formulated between the parties, it is presumed to have been intentionally omitted therefrom. McCrary Bros. v. Bristol Bank & Trust Co., 97 Tenn. 469, 37 S.W. 543, 1896 Tenn. LEXIS 168 (1896).

116. — —Custom or Usage.

Parol evidence is inadmissible to prove a custom or usage in conflict with, inconsistent with, or repugnant to, the manifest intention of the parties as expressed by the terms of their written contract. Bedford v. Flowers, 30 Tenn. 242, 1850 Tenn. LEXIS 102 (1850); Sweeney v. Thomason, 77 Tenn. 359, 1882 Tenn. LEXIS 66, 42 Am. Rep. 676 (1882); Pennsylvania R.R. v. Naive, 112 Tenn. 239, 79 S.W. 124, 1903 Tenn. LEXIS 101, 64 L.R.A. 443 (1903).

Parol evidence is admissible to show a custom or usage which does not vary the terms of the contract, nor violate any statute or rule of law. Pennsylvania R.R. v. Naive, 112 Tenn. 239, 79 S.W. 124, 1903 Tenn. LEXIS 101, 64 L.R.A. 443 (1903); American Lead Pencil Co. v. Nashville, C. & S. L. Ry., 124 Tenn. 57, 134 S.W. 613, 1910 Tenn. LEXIS 41, 32 L.R.A. (n.s.) 323 (1911).

117. — —Alteration of Writing.

While the burden of proof is upon the party seeking to impeach the writing, a preponderance is all that is required. McBee v. Bowman, 89 Tenn. 132, 14 S.W. 481, 1890 Tenn. LEXIS 31 (1890); Stone v. Manning, 103 Tenn. 232, 52 S.W. 990, 1899 Tenn. LEXIS 98 (1899).

118. — —Delivery.

That delivery of a note, deed, or release was conditional may be shown by parol evidence. Breeden v. Grigg, 67 Tenn. 163, 1874 Tenn. LEXIS 344 (1874).

119. — —Fraudulent Misrepresentation.

The parol evidence rule does not apply to a case involving a fraudulent misrepresentation which induces the contract. Crain v. Brown, 823 S.W.2d 187, 1991 Tenn. App. LEXIS 329 (Tenn. Ct. App. 1991), overruled, Matlock v. Simpson, 902 S.W.2d 384, 1995 Tenn. LEXIS 44 (Tenn. 1995).

120. —Rights of Vendee.

The rule that independent third parties cannot intervene to prevent the completion and enforcement of a parol sale of land does not entitle a parol vendee to recover possession from independent third parties in possession, and claiming in their own right from an entirely different source. King v. Coleman, 98 Tenn. 561, 40 S.W. 1082, 1897 Tenn. LEXIS 145 (1897); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911).

121. — —Effect of Lapse of Time.

Neither the statutes of limitations nor the lapse of time will affect the right of a vendee, or of a donee under a parol gift, to recover the purchase money paid and compensation for improvements made, until there is a disaffirmance or rescission of the contract, or a refusal to complete and make effective the parol gift. Hilton v. Duncan, 41 Tenn. 313, 1860 Tenn. LEXIS 69 (1860); Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881).

122. — —Surrender of Possession.

The surrender of possession and the actual removal from the premises by a vendee under parol contract is not prerequisite to his maintenance of a suit to recover the purchase money paid by him, if he is able to restore the possession at the end of the litigation. Hurst v. Means, 32 Tenn. 594, 1853 Tenn. LEXIS 88 (1853); Hilton v. Duncan, 41 Tenn. 313, 1860 Tenn. LEXIS 69 (1860); Biggs v. Johnson, 1 Shan. 622 (Tenn. 1876); Jennings v. Bishop, 3 Shan. 138 (1883); Brakefield v. Anderson, 87 Tenn. 206, 10 S.W. 360, 1888 Tenn. LEXIS 54 (1888); Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 1924 Tenn. LEXIS 34 (1924).

123. — —Rescission.

Parol rescission of an executory written contract for the sale of land, clearly established, can be set up in chancery to defeat an application for specific performance. Walker v. Wheatly, 21 Tenn. 119, 1840 Tenn. LEXIS 43 (1840); Fleming v. Martin, 39 Tenn. 43, 1858 Tenn. LEXIS 249 (Tenn. Dec. 1858).

The vendee's right to reimbursement for purchase money paid and improvements made under an invalid or parol contract constitutes an equity attaching to the land, which is superior to that of a subsequent purchaser in satisfaction of a preexisting debt. Rhea v. Allison, 40 Tenn. 176, 1859 Tenn. LEXIS 48 (1859); Cook v. Cook, 40 Tenn. 719, 1859 Tenn. LEXIS 210 (1859), questioned, Anderson v. Ammonett, 77 Tenn. 1, 1882 Tenn. LEXIS 7 (1882), overruled, J. & A. Simpkinson & Co. v. McGee, 72 Tenn. 432, 1880 Tenn. LEXIS 39 (1880); Finnegan v. Finnegan, 3 Cooper's Tenn. Ch. 510 (1877); Anderson v. Ammonett, 77 Tenn. 1, 1882 Tenn. LEXIS 7 (1882); Grotenkemper v. Carver, 77 Tenn. 280, 1882 Tenn. LEXIS 50 (1882).

Where a bill is filed for the rescission of a written contract, even where required to be in writing, upon the ground of fraud, parol evidence of the fraud or the fraudulent representations of the other party in negotiating and procuring the contract is admissible. Barnard v. Roane Iron Co., 85 Tenn. 139, 2 S.W. 21, 1886 Tenn. LEXIS 25 (1886); Hines v. Willcox, 96 Tenn. 148, 33 S.W. 914, 34 L.R.A. 824, 54 Am. St. Rep. 823, 1895 Tenn. LEXIS 20 (1895), rehearing denied, Hines v. Wilcox, 96 Tenn. 328, 34 S.W. 420, 1895 Tenn. LEXIS 34, 34 L.R.A. 832 (1895); Samuel v. King, 158 Tenn. 546, 14 S.W.2d 963, 1928 Tenn. LEXIS 185 (Tenn. Mar. 22, 1929).

124. — — —Permanent Improvements.

Where a parol gift of land is rescinded, the donee is entitled in chancery to a lien on the land for improvements erected by him thereon, with the knowledge of the owner and parol donor, and without any objection by him, less the rents and profits, for, while the owner cannot recover the rents and profits of land in the possession of another under his parol gift, still such rents and profits may be set off against the compensation allowed for permanent improvements erected by the donee. Ridley v. McNairy, 21 Tenn. 174, 1840 Tenn. LEXIS 60 (1840); Humphreys v. Holtsinger, 35 Tenn. 228, 1855 Tenn. LEXIS 44 (1855); Smithson v. Inman, 61 Tenn. 88, 1872 Tenn. LEXIS 344 (1872); Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880); Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881).

The vendee cannot recover at law compensation for improvements made by him under a rescinded parol contract. Mathews v. Davis, 25 Tenn. 324, 1845 Tenn. LEXIS 96 (1845).

A vendee rescinding a parol contract for the sale and purchase of land is entitled to compensation for improvements erected by him to the extent of their permanent enhancement of the value of the land, and to have the same declared a lien on the land. Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); Neal v. Cole, 1 Shan. 653 (1876); Winters v. Elliott, 69 Tenn. 676, 1878 Tenn. LEXIS 155 (1878); Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881); Smoot v. Smoot, 80 Tenn. 274, 1883 Tenn. LEXIS 165 (1883).

A vendee who comes into chancery seeking compensation for improvements made by him will be repelled, unless at the time of making the improvements he intended honestly to consummate his contract of purchase, and fails to do so without fault on his part, but on account of the default or wrong of the vendor in his failure or refusal to execute the contract. Rainer v. Huddleston, 51 Tenn. 223, 1871 Tenn. LEXIS 151 (1871), superseded by statute as stated in, Uhlhorn v. Keltner, 723 S.W.2d 131, 1986 Tenn. App. LEXIS 3287 (Tenn. Ct. App. 1986); Guthrie v. Holt, 68 Tenn. 527, 1876 Tenn. LEXIS 42 (1876); Mann v. Russey, 101 Tenn. 596, 49 S.W. 835, 1898 Tenn. LEXIS 107 (1898) (dicta).

Purchaser who entered upon land under an oral contract may recover for improvements placed upon the land, where he is subsequently ejected by bill in chancery because the contract is oral. Witt v. Siler, 12 Tenn. App. 116, — S.W.2d —, 1928 Tenn. App. LEXIS 204 (Tenn. Ct. App. 1928).

125. — — —Purchase Money and Taxes.

The vendee will be entitled to a lien on the land for the purchase money and taxes paid, and for the permanent enhancement of the value of the land resulting from the erection of improvements thereon by him, made in good faith and with the expectation of consummating the contract, and made with the vendor's knowledge, and without any objection by him, less the rents and profits, with interest calculated upon the principle of partial payments, so as not to compound the interest. Herring v. Pollard, 23 Tenn. 362, 1843 Tenn. LEXIS 113, 40 Am. Dec. 653 (1843); Mathews v. Davis, 25 Tenn. 324, 1845 Tenn. LEXIS 96 (1845); Humphreys v. Holtsinger, 35 Tenn. 228, 1855 Tenn. LEXIS 44 (1855); Rhea v. Allison, 40 Tenn. 176, 1859 Tenn. LEXIS 48 (1859); Hilton v. Duncan, 41 Tenn. 313, 1860 Tenn. LEXIS 69 (1860); Rainer v. Huddleston, 51 Tenn. 223, 1871 Tenn. LEXIS 151 (1871), superseded by statute as stated in, Uhlhorn v. Keltner, 723 S.W.2d 131, 1986 Tenn. App. LEXIS 3287 (Tenn. Ct. App. 1986); Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); Smithson v. Inman, 61 Tenn. 88, 1872 Tenn. LEXIS 344 (1872); Wright v. Dufield, 61 Tenn. 218, 1872 Tenn. LEXIS 362 (1872), overruled, Hays v. Dalton, 73 Tenn. 555, 1880 Tenn. LEXIS 181 (1880); Guthrie v. Holt, 68 Tenn. 527, 1876 Tenn. LEXIS 42 (1876); Neal v. Cole, 1 Shan. 653 (1876); Winters v. Elliott, 69 Tenn. 676, 1878 Tenn. LEXIS 155 (1878); Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880); Caldwell v. Palmer, 74 Tenn. 652, 1881 Tenn. LEXIS 192 (1881); Jennings v. Bishop, 3 Shan. 138 (1883); Fisher v. Edington, 80 Tenn. 189, 1883 Tenn. LEXIS 157 (1883); Smoot v. Smoot, 80 Tenn. 274, 1883 Tenn. LEXIS 165 (1883); Howard v. Massengale, 81 Tenn. 577, 1884 Tenn. LEXIS 74 (1884); Fisher v. Edington, 85 Tenn. 23, 1 S.W. 499, 1886 Tenn. LEXIS 7 (1886); Phillips v. Kimmons, 94 Tenn. 562, 29 S.W. 965, 1894 Tenn. LEXIS 69 (1894); Graham v. Weaver, 97 Tenn. 485, 37 S.W. 221, 1896 Tenn. LEXIS 170 (1896); Mann v. Russey, 101 Tenn. 596, 49 S.W. 835, 1898 Tenn. LEXIS 107 (1898).

The purchase money paid will be declared a lien, as against the parol vendor, on the land agreed to be conveyed. Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856); Hilton v. Duncan, 41 Tenn. 313, 1860 Tenn. LEXIS 69 (1860); Wright v. Dufield, 61 Tenn. 218, 1872 Tenn. LEXIS 362 (1872), overruled, Hays v. Dalton, 73 Tenn. 555, 1880 Tenn. LEXIS 181 (1880); Winters v. Elliott, 69 Tenn. 676, 1878 Tenn. LEXIS 155 (1878); Aiken v. Suttle, 72 Tenn. 103, 1879 Tenn. LEXIS 11 (1879); Sautelle v. Carlisle, 81 Tenn. 391, 1884 Tenn. LEXIS 52 (1884); Vaughn v. Vaughn, 100 Tenn. 282, 45 S.W. 677, 1897 Tenn. LEXIS 113 (1897); McKinney v. Street, 107 Tenn. 526, 64 S.W. 482, 1901 Tenn. LEXIS 101 (1901).

126. — — — —Effect of Innocent Purchaser.

In order to avoid the equity of the vendee for purchase money paid and improvements made, a subsequent purchaser must file a special plea of innocent purchaser, or make the same in his answer containing all the certainty of a plea, which must aver that his vendor and conveyor was seized, in fee, or pretended to be so seized, and was in possession of the land at the time when he executed the deed of conveyance. Rhea v. Allison, 40 Tenn. 176, 1859 Tenn. LEXIS 48 (1859); Sautelle v. Carlisle, 81 Tenn. 391, 1884 Tenn. LEXIS 52 (1884); Grier v. Canada, 119 Tenn. 17, 107 S.W. 970, 1907 Tenn. LEXIS 2 (1907).

Informal plea of innocent purchaser in the answer is available where not excepted to, and issue has been taken upon it, and the cause has gone to proof without objection. Harris v. Smith, 98 Tenn. 286, 39 S.W. 343, 1896 Tenn. LEXIS 223 (1897).

The sufficiency of a plea of innocent purchaser incorporated in an unsworn answer cannot be questioned for the first time in the Supreme Court. Stainback v. Junk Bros. Lumber & Mfg. Co., 98 Tenn. 306, 39 S.W. 530, 1896 Tenn. LEXIS 225 (1897).

The defense of innocent purchaser to avoid equity of parol vendee for purchase money cannot be made by demurrer, but must be interposed by plea or answer, in which great certainty and particularity of averment is required. Dunham v. Harvey, 111 Tenn. 620, 69 S.W. 772, 1902 Tenn. LEXIS 24 (1902).

127. — — —Interest.

The vendee under a parol contract of sale and purchase of land afterward rescinded is entitled to interest on the purchase money paid by him. Crippen v. Bearden & Odell, 24 Tenn. 129, 1844 Tenn. LEXIS 41 (1844); Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856); Hilton v. Duncan, 41 Tenn. 313, 1860 Tenn. LEXIS 69 (1860); Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); Holms v. Johnston, 59 Tenn. 155, 1873 Tenn. LEXIS 41 (1873); Winters v. Elliott, 69 Tenn. 676, 1878 Tenn. LEXIS 155 (1878); Greenlaw v. Williams, 70 Tenn. 533, 1879 Tenn. LEXIS 194 (1879); Smoot v. Smoot, 80 Tenn. 274, 1883 Tenn. LEXIS 165 (1883); Jennings v. Bishop, 3 Shan. 138 (1883); Vaughn v. Vaughn, 100 Tenn. 282, 45 S.W. 677, 1897 Tenn. LEXIS 113 (1897).

128. — — —Valuation of Improvements.

A resale of the property after the erection of the improvements is not the test on the question of their permanent enhancement of the value of the land, but is only a circumstance to be weighed with the other evidence. Humphreys v. Holtsinger, 35 Tenn. 228, 1855 Tenn. LEXIS 44 (1855).

From the value of the improvements there should be deducted the value of the reasonable rents and profits less the taxes, if any, paid by the vendee. Humphreys v. Holtsinger, 35 Tenn. 228, 1855 Tenn. LEXIS 44 (1855); Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871); Smithson v. Inman, 61 Tenn. 88, 1872 Tenn. LEXIS 344 (1872); Neal v. Cole, 1 Shan. 653 (1876); Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880); Fisher v. Edington, 80 Tenn. 189, 1883 Tenn. LEXIS 157 (1883); Smoot v. Smoot, 80 Tenn. 274, 1883 Tenn. LEXIS 165 (1883); Howard v. Massengale, 81 Tenn. 577, 1884 Tenn. LEXIS 74 (1884); Fisher v. Edington, 85 Tenn. 23, 1 S.W. 499, 1886 Tenn. LEXIS 7 (1886).

The improvements by the vendee are to be valued as at the date of the surrender of the possession of the land by the purchaser or as at the date of the election to avoid the contract. Smithson v. Inman, 61 Tenn. 88, 1872 Tenn. LEXIS 344 (1872); Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880); Fisher v. Edington, 80 Tenn. 189, 1883 Tenn. LEXIS 157 (1883); Howard v. Massengale, 81 Tenn. 577, 1884 Tenn. LEXIS 74 (1884).

Where a parol sale of land is repudiated, in estimating the value of rents of a tract of farming land, the buildings should be included as part of the premises, and taken into the account in fixing the rents; and the rents should not be ascertained by fixing a separate valuation on the rents of the land and the rents of the buildings, where the buildings are of an ordinary character, suitable for a farmer to occupy, and not of unusual style or value. Neal v. Cole, 1 Shan. 653 (1876).

Compensation will not be allowed for improvements destroyed by fire while in the possession of the improver, because such improvements do not enhance the value of the land when it comes back into the possession of the owner. Greenlaw v. Williams, 70 Tenn. 533, 1879 Tenn. LEXIS 194 (1879).

If the improvements have deteriorated in value by use, the loss must fall upon the improver. Treece v. Treece, 73 Tenn. 221, 1880 Tenn. LEXIS 113 (1880).

The improvements may be valued as at the date of making the report by the master, under an order of reference to ascertain their value. Howard v. Massengale, 81 Tenn. 577, 1884 Tenn. LEXIS 74 (1884).

129. — —Insurance.

A vendee, under a parol contract of sale and purchase of land afterwards rescinded, is not entitled to reimbursement or credit for insurance on the property voluntarily paid by him for his own protection, while he was holding and treating the property as his own. Masson v. Swan, 53 Tenn. 450, 1871 Tenn. LEXIS 382 (1871).

130. — —Actions.

Where a bill is filed for the correction and reformation of a deed upon the ground of mistake or fraud, parol evidence is admissible to establish the omission or error, whether it occurred by mistake or fraud. Perry v. Pearson, 20 Tenn. 431, 1839 Tenn. LEXIS 74 (1839); Bailey v. Bailey, 27 Tenn. 230, 1847 Tenn. LEXIS 74 (1847); Barnes v. Gregory, 38 Tenn. 230, 1858 Tenn. LEXIS 161 (Tenn. Dec. 1858); Harding v. Egin, 2 Cooper's Tenn. Ch. 39 (1874).

131. — — —Recovery from Vendor.

The money paid by the purchaser upon a void or rescinded contract for the sale of land, voidable because the contract was in parol, may be recovered by such purchaser in an action of assumpsit against the vendor for money had and received to the plaintiff's use. Pipkin v. James, 20 Tenn. 325, 1839 Tenn. LEXIS 55, 34 Am. Dec. 752 (1839); Hurst v. Means, 32 Tenn. 594, 1853 Tenn. LEXIS 88 (1853); Sheid v. Stamps, 34 Tenn. 172, 1854 Tenn. LEXIS 28 (1854); Sneed v. Bradley, 36 Tenn. 301, 1856 Tenn. LEXIS 99 (1856); Burton v. Driggs, 87 U.S. 125, 22 L. Ed. 299, 1873 U.S. LEXIS 1494 (1874).

One who has given a consideration, but who cannot enforce this promise solely because of the statute of frauds, and not because of some inherent illegality in the contract itself, may sue for the quantum meruit. Quirk v. Bank of Commerce & Trust Co., 244 F. 682, 1917 U.S. App. LEXIS 2045 (6th Cir. Tenn. 1917).

132. —Rights of Vendor.

A vendor receiving goods in part payment of the price agreed to be paid for land under a parol contract, never perfected but afterwards abandoned by the parties, is a mere depositary of the goods until a conversion by him. Orand v. Mason, 31 Tenn. 196, 1851 Tenn. LEXIS 46 (1851).

A parol agreement between the vendor and purchaser of a tract of land already conveyed, and supposed to contain a certain number of acres, whether sold by the acre or by the tract and in gross, that it shall be accurately surveyed, and that the one shall account to the other for the excess or deficiency, as the result may be, is valid and binding, and is not within the statute. Seward v. Mitchell, 41 Tenn. 87, 1860 Tenn. LEXIS 20 (1860).

A purchaser failing to comply with the parol contract and abandoning the possession, without fault of the vendor, is not entitled to any compensation for improvements made by him against the protest of the vendor. Rainer v. Huddleston, 51 Tenn. 223, 1871 Tenn. LEXIS 151 (1871), superseded by statute as stated in, Uhlhorn v. Keltner, 723 S.W.2d 131, 1986 Tenn. App. LEXIS 3287 (Tenn. Ct. App. 1986); Guthrie v. Holt, 68 Tenn. 527, 1876 Tenn. LEXIS 42 (1876).

The vendor's equity, or implied lien, may be enforced against the vendee and mere volunteers, at any time before the vendee's conveyance to a purchaser for value passing at the time, or before his mortgage, or deed of trust for creditors, evidenced by registration, or before the suggestion of the insolvency of the estate of the deceased vendee. Watson v. Watson, 60 Tenn. 387, 1872 Tenn. LEXIS 518 (1873); Lookout Bank v. Susong, 90 Tenn. 590, 18 S.W. 389, 1891 Tenn. LEXIS 48 (1891); Robinson v. Owens, 103 Tenn. 91, 52 S.W. 870, 1899 Tenn. LEXIS 90 (1899); Poindexter v. Rawlings, 106 Tenn. 97, 59 S.W. 766, 1900 Tenn. LEXIS 137, 82 Am. St. Rep. 869 (1900); Leiberman, Loveman & O'Brien v. Bowden, 121 Tenn. 496, 119 S.W. 64, 1908 Tenn. LEXIS 31 (1908).

The parol acceptance by the purchaser of the vendor's written proposition or contract is sufficient, and may be proved by parol evidence. Lee v. Cherry, 85 Tenn. 707, 4 S.W. 835, 1887 Tenn. LEXIS 13, 4 Am. St. Rep. 800 (1887).

133. —Leases.

Agreement giving second party right to mine and sell coal, permitting removal of timber necessary to such operations with the same to be sold and market value to be paid the first party and permitting construction of necessary roads on the land was a lease and not a contract to mine coal and such was subject to the statute of frauds. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

Lessee could not avail itself of the doctrine of promissory estoppel to avoid statute of frauds defense to lease. D & S Coal Co. v. USX Corp., 678 F. Supp. 1318, 1988 U.S. Dist. LEXIS 926 (E.D. Tenn. 1988), aff'd, D & S Coal Co. v. U.S. Steel Corp., 872 F.2d 1024, 1989 U.S. App. LEXIS 3393 (6th Cir. Tenn. 1989).

Court of appeals erred in affirming the trial court's order dismissing the landlord's claim against the guarantor because the guarantor's second signature served to bind him personally for the tenant's obligations under the lease; the lease contemplated signatures by both the tenant and the guarantor, and the guarantor signed the lease twice, first in his representative capacity on behalf of the tenant and then in his individual capacity as the guarantor of the tenant's obligations. MLG Enters., LLC v. Johnson, — S.W.3d —, 2016 Tenn. LEXIS 629 (Tenn. Sept. 2, 2016).

In a lessor's action breach of contract action against a limited liability company (LLC) and its co-owners, the trial court properly granted the co-owners'  motion to dismiss because there was no language in the lease making them personally liable for any obligation of the LLC; the lease clearly identified the LLC as the lessee. Teal Props. v. Dog House Invs., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 15, 2018).

Formal inclusion of the single word “Individually” could not, by itself, convey personal liability upon a signatory when the body of the lease was otherwise devoid of any assumption of personal obligation or guarantor status. Teal Props. v. Dog House Invs., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 470 (Tenn. Ct. App. Aug. 15, 2018).

Because a lessee who signed a lease was lawfully authorized to sign the lease on behalf of the lessee and the other lessee, as each of the joint venturers had the power to bind the other and to subject the other to liability to third persons in matters which were strictly within the scope of the joint enterprise, the Tennessee Statute of Frauds was inapplicable. Perdue v. Kneedler, — S.W.3d —, 2019 Tenn. App. LEXIS 461 (Tenn. Ct. App. Sept. 17, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 130 (Tenn. Feb. 19, 2020).

134. — —General Rule.

The power of an agent to make a lease for more than one year need not be in writing. Johnson v. Somers, 20 Tenn. 268, 1839 Tenn. LEXIS 46 (1839).

A parol lease for a longer term than one year is void, but may be good for one year only, where the tenant goes into possession under the contract, though it is not a binding contract for the remainder of the term; but where the tenant holds over after the first year, he becomes a tenant from year to year, upon the terms of the parol agreement, that is, upon the same terms as existed for the first year. Shepherd v. Cummings, 41 Tenn. 354, 1860 Tenn. LEXIS 75 (1860); Hammond v. Dean, 67 Tenn. 193, 1874 Tenn. LEXIS 353 (1874); Hammons v. McClure, 85 Tenn. 65, 2 S.W. 37, 1886 Tenn. LEXIS 12 (1886); Rogers v. Wheaton, 88 Tenn. 665, 13 S.W. 689, 1890 Tenn. LEXIS 4 (1890); Wilson v. Alexander, 115 Tenn. 125, 88 S.W. 935, 1905 Tenn. LEXIS 49 (1905).

A parol lease for all year is good though it did not expire according to its terms for more than one year after the date of the contract to lease. Hayes v. Arrington, 108 Tenn. 494, 68 S.W. 44, 1901 Tenn. LEXIS 50 (1902); Hight v. McCulloch, 150 Tenn. 117, 263 S.W. 794, 1923 Tenn. LEXIS 69 (1924).

Where oral contract of lease was made in September 1921 for the full term of one year beginning October 1, 1921 the lease contract was not within the statute of frauds, and where property was sold and purchaser refused to carry out original owner's agreement with lessee for repairs, the rental value may have been reduced by a partial failure of consideration. Hight v. McCulloch, 150 Tenn. 117, 263 S.W. 794, 1923 Tenn. LEXIS 69 (1924).

A surviving widow who had held title to certain realty with her deceased husband in title by the entireties was not bound by a lease her husband had executed on the property without her joining although she had knowledge of the transaction prior to his death. Irwin v. Dawson, 197 Tenn. 314, 273 S.W.2d 6, 1954 Tenn. LEXIS 488 (1954).

135. — —Part Performance.

Part performance of a parol lease for a longer time than one year will not take the case out of the statute, and will not make the contract binding beyond one year. Townsend v. Sharp, 2 Tenn. 191, 2 Tenn. 192, 1812 Tenn. LEXIS 13 (1812); Citty v. Southern Queen Mfg. Co., 93 Tenn. 276, 24 S.W. 121, 1893 Tenn. LEXIS 54, 42 Am. St. Rep. 919 (1893).

Where lessee has partly performed an unsigned lease designed to run for a longer period than one year, and has, at the request, and with the assistance, of the lessor, materially changed his position by investing money in the business conducted on the premises, the doctrine of equitable estoppel may prevent the lessor from relying on the statute of frauds. Interstate Co. v. Bry-Block Mercantile Co., 30 F.2d 172, 1928 U.S. Dist. LEXIS 1676 (D. Tenn. 1928).

Tennessee statute of frauds did not bar a gas station operator's claim that a petroleum company made assurances that constituted an oral modification of a lease and contract where the operator altered his position to his detriment in reliance on the company's assurances that it would not invoke termination clauses unless the operator failed to perform under the agreement; because part performance occurred on the part of the operator, the statute of frauds did not apply. Shah v. Racetrac Petroleum Co., 338 F.3d 557, 2003 FED App. 244P, 2003 U.S. App. LEXIS 14749 (6th Cir. Tenn. 2003), rehearing denied, — F.3d —, 2003 U.S. App. LEXIS 20072 (6th Cir. Sept. 29, 2003).

Trustee's claimed agreement with commercial tenants failed to comply with the Tennessee Statute of Frauds because even when emails were read together and alongside other documents referenced by the trustee, they failed to establish the terms of the alleged loan guaranty agreement. Moreover, the partial performance doctrine was unavailable to remove the bar imposed by the Statute of Frauds. Smith v. Hi-Speed, Inc., — S.W.3d —, 2016 Tenn. App. LEXIS 638 (Tenn. Ct. App. Aug. 30, 2016).

136. — —Party to Be Charged.

A writing signed by the party to be charged, though not the original lease, takes case out of the statute. Houk v. Memphis Constr. Co., 159 Tenn. 103, 15 S.W.2d 742, 1928 Tenn. LEXIS 67 (1928).

137. — —Descriptions.

Parol evidence is admissible to apply, but not to supply, a description of land in a lease. Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, 1887 Tenn. LEXIS 17 (1887).

The description in a lease as “the farm of Henderson Fudge, known as Rose Hill,” without stating the state, county, or civil district in which the farm is situated, where the instrument shows that both parties live in the same county in this state where the land is situated, and where the land is identified by parol evidence showing a certain farm owned by the lessor lying in that county to be generally, though not universally, known as “Rose Hill” farm, is sufficient and valid, not only as between the parties, but as against subsequent purchasers from the lessor, after the registration of the lease. Dougherty v. Chesnutt, 86 Tenn. 1, 5 S.W. 444, 1887 Tenn. LEXIS 17 (1887).

Where the description of property in contract to lease was insufficient in that it gave only the street and number, omitting city and state, reference to an existing recorded lease containing sufficient description, for purpose merely of fixing the beginning of the term of proposed lease, does not complete the description under rule that reference must be for purpose of completing description. Watts v. Warner, 151 Tenn. 421, 269 S.W. 913, 1924 Tenn. LEXIS 75 (1925).

Under the statute of frauds the mention of the state or county is essential to the validity of property leased only when necessary for the purposes of identification, and if the writing clearly appears to refer to a particular tract of land and it does not reasonably appear that the description would fit equally any other tract, parol proof is admissible to locate and designate the tract intended. Kirshner v. Feigenbaum, 180 Tenn. 476, 176 S.W.2d 806, 1944 Tenn. LEXIS 309 (1944).

Where lease which fell within the statute of frauds described the leased property as “Office space in the Exchange Building located at 311 Church Street and being Office No. 209, and storage space in the basement ….” and further recited that the property was owned by a particular individual such description referred necessarily to some existing tract of land and by its terms could be applied to that tract only and parol evidence could be employed to show where the tract was located and to supply the omission of the state, county and city. Kirshner v. Feigenbaum, 180 Tenn. 476, 176 S.W.2d 806, 1944 Tenn. LEXIS 309 (1944).

The fact that printed lease which did not recite the city, county or state in which the leased property was located bore an imprint showing the name, city and state of the supplier of the stationery was suggestive circumstance in fixing the location of the property but was not determinative since it is a matter of common knowledge that stationery is used in one locality which is printed in another. Kirshner v. Feigenbaum, 180 Tenn. 476, 176 S.W.2d 806, 1944 Tenn. LEXIS 309 (1944).

Where a lease described property as “The following described property, located in the city of Nashville, or suburbs, and fronting 30 feet on HIllsboro Road at 2211 Hillsboro Street, and being the property of said A. J. and Claire Brown; a brick store, newly erected,” this description was particular and definite enough to satisfy the statute of frauds. Brown v. Mays, 34 Tenn. App. 632, 241 S.W.2d 871, 1949 Tenn. App. LEXIS 144 (1949).

Where coal mining lease and instruments referred to therein did not sufficiently identify lands to be mined the instrument did not satisfy the statute of frauds. Price v. Tennessee Products & Chemical Corp., 53 Tenn. App. 624, 385 S.W.2d 301, 1964 Tenn. App. LEXIS 128 (Tenn. Ct. App. 1964).

138. — —Holding Over.

A parol lease for more than one year is not valid, but such a lease may be good for one year only; and the tenant holding over becomes a tenant from year to year. Nashville v. Mason, 11 Tenn. App. 344, — S.W.2d —, 1930 Tenn. App. LEXIS 17 (Tenn. Ct. App. 1930).

139. — —Renewal.

Written acceptance of lessor's oral offer to renew or extend lease did not constitute a writing evidencing the contract and bearing the signature of lessor or someone authorized to bind him, but constituted only a parol agreement unenforceable as against lessor's defense under statute of frauds. Frierson v. Gant, 23 Tenn. App. 428, 134 S.W.2d 193, 1939 Tenn. App. LEXIS 51 (Tenn. Ct. App. 1939).

Where written lease entered into between mother and son contained provision for renewal of lease including option to purchase at the same consideration and for the same period of time contained in original lease, and parties thereafter orally agreed to renewal of lease prior to the end of each period, the option to purchase was enforceable and was not void on the ground that it violated statute of frauds, since parties to contract construed lease as giving the right of renewal with same provisions as that contained in original lease. Womble v. Walker, 181 Tenn. 246, 181 S.W.2d 5, 1944 Tenn. LEXIS 367 (1944).

140. — —Approval.

In an action to recover rents on an assigned lease, letters and telegrams acknowledging the lease were sufficient to remove it from the statute of frauds. Sander v. Piggly Wiggly Stores, Inc., 20 Tenn. App. 107, 95 S.W.2d 1266, 1936 Tenn. App. LEXIS 8 (1936).

141. — —Term.

Oral contract to lease realty for as long as lessee wanted it was in effect an oral conveyance of life estate in land and, unlike oral contract for one year lease to begin at future time, was unenforceable under statute of frauds. Stallings v. Jones, 193 Tenn. 200, 245 S.W.2d 199, 1951 Tenn. LEXIS 346 (1951).

142. — —Assignment.

Where a person other than the lessee is shown to be in possession of leasehold premises the law presumes that the lease has been assigned to him, it further presumes that the assignment was sufficient to transfer the term and to satisfy the statute of frauds. Sander v. Piggly Wiggly Stores, Inc., 20 Tenn. App. 107, 95 S.W.2d 1266, 1936 Tenn. App. LEXIS 8 (1936).

Owner of property was bound by lease executed by third party to plaintiff where he subsequently deeded property to defendant subject to lease held by plaintiff, since by act of approving lease he made the third party his agent at the time of execution of the lease. Texas Co. v. Aycock, 190 Tenn. 16, 227 S.W.2d 41, 1950 Tenn. LEXIS 413, 17 A.L.R.2d 322 (1950).

143. — — —Subleases.

Sublessee was not entitled to rely on the statute of frauds, T.C.A. § 29-2-101, to object to the enforcement of an oral modification regarding payment of property taxes on the subject premises because the sublessee was a third party to the agreement between the original lessor and the sublessor; even if the statute of frauds was applicable, the sublessee was estopped from denying that it was liable for the taxes because the sublessee acquired its interest in the leasehold interest with knowledge the sublease required it to pay property taxes, agreed to and assumed the obligation to pay the taxes, and did pay the taxes for three years without objection. 2850 Parkway Gen. P'ship v. Scott, — S.W.3d —, 2012 Tenn. App. LEXIS 4 (Tenn. Ct. App. Jan. 5, 2012).

144. Contracts To Be Performed Within One Year.

If contract when made was in reality capable of full and bona fide performance within the year it is to be considered as not within the statute. Anderson-Gregory Co. v. Lea, 51 Tenn. App. 612, 370 S.W.2d 934, 1963 Tenn. App. LEXIS 85 (Tenn. Ct. App. 1963).

If a contract is at all capable of performance within a year, this provision will not apply. Talkington v. Anchor Gasoline Corp., 821 F. Supp. 505, 1993 U.S. Dist. LEXIS 6886 (M.D. Tenn. 1993).

Because courts generally try to uphold contracts rather than defeat them, T.C.A. § 29-2-101(a)(5) is narrowly construed. Davidson v. Holtzman, 47 S.W.3d 445, 2000 Tenn. App. LEXIS 733 (Tenn. Ct. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 426 (Tenn. May 14, 2001).

Unless the court, looking at the contract in view of the surroundings, can say that in no reasonable probability can such agreement be performed within the year, it is the duty of the court to uphold the contract. Davidson v. Holtzman, 47 S.W.3d 445, 2000 Tenn. App. LEXIS 733 (Tenn. Ct. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 426 (Tenn. May 14, 2001).

Letter, coupled with evidence of the surrounding circumstances, rendered the statute of frauds inapplicable because the letter agreement provided a three-year term, and a referenced seven-page agreement was terminable on death of a party. Gurley v. King, 183 S.W.3d 30, 2005 Tenn. App. LEXIS 504 (Tenn. Ct. App. 2005).

Tennessee Statute of Frauds was not applicable to bar a claim by the decedent's parents that the parents wire-transferred funds to the decedent's account as a loan to pay off the mortgage on the decedent's home to prevent a foreclosure of the home because the administratrix's argument that the decedent could not have paid the loan back due to the decedent's limited income was not sufficient to show that it was not reasonably possible to perform the contract for the loan between the parents and the decedent within a year. In re Estate of Reed, — S.W.3d —, 2016 Tenn. App. LEXIS 604 (Tenn. Ct. App. Aug. 22, 2016).

145. —Affirmative Contracts.

The statute applies only to contracts which are not to be carried into full and complete execution within a year from the making thereof, or in which, by the express appointment or understanding of the parties, the thing is not to be performed within a year. The statute applies only to affirmative contracts, and not to a negative contract or stipulation that a thing is not only not to be performed within a year, but not to be performed at all, at any time. Leinau v. Smart, 30 Tenn. 308, 1850 Tenn. LEXIS 121 (1850); E. T., V. & G. R.R. Co. v. Staub, 75 Tenn. 397, 1881 Tenn. LEXIS 132 (1881); Mobile, J. & K.C.R.R. v. Hayden, 116 Tenn. 672, 94 S.W. 940, 1906 Tenn. LEXIS 19 (1906); Disney Bros. v. Campbell County, 6 Tenn. App. 569, 1926 Tenn. App. LEXIS 151 (1926).

If a contract, when made, was in reality capable of a full and bona fide performance within the year, without the intervention of extraordinary circumstances, it is to be considered as not within the statute; but, where the manifest intent of the parties was that the contract should not be so executed, the mere fact that it is possible that the thing agreed to be done may be done within the year, will not prevent the statute from applying. Deaton v. Tennessee Coal & R.R., 59 Tenn. 650, 1874 Tenn. LEXIS 25 (1874); Gregory v. Underhill, Newson & Co., 74 Tenn. 207, 1880 Tenn. LEXIS 234 (1880); E. T., V. & G. R.R. Co. v. Staub, 75 Tenn. 397, 1881 Tenn. LEXIS 132 (1881); Mobile, J. & K.C.R.R. v. Hayden, 116 Tenn. 672, 94 S.W. 940, 1906 Tenn. LEXIS 19 (1906).

In an action on an oral modification of the contract for the grading of a railroad, the evidence was held not to show that the parties agreed that the modified contract was not to be performed within a year, though there was testimony that it was not reasonably possible to do it. The contract was not invalid. Johnston v. Cincinnati, N. O. & T. P. R. Co., 146 Tenn. 135, 240 S.W. 429, 1921 Tenn. LEXIS 10 (1921).

The provision extends only to contracts in which, by express understanding of the parties, the thing is not to be performed within the year. Johnston v. Cincinnati, N. O. & T. P. R. Co., 146 Tenn. 135, 240 S.W. 429, 1921 Tenn. LEXIS 10 (1921).

Where plaintiff contracted with foreman of general contractor to erect fence around construction site in consideration for specified price and defendant contractor refused payment after completion of fence on ground that contract was within statute of frauds as one not to be performed within year, plaintiff was entitled to recover upon an implied promise on the part of the other party to pay for what had been done in accordance with the contract. A.W. Kutsche & Co. v. Hot Blast Coal Co., 19 Tenn. App. 190, 84 S.W.2d 371, 1935 Tenn. App. LEXIS 31 (1935).

146. —Contingencies.

A promise to support widow of employee killed during employment and her three minor children during her life, and, in case of her death before the youngest child should become of age, to support the children until that time, is within the statute, because the happening of the death of all four of these parties within a year is a contingency too extraordinary to be supposed to be within the contemplation of the parties. Deaton v. Tennessee Coal & R.R., 59 Tenn. 650, 1874 Tenn. LEXIS 25 (1874).

A contract is not within the statute merely because it may continue longer than one year from its date, where it may be fully performed within a year; and, therefore, a railroad company's promise to pay its injured and disabled employee a certain sum per day, so long as he should remain disabled, is not within the statute, and a parol contract to that effect may be enforced. E. T., V. & G. R.R. Co. v. Staub, 75 Tenn. 397, 1881 Tenn. LEXIS 132 (1881).

A contract that, on a contingency contemplated by the parties, may be completed within one year, is not subject to the statute because the contingency may not happen within that time. Quirk v. Bank of Commerce & Trust Co., 244 F. 682, 1917 U.S. App. LEXIS 2045 (6th Cir. Tenn. 1917).

An agreement to support children until their majority is regarded as made in contemplation of contingency of person's death within a year, and of being capable of performance within a year, and not within the statute. Walker v. Walker, 12 Tenn. App. 130, 1930 Tenn. App. LEXIS 46 (1930).

The mere fact that a contract might continue for more than a year does not bring it within the statute of frauds, nor is improbability of performance sufficient if the contract is susceptible of being performed within a year. Boutwell v. Lewis Bros. Lumber Co., 27 Tenn. App. 460, 182 S.W.2d 1, 1944 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1944).

The mere fact that a contract might continue for more than a year does not bring it within the statute, nor is improbability of performance sufficient if the contract is susceptible of being performed within a year. Hull v. Evans, 59 Tenn. App. 193, 439 S.W.2d 110, 1968 Tenn. App. LEXIS 340 (Tenn. Ct. App. 1968).

147. —Warranty.

A warranty that young fruit trees which, in the course of nature cannot bear fruit for several years, will bear or produce a certain kind of fruit in due season, is within the statute. Gregory v. Underhill, Newson & Co., 74 Tenn. 207, 1880 Tenn. LEXIS 234 (1880).

148. —One Year from Acceptance.

A contract of employment is not within the statute where it is made by the master's proposition to employ the servant on the tenth day of August for a period of 12 months, beginning on the thirteenth day of August, which proposition the servant took under advisement and thereafter, on the thirteenth day of August, accepted the proposition and immediately on that day entered upon the discharge of his duties. Mobile, J. & K.C.R.R. v. Hayden, 116 Tenn. 672, 94 S.W. 940, 1906 Tenn. LEXIS 19 (1906).

In an action in which plaintiff, a Tennessee resident, filed suit against defendants, a Delaware corporation with its principal place of business in New York and its president (a New York resident), alleging claims of breach of contract, fraud, fraudulent inducement and/or promissory fraud, the contract did not fail because of the Tennessee statute of frauds where there was no evidence that the parties specifically agreed that the oral agreement would not be performed within one year, and there was nothing in the inherent nature of the contract or in the words or actions of the parties that suggested that the contract should or could not be performed within the year. Kelly v. Int'l Capital Res., Inc., 231 F.R.D. 502, 2005 U.S. Dist. LEXIS 28547 (M.D. Tenn. 2005).

149. —Installment Contracts.

An oral contract of sale of an interest in business calling for installment payments of $50.00 each over a period of 21 months is not enforceable. Thompson v. Ford, 145 Tenn. 335, 236 S.W. 2, 1921 Tenn. LEXIS 83 (1921).

150. —Exclusive Rights.

A contract for the exclusive right to sell a given product in a specified territory is required to be in writing in order to establish a continuing obligation extending beyond one year. Curtiss Candy Co. v. Silberman, 45 F.2d 451, 1930 U.S. App. LEXIS 3655 (6th Cir. 1930).

Where parties entered into written agreement under which defendant agreed to grant plaintiff an exclusive franchise for certain described territory and further provided that conditions of agreement were to be embodied in a written franchise contract now in course of preparation, and plaintiff subsequently signed franchise dated the same month prepared by defendant but not signed by defendant the franchise related to the same subject matter as the prior written agreement and both were to be considered in determining whether they were sufficient to take case out of this subsection of the statute of frauds. Yates v. Skaggs, 187 Tenn. 149, 213 S.W.2d 41, 1948 Tenn. LEXIS 421 (1948).

151. —Employment Contracts.

Where the original employment contract is for more than a year and the employment continues without a new contract there is no presumption that the employment is to continue for a like term as such a presumption would run counter to the statute of frauds. Srygley v. City of Nashville, 175 Tenn. 417, 135 S.W.2d 451, 1939 Tenn. LEXIS 54 (1939).

The fact that an oral contract of employment might have been terminated within one year by the death of the employee did not remove such contract from the provisions of the statute of frauds. Dickens v. Tennessee Elec. Power Co., 175 Tenn. 654, 137 S.W.2d 273, 1939 Tenn. LEXIS 87 (1939).

In view of this section a superintendent of schools employed under a five year contract who continued to serve after the expiration of the contract was not presumed to be serving under an implied contract for an additional five years. Srygley v. City of Nashville, 175 Tenn. 417, 135 S.W.2d 451, 1939 Tenn. LEXIS 54 (1939).

Verbal employment contracts for a year from some future date are invalid under this statute, but a contract of hiring for one year without stating when the employee is to begin work gives the employee the right to commence at once and is not invalidated because no services are performed for several days after the making of the contract. Boutwell v. Lewis Bros. Lumber Co., 27 Tenn. App. 460, 182 S.W.2d 1, 1944 Tenn. App. LEXIS 92 (Tenn. Ct. App. 1944).

An alleged partial performance by working for a lower salary than customary, where the key executives received periodical raises and bonuses, does not remove an alleged verbal contract of the owner of a business to will all the shares of the business to these executives upon the owner's death from the statute of frauds, since the acts are not clearly done in pursuance of the averred contract or referable thereto. Appolonio v. Baxter, 217 F.2d 267, 1954 U.S. App. LEXIS 3110 (6th Cir. Tenn. 1954).

An oral employment contract for an indefinite term that can be terminated at any time at the will of the parties is not within the statute of frauds because it is capable of being fully performed within one year either through the employee's death or by either party's decision to terminate the contract. Price v. Mercury Supply Co., 682 S.W.2d 924, 1984 Tenn. App. LEXIS 3422 (Tenn. Ct. App. 1984); Jarrett v. Epperly, 896 F.2d 1013, 1990 U.S. App. LEXIS 2467 (6th Cir. Tenn. 1990).

One-year provision applied to contract because, by its terms, the employer would under no circumstances commence deferred compensation payments before five years after employment began. Talkington v. Anchor Gasoline Corp., 821 F. Supp. 505, 1993 U.S. Dist. LEXIS 6886 (M.D. Tenn. 1993).

Even though the parties may not have contemplated a sale of the franchise within one year of the making of the employment contract, because the franchise could have been sold within the year, the subject oral employment agreement did not run afoul of T.C.A. § 29-2-101. Davidson v. Holtzman, 47 S.W.3d 445, 2000 Tenn. App. LEXIS 733 (Tenn. Ct. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 426 (Tenn. May 14, 2001).

Verbal offers of multi-year employment contracts made by the developer of a new country music record label to five music industry executives could not be enforced in the absence of a signed writing; since the five alleged agreements were for terms of two and three years each they fell within the statute of frauds. Shedd v. Gaylord Entm't Co., 118 S.W.3d 695, 2003 Tenn. App. LEXIS 271 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 899 (Tenn. Oct. 6, 2003).

152. —Contract to Devise.

The provision of the statute of frauds relating to contracts not to be performed within a year does not affect agreements to leave property by will, for such an agreement may be performed within the year, hence oral contract between husband and wife that husband would leave sum to wife's niece in consideration of transfer of property by wife to husband was capable of being performed within the year, and was not barred by the statute. Clark v. Hefley, 34 Tenn. App. 389, 238 S.W.2d 513, 1950 Tenn. App. LEXIS 154 (Tenn. Ct. App. 1950).

An oral contract to make a will must be definite, proven as pleaded, not established by casual conversation, fair and the proof leave no reasonable doubt that the contract as pleaded was in fact made and has been performed by the parties relying on the contract. Appolonio v. Baxter, 217 F.2d 267, 1954 U.S. App. LEXIS 3110 (6th Cir. Tenn. 1954).

153. —Signing.

Where the defendant, by letter, offered complainant certain employment for two years at a fixed compensation, and complainant wrote letters of acceptance, there was a sufficient compliance whether it be deemed that the written memorandum should be signed by both parties, for both defendant and complainant signed their respective letters. Brewer v. De Camp Glass Casket Co., 139 Tenn. 97, 201 S.W. 145, 1917 Tenn. LEXIS 92 (1918).

154. —Estoppel.

Where an agreement to employ plaintiff at same wages for three years was made in connection with action for personal injuries, it was held that defendant was not estopped from pleading the statute of frauds, since more than four months remained after his discharge in which plaintiff might have sued for any damage suffered by him as a result of the accident. Dickens v. Tennessee Elec. Power Co., 175 Tenn. 654, 137 S.W.2d 273, 1939 Tenn. LEXIS 87 (1939).

Equitable estoppel was not appropriate where plaintiff had an opportunity to determine, prior to bidding for the purchase of the real property, from public records, the exact extent of the property being offered for sale at auction, and where, after discovering that the disputed parcel was not included in the land which it had agreed to purchase, plaintiff chose to go forward with the transaction, and accepted delivery of a deed that excluded the parcel from the land conveyed. BML Inv. v. Federal Deposit Ins. Corp., 732 F. Supp. 828, 1989 U.S. Dist. LEXIS 16939 (E.D. Tenn. 1989), aff'd without opinion, 894 F.2d 1336 (6th Cir. Tenn. 1990).

155. Sufficiency of Memorandum.

Prior to the enactment of § 32-308 (now § 32-3-107), in attempting to prove a contract to make mutual wills, a will, once in existence and afterwards destroyed, is a sufficient memorandum to satisfy the statute of frauds, and the execution of a will by the wife furnished sufficient consideration to support the agreement of the husband in respect to his will. Petty v. Estate of Nichols, 569 S.W.2d 840, 1977 Tenn. App. LEXIS 332 (Tenn. Ct. App. 1977).

156. —Part Performance of Personal Property Sale.

The courts will enforce a verbal contract as to personal property where there has been partial performance. Trew v. Ogle, 767 S.W.2d 662, 1988 Tenn. App. LEXIS 776 (Tenn. Ct. App. 1988).

The subject matter of the contract, i.e., the sale of the wood shavings business, its goodwill and the chattels used in its operation, constituted personal property, and since there was sufficient part performance of the sale agreement, the part performance exception operated to take the agreement out of the statute of frauds. Trew v. Ogle, 767 S.W.2d 662, 1988 Tenn. App. LEXIS 776 (Tenn. Ct. App. 1988).

Where an insurer and a Chapter 7 debtor entered into a pre-petition oral contract, in which the parties would share in an recovery obtained in connection with funds allegedly embezzled by a former employee of the debtor, and the debtor twice received amounts from the employee and his wife and sent the insurer its share, although the agreement could not be performed within one year, the debtor's partial performance of the agreement precluded application of the statute of frauds. Fid. & Deposit Co. v. Hendon (In re Lay Packing Co.), 350 B.R. 420, 2006 Bankr. LEXIS 1901 (Bankr. E.D. Tenn. 2006).

157. Joint Accounts.

158. —Survivorship Rights.

The contract necessary to create a joint account with the right of survivorship may be proved by oral testimony and that the right of survivorship may vest in a third party beneficiary who was not a party to the agreement between the bank and the depositor. Simmons v. Foster, 622 S.W.2d 838, 1981 Tenn. App. LEXIS 542 (Tenn. Ct. App. 1981).

159. Settlements.

Settlements may be enforced notwithstanding the absence of a writing even where the agreement was not arrived at in the presence of the court. Astroglass Boat Co. v. Eldridge, 32 B.R. 538, 1983 Bankr. LEXIS 5610 (Bankr. M.D. Tenn. 1983).

As the parties intended to finalize their settlement agreement by electronic means, under T.C.A. § 47-10-107(c) of the Uniform Electronic Transactions Act, T.C.A. §§ 47-10-101 to 47-10-123, emails their counsel exchanged constituted a writing for purposes of the Statute of Frauds, T.C.A. § 29-2-101, the typed name of appellant's counsel on the emails constituted an “electronic signature” under § 47-10-107(d), and the settlement agreement set forth in the emails was thus enforceable. Waddle v. Elrod, 367 S.W.3d 217, 2012 Tenn. LEXIS 290 (Tenn. Apr. 24, 2012).

Statute of Frauds, T.C.A. § 29-2-101, applies to a settlement agreement if its terms require the transfer of an interest in real property, Waddle v. Elrod, 367 S.W.3d 217, 2012 Tenn. LEXIS 290 (Tenn. Apr. 24, 2012).

Where appellee alleged she quitclaimed a one-half interest in her property to appellant because of the latter's undue influence, the parties'  settlement agreement, under which appellant agreed to transfer her interest back to appellee, was subject to the Statute of Frauds, T.C.A. § 29-2-101. Waddle v. Elrod, 367 S.W.3d 217, 2012 Tenn. LEXIS 290 (Tenn. Apr. 24, 2012).

160. Easements.

Mother's claim that it was error under the statute of frauds, T.C.A. § 29-2-101(a)(4), for the trial court to grant her son's widow an easement without a writing signed by her granting such an easement was rejected as an easement could be granted by lack of objection to a licensee's improvements; the claim that such an interest in land violated the statute of frauds had been rejected by the state's highest court. Gates v. Williams, — S.W.3d —, 2011 Tenn. App. LEXIS 90 (Tenn. Ct. App. Feb. 28, 2011).

161. Dismissals.

Dismissal of the investor's claim that the agent of a used car business in which the investor allegedly invested committed misrepresentation, fraud, and conversion was proper because the dismissal was not based on the statute of frauds and consequently, the order did not exceed the scope of the pleadings in that regard. Saweres v. Royal Net Auto Sale, Inc., — S.W.3d —, 2011 Tenn. App. LEXIS 423 (Tenn. Ct. App. Aug. 1, 2011).

Collateral References. 7 Am. Jur. 2d Auctions §§ 30-33; 12 Am. Jur. 2d Boundaries §§ 78, 83; 17 Am. Jur. 2d Contracts §§ 25, 28, 29, 43, 53, 67, 68, 74, 260, 284; 28 Am. Jur. 2d Escrow, § 3; 60 Am. Jur. 2d Party Walls §§ 6, 7; 72, 73 Am. Jur. 2d Statute of Frauds; 76 Am. Jur. 2d Trusts § 110.

37 C.J.S. Frauds, Statute of §§ 4, 8, 12, 40, 68.

Acceptance which will satisfy statute of frauds where purchaser of goods is in possession at time of sale. 36 A.L.R. 649, 111 A.L.R. 1312.

Action at law based on contract within statute of frauds, doctrine of part performance as sustaining. 59 A.L.R. 1305.

Admissibility of evidence to establish oral antenuptial agreement. 81 A.L.R.3d 453.

Admissibility of oral agreement as to specific time for performance where written contract is silent.

Admissibility of oral agreement respecting duration of employment or agency where written contract is silent. 85 A.L.R.2d 1331.

Admissibility of parol evidence to connect signed and unsigned documents relied upon as memorandum to satisfy statute of frauds. 81 A.L.R.2d 991.

Admission by pleading of parol contract as preventing pleader from taking advantage of statute of frauds. 22 A.L.R. 723.

Admission of contract by defendant as affecting sufficiency of acts relied on to constitute part performance under statute of frauds. 90 A.L.R. 231.

Adverse possession as against vendor by one entering under executory contract void under statute of frauds. 1 A.L.R. 1336.

Agency contract to obtain tenants as one concerning real property within statute of frauds. 151 A.L.R. 672.

Agency to purchase personal property for another as within statute of frauds. 20 A.L.R.2d 1140.

Agent of undisclosed principal signing contract, as satisfying statute of frauds. 23 A.L.R. 932.

Agent's authority to sign contract within statute of frauds, necessity of writing. 27 A.L.R. 606.

Agreement between brokers as within statute requiring agreements for sale of real estate to be in writing. 44 A.L.R.2d 741.

Agreement to be bound jointly with another for obligation covered by existing contract on which latter is liable as promissor to answer for debt, default or miscarriage of another. 101 A.L.R. 1252.

Agreement to drop or compromise will contest or withdraw objections to probate as within statute of frauds. 42 A.L.R.2d 1319.

Agreement to extend time of payment of mortgage as within statute of frauds. 97 A.L.R. 793.

Agreement to forego or delay exercise of right to foreclose or take possession under mortgage as within statute of frauds. 97 A.L.R. 793.

Agreement to release, discharge, or assign real estate mortgage as within statute of frauds. 32 A.L.R. 874.

Alterations or improvements by lessor as part performance. 101 A.L.R. 185.

Alternative oral agreement, one of the alternatives being within the statute of frauds. 13 A.L.R. 271.

Applicability of statute of frauds to agreement to rescind contract for sale of land. 42 A.L.R.3d 242.

Applicability of statute of frauds to contracts to surrender, rescind, or abandon trust. 106 A.L.R. 1313, 173 A.L.R. 281.

Applicability of statute of frauds to joint adventure or partnership to deal in real estate. 18 A.L.R. 484, 95 A.L.R. 1242.

Applicability of statute of frauds to promise to pay for medical, dental, or hospital services furnished to another. 64 A.L.R.2d 1071.

Application of statute of frauds to promise not to make a will. 32 A.L.R.2d 370.

Attorneys, agreement that attorney shall receive part of land involved in litigation as within statute of frauds. 21 A.L.R. 352.

Bank deposit, oral promise of officer, director, or stockholder in relation to, as within statute of frauds. 95 A.L.R. 1137.

Bankrupt's oral promise to pay discharged debt, effect of. 75 A.L.R. 601.

Brokerage or agency contract concerning real property as within statute of frauds. 151 A.L.R. 648.

Broker's right to recover in quantum meruit for services although contract is not in writing as required by statute. 41 A.L.R.2d 905.

Brokers, sufficiency of description of property in agreement for payment of commission or authorizing or employing broker for sale or purchase of real estate, or a memorandum thereof. 80 A.L.R. 1466.

Building or construction contract, language used by owner or another person interested in, importing a promise to pay a subcontractor, materialman, or employee of contractor or subcontractor, or one making advances to him, as a promise to answer for the debt or default of another. 99 A.L.R. 79.

Buildings or material therein, agreement for sale of, as one for sale of interest in real property within statute of frauds. 91 A.L.R. 1280.

Cancelation of order or repudiation of contract before goods were shipped or delivered to buyer as affecting acceptance. 113 A.L.R. 810.

Cancelation of the debt, promise to pay another's antecedent debt in consideration of. 74 A.L.R. 1025.

Character and extent of improvements necessary to constitute part performance. 33 A.L.R. 1489.

Check as payment. 8 A.L.R.2d 251.

Check given in land transaction as sufficient writing to satisfy statute of frauds. 9 A.L.R.4th 1009.

Check or note as memorandum satisfying statute of frauds. 20 A.L.R. 363, 153 A.L.R. 1112.

Compensation for services, contract to devise property as. 69 A.L.R. 14,   .

Construction and application of statute which enables real estate broker to recover commissions on oral contract with owner who has been served with written notice of the terms thereof. 148 A.L.R. 676.

Construction and effect of exception making the statute of frauds provision inapplicable where goods are manufactured by seller for buyer. 25 A.L.R.2d 672.

Construction of statute requiring representations as to credit, etc., of another to be in writing. 32 A.L.R.2d 743.

Contracts relating to corporate stock as within provisions of statute of frauds dealing with sales of goods, etc. 14 A.L.R. 394.

Contract to fill in land as one for sale of goods within statute of frauds. 161 A.L.R. 1158.

Contract to sell land not signed by all of coowners as operative to cover interests of the signers. 154 A.L.R. 767.

Contract to support, maintain, or educate a child as within provision of statute of frauds relating to contracts not to be performed within a year. 49 A.L.R.2d 1293.

Contractual provisions as affecting right to judicial partition. 37 A.L.R.3d 962.

Corporate officers and employees, applicability to, of statute requiring agents authority to be in writing. 1 A.L.R. 1132.

Corporate stock or dividends thereon, validity of guaranty of, by one other than corporation. 107 A.L.R. 1174.

Corporation's promise to pay debts of predecessor as within statute of frauds. 15 A.L.R. 1112, 149 A.L.R. 787.

Decedent, oral promise to pay debt of, in consideration of creditor's foregoing claim against estate, as within provision of statute of frauds relating to contract to answer for debt of another, where foregoing claim is beneficial to promisor. 144 A.L.R. 1111.

Delivery of memorandum as necessary to its effectiveness to satisfy statute of frauds. 145 A.L.R. 1024, 12 A.L.R.2d 508.

Description in memorandum defective or silent as to boundary line of land retained by seller as sufficient to satisfy statute of frauds. 139 A.L.R. 965.

Devise or bequest as compensation for services, agreement to make. 69 A.L.R. 14,   .

Discharge of existing debt (or crediting indebtedness) as part payment which will take contract out of statute of frauds. 23 A.L.R. 473.

Doctrine of part performance as applied to contract embracing more than one subject matter. 38 A.L.R. 693.

Doctrine of part performance as sustaining action at law based on contract within statute of frauds. 59 A.L.R. 1305.

Doctrine of part performance with respect to renewal option in lease not complying with statute of frauds. 80 A.L.R.2d 425.

Effect of attempted cancelation or erasure in memorandum otherwise sufficient to satisfy statute of frauds. 31 A.L.R.2d 1112.

Effect of oral agreement to enlarge time for redemption from sale under mortgage or other lien on real property. 54 A.L.R. 1207.

Employment, statute of frauds as applicable to agreement by which a corporation or individual is substituted as employer in place of party to original contract of. 107 A.L.R. 1330.

Enforceability, under statute of frauds provision as to contracts not to be performed within a year, of oral employment contract for more than one year but specifically made terminable upon death of either party. 88 A.L.R.2d 701.

Enforcement of antenuptial contract or settlement conditioned upon marriage, where marriage was subsequently declared void. 46 A.L.R.3d 1403.

Establishment of boundary line by oral agreement. 69 A.L.R. 1433.

Estoppel of one not party to transaction involving real property by failure to disclose his interest in the property, as affected by statute of frauds. 50 A.L.R. 685.

Estoppel, relation between doctrines of, and part performance as basis of enforcement of contract not conforming to statute of frauds. 75 A.L.R. 650, 117 A.L.R. 939.

Exceptions to rule that oral gifts of land are unenforceable under statute of frauds. 83 A.L.R.3d 1294.

Exchange or remittance, agreements in relation to, as within statute of frauds. 19 A.L.R. 1140.

Extension of existing mortgage or deed of trust by subsequent oral agreement to cover additional indebtedness. 76 A.L.R. 579.

Extinguishment or modification of easement by parol agreement. 71 A.L.R. 1370.

Extrinsic writing referred to in written agreement as part thereof for purposes of statute of frauds. 73 A.L.R. 1383.

Failure to object to parol evidence or voluntary introduction thereof, as waiver of defense of statute of frauds. 15 A.L.R.2d 1330.

Fixtures, installation of, as part performance which will take parol lease out of statute of frauds. 10 A.L.R. 1495.

Formal or written instrument as essential to completed contract, where the making of such instrument is contemplated by parties to verbal or informal agreement. 122 A.L.R. 1217.

Fraud and deceit, independent action for, predicated upon oral contract within statute of frauds or transaction of which oral contract was a part. 104 A.L.R. 1420.

Funeral expenses of another, statute of frauds as applicable to contract to be responsible for. 134 A.L.R. 633.

Husband's or wife's possession or improvement of real property of other spouse, may part performance of oral contract to convey be predicated upon. 74 A.L.R. 218.

Illegitimate child, validity of promise to provide for, as affected by statute of frauds. 20 A.L.R.3d 500.

Improvements, right of vendee who enters under parol contract, to recover for, where vendor refuses to convey. 17 A.L.R. 949.

Increased rent, liability for, of tenant holding over after notice of increase, as affected by statute of frauds. 109 A.L.R. 209.

Inducing breach of contract in violation of statute of frauds, liability for. 84 A.L.R. 49, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078.

Initials as sufficient signature under statute of frauds. 159 A.L.R. 253.

Insurance, oral contracts of. 15 A.L.R. 995, 69 A.L.R. 559, 92 A.L.R. 232.

Interest of or benefit to person making representation as affecting applicability of statute requiring representations as to credit, etc., of another to be in writing. 32 A.L.R.2d 743.

Irreparable injury as necessary condition of part performance which will take oral contract out of statute of frauds. 166 A.L.R. 443.

Joint, mutual, and reciprocal wills, contract to make as within statute of frauds. 169 A.L.R. 39.

Joint obligors, oral agreement between as to extent of liability inter se. 65 A.L.R. 826.

Labor union's agreement to continue wages or to pay benefits if other party loses employment because of joining union. 114 A.L.R. 1300, 125 A.L.R. 1260.

Landlord's or tenant's promise to pay for supplies furnished to tenant or subtenant. 59 A.L.R. 179.

Lead pencil signature. 8 A.L.R. 1339.

Lease defectively executed, right to maintain action upon, for damages as for breach of contract. 82 A.L.R. 1318.

Leasehold for corporation or its subsidiary implied authority of manager of private corporation to take or negotiate. 107 A.L.R. 996.

Lease, interest created by, as real estate within provisions of statute of frauds requiring writing as condition of agent's or broker's right to compensation or his authority to contract. 103 A.L.R. 833.

Letters between one of the parties to a contract and his agent or a third person as satisfying statute of frauds. 112 A.L.R. 490.

Lien of vendee for purchase money paid under invalid parol contract. 45 A.L.R. 361, 33 A.L.R.2d 1384, 82 A.L.R.3d 1040.

May part performance or part payment which will take oral contract out of statute of frauds be predicated upon giving up present position, employment, business or profession, or opportunities in that field. 125 A.L.R. 399.

Meaning of “duplicate.” 24 A.L.R. 1209.

Money or other property in possession of seller, before contract was made, as satisfying condition of part payment which will take oral contract for sale of goods out of statute of frauds. 131 A.L.R. 1252, 170 A.L.R. 245.

Moral obligation connected with contract within statute of frauds as consideration for executory promise. 17 A.L.R. 1353, 79 A.L.R. 1346, 8 A.L.R.2d 787.

Mortgage on real estate, doctrine of part performance as applied to advance of money on oral agreement for. 30 A.L.R. 1403.

Mortgage, rights and remedies of one who advances money to purchase real estate under an oral agreement by the vendee to give a mortgage thereon as security. 18 A.L.R. 1098.

Mortgagor or judgment debtor, part performance predicated upon continuance in possession by, as taking out of the statute of frauds oral contracts between mortgagor and mortgagee subsequent to foreclosure or expiration of period of redemption, or between judgment debtor and execution purchaser subsequent to execution sale. 136 A.L.R. 262.

Name of principal, or of authorized agent, in body of instrument, as satisfying statute of frauds where transaction was not conducted by him. 28 A.L.R. 1114.

Necessity and sufficiency of statement of consideration in contract or memorandum of sale of land, under statute of frauds. 23 A.L.R.2d 164.

Necessity of written authority to enable agent to make contract within statute of frauds. 27 A.L.R. 606.

Negotiable Instruments Laws, provision of, requiring renunciation of rights to be in writing. 65 A.L.R.2d 593.

Note, check, or other executory obligation representing consideration for a contract which the plaintiff is willing and able to perform, but which because of the statute of frauds would not have been enforceable against him, right to recover upon. 132 A.L.R. 1486.

Oil and gas lease, sufficiency, as regards statute of frauds, of description of in written contract or memorandum for sale or assignment of. 141 A.L.R. 814.

Oil and gas royalty as realty for purpose of statute of frauds. 56 A.L.R.4th 539.

One party, or his agent, as agent of other party for purpose of signing contract or memorandum required by statute of frauds. 47 A.L.R. 201.

Option for renewal or extension of contract for a year or less as affecting applicability of statute of frauds. 111 A.L.R. 1105.

Option in lease for extension of term or for a new lease as affecting applicability of provision of statute of frauds. 161 A.L.R. 1094.

Option or election in respect of subject matter as affecting validity under statute of frauds of written instrument as a contract for sale of goods. 105 A.L.R. 1106.

Option to purchase at price offered to optionor by third person, validity as against objection of noncompliance with statute of frauds. 136 A.L.R. 143.

Option to purchase property as within statute of frauds in relation to real property. 61 A.L.R. 1454.

Oral acceptance of written offer by party sought to be charged as satisfying statute of frauds. 30 A.L.R.2d 972.

Oral agreement to enter into written contract not to be performed within a year. 58 A.L.R. 1019.

Oral contract for personal services as long as employee is able to continue in work, to do satisfactory work, or the like, as within statute of frauds relating to contracts not to be performed within year. 28 A.L.R.2d 878.

Oral contract for year's service as within statute of frauds. 27 A.L.R. 663   .

Oral contract of employment terminable by either party at will as within statute of frauds. 104 A.L.R. 1006.

Oral contract of employment terminable by one, but not both, of the parties within provision of statute of frauds relating to contracts not to be performed within one year. 161 A.L.R. 290.

Oral contract to enter into written contract as within statute of frauds. 58 A.L.R. 1015.

Oral contract to make joint will, estoppel to assert defense of statute of frauds. 169 A.L.R. 43.

“Owner,” scope and import of term, in statutes requiring real estate broker to have written authority. 2 A.L.R. 801, 95 A.L.R. 1085.

Paid employment, accepting or remaining in, as part performance which will take oral contract to devise real property out of statute of frauds. 40 A.L.R. 223.

Parol exception of fixtures from conveyance or lease. 29 A.L.R.3d 1441.

Parol lease for term of a year to commence in future as within the statute of frauds. 111 A.L.R. 1465.

Partnership debts, incoming partner's oral assumption of. 45 A.L.R. 1273.

Partnership, who must sign and form of signature in case of, in order to comply with statute of frauds. 114 A.L.R. 1005.

Part of contract within statute of frauds, failure to comply with statute as to, as affecting enforceability of another part not within statute. 71 A.L.R. 492.

Part performance to take oral contract of lease out of statute of frauds predicated upon acts or conduct of one in possession of the property under another contract or right. 125 A.L.R. 1468.

Performance as taking contract, not to be performed within a year, out of the statute of frauds. 6 A.L.R.2d 1053.

Permanent employment, statute of frauds as affecting contract for. 60 A.L.R.3d 226.

Place of signature on memorandum to satisfy statute of frauds. 112 A.L.R. 937.

Pleadings, depositions, testimony, or statements in court as constituting a sufficient writing within the statute of frauds. 22 A.L.R. 735.

Price fixed in contract violating statute of frauds as evidence of value in action on quantum meruit. 21 A.L.R.3d 9.

Price or consideration for sale of goods or choses in action, necessity and sufficiency of statement of, in writing. 30 A.L.R. 1163, 59 A.L.R. 1422.

Printed, stamped or typewritten name as satisfying requirement of statute of frauds as regards signature. 171 A.L.R. 334.

Promise by one other than principal to indemnify one agreeing to become surety or guarantor as within statute of frauds. 13 A.L.R.4th 1153.

Promise by stockholder, officer, or director, to pay debt of corporation. 35 A.L.R.2d 906.

Promissory estoppel as basis for avoidance of statute of frauds. 56 A.L.R.3d 1037.

Promissory estoppel of lending institution based on promise to lend money. 18 A.L.R.5th 307.

Public record as satisfying requirement of statute of frauds as to written contract or memorandum. 127 A.L.R. 236.

Quantity or weight, term “bags,” “bales,” “cars,” or other terms indefinite as to, as satisfying requirement of statute of frauds as regards quantity or weight. 129 A.L.R. 1230.

Question for court or jury as to whether informal writing constituted contract where parties intended agreement to be expressed in formal writing. 100 A.L.R. 989.

Real property, permitting record title to, to stand in another's name as estopping owner to avail himself of statute requiring authority to contract regarding real estate to be in writing. 78 A.L.R. 588.

Reformation of memorandum relied upon to take oral contract out of statute of frauds. 73 A.L.R. 99.

Release to ancestor by heir of expected interest in real estate. 28 A.L.R. 451.

Repurchase of corporate stock, contract or option for, on sale of stock to employee as within statute of frauds. 48 A.L.R. 627, 66 A.L.R. 1182.

Repurchase or repayment, agreement for, on sale of corporate stock or other personal property. 121 A.L.R. 314.

Restrictions on use of real property. 5 A.L.R.2d 1316.

Rights of parties under oral agreement to buy or bid it in at judicial sale, for another. 27 A.L.R.2d 1285.

Sale, or contract for sale, of standing timber as within provision of statute of frauds respecting sale or contract of sale of real property. 7 A.L.R.2d 517.

Several papers constituting contract, necessity that each of, be signed by party to be charged. 85 A.L.R. 1184.

Signature to contract by agent of undisclosed principal as satisfying statute of frauds. 23 A.L.R. 932.

Specific performance of oral contract to convey real property as affected by performance of services. 101 A.L.R. 1091.

Specific performance of parol contract to convey real property as affected by payment or part payment of purchase price. 101 A.L.R. 1079.

Statute of frauds against oral contracts not to be performed within year as applicable to contract susceptible by its terms, or by construction, of performance within that time is improbable or almost impossible. 129 A.L.R. 543.

Statute of frauds as affecting agreement with subpurchaser of realty. 38 A.L.R. 1348.

Statute of frauds as affecting enforceability as between the parties of agreement to purchase property at judicial or tax sale for their joint benefit. 14 A.L.R.2d 1267.

Statute of frauds as affecting question when real estate owned by partner before formation of partnership will be deemed to become asset of firm. 45 A.L.R.2d 1009.

Statute of frauds as applicable to sale of other transaction between partners in respect of partnership real property. 171 A.L.R. 198.

Statute of frauds: Validity of lease or sublease subscribed by one of the parties only. 46 A.L.R.3d 619.

Statute of frauds: Will or instrument in form of will as sufficient memorandum of contract to devise or bequeath. 94 A.L.R.2d 921.

Statutory necessity and sufficiency of written statement as to amount of compensation in broker's contract to promote purchase, sale or exchange of real estate. 9 A.L.R. 747.

Subpurchaser of realty, statute of frauds as affecting agreement with. 38 A.L.R. 1348.

Sufficiency of description of terms and conditions of lease, or lease provision, so as to comply with statute of frauds. 12 A.L.R.6th 123.

Sufficiency of description or designation of land in contract or memorandum of sale, under statute of frauds. 23 A.L.R.2d 6.

Sufficiency of memorandum of lease agreement to satisfy the statute of frauds, as regards terms and conditions of lease. 16 A.L.R.2d 621.

Sufficiency, under statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed. 46 A.L.R.2d 894.

Surrender of written lease by parol. 78 A.L.R.2d 933.

Telegram between one of the parties to a contract and his agent or a third person as satisfying statute of frauds. 112 A.L.R. 490.

Trustee under deed of trust securing bonds, necessity that appointment of substitute for, be in writing. 98 A.L.R. 1159.

Trust, part performance or change of position as affecting applicability of statute to contract to surrender, rescind or abandon. 106 A.L.R. 1318, 173 A.L.R. 281.

Undelivered deed or escrow, pursuant to oral contract, as satisfying statute of frauds. 100 A.L.R. 196.

Undelivered lease or contract (other than for sale of land), or undelivered memorandum thereof, as satisfying statute of frauds. 12 A.L.R.2d 508.

Validity of oral promise or agreement not to revoke will. 29 A.L.R.2d 1229.

Vendor or purchaser, sufficiency of identification of, in memorandum. 70 A.L.R. 196.

Vendor's willingness and ability to perform contract which does not satisfy statute of frauds as precluding purchaser's recovery back of payments made thereon. 169 A.L.R. 187.

Warranty or guaranty in respect of the subject matter of a contract between third persons, which in terms does not embrace such an obligation. 19 A.L.R. 1033.

What constitutes part performance sufficient to take agreement in consideration of marriage out of statute of frauds. 30 A.L.R.2d 1419.

What constitutes promise made in or upon consideration of marriage within statute of frauds. 75 A.L.R.2d 633.

When goods remaining in custody of seller or some third person deemed to have been received by buyer, within exception to statute of frauds. 4 A.L.R. 902.

Who is real estate agent, salesman, or broker within meaning of statute. 56 A.L.R. 480, 167 A.L.R. 774.

Will as sufficient memorandum of contract to devise or bequeath property as compensation for services. 69 A.L.R. 14,   .

Writing between one of the parties to a contract and his agent or a third person as satisfying statute of frauds. 112 A.L.R. 490.

Writings prior to the oral agreement, memorandum which will satisfy statute of frauds as predicable in whole or in part upon. 1 A.L.R.2d 841, 30 A.L.R.2d 972.

Written authority to agent to sign contract within statute of frauds, necessity of. 27 A.L.R. 606.

Satisfaction of statute of frauds by e-mail. 110 A.L.R.5th 277.

Frauds, Statute of 97-118.

NOTES TO DECISIONS

1. Constitutionality.

The statute does not violate Tenn. Const., art. II, § 2, relating to separate branches of the state government. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

The public nuisance statutes are not violative of Tenn. Const., art. I, § 8 or art. XI, § 8. Barrowman v. State ex rel. Evans, 214 Tenn. 408, 381 S.W.2d 251, 1964 Tenn. LEXIS 490 (Tenn. July 15, 1964).

Judgment ordering padlocking of residence as public nuisance for alleged unlawful sale of intoxicating liquors did not constitute an unconstitutional confiscation or forfeiture of property. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

This section was declared unconstitutional in that it would permit seizures solely on officer's conclusion of obscenity and place as defined could include a home. Airways Theater, Inc. v. Canale, 366 F. Supp. 343, 1973 U.S. Dist. LEXIS 11012 (W.D. Tenn. 1973).

The issuance of a permanent injunction against the owner of premises which had been used for the purposes of prostitution prohibiting such use of his property, in absence of any proof that he had knowledge of such use, was not violative of his constitutional rights, since it did not deprive him of property or punish him in any way. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

The definition of the word “nuisance” as it relates to prostitution and assignation is not unconstitutionally overbroad, vague, and indefinite. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

This section applies equally to all landowners in the same position and does not violate Tenn. Const., art. XI, § 8 or U.S. Const., amend. 14. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

The padlocking of property on the order of the court in a proceeding instituted under the nuisance statute did not deprive the owner of his federal right to due process of law or any other right he had under the federal constitution. Wilson v. Winstead, 470 F. Supp. 263, 1978 U.S. Dist. LEXIS 16659 (E.D. Tenn. 1978).

Section was found to be not unconstitutional under the state and federal constitutions as a prior restraint or as a violation of the free speech rights of adults. Davis-Kidd Booksellers v. McWherter, 866 S.W.2d 520, 1993 Tenn. LEXIS 407 (Tenn. 1993).

2. Construction.

The fact that defendants may reside in the building in which they conduct illicit enterprise does not make the public nuisance statute inapplicable since the statute embraces any building, structure, or place. Barrowman v. State ex rel. Evans, 214 Tenn. 408, 381 S.W.2d 251, 1964 Tenn. LEXIS 490 (Tenn. July 15, 1964).

Section 39-2901 (repealed; see § 39-17-307) specifying certain things which constitute public nuisance is merely cumulative to title 29, ch. 3. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

3. Nuisances.

The test in cases arising under the provisions of these sections is not the number of unlawful acts that occurred but whether the evidence as a whole indicates recurrent acts which amount to a nuisance, and time is not a material factor in the offense of maintaining such a nuisance. State v. James, 177 Tenn. 21, 145 S.W.2d 783, 1940 Tenn. LEXIS 5 (1940).

For an injunction suit to be maintained prior to the alleged nuisance coming into being it must be sufficiently shown in the original bill or petition that the proposed establishment is a nuisance per se. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

The difference between a nuisance per se and a nuisance per accidens is that in the former, injury in some form is certain to be inflicted while in the latter the injury is uncertain or contingent until it actually occurs. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

4. —Gambling Houses.

A house where betting on horse races is conducted is within the section. State ex rel. Armstrong v. Bernstein, 145 Tenn. 74, 238 S.W. 91, 1921 Tenn. LEXIS 71 (1921).

5. —Intoxicating Liquor.

A person who has paid all taxes and who sells intoxicating liquors only to persons outside of the state is not maintaining a nuisance within the meaning of this statute, for such sales are legal. State ex rel. Vines v. Chadwell, 130 Tenn. 253, 169 S.W. 1170, 1914 Tenn. LEXIS 24 (1914).

Right to abate public nuisance extends to padlocking of private residence where intoxicating liquors are unlawfully sold. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

6. — —Sale.

Possession of federal license which gave rise to presumption that holder was engaged in illegal sale of liquor was rebutted where defendant who operated soft drink stand testified that he did not sell intoxicating beverages and introduced evidence that drink sold was not intoxicating. Baker v. State, 5 Tenn. Civ. App. (Higgins) 292 (1915).

The engaging in the sale of intoxicating liquors declared by this statute to be a public nuisance belongs to that class of nuisances always treated by the Supreme Court as tending to disturb the peace and good order of the community. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

An incorporated social club which had been in existence for 25 years, with a limited membership, dispensing intoxicating beverages to its members at cost of materials and service, as a mere incident to the main purpose of the club, no person not a member of the club being permitted to obtain anything from the club at his own expense, was not guilty of conducting a nuisance under this statute. State ex rel. Whittaker v. Mountain City Club, 136 Tenn. 102, 188 S.W. 579, 1916 Tenn. LEXIS 104 (1916).

Where evidence was to the effect that one of the operators of a hotel was aware that a roomer in the hotel was engaged in the sale of intoxicating liquors within a week after such roomer took up residence in the hotel but did nothing about it until after proceedings were instituted under these sections more than a month later, the operators could be properly enjoined from maintaining a public nuisance at the hotel by engaging in the unlawful storage and sale of intoxicating liquors. State v. James, 177 Tenn. 21, 145 S.W.2d 783, 1940 Tenn. LEXIS 5 (1940).

7. — —Presence of Minors.

Evidence sustained finding that defendant maintained public nuisance where intoxicating liquors were kept and minors allowed to congregate. State ex rel. Henderson v. Cuniff, 30 Tenn. App. 347, 206 S.W.2d 32, 1947 Tenn. App. LEXIS 93 (1947).

8. — —Effect of Local Option.

Operation of liquor store could not be enjoined as a nuisance where local option election had never been completed. O'Neil v. State ex rel. Baker, 185 Tenn. 534, 206 S.W.2d 780, 1947 Tenn. LEXIS 354 (1947).

9. —Houses of Ill Fame.

Where the evidence established that a hotel was used for assignation purposes on one particular night by seven couples, it could be reasonably inferred that like offenses had been committed on previous nights so as to sustain an injunction against maintaining a public nuisance. State v. James, 177 Tenn. 21, 145 S.W.2d 783, 1940 Tenn. LEXIS 5 (1940).

Because activities taking place at nude dancing establishment satisfied the standard of sexual activity as a business, there was no error in ruling that “lap dancing,” as conducted at defendant's place of business, constituted “prostitution” as that term is used in T.C.A. § 29-3-101. State ex rel. Gibbons v. Jackson, 16 S.W.3d 797, 1999 Tenn. App. LEXIS 674 (Tenn. Ct. App. 1999), aff'd, Haney v. First Am. Nat'l Bank, — S.W.3d —, 1999 Tenn. LEXIS 675 (Tenn. Dec. 20, 1999).

10. —Lotteries.

A scheme designated as “bank night” or “opportunity night” under which cash prizes are awarded to a patron of the theater in case the number under which his name is registered is drawn and such patron is in the theater at the time of such drawing, cannot be abated as a nuisance on the theory that it comes under the provisions of the gaming and lottery statutes. State ex rel. Dist. Att'y Gen. v. Crescent Amusement Co., 170 Tenn. 351, 95 S.W.2d 310, 1935 Tenn. LEXIS 142 (1935).

11. —Crematories.

Allegations in petition seeking to abate proposed operation of crematory in rural or rural residential area were not sufficient to support abatement of operation prior to its establishment where grounds of abatement were that operation would cause mental anguish, depressed feelings, physical discomfort and lower property value since such allegations did not indicate certain injury. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

12. Criminal Offenses.

Maintaining a public nuisance is a misdemeanor at common law and is punishable as provided in § 39-106 (now § 39-11-111) even though § 29-3-101 defining public nuisances does not make maintenance of the same a crime. Laws v. State, 218 Tenn. 536, 404 S.W.2d 510, 1966 Tenn. LEXIS 586 (1966).

13. Imminence of Injury.

Anticipatory nuisance may be enjoined under proper circumstances where injury anticipated is imminent and certain to occur. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

A nuisance cannot exist without surrounding circumstances that determine whether an injury is occasioned since some injury must be occasioned or at least be imminent because of the alleged nuisance. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

Where injury from an alleged nuisance is not real and immediate and certain to occur, the nuisance will not be enjoined anticipatory to its going into operation. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

14. Mental Disturbances.

Mental disturbances or “psychic” injuries caused by a nuisance, public or private, may be actionable at law or in equity if the allegations of the petition are sufficient to persuade the court that if they are proved injury is imminent and certain. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966).

15. Review.

The appellate courts, in reviewing cases under this chapter, will be governed by the rules applicable to appeals from the chancery court. Upon appeal from the circuit court, where the case was tried before the circuit judge without the intervention of a jury, to the court of appeals, that court was not precluded from finding the facts of the cases from the preponderance of the evidence, without reference to the findings of the circuit judge, and that court was in error in applying the rule in law cases that, where there is any material evidence to support the findings of the circuit judge upon material questions of fact, his findings of fact will not be disturbed. Black v. State ex rel. Dist. Attorney-General, 130 Tenn. 529, 172 S.W. 281, 1914 Tenn. LEXIS 55 (1914); Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

The supreme court, on certiorari, will not go behind a concurrent finding of fact by the trial judge and the court of appeals, if there is any evidence to support it. Black v. State ex rel. Dist. Attorney-General, 130 Tenn. 529, 172 S.W. 281, 1914 Tenn. LEXIS 55 (1914).

On appeal from a conviction for violating an injunction enjoining one from engaging in the sale of intoxicating liquors at a named place the appellate court has to consider whether or not the evidence preponderates against the verdict of the jury; and the adverse finding below raises a presumption of guilt, which accused must overcome, in order to obtain a reversal on the facts, by showing that the preponderance of proof is against the finding. O'Brien v. State ex rel. Bibb, 26 Tenn. App. 270, 170 S.W.2d 931, 1942 Tenn. App. LEXIS 45 (1942).

Collateral References. 24 Am. Jur. 2d Disorderly Houses §§ 3, 10; 38 Am. Jur. 2d Gambling §§ 172-185; 45 Am. Jur. 2d Intoxicating Liquors §§ 499-555; 58 Am. Jur. 2d Nuisances §§ 14-18, 142-184.

66 C.J.S. Nuisances § 2.

Automobile racetrack or drag strip as nuisance. 41 A.L.R.3d 1273.

Betting on races as nuisance. 166 A.L.R. 1264.

Carwash as nuisance. 4 A.L.R.4th 1308.

Drive-in theater or other outdoor dramatic or musical entertainment as nuisance. 93 A.L.R.3d 1156.

Exhibition of obscene motion pictures as nuisance. 50 A.L.R.3d 969.

Existence of, and relief from, nuisance created by operation of air conditioning or ventilating equipment. 79 A.L.R.3d 320.

Fence as nuisance. 80 A.L.R.3d 962.

Funeral home as private nuisance. 8 A.L.R.4th 324.

Gasoline or other fuel storage tanks as nuisance. 50 A.L.R.3d 209.

Gun club, or shooting gallery or range, as nuisance. 26 A.L.R.3d 661.

Keeping bees as nuisance. 88 A.L.R.3d 992.

Keeping of dogs as enjoinable nuisance. 11 A.L.R.3d 1399.

Laundry or drycleaning establishment as nuisance. 41 A.L.R.3d 1236.

Massage parlor as nuisance. 80 A.L.R.3d 1020.

Operation of cement plant as nuisance. 82 A.L.R.3d 1004.

Operation of incinerator as nuisance. 41 A.L.R.3d 1009.

Operation of nude-model photographic studio as offense. 48 A.L.R.3d 1313.

Permitting guests to bring and consume their own liquor, charge of maintaining a liquor nuisance predicated on. 49 A.L.R. 1451.

Pornoshops or similar places disseminating obscene materials as nuisance. 58 A.L.R.3d 1134.

Public dump as nuisance. 52 A.L.R.2d 1134.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

Saloons or taverns as nuisance. 5 A.L.R.3d 989.

Telephone or telegraph service facilitating betting on horse racing or other sport, as nuisance. 30 A.L.R.3d 1143.

Topless or bottomless dancing or similar conduct as offense. 49 A.L.R.3d 1084.

Vibrations not accompanied by blasting or explosion as constituting nuisance. 103 A.L.R.5th 157.

Zoos as nuisance. 58 A.L.R.3d 1085.

Nuisance 65.

NOTES TO DECISIONS

1. Constitutionality.

This section is not class legislation, and is not in violation of Tenn. Const., art. I, § 8 or art. XI, § 8, nor U.S. Const., amend. 14. The ten citizens authorized to bring the suit are made the agents of the state. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

Judgment ordering padlocking of residence as public nuisance for alleged unlawful sale of intoxicating liquors did not constitute an unconstitutional confiscation or forfeiture of property. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

2. Construction.

This statute furnishes a cumulative remedy, and does not abrogate any other remedy, and does not affect the sheriff's duties. State ex rel. Thompson v. Reichman, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

T.C.A. § 29-3-102 does not require that a district attorney general swear to the truth of allegations contained in a complaint. Cooper v. Parrish, 203 F.3d 937, 2000 FED App. 47P, 2000 U.S. App. LEXIS 1718 (6th Cir. Tenn. 2000), cert. denied, 531 U.S. 877, 121 S. Ct. 185, 148 L. Ed. 2d 128, 2000 U.S. LEXIS 5925 (2000).

3. Jurisdiction.

The city attorney cannot institute such proceeding in any other city. He is confined to the local jurisdiction of his own city. Error in refusing to abate such action brought in one city by the city attorney of another city is not cured by the fact that the city in which the suit was brought was subsequently, by legislative act, included in the city whose city attorney instituted the suit. State ex rel. Powers v. Shelton, 138 Tenn. 345, 197 S.W. 1096, 1917 Tenn. LEXIS 39 (1917).

In suit to abate public nuisance and to revoke corporate charter, fact that criminal court had narrow statutory concurrent jurisdiction with chancery court with reference to abatement of public nuisances did not permit criminal court to retain jurisdiction of suit for purpose of revocation of corporate charter under maxim that equity having taken jurisdiction for one purpose will retain jurisdiction for all purposes. Pan-O-Ram Club, Inc. v. State, 217 Tenn. 137, 395 S.W.2d 803, 1965 Tenn. LEXIS 526 (1965).

A proceeding to abate a public nuisance is an action of an equitable nature and must be tried in accordance with the rules of chancery, although it may properly be filed in criminal or circuit, as well as chancery, courts. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

The statute giving jurisdiction over equitable matters to “circuit courts” refers to courts of law as distinguished from courts of equity and includes criminal courts; therefore, action for a permanent injunction restraining use of property for prostitution was properly brought in criminal court. State ex rel. Webster v. Daugherty, 530 S.W.2d 81, 1975 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1975).

Principles of concurrent jurisdiction precluded the circuit court from entering an order which purported to enjoin the district attorney from proceeding against the plaintiff in an abatement action filed in the criminal court. King of Clubs v. Gibbons, 9 S.W.3d 796, 1999 Tenn. App. LEXIS 372 (Tenn. Ct. App. 1999), rehearing denied, — S.W.3d —, 1999 Tenn. App. LEXIS 477 (Tenn. Ct. App. July 13, 1999).

4. Venue.

It appears that location is an essential ingredient of the action and is associated with the offense accordingly. The proper venue is in the county where the nuisance is situated. State ex rel. Boyd v. Scott, 176 Tenn. 662, 145 S.W.2d 765, 1940 Tenn. LEXIS 115 (Tenn. Dec. 1940).

5. Review.

Case brought under title 29, ch. 3 comes to court of appeals as if it were an equity case under § 27-3-103 (repealed) with a presumption of the correctness of the decree of the judgment of the lower court unless the preponderance of the evidence is to the contrary. State ex rel. Evans v. Caldwell, 53 Tenn. App. 195, 381 S.W.2d 553, 1964 Tenn. App. LEXIS 95 (Tenn. Ct. App. 1964).

6. Jury Trial.

In a suit in Chancery there is a statutory right under § 21-1-103 to a jury, except in accounting cases or cases barred by law or other provisions of the code. Smith County Education Asso. v. Anderson, 676 S.W.2d 328, 1984 Tenn. LEXIS 936 (Tenn. 1984).

Collateral References. 58 Am. Jur. 2d Nuisances §§ 164-166.

66 C.J.S. Nuisances § 121.

Proceedings for injunction or restraining order as basis of malicious prosecution action. 70 A.L.R.3d 536.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

Street or highway, right, as between state and county or municipality, to maintain action to abate public nuisance in. 65 A.L.R. 699.

Nuisance 28.

NOTES TO DECISIONS

1. Institution of Proceeding.

An injunction against the attorney general will not lie to enjoin the institution and prosecution of suits to enjoin and abate nuisances. Such injunction is beyond the jurisdiction of the court, and a mere nullity and may be disregarded without incurring the penalty of contempt of court. Howell v. Thompson, 130 Tenn. 311, 170 S.W. 253, 1914 Tenn. LEXIS 30 (1914).

The statute does not impose any duty on the sheriff, does not mention him, and he is not authorized, in his official capacity, to institute any proceeding under it; but this does not excuse him for the nonenforcement of the law against the unlawful sales of intoxicating liquors. State ex rel. Thompson v. Reichman, 135 Tenn. 653, 188 S.W. 225, 1916 Tenn. LEXIS 46 (1916), rehearing denied, 135 Tenn. 685, 188 S.W. 597, 1916 Tenn. LEXIS 47 (1916).

2. Notice.

An injunction issued under this section without notice is merely an error in procedure and is not void, as the court had jurisdiction of the subject matter and the defendant. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914); Black v. State ex rel. Dist. Attorney-General, 130 Tenn. 529, 172 S.W. 281, 1914 Tenn. LEXIS 55 (1914).

This section does not contemplate a hearing of the application, nor require the giving of any notice when the bill or petition is filed by ten or more citizens and freeholders, but it does require such notice on the relation of the attorney-general or any other officer named in the section. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

3. Evidence.

Identification of place in bill and in certified internal revenue license cannot be raised in the appellate court, where no question was made on the trial below, and such places were treated as identical. Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

Certified list of holders of internal revenue licenses for the sales of intoxicating liquors is not inadmissible because it failed to state the number of pages contained in the list, nor is there any objection to the submission of such documentary evidence by an attorney without being sworn to testify in the case. Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

Collateral References. 58 Am. Jur. 2d Nuisances §§ 169-172.

66 C.J.S. Nuisances §§ 124, 126.

Joinder, in injunction action to restrain or abate nuisance, of persons contributing thereto through separate and independent acts. 45 A.L.R.2d 1284.

Necessity of knowledge by owner of real estate of a nuisance maintained thereon by another to subject him to the operation of a statute providing for the abatement of nuisances or prescribing pecuniary penalty therefor. 12 A.L.R. 431, 121 A.L.R. 642.

Proceedings for injunction or restraining order as basis of malicious prosecution action, 70 A.L.R.3d 536.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

Nuisance 27.

NOTES TO DECISIONS

1. Constitutionality.

Provision for injunction at instance of citizens and freeholders, without injunction bond, is not unconstitutional. Such parties act as agents of the state, and this does not violate Tenn. Const., art. I, § 8, and art. XI, § 8, nor the fourteenth amendment of the federal Constitution. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

Provision for closing the place before a hearing is not unconstitutional, as a deprivation of property without due process, though the owner be not a party, in violation of Tenn. Const., art. I, § 8 and the fourteenth amendment of the federal Constitution. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

Provision requiring award of temporary writ of injunction is not unconstitutional as depriving the judges of the exercise of judicial power, in violation of Tenn. Const., art. II, §§ 1, 2, for the statute contemplates the exercise of judicial functions by the judge or chancellor to whom a petition for abatement and injunction is brought, and merely prescribes a rule of practice upon the filing of a proper petition for abatement, the sufficiency of which is to be determined by the court. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914).

In light of the fact that defendant's nude dancing establishment was entitled to some measure of first amendment protection, it was error to grant a temporary writ of injunction in regards to “lewd and obscene exhibition of the genitals,” because the injunction attempted to prohibit a future undescribed activity. State ex rel. Gibbons v. Jackson, 16 S.W.3d 797, 1999 Tenn. App. LEXIS 674 (Tenn. Ct. App. 1999), aff'd, Haney v. First Am. Nat'l Bank, — S.W.3d —, 1999 Tenn. LEXIS 675 (Tenn. Dec. 20, 1999).

2. Special Injury.

The nuisance may be enjoined, without showing any special injury. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

Collateral References. 66 C.J.S. Nuisances § 125.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

What corporate communications are entitled to attorney-client privilege—modern cases. 27 A.L.R.5th 76.

Nuisance 31.

NOTES TO DECISIONS

1. Subject Matter.

An injunction made in respect to a subject matter beyond the jurisdiction of the court, as where the court has no jurisdiction of the subject matter or of the person of the defendant, is a nullity. It may be disregarded without incurring the penalty of contempt. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914); Howell v. Thompson, 130 Tenn. 311, 170 S.W. 253, 1914 Tenn. LEXIS 30 (1914).

2. Notice.

The requirement of the five days' written notice of the hearing of the application for a temporary injunction does not contemplate a hearing of the application, nor require the giving of the five days' notice of the issuance of a temporary injunction where the bill is filed by citizens and freeholders. State ex rel. Estes v. Persica, 130 Tenn. 48, 168 S.W. 1056, 1914 Tenn. LEXIS 3 (1914); State ex rel. Mynatt v. King, 137 Tenn. 17, 191 S.W. 352, 1916 Tenn. LEXIS 49 (1916).

3. Contempt.

Where a temporary injunction was issued enjoining the defendant from further engaging in the sale of liquors, a petition for an attachment for contempt, charging that he had continued the sale of intoxicating liquors, in willful disobedience of the injunction, showed a violation of the injunction. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

Where the defendant answered a petition for an attachment for contempt, by alleging various matters of excuse and avoidance, he could not attack the petition on appeal on account of its general averments and lack of specific allegations. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

Contempt proceedings brought by petition and because of violation of injunction issued are criminal in nature, and guilt, in lower court, must be established beyond reasonable doubt. But on appeal from judgment of conviction, appellant must show that the evidence preponderates against the verdict. Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

The punishment for violating the injunction issued is that prescribed by § 29-3-111 for contempt of court. State ex rel. Trelkeld v. Casotti, 137 Tenn. 633, 195 S.W. 182, 1917 Tenn. LEXIS 173 (1917).

Where defendant violated an injunction enjoining him from engaging in the sale of intoxicating liquors he was guilty of criminal contempt. O'Brien v. State ex rel. Bibb, 26 Tenn. App. 270, 170 S.W.2d 931, 1942 Tenn. App. LEXIS 45 (1942).

Collateral References. 66 C.J.S. Nuisances §§ 86, 125, 128.

Injunction 143.

NOTES TO DECISIONS

1. Right to Jury Trial.

The defendant, in a proceeding under this chapter for the abatement of a place where intoxicating liquor is sold as a public nuisance, is entitled to a jury trial of the facts in issue, if properly demanded, notwithstanding the fact the statute contemplates that cases shall be tried with expedition and that a suit cannot be dismissed without the consent of the court. State ex rel. Mynatt v. King, 137 Tenn. 17, 191 S.W. 352, 1916 Tenn. LEXIS 49 (1916).

Where it is asserted that a jury is dispensed with as the distinguishing feature of a new form of action provided by the legislature for an infraction of law, that purpose should clearly appear from the face of the statute, and not by an inference from a mere general construction. State ex rel. Mynatt v. King, 137 Tenn. 17, 191 S.W. 352, 1916 Tenn. LEXIS 49 (1916).

Collateral References. Nuisance 34.

NOTES TO DECISIONS

1. Removal of Fixtures.

There is no necessity for an order of abatement by directing the removal, from the building in question, of fixtures, supplies, and instrumentalities used for the purpose of conducting the unlawful business, when it is seen that they had been previously removed before the filing of the petition for abatement. Black v. State ex rel. Dist. Attorney-General, 130 Tenn. 529, 172 S.W. 281, 1914 Tenn. LEXIS 55 (1914).

Collateral References. 58 Am. Jur. 2d Nuisances §§ 176-180.

66 C.J.S. Nuisances § 129.

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

Nuisance 57, 96.

NOTES TO DECISIONS

1. Venue and Jurisdiction.

Venue to enjoin a nuisance as provided in these sections is local, and a defendant against whom an injunction has been issued in one county cannot be adjudged guilty of contempt for engaging in similar conduct in another county beyond the jurisdiction of the court. State ex rel. Boyd v. Scott, 176 Tenn. 662, 145 S.W.2d 765, 1940 Tenn. LEXIS 115 (Tenn. Dec. 1940).

2. Trial.

The contempt proceeding is not summary where the offenses with which the contemnor was charged were set out in a petition duly sworn to and filed in the case, and where he was given an opportunity to make defense by answer. It is unnecessary to recite in the judgment of contempt all the facts and steps in the proceeding constituting the contempt. Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

The violation of an injunction issued in a nuisance case is a criminal contempt which is punitive in character to vindicate the authority of the law, and the court as an organ of society; and the proceeding is one quasi criminal in character. State ex rel. Anderson v. Daugherty, 137 Tenn. 125, 191 S.W. 974, 1916 Tenn. LEXIS 58 (1916).

Defendant was not entitled to trial by jury in contempt proceeding in circuit court for violating injunction against illegal sale of intoxicating liquor as statute provided that abatement of public nuisance should be conducted in accordance with procedure of court of chancery, and chancellor had authority to punish for contempt summarily. Pass v. State, 181 Tenn. 613, 184 S.W.2d 1, 1944 Tenn. LEXIS 283 (1944).

Constitutional guarantee of trial by jury does not apply to contempt proceedings. Barrowman v. State ex rel. Evans, 214 Tenn. 408, 381 S.W.2d 251, 1964 Tenn. LEXIS 490 (Tenn. July 15, 1964).

3. Punishment for Violation.

Where the party is found guilty of contempt, he may be committed to the county workhouse to work out the fine and costs in addition to the workhouse sentence as a part of the punishment. Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

The punishment here prescribed is to be imposed for violation of the contempt declared by the Nuisance Act, Acts 1913 (2d Ex. Sess.), ch. 2. State ex rel. Trelkeld v. Casotti, 137 Tenn. 633, 195 S.W. 182, 1917 Tenn. LEXIS 173 (1917).

The fact that defendant may be punished criminally for violation of the law does not impair the right of the court to punish for contempt for violation of injunction issued under public nuisance statutes. Barrowman v. State ex rel. Evans, 214 Tenn. 408, 381 S.W.2d 251, 1964 Tenn. LEXIS 490 (Tenn. July 15, 1964).

4. Review.

Judgment of contempt in lower court removes the presumption of innocence, and raises a presumption of guilt which the contemnor must overcome, in order to obtain a reversal on the facts, especially where the hearing was on oral evidence. Wortham v. State, 6 Tenn. Civ. App. (6 Higgins) 362 (1915).

Supreme court upon appeal has jurisdiction to revise and reduce sentences imposed for contempt if the punishment is excessive. Barrowman v. State ex rel. Evans, 214 Tenn. 408, 381 S.W.2d 251, 1964 Tenn. LEXIS 490 (Tenn. July 15, 1964).

Collateral References. 58 Am. Jur. 2d Nuisances § 184.

66 C.J.S. Nuisances § 135.

Nuisance 38, 86.

NOTES TO DECISIONS

1. Definitions.

“License” under this section, refers to a license issued by a board or other authority, in its discretion, after examination, to engage in a business, profession, or occupation. State ex rel. Thompson v. Dixie Finance Co., 152 Tenn. 306, 278 S.W. 59, 1925 Tenn. LEXIS 74 (1925).

“Other authority” refers to a body vested with authority, in discretion, to issue license after examination. State ex rel. Thompson v. Dixie Finance Co., 152 Tenn. 306, 278 S.W. 59, 1925 Tenn. LEXIS 74 (1925).

2. Application.

3. —Practice of Law.

This law is applicable to a corporation acting as a collection agency which is practicing law without a license. State v. Retail Credit Men's Ass'n, 163 Tenn. 450, 43 S.W.2d 918, 1931 Tenn. LEXIS 136 (1931).

On facts found, a collecting agency was held to be unlawfully practicing law, though it claimed to have taken assignment of claims to be collected. State v. James Sanford Agency, 167 Tenn. 339, 69 S.W.2d 895, 1933 Tenn. LEXIS 46 (1934).

Collection agency could employ an attorney by the authority of its principal and when directed by such principal could demand execution on judgments and aid in finding property from which payment could be enforced without being engaged in the practice of law. State ex rel. District Attorney v. Lytton, 172 Tenn. 91, 110 S.W.2d 313, 1937 Tenn. LEXIS 55 (1937).

4. —Practice of Medicine.

This section is not applicable to enjoin one holding unrevoked license to practice medicine from practicing. State ex rel. State Bd. of Medical Exmrs. v. Hartley, 165 Tenn. 278, 54 S.W.2d 960, 1932 Tenn. LEXIS 46 (1932).

Where it was shown that a corporation in the business of making lenses and fitting and selling eyeglasses employed doctors, who occupied small offices in each store of the corporation, to examine the eyes of customers directed to them by employees of the corporation, with the guarantee of a fixed minimum weekly income, it was held that the contract employment of the doctors was illegal and against public policy or public welfare, and the corporation was guilty of illegally practicing optometry. State ex rel. Loser v. National Optical Stores Co., 189 Tenn. 433, 225 S.W.2d 263, 1949 Tenn. LEXIS 439 (1949).

5. —Failure to Pay Tax.

This section does not apply to one who has simply failed to pay a required privilege tax. State ex rel. Thompson v. Dixie Finance Co., 152 Tenn. 306, 278 S.W. 59, 1925 Tenn. LEXIS 74 (1925).

6. Contempt.

Contempt proceedings against defendant who violated injunction against unlawful practice of dentistry were proper even though judgment finding defendant guilty of unlawful practice was reversed since such judgment was voidable only rather than void. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

Criminal court had jurisdiction in proceeding for contempt of injunction prohibiting unlawful practice of dentistry. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

Injunction restraining person from unlawfully engaging in profession, business or occupation was in furtherance of the enforcement of criminal laws and the contempt of such an injunction is criminal rather than civil. Hooper v. State ex rel. Nichol, 205 Tenn. 134, 325 S.W.2d 565, 1959 Tenn. LEXIS 348 (1959).

7. Accrual of Action.

Provision of this section permitting enjoining of operation of an unlawful business could not serve as basis of enjoining operation of crematory prior to time such operation commenced. State ex rel. Cunningham v. Feezell, 218 Tenn. 17, 400 S.W.2d 716, 1966 Tenn. LEXIS 549 (1966). See also § 29-3-101 and notes thereto.

Collateral References. 53 C.J.S. Licenses § 66; 66 C. J. S. Nuisances § 9.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

Nuisance 21-24, 79, 80.

NOTES TO DECISIONS

1. Delay by Board.

Delay on the part of the state board of architects in suing to enjoin one from practicing architecture is immaterial respecting the right to maintain such suit, since no estoppel can justify one in continuing to practice unlawfully, where such is denounced by a valid police statute. State Board of Examiners for A. & E. v. Rodgers, 167 Tenn. 374, 69 S.W.2d 1093, 1933 Tenn. LEXIS 50 (1934).

2. License of Defendant.

The statute does not authorize a suit to enjoin one holding an unrevoked license to practice medicine from practicing. State ex rel. State Bd. of Medical Exmrs. v. Hartley, 165 Tenn. 278, 54 S.W.2d 960, 1932 Tenn. LEXIS 46 (1932).

3. Criminal Prosecution.

Injunction suit is maintainable notwithstanding the pendency of a criminal prosecution of a defendant for unlawfully practicing architecture. State Board of Examiners for A. & E. v. Rodgers, 167 Tenn. 374, 69 S.W.2d 1093, 1933 Tenn. LEXIS 50 (1934).

The fact that Acts 1935, ch. 30 provides that the practice of law without a license is a misdemeanor does not deprive a court of chancery of the right to enjoin such unlawful practice since § 29-3-113 expressly provides for injunctive relief where a person engages in a profession, business or occupation requiring a license without holding such a license. Lamb v. Whitaker, 171 Tenn. 485, 105 S.W.2d 105, 1937 Tenn. LEXIS 128 (1937).

Collateral References. 66 C.J.S. Nuisances §§ 77, 124.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency. 60 A.L.R.3d 665.

Injunction 114(2).

NOTES TO DECISIONS

1. Maintenance of Suit.

Injunctive relief against the maintenance of a nuisance must be promptly applied for, or it will be refused upon the ground of laches. Weidner v. Friedman, 126 Tenn. 677, 151 S.W. 56, 1912 Tenn. LEXIS 84, 42 L.R.A. (n.s.) 1041 (1912).

The owner of a leasehold may maintain a suit to enjoin the maintenance of a private nuisance detrimental to the enjoyment or usable value of the premises during his holding. Fox v. Corbitt, 137 Tenn. 466, 194 S.W. 88, 1916 Tenn. LEXIS 91 (1916).

The fact that the tenant renews his lease of the property after the creation of the private nuisance does not prevent his being granted such relief. Fox v. Corbitt, 137 Tenn. 466, 194 S.W. 88, 1916 Tenn. LEXIS 91 (1916).

Where the nuisance and damages alleged were caused by the growth of branches and foliage of a hedge over the land of complainant for a time so long that the branches and foliage reached the house of complainant and there remained so long unmolested as to rot parts of the house and fence and leave the ground soggy even in extremely dry periods, and no complaint or notice through this necessarily long period of time was given the defendants, the case was one of the application of the rule that equity requires a party to assert his rights in a reasonable time after he discovers that he was been wronged, and the complainant was not entitled to relief under this section and § 29-3-115. Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721, 1949 Tenn. LEXIS 314 (1949).

2. Right to Damages.

A public nuisance, causing peculiar and special damages to an individual, will be restrained and abated at his suit, as where the unauthorized construction and operation by a private corporation, for its own use, of a private railroad along a public street, which not only obstructed the public travel along the street, but destroyed the ingress and egress of the owner of the abutting lot. Richi v. Chattanooga Brewing Co., 105 Tenn. 651, 58 S.W. 646, 1900 Tenn. LEXIS 118 (1900).

Under an injunction suit, by an individual who has suffered peculiar and special damages therefrom, the chancery court may ascertain and award the damages sustained as an incident to the injunctive relief granted. Richi v. Chattanooga Brewing Co., 105 Tenn. 651, 58 S.W. 646, 1900 Tenn. LEXIS 118 (1900); Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658, 1904 Tenn. LEXIS 30 (1904); Union Planters' Bank & Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 139 S.W. 715, 1911 Tenn. LEXIS 69, 39 L.R.A. (n.s.) 580 (1911).

In a suit by several complainants against two distinct defendants for injunction to abate a nuisance to their respective property, caused by defendants, and to recover damages therefor, upon the court's refusal to allow the injunction, damages may be awarded, and for this purpose an order may be entered separating the demand of each complainant, and making it a distinct case against each defendant complained of in the bill, to the end that the damages may be assessed against the two defendants separately. Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658, 1904 Tenn. LEXIS 30 (1904).

Although a private nuisance is temporary and abatable in character, the chancery court will, to avoid a multiplicity of suits, award damages accruing after the commencement of the suit up to the time of trial. Fox v. Corbitt, 137 Tenn. 466, 194 S.W. 88, 1916 Tenn. LEXIS 91 (1916).

3. Abatement.

4. —Self Help.

One having a right of action for private nuisance on his land, created by another, may help himself personally by abating it, if he can do so without a breach of the peace. Walker v. Davis, 139 Tenn. 475, 202 S.W. 78, 1917 Tenn. LEXIS 124 (1918).

5. —Court Action.

The jurisdiction of the chancery court is not taken away by this section. Lassater v. Garrett & Brown, 63 Tenn. 368, 1874 Tenn. LEXIS 265 (1874).

In the exercise of its discretion to refuse an injunction the chancery court has power to impose upon the defendants as a condition annexed, that they shall pay the accrued damages, and may be required to execute a bond to secure the same, in default of which the injunction will be issued to continue during such default. Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658, 1904 Tenn. LEXIS 30 (1904).

This statute giving the circuit court a sound discretion for the abatement of the nuisance applies to the chancery court. Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658, 1904 Tenn. LEXIS 30 (1904).

Where, after the institution of a suit to restrain a private nuisance, and chancery jurisdiction has attached, the defendant voluntarily ceased to commit the nuisance, the court may establish and declare the right to an injunction, and to maintain the suit in chancery that subsidiary rights may be enforced. Fox v. Corbitt, 137 Tenn. 466, 194 S.W. 88, 1916 Tenn. LEXIS 91 (1916).

6. —Houses of Ill Fame.

The chancery court has jurisdiction to enjoin the owner of property from keeping or permitting a house of ill fame to be kept therein, at the suit of owners of adjacent or contiguous property, adapted and used for business and residence purposes, where, by reason of boisterous and vulgar conversation, and the public, immoral, and indecent conduct and exposure of person of the inmates of the house and their visitors, it has seriously affected and impaired the value and rental productiveness of the complainant's property. Weakley v. Page, 102 Tenn. 178, 53 S.W. 551, 1898 Tenn. LEXIS 17, 46 L.R.A. 552 (1898); Weidner v. Friedman, 126 Tenn. 677, 151 S.W. 56, 1912 Tenn. LEXIS 84, 42 L.R.A. (n.s.) 1041 (1912).

A bill to enjoin the maintenance of a congeries of disorderly houses which have existed and have been in operation there for more than 25 years, will be dismissed for laches. Weidner v. Friedman, 126 Tenn. 677, 151 S.W. 56, 1912 Tenn. LEXIS 84, 42 L.R.A. (n.s.) 1041 (1912).

Disorderly houses cannot be prevented by injunction, at the suit of a private person, except when he shows special and peculiar injury to himself, different in kind from that suffered by the general public. Weidner v. Friedman, 126 Tenn. 677, 151 S.W. 56, 1912 Tenn. LEXIS 84, 42 L.R.A. (n.s.) 1041 (1912); State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

The chancery court has no jurisdiction of bills by private property owners to prevent the operation of a congeries of disorderly houses in a “red light district,” by an injunction against the several owners, proprietors, and inmates, where it is practically impossible to apportion the blame, or to ascertain from the evidence the jurisdictional facts as to how much of each house is responsible for the special injury alleged. Weidner v. Friedman, 126 Tenn. 677, 151 S.W. 56, 1912 Tenn. LEXIS 84, 42 L.R.A. (n.s.) 1041 (1912); State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

7. —Livery Stables.

A livery stable, though erected and maintained adjacent to city residence property, is not per se a nuisance; but it becomes a nuisance if kept and used in such manner as to impair the value of such adjacent property, and destroy the comfort of those residing therein, by reason of the undue accumulation of filth, the emanation therefrom of foul and offensive odors, and the disturbance of boisterous conduct and unnecessary noise at unusual hours. Harvey v. Consumers Ice Co., 104 Tenn. 583, 58 S.W. 316, 1900 Tenn. LEXIS 32 (1900).

8. —Sale of Intoxicating Liquors.

The sale of intoxicating liquors may be enjoined, without showing special injury, because the statute so provides. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

Although a saloon is operated in violation of a criminal statute and is a public nuisance suppressible by the state, it will, for the protection of property, be restrained as a private nuisance, if complainant can show that he suffers in consequence some substantial and special damage different in kind from that suffered by the public at large. Fox v. Corbitt, 137 Tenn. 466, 194 S.W. 88, 1916 Tenn. LEXIS 91 (1916).

9. —Smoke.

Injunction against smoke nuisances will not be granted where it would be against public policy, and the precedent would be intolerable. Union Planters' Bank & Trust Co. v. Memphis Hotel Co., 124 Tenn. 649, 139 S.W. 715, 1911 Tenn. LEXIS 69, 39 L.R.A. (n.s.) 580 (1911).

Collateral References. 58 Am. Jur. 2d Nuisances §§ 176-181.

66 C.J.S. Nuisances § 139.

Nuisance 57.

NOTES TO DECISIONS

1. Judicial Attitude Toward Stipulation.

The practice of submitting agreed cases for decision, within proper limits, is to be commended and encouraged; but an agreed case prepared without real litigation is a fraud upon the court, and a contempt on the part of those implicated. Ward v. Alsup, 100 Tenn. 619, 46 S.W. 573, 1898 Tenn. LEXIS 25 (1898).

2. Construction of Stipulation.

A stipulation of facts should receive a fair and liberal construction so as to carry out the apparent intention. In cases of doubt, appellate courts strongly incline to the construction adopted by the trial court. A stipulation may be taken with all the admitted facts and the inferences legitimately to be drawn from them. Still v. Equitable Life Assurance Soc'y, 165 Tenn. 224, 54 S.W.2d 947, 1932 Tenn. LEXIS 40, 86 A.L.R. 382 (1932).

3. Enforcement of Stipulation.

Stipulations entered into between counsel with reference to matters properly subject to agreement will be rigidly enforced by the courts. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491, 1919 Tenn. LEXIS 79 (1919).

4. Subject of Stipulation.

The meaning of the language used in a statute, from which the validity or invalidity of the act is to be determined, is not the subject of an agreement by parties or counsel, but is to be found by the courts. The parties cannot agree upon the unconstitutionality of a statute, nor by their stipulations determine for the courts the judicial question as to what the action or intent of the lawmaking body is. State ex rel. Weldon v. Thomason, 142 Tenn. 527, 221 S.W. 491, 1919 Tenn. LEXIS 79 (1919).

5. Decree.

Estoppel by virtue of a decree is as effective when pronounced upon an agreed statement of facts as the formal verdict of a jury or a judgment of a court upon proof heard at a trial. Kelly v. Milan, 21 F. 842, 1884 U.S. App. LEXIS 2460 (C.C.D. Tenn. 1884), aff'd, Kelley v. Milan, 127 U.S. 139, 8 S. Ct. 1101, 32 L. Ed. 77, 1888 U.S. LEXIS 1974 (1888).

Decisions Under Prior Law

1. Jurisdiction.

The circumstance that the parties make an agreed case will not give the court jurisdiction which it otherwise would not have. Anderson v. Cannon, 3 Tenn. 27, 1 Cooke 27, 1811 Tenn. LEXIS 10.

Collateral References. 3 Am. Jur. 2d Agreed Case.

Insufficiency of agreed statement of facts to warrant judgment for party having the affirmative, effect of, upon disposition of the cause. 97 A.L.R. 301.

Submission of controversies 5-9.

NOTES TO DECISIONS

1. Costs on Appeal.

Where, under this section, the costs below should have been divided, the entire costs of the cause will be equally divided between the parties, in the appellate court, though the record does not show any objection to the judgment rendered in the court below. Story v. Walker, 79 Tenn. 515, 1883 Tenn. LEXIS 97, 47 Am. Rep. 305 (1883).

Collateral References. 3 Am. Jur. 2d Agreed Case § 36.

NOTES TO DECISIONS

1. Right of Appeal.

Appeal in agreed case may be taken from the decision of the circuit or chancery court to the proper appellate court. Memphis Freight Co. v. Memphis, 43 Tenn. 249, 1866 Tenn. LEXIS 47 (1866); Aldrich v. Pickard, 80 Tenn. 657, 1883 Tenn. LEXIS 223 (1883).

2. —Motion For New Trial Necessary.

A motion for a new trial is necessary for the review of a case tried in a law court upon stipulation of facts. Standard Life Ins. Co. v. Adams, 174 Tenn. 405, 126 S.W.2d 311, 1938 Tenn. LEXIS 106 (1938).

3. Issues on Appeal.

Where it was stipulated by the parties, that the only questions to be submitted for determination were those presented by the answer of defendant, he is estopped to raise other questions on appeal. Obion County use of Houser Creek Drainage Dist. v. Coulter, 153 Tenn. 469, 284 S.W. 372, 1926 Tenn. LEXIS 8 (1926).

4. Record.

This section does not provide that the stipulation of facts shall constitute a part of the record of the case. Standard Life Ins. Co. v. Adams, 174 Tenn. 405, 126 S.W.2d 311, 1938 Tenn. LEXIS 106 (1938).

Where the record of a case tried in law court on written stipulation of facts consisted largely of exhibits which were only brought into the stipulation of facts by reference a bill of exceptions was absolutely necessary to bring the documents up to the supreme court. Standard Life Ins. Co. v. Adams, 174 Tenn. 405, 126 S.W.2d 311, 1938 Tenn. LEXIS 106 (1938).

Where there is an exhibit attached to the agreed statement of facts a bill of exceptions is required. Industrial Credit Co. v. Beckham, 206 Tenn. 331, 333 S.W.2d 563, 1960 Tenn. LEXIS 369 (1960).

Collateral References. Submission of controversies 20.

29-5-101. Subjects of arbitration.

All causes of action, whether there be a suit pending therefor or not, may be submitted to the decision of one (1) or more arbitrators, except in one (1) of the following cases:

1. Where one (1) of the parties to the controversy is an infant or a person adjudicated incompetent;
2. One (1) respecting a claim to an estate in real property, in fee or for life. Not included in the exception are:
   1. A controversy in regard to an estate or term for one (1) year or less or of years not exceeding five (5); or
   2. Respecting the partition of real property, or the boundaries of lands.

Code 1858, § 3432 (deriv. Acts 1851-1852, ch. 173, § 1); Shan.,§ 5188; mod. Code 1932, § 9359; T.C.A. (orig. ed.), § 23-501; Acts 2011, ch. 47, § 19.

Compiler's Notes. Acts 1983, ch. 462, § 24, provided that all laws or parts of laws which are inconsistent with the Uniform Arbitration Act, compiled in part 3 of this chapter, are repealed.

Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Cross-References. Arbitration in bank customer disputes, title 45, ch. 1, part 2.

Clerk's reference fee, § 8-21-401.

Inapplicability to metropolitan public service district arbitration, § 7-3-302.

Jurisdiction of courts, §§ 16-10-105, 16-11-112.

Questions submitted on agreed case, § 29-4-101.

Submission by partner or partnership, § 61-1-108.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, §§ 2, 5; 15 Tenn. Juris., Insurance, § 76.

Law Reviews.

A General Practitioner's Guide to Commercial Arbitration and The 1983 Tennessee Uniform Arbitration Act (Lewis L. Laska), 20 No. 4 Tenn. B.J. 23 (1984).

Alternative Dispute Resolution in the Personal Injury Forum (William P. Zdancewicz), 26 U. Mem. L. Rev. 1169 (1996).

Commercial Arbitration in Federal Courts (James F. Nooney), 20 Vand. L. Rev. 607.

Employment Dispute Resolution: An Idea Whose Time Has Come? (Robert L. Arrington), 37 No. 10 Tenn. B.J. 32 (2001).

High court upholds pre-dispute employment arbitration agreements (Timothy S. Bland and Licia M. Williams), 37 No. 6 Tenn. B.J. 31 (2001).

Insurance — 1957 Tennessee Survey (Robert W. Sturdivant), 10 Vand. L. Rev. 1100.

Pledging to Stay Viable: Why Fraternities and Sororities Should Adopt Arbitration as a Response to the Litigation Dilemma, 43 U. Mem. L. Rev. 511 (2012).

Public Sector Labor Relations Laws in Tennessee — The Current Inadequacies and the Available Alternatives (Robert B. Moberly), 42 Tenn. L. Rev. 235.

“Sticky” Arbitration Clauses? The Use of Arbitration Clauses after Concepcion and Amex, 67 Vand. L. Rev. 955 (2014).

Tennessee Labor Decisions: 1901-1954 (James C. Kirby, Jr.), 8 Vand. L. Rev. 73.

The Court in Action: A summary of key cases from the U.S. Supreme Court 2000-2001 (Perry A. Craft and Arshad (Paku) Khan), 37 No. 10 Tenn. B.J. 18 (2001).

The Enforcement of Grievance Arbitration Provisions (William P. Murphy), 23 Tenn. L. Rev. 959.

The Tennessee Corporation Act and Close Corporations for Profit (James S. Covington, Jr.), 43 Tenn. L. Rev. 183.

The Unclear “Clear and Mistakable” Standard: Why Arbitrators, Not Courts, Should Determine Whether a Securities Investor's Claim is Arbitrable, 54 Vand. L. Rev. 591 (2001).

Uninsured Motorist Coverage in Tennessee (Phillip A. Fleissner), 38 Tenn. L. Rev. 391.

Vertical Conflicts: The Role of State Law in Suits Under Section 301, 21 Vand. L. Rev. 788.

Comparative Legislation. Arbitration:

Ala.  Code § 6-6-1 et seq.

Ark.  Code § 16-108-201 et seq.

Ga. O.C.G.A. § 9-9-1 et seq.

Ky. Rev. Stat. Ann. § 417.045 et seq.

Miss.  Code Ann. § 11-15-1 et seq.

N.C. Gen. Stat. § 1-569.1 et seq.

Va. Code § 8.01-577 et seq.

29-5-102. Scope of submission.

The submission may be of some particular matters or demands, or of all demands which one (1) party has against the other, or of all mutual demands.

Code 1858, § 3435; Shan., § 5191; Code 1932, § 9362; T.C.A. (orig. ed.), § 23-502.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 5.

29-5-103. Parties entitled to submit.

The submission may be made by any party in interest, or by an executor, administrator, trustee, or assignee for creditors.

Code 1858, § 3433; Shan., § 5189; mod. Code 1932, § 9360; T.C.A. (orig. ed.), § 23-503.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 675.

Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 6.

29-5-104. Contents of agreement — Court of entry.

1. The submission shall be by written agreement, general or special, specifying what demands are to be submitted, the names of the arbitrators or the manner of their selection, but not necessarily that of the umpire, and the court by which the judgment on their award is to be rendered, and if such written agreement requires one (1) of the parties to name an arbitrator and such party fails to do so, the court by which the judgment on the award is to be rendered shall on such failure so to name an arbitrator, upon the petition of the opposite party, appoint such arbitrator.
2. The agreement may specify that the submission be entered of record in any court of law or equity, or, in cases within its jurisdiction, before a judge of the court of general sessions.

Code 1858, §§ 3434, 3436 (deriv. Acts 1851-1852, ch. 173, § 1); Shan., §§ 5190, 5192; mod. Code 1932, §§ 9361, 9364; Acts 1943, ch. 86, § 1; C. Supp. 1950, § 9361; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 23-504.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 5.

Law Reviews.

Federal Jurisdiction and Procedure — Diversity Jurisdiction — Abstention by Federal Court from the Exercise of Jurisdiction in Diversity Case, 13 Vand. L. Rev. 801.

Tennessee Labor Decisions: 1901-1954 (James C. Kirby, Jr.), 8 Vand. L. Rev. 73.

The Enforcement of Grievance Arbitration Provisions (William P. Murphy), 23 Tenn. L. Rev. 959.

The Tennessee Corporation Act and Close Corporations for Profit (James S. Covington, Jr.), 43 Tenn. L. Rev. 183.

Cited: D&E Constr. Co. v. Robert J. Denley Co., 38 S.W.3d 513, 2001 Tenn. LEXIS 59 (Tenn. 2001).

29-5-105. Entry of agreement — Order of submission.

On proof of such agreement, or by consent of parties in person or by counsel, it shall be entered in the proceedings of the court or on the docket of the judge, and an order made that the parties submit to the award, which shall be made in pursuance of such agreement. Upon such proof or consent, the judge may, in vacation, make upon the agreement the order mentioned in this section, and such order shall have the same force and effect as if made in term.

Code 1858, §§ 3437, 3438 (deriv. Acts 1851-1852, ch. 173, § 1); Shan., §§ 5193, 5194; Code 1932, §§ 9365, 9366; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 23-505.

Collateral References. 6 C.J.S. Arbitration §§ 23, 145-148.

Arbitration and award 11.5-21.

29-5-106. Irrevocability of submission.

No such submission shall be revocable after the submission agreement is signed by the parties or entered of record, without leave of the court, except by mutual consent entered of record.

Code 1858, § 3439 (deriv. Acts 1851-1852, ch. 173, § 2); Shan., § 5195; Code 1932, § 9367; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 23-506.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 9.

Law Reviews.

Tennessee Labor Decisions: 1901-1954 (James C. Kirby, Jr.), 8 Vand. L. Rev. 73.

The Enforcement of Grievance Arbitration Provisions (William P. Murphy), 23 Tenn. L. Rev. 959.

The Tennessee Corporation Act and Close Corporations for Profit (James S. Covington, Jr.), 43 Tenn. L. Rev. 183.

29-5-107. Notice of hearing — Continuances.

1. The arbitrators shall give notice of the time and place of the hearing, which notice shall be served or accepted at least five (5) days before the day set for trial.
2. They, or a majority of them, may grant continuances upon their own motion or upon application of either party for good cause shown, but not to a day beyond the time set for the rendering of the final award unless an extension is granted by court or expressly agreed to in writing by the parties or their attorneys.

Code 1858, § 3442; Shan., § 5198; mod. Code 1932, § 9370; T.C.A. (orig. ed.), § 23-507.

29-5-108. Failure of parties to appear.

If either party neglects to appear for trial after due notice, except on account of sickness or unavoidable absence, the arbitrators may proceed to a hearing and determination.

Code 1932, § 9371; T.C.A. (orig. ed.), § 23-508.

Collateral References. 6 C.J.S. Arbitration §§ 84, 92, 93.

Arbitration and award 24.

29-5-109. Evidence and witnesses.

1. In all submission cases, depositions may be taken to be used before the arbitrators, and witnesses may be summoned by subpoena, to be issued by the clerk of the court as in other cases.
2. These witnesses may be sworn by any arbitrator, or umpire, and, if guilty of false swearing, they are liable to all the penalties of perjury, as if sworn in court.
3. Witnesses are also subject to all the penalties prescribed by law, for failing to attend and give testimony, in pursuance of the subpoena, as well as in damages to the party injured by their default; and, on the other hand, they are entitled to like privileges and like compensation as other witnesses. The forfeiture shall be enforced as provided in § 24-2-103.

Code 1858, §§ 3443-3445 (deriv. Acts 1806, ch. 46, §§ 1, 2; 1851-1852, ch. 173, § 4); Shan., §§ 5199-5201; mod. Code 1932, §§ 9372-9374; impl. am. Acts 1979, ch. 68, § 3; T.C.A. (orig. ed.), § 23-509.

Cross-References. Perjury, title 39, ch. 16, part 7.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Libel and Slander, § 6.

29-5-110. Umpire.

1. Where, and only where, the submission expressly so provides may an umpire be appointed by the arbitrators; the same to be done by them in writing.
2. The umpire shall sit with the original arbitrators upon the hearing; if testimony has been taken before the umpire's appointment, the matter must be reheard unless a rehearing is waived in the original submission or by subsequent written consent of the parties.
3. One (1) or more points in dispute may be referred to an umpire.

Code 1932, § 9363; T.C.A. (orig. ed.), § 23-510.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 10; 15 Tenn. Juris., Insurance, § 76.

29-5-111. Time of filing award.

1. If the time within which the award is to be made is fixed in the submission, no award made after that time shall have any legal effect, unless made upon a recommitment by the court; the court or parties by consent in writing may, however, enlarge the time within which an award is to be made.
2. If the time of filing the award is not fixed in the submission, it shall be filed within eight (8) months from the time such submission is signed, unless by mutual consent the time is prolonged.

Code 1858, §§ 3440, 3441 (deriv. Acts 1851-1852, ch. 173, § 2); Shan., §§ 5196, 5197; Code 1932, §§ 9368, 9369; T.C.A. (orig. ed.), § 23-511.

29-5-112. Transmission of award to court.

The award shall be in writing, and should be delivered by the umpire or one (1) of the arbitrators to the court designated in the agreement, or it may be enclosed and sealed by them, and transmitted to the court, and not opened until the court orders.

Code 1858, § 3446; Shan., § 5202; mod. Code 1932, § 9375; T.C.A. (orig. ed.), § 23-512.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 12.

Law Reviews.

Tennessee Labor Decisions: 1901-1954, 8 Vand. L. Rev. 73.

29-5-113. Time of action on award.

The cause will be entered on the docket and called up and acted upon in its order; but the court may require actual notice to be given either party, when it appears necessary and proper, before proceeding to act on the award.

Code 1858, § 3447; Shan., § 5203; Code 1932, § 9376; T.C.A. (orig. ed.), § 23-513.

Law Reviews.

Tennessee Labor Decisions: 1901-1954 (James C. Kirby, Jr.), 8 Vand. L. Rev. 73.

Collateral References. 6 C.J.S. Arbitration §§ 120-122.

Arbitration and award 85-85.70.

29-5-114. Rejection or recommittal.

The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a rehearing to the same or any other arbitrators agreed upon by the parties in writing.

Code 1858, § 3448; Shan., § 5204; mod. Code 1932, § 9377; T.C.A. (orig. ed.), § 23-514.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 17.

Law Reviews.

Tennessee Labor Decisions: 1901-1954 (James C. Kirby, Jr.), 8 Vand. L. Rev. 73.

29-5-115. Modification of award.

The court is empowered, on motion of either party, to correct or modify the award:

1. Where there is manifest a miscalculation of figures, or a mistake in the description of any person, thing or property referred to in the award;
2. Where there has been covered in the award a matter not submitted, if not merely incident, not affecting the merits of matters submitted;
3. Where the award is defective or imperfect in a matter of form not affecting the merits; and
4. To effect the true and just intent thereof.

Code 1932, § 9378; T.C.A. (orig. ed.), § 23-515.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Arbitration and Award, § 17.

Law Reviews.

Contracts and Sales Law in Tennessee: A Survey and Commentary, II. Contracts (John A. Sebert, Jr.), 45 Tenn. L. Rev. 353.

29-5-116. Compensation of arbitrators and umpire.

Arbitrators and the umpire, if one, shall be entitled to five dollars ($5.00) for each day they were actually engaged in their duties, or to such greater sum as the parties may have in the submission agreed, or as they may in subsequent writing stipulate.

Code 1932, § 9381; T.C.A. (orig. ed.), § 23-516.

Collateral References. 5 Am. Jur. 2d Arbitration and Award §§ 103-106.

6 C.J.S. Arbitration §§ 75, 180.

Arbitration and award 41.

29-5-117. Costs.

If there is no provision in the submission respecting costs, the arbitrators, or the court, may apportion and tax same. The court is empowered to revise any apportionment or taxation made by the arbitrators.

Code 1932, § 9380; T.C.A. (orig. ed.), § 23-517.

Collateral References. 6 C.J.S. Arbitration §§ 179-183.

Awarding attorneys' fees in connection with arbitration. 60 A.L.R.5th 669.

Arbitration and award 42.

29-5-118. Judgment on award.

When the award is adopted, it is filed and entered on the records, and judgment shall be rendered including costs and fees to the arbitrators and any umpire, and execution or other necessary process awarded accordingly.

Code 1858, § 3449 (deriv. Acts 1851-1852, ch. 173, § 3); Shan., § 5205; mod. Code 1932, § 9379; T.C.A. (orig. ed.), § 23-518.

Textbooks. Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 30.

29-5-119. Common law awards.

Awards of arbitrators under agreements not reached in pursuance of this chapter may nevertheless be valid, as contracts, impeachable for fraud or mistake; but such awards may only be enforced by independent actions.

Code 1932, § 9382; T.C.A. (orig. ed.), § 23-519.

Law Reviews.

Tennessee Labor Decisions: 1901-1954 (James C. Kirby, Jr.), 8 Vand. L. Rev. 73.

The Enforcement of Grievance Arbitration Provisions (William P. Murphy), 23 Tenn. L. Rev. 959.

Part 2
Cotton Arbitration

NOTES TO DECISIONS

1. In General.

2. —Constitutionality of Statutes.

Code 1932, § 9406 which permitted a creditor of a nonresident debtor to attach a resident debtor who owed a nonresident debtor of the principal debtor was unconstitutional as a violation of due process since it provided no effective manner of service upon the nonresident principal debtor or for impounding res in which the principal debtor had any interest subject to attachment or garnishment. Dickson v. Simpson, 172 Tenn. 680, 113 S.W.2d 1190, 1937 Tenn. LEXIS 113, 116 A.L.R. 380 (1937).

Where, in an action attaching real property, nonresident parties defendant were properly notified by publication but not otherwise notified, although the plaintiffs knew, or through reasonable diligence could have discovered their actual addresses, it was held that the notice was insufficient depriving the nonresident parties defendant of their property without due process of law under U.S. Const., amend. 14, and that the entire attachment action was void insofar as it affected their rights. Groves v. Witherspoon, 379 F. Supp. 52, 1974 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1974).

The Tennessee attachment statute is not facially invalid as lacking due process, and even if it were, adequate state remedies existed which precluded a federal civil rights action challenging application of the statute. McLaughlin v. Weathers, 170 F.3d 577, 1999 FED App. 94P, 1999 U.S. App. LEXIS 3949 (6th Cir. Tenn. 1999), cert. denied, 526 U.S. 1134, 119 S. Ct. 1812, 143 L. Ed. 2d 1015, 1999 U.S. LEXIS 3522 (1999).

3. —Construction.

The attachment statutes are liberally construed as to the remedy, once jurisdiction has been properly obtained, but in so far as they prescribe the causes for which attachment may issue they are very strictly construed. Willshire v. Frees, 184 Tenn. 523, 201 S.W.2d 675, 1947 Tenn. LEXIS 406 (1947).

Court would permit amendment of suit commenced by attachment in such a manner that case could be disposed on merits rather than on technicalities. McEwan, Gearinger, Banks & Hutcheson v. Lookout Mt. Hotel, Inc., 207 Tenn. 197, 338 S.W.2d 601, 1960 Tenn. LEXIS 447 (1960).

Although the Tennessee attachment statutes are to be liberally construed as a general rule, a strict construction is afforded to the attachment statutes insofar as prescribed causes for which attachment may issue; however, avoidance of an attachment on the basis of a mere technicality in the plaintiff's affidavit appears to be contrary to public policy in Tennessee. A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

4. —Nonresident Complainant.

Nonresident complainant can obtain relief by attachment since legislature used words “any person.” Hall v. Jordan, 190 Tenn. 1, 227 S.W.2d 35, 1950 Tenn. LEXIS 411 (1950), 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).

5. —Form of Action Maintainable.

Any form of action may be maintained under attachment for the recovery of money due and owing, where personal service cannot be had, and it is the only method of bringing the party in. Lucky v. Miller, 16 Tenn. 90, 1835 Tenn. LEXIS 50 (1835).

6. —Requisites of Jurisdiction.

Sale of land of nonresident in an action of trespass wherein a writ of attachment was issued and the property levied upon passed good title to the purchaser of the land even though the affidavit was defective and there was no publication of notice since the levy of the writ of attachment is the one essential requisite to jurisdiction of the proceeding. Cooper v. Reynolds, 77 U.S. 308, 19 L. Ed. 931, 1870 U.S. LEXIS 1123 (1870).

Facts required by statutes to justify attachments are jurisdictional. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

7. —Chancery Jurisdiction — Extent.

The chancery court possesses no power or jurisdiction to impound, by attachment, property of the defendant for the purpose of satisfying the judgment of the plaintiff in a pending suit at law, when the judgment shall be obtained. Union Bank v. Newman, 23 Tenn. 330, 1843 Tenn. LEXIS 101 (1843); Isaacks v. Edwards, 26 Tenn. 465, 1846 Tenn. LEXIS 160 (1846).

Fact that in proceedings in chancery, bill alleged that interest of defendant in property sought to be attached was of an equitable nature did not deprive clerk and master of right to grant writ of attachment even though the interest was in fact a legal interest. Johnson v. Rankin, 59 S.W. 638, 1900 Tenn. Ch. App. LEXIS 105 (Tenn. Ch. App. 1900).

Jurisdiction of a court of chancery to attach is twofold: as an incident to its power to issue extraordinary process, and under this section in special cases. Certain jurisdictional facts must be made to appear. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

8. —Fraud in Obtaining Jurisdiction.

Jurisdiction of attachment suit cannot be obtained by fraud, as by a resident creditor of a nonresident procuring a third person to buy property from such nonresident that he might attach the indebtedness or proceeds of such property, which was done. The jurisdiction in such case was fraudulently obtained, and the suit was dismissed, on plea. Timmons v. Garrison, 23 Tenn. 148, 1843 Tenn. LEXIS 37 (1843). See National Bank v. Winston, 64 Tenn. 685, 1875 Tenn. LEXIS 158 (1875); Sims v. Ashworth, 3 Shan. 40 (1878).

9. —Failure to Properly Allege Grounds.

Attachment which did not follow the wording of the statute was void. Conrad v. McGee, 17 Tenn. 428, 1836 Tenn. LEXIS 78 (1836).

Where an attachment is sued out, and none of the grounds for an attachment, embraced in the provisions of the attachment laws, are alleged, it will be dismissed upon demurrer confined to that point. Fay v. Jones, 38 Tenn. 442, 1858 Tenn. LEXIS 209 (1858); Baker & Paul v. Huddleston, 62 Tenn. 1, 1873 Tenn. LEXIS 124 (1873).

Where the bill was not filed as an attachment bill, and set forth none of the causes required for attachment, but simply prayed for an attachment to issue, such bill did not fall within the provisions of the attachment laws, and the issuance and levy of the attachment, in such case, created no lien upon the lands. Harrison v. Wade, 43 Tenn. 505, 1866 Tenn. LEXIS 80 (1866).

Attachment was improperly issued in divorce case even though a divorce case is considered a proceeding in chancery where neither statutory grounds were alleged for attachment or the inherent jurisdiction of the court as a court of equity invoked. Humphreys v. Humphreys, 39 Tenn. App. 99, 281 S.W.2d 270, 1954 Tenn. App. LEXIS 159 (1954), superseded by statute as stated in, Moore v. Moore, — S.W.2d —, 1991 Tenn. App. LEXIS 869 (Tenn. Ct. App. Nov. 1, 1991).

10. —Clerk and Master as Plaintiff.

Clerk and master is entitled to attachment, upon petition in the cause, to secure notes made to him for the benefit of suitors, upon sufficient grounds therefor stated. Rutland v. Cummings, 26 Tenn. 279, 1846 Tenn. LEXIS 126 (1846).

11. —Surety Suing.

That one is surety on the obligation which is basis of attachment does not prevent his attaching a debt due his debtor. Chicago Sugar-Refining Co. ex rel. Goins v. Jackson Brewing Co., 48 S.W. 275, 1898 Tenn. Ch. App. LEXIS 65 (Tenn. Ch. App. 1898).

12. —Corporations Sued.

Corporations can sue and be sued, under the attachment laws, as well as individuals. Bank of Ala. v. Berry, 21 Tenn. 443, 1841 Tenn. LEXIS 40 (1841); State v. Nashville Univ., 23 Tenn. 157, 1843 Tenn. LEXIS 40 (1843); Union Bank v. United States Bank, 23 Tenn. 369, 1843 Tenn. LEXIS 116 (1843); Hadley v. Freedmans Sav. & Trust Co., 2 Cooper's Tenn. Ch. 122 (1874).

Attachment may be sued out against a foreign corporation. Stonega Coke & Coal Co. v. Southern Steel Co., 123 Tenn. 428, 131 S.W. 988, 1910 Tenn. LEXIS 16, 31 L.R.A. (n.s.) 278 (1910).

Money due to a nonresident for services rendered out of the state to a foreign corporation can be subjected to attachment and garnishment in the hands of that corporation in Tennessee by a local creditor of the nonresident, when the foreign corporation has an office or agency in this state and is amenable to process here. Burnett v. Simmons, 175 Tenn. 422, 135 S.W.2d 452, 1939 Tenn. LEXIS 55 (1939).

13. —National Banks — Status.

In view of the National Bank Act of congress providing that “no attachment shall be issued against such an association on its property” before final judgment, in any state court, a national bank whether solvent or insolvent, is within the exemption from the issue of attachment before judgment. No jurisdiction is so acquired of a national bank. Rosenheim Real-Estate Co. v. Southern Nat'l Bank, 46 S.W. 1026, 1897 Tenn. Ch. App. LEXIS 124 (1897), cited and approved in Van Reed v. People's Nat'l Bank, 198 U.S. 554, 25 S. Ct. 775, 49 L. Ed. 1161, 1905 U.S. LEXIS 1087 (1905).

14. —Creditor's Debt to Debtor — Attachment.

A creditor may reach a fund in his own hands belonging to his debtor, or an indebtedness due from himself to his debtor, by a bill in chancery, and by attachment and injunction where there is cause for the same. Boyd v. Bayless, 23 Tenn. 386, 1843 Tenn. LEXIS 122 (1843).

15. —Assigned Debt — Attachment.

Attachment of assigned debt before notice to debtor prevails over the assignment. Dillingham v. Traders' Ins. Co., 120 Tenn. 302, 108 S.W. 1148, 1907 Tenn. LEXIS 49, 16 L.R.A. (n.s.) 220 (1907).

16. —Existing Mortgage — Priority.

Attachment by creditor in Tennessee of property here but which had been validly mortgaged by instrument legally registered in another state will be inferior to the mortgagee's rights, unless he consented to permanent removal of the property. Bankers' Finance Corp. v. Locke & Massey Motor Co., 170 Tenn. 28, 91 S.W.2d 297, 1935 Tenn. LEXIS 104 (1936).

17. —Assignee in Insolvency.

An assignee in insolvency who stands in the shoes of an attachment defendant is governed by the same rule of law as governs such defendant. People's Bank v. Williams, 36 S.W. 983, 1896 Tenn. Ch. App. LEXIS 28 (Tenn. Ch. App. 1896).

18. —Marshaling of Assets Between Attaching Creditors.

Where numerous creditors, having no liens upon the property of their debtor, all sought to acquire liens by attachments, some of which were not duly perfected for want of necessary parties, there can be no marshaling of assets between the successful and unsuccessful creditors. The doctrine of marshaling assets does not apply. King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914).

19. —Waiver of Defects.

Though granted upon insufficient allegations, an attachment holds unless, at the proper stage, steps be taken to discharge it, and objections to the process are waived by answer to the bill. Johnson v. Luckado, 59 Tenn. 270, 1873 Tenn. LEXIS 57 (1873); West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882).

Appearance and answer of plea to the merits is a waiver of the defects in the affidavit for an attachment. West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882).

Objection of defendant to attachment and publication was waived when he obtained order setting aside default judgment and filed an answer to merits. Hall v. Jordan, 190 Tenn. 1, 227 S.W.2d 35, 1950 Tenn. LEXIS 411 (1950), 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).

20. —Collateral Attack on Sale for Omission of Allegations.

Though the affidavit be defective in omission of allegation that the claim “is just,” a subsequent sale thereunder cannot be collaterally attacked, where attaching plaintiff had attached to his declaration an itemized statement of account sworn to as being true, just and correct. McElwee v. Steelman, 38 S.W. 275, 1896 Tenn. Ch. App. LEXIS 65 (Tenn. Ch. App. May 27, 1896).

21. —Fiat of Judge — When Necessary.

Attachment upon grounds other than the statutory grounds is extraordinary process, and cannot be issued without the fiat of a judge or chancellor, and if it be so issued, it will be void, and so will a replevy bond given for the property levied on under such attachment. Dillin v. O'Donnell, 63 Tenn. 213, 1874 Tenn. LEXIS 230 (1874); Greenlaw v. Logan, 70 Tenn. 185, 1879 Tenn. LEXIS 153 (1879); Rogers v. Newman, 73 Tenn. 255, 1880 Tenn. LEXIS 120 (1880). See August & Bing v. Seeskind, 46 Tenn. 166, 1868 Tenn. LEXIS 77 (1868); Lane v. Wood, 1 Shan. 648 (1876).

22. —Attachment Not Sustained — Dismissal of Bill.

Where there is no personal jurisdiction of the defendant, and the jurisdiction depends upon the attachment of the property, not sustained, the bill must be dismissed with costs, without giving the complainant a judgment against the defendant. A plea in abatement putting in issue the grounds does not constitute such appearance as will warrant a personal judgment upon the cause of action, where the issue is found in favor of the defendant. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868); Sherry v. Divine, 58 Tenn. 722, 1872 Tenn. LEXIS 324 (1872); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874).

23. —Agreement to Delay Preventing Attachment.

If a creditor expressly agrees, upon sufficient consideration, to take no step to collect his debt within a given time, he cannot maintain an attachment bill thereon filed within the time. Craigmiles v. Hays, 75 Tenn. 720, 1881 Tenn. LEXIS 178 (1881).

24. —Nature of Defense Required.

Where the jurisdiction of the court depended upon the attachment sued out under this chapter, defense had to be made by plea in abatement; but when it was sued out under §§ 29-12-101, 29-12-102, the attachment of property was not essential to the jurisdiction of the court, and the defense could be made by answer, without a plea in abatement. Tarbox v. Tonder, 1 Cooper's Tenn. Ch. 163 (1873); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874). See Nailer v. Young, 75 Tenn. 735, 1881 Tenn. LEXIS 181 (1881); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

Where an attachment was obtained upon a bill in chancery on the ground that the defendant was about fraudulently to dispose of his property, the grounds of the attachment had to be denied by plea in abatement, not by denial in the answer. Pace v. Plumlee, 2 Shan. 55 (1876); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

25. —Plea in Abatement.

If the defendant appeared and pleaded to the merits before the justice of the peace (now general sessions judge), it was too late to file a plea in abatement in the circuit court, after an appeal had been taken thereto. West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882).

Where creditors of husband attached stock of goods in possession of husband who claimed to act as agent of wife the husband could not file an answer asserting that property was owned by his wife since defense could only be by plea in abatement. Walters v. Brown, 46 S.W. 777, 1898 Tenn. Ch. App. LEXIS 32 (Tenn. Ch. App. 1898).

26. —Appeal Bond — Requisites.

The appeal bond in attachment suits under this chapter, though against land and in chancery, must be for the recovery, damages, and costs, where a judgment or decree is rendered against the defendant, and he appeals, unless he takes the oath prescribed for poor persons. Staub v. Williams, 69 Tenn. 36, 1878 Tenn. LEXIS 36 (1878); Staub v. Williams, 69 Tenn. 123, 1878 Tenn. LEXIS 59 (1878); Rogers v. Newman, 73 Tenn. 255, 1880 Tenn. LEXIS 120 (1880); Watkins v. Clifton Hill Land Co., 91 Tenn. 683, 20 S.W. 246, 1892 Tenn. LEXIS 36 (1892).

27. Nonresidence as Ground for Attachment.

The fact that the debtor resides out of the state is a sufficient ground for an attachment at law or in equity upon a legal debt or demand. Herndon v. Pickard, 73 Tenn. 702, 1880 Tenn. LEXIS 201 (1880). See Mulloy v. White, 3 Cooper's Tenn. Ch. 9 (1875); Brewer v. De Camp Glass Casket Co., 139 Tenn. 97, 201 S.W. 145, 1917 Tenn. LEXIS 92 (1918).

It is the public policy that nonresidents will not be permitted to escape attachment by technicalities or technical defects. McEwan, Gearinger, Banks & Hutcheson v. Lookout Mt. Hotel, Inc., 207 Tenn. 197, 338 S.W.2d 601, 1960 Tenn. LEXIS 447 (1960).

28. —Declaration — Showing Nonresidence.

A charge that the “defendant is not an inhabitant of the state” substantially charges the fact of his nonresidence as one ground for the attachment. Klepper v. Powell, 53 Tenn. 503, 1871 Tenn. LEXIS 388 (1871).

In an attachment bill, it was sufficient to state the residence of the parties in the caption of the bill, without stating or repeating it in the charging part or body of the bill. If the residence of the defendant be stated to be in another state named, this is a sufficient allegation that he is a nonresident of this state. Grubbs v. Colter, 66 Tenn. 432, 1874 Tenn. LEXIS 160 (1874).

Averment that defendant was a “citizen” of another state was sufficient averment of his nonresidence, so as to authorize the issuance of the attachment. Butterfeild v. Miller, 195 F. 200, 1912 U.S. App. LEXIS 1362 (6th Cir. Tenn. 1912).

29. —Citizenship and Residence — Comparison.

Distinction between residence and citizenship is well established in the construction of the foreign attachment laws of the different states. A person may be a citizen of a state, and at the same time a nonresident of the state, within the attachment laws. Cain v. Jennings, 3 Cooper's Tenn. Ch. 131 (1876); Butterfeild v. Miller, 195 F. 200, 1912 U.S. App. LEXIS 1362 (6th Cir. Tenn. 1912); Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, 1913 Tenn. LEXIS 97, L.R.A. (n.s.) 1915A421 (1914).

One may be a citizen and yet a nonresident. Tigret v. Walker, 2 Tenn. Civ. App. (2 Higgins) 567 (1912).

30. —Domicile — Relation to Residence.

The term “domicile,” in the sense of the attachment laws, implies residence with the intention of making it the home or habitation of the party without a present intention of removing therefrom. Butterfeild v. Miller, 195 F. 200, 1912 U.S. App. LEXIS 1362 (6th Cir. Tenn. 1912).

One may be domiciled within this state and still be a nonresident. Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, 1913 Tenn. LEXIS 97, L.R.A. (n.s.) 1915A421 (1914); Brown v. Brown, 150 Tenn. 89, 261 S.W. 959, 1923 Tenn. LEXIS 66 (1924); Gilbert v. Smith, 14 Tenn. App. 500, — S.W.2d —, 1932 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1932).

31. —Facts Constituting Nonresidence.

For a citizen to become a nonresident, there must be an actual removal from the state, with the intention of not returning, though his family does not accompany him; and a resident of this state does not become a nonresident by purpose, preparations, and arrangements to change his residence, where his residence and domicile are not in fact changed. Smith v. Story, 20 Tenn. 420, 1839 Tenn. LEXIS 72 (1839); Green v. Allen, 24 Tenn. 170, 1844 Tenn. LEXIS 52 (1844); Kellar v. Baird, 52 Tenn. 39, 1871 Tenn. LEXIS 230 (1871); Klepper v. Powell, 53 Tenn. 503, 1871 Tenn. LEXIS 388 (1871); Whitly v. Steakly, 62 Tenn. 393, 1874 Tenn. LEXIS 66 (1874); Cain v. Jennings, 3 Cooper's Tenn. Ch. 131 (1876); Haynes v. Powell, 69 Tenn. 347, 1878 Tenn. LEXIS 95 (1878); Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, 1913 Tenn. LEXIS 97, L.R.A. (n.s.) 1915A421 (1914).

Defendant in an attachment proceeding who moved his family and effects to this state, rented a house and hired servants, opened a bank account, rented a post office box and undertook to complete a railroad contract of more than two years duration, and who had no home or property at the place of his former residence was a resident of Tennessee under the attachment laws. Stratton v. Brigham, 34 Tenn. 420, 1854 Tenn. LEXIS 63 (1854).

Absence from the state on business or pleasure, there being an intention to return, does not render one a nonresident. People's Bank v. Williams, 36 S.W. 983, 1896 Tenn. Ch. App. LEXIS 28 (Tenn. Ch. App. 1896).

While defendant had not changed his domicile from Tennessee, yet, as a practical matter, his business as railroad contractor was out of this state with headquarters in New York City, his visits to Tennessee were infrequent and of short duration, he had no definite idea of returning to this state at any particular time, and was a nonresident for attachment purposes. Southern R.R. v. McDonald, 59 S.W. 370, 1900 Tenn. Ch. App. LEXIS 84 (Tenn. Ch. App. 1900).

32. —Residence for Purposes of Exemption and Attachment Distinguished.

One who is domiciled in Tennessee, although he may be temporarily absent from the state for a considerable length of time on business, is entitled to hold his exempt property free from attachment or execution for debt even though such absence be so prolonged as to justify an attachment in lieu of personal service as to other kinds of property. Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, 1913 Tenn. LEXIS 97, L.R.A. (n.s.) 1915A421 (1914).

33. —Declaration of Intention — Effect.

As ground for attachment, residence may be a question of intention, and a declaration of intention overcomes facts indicating the contrary. Divine v. Dennis, 1 Shan. 378 (1875); Hascall v. Hafford, 107 Tenn. 355, 65 S.W. 423, 1901 Tenn. LEXIS 84, 89 Am. St. Rep. 952 (1901).

34. —Nonresident Complainant.

Under this section and § 29-6-111 nonresident wife was entitled to bring suit against nonresident husband in chancery by attachment of land for recovery of money expended for support of minor children under theory of quasi-contract without having recovered judgment at law. Hall v. Jordan, 190 Tenn. 1, 227 S.W.2d 35, 1950 Tenn. LEXIS 411 (1950), 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).

If assignment of account to resident trustees was for purpose of substituting a Tennessee creditor for a nonresident creditor in proceeding against nonresident debtor action should have been dismissed. McEwan, Gearinger, Banks & Hutcheson v. Lookout Mt. Hotel, Inc., 207 Tenn. 197, 338 S.W.2d 601, 1960 Tenn. LEXIS 447 (1960).

35. —Nonresident Defendant — Burden of Proof.

In attachment on ground of nonresidence, defendant cannot claim homestead in absence of proof that he is a resident. Doran v. O'Neal, 37 S.W. 563, 1896 Tenn. Ch. App. LEXIS 31 (Tenn. Ch. App. 1896).

36. —Debt to Nonresident — Subjecting to Payment of Nonresident's Debt.

Where the complainant is indebted to a nonresident defendant in an amount equal to such defendant's indebtedness to complainant, by note in the hands of defendant's agent here, or of a third person as trustee for defendant's benefit, or where such note has been reduced to judgment in the name of the agent or trustee, complainant may, by attachment and injunction in chancery, subject his own indebtedness to defendant to the satisfaction of the defendant's indebtedness to complainant. But if complainant's note was in the possession of the nonresident defendant, and not reduced to judgment here, nothing could be done. Boyd v. Bayless, 23 Tenn. 386, 1843 Tenn. LEXIS 122 (1843).

37. —Foreign Corporation as Party.

An attachment may be sued out against a foreign corporation, to reach its property and assets within the jurisdiction of the court. Stonega Coke & Coal Co. v. Southern Steel Co., 123 Tenn. 428, 131 S.W. 988, 1910 Tenn. LEXIS 16, 31 L.R.A. (n.s.) 278 (1910).

38. —Nonresident Partner — Liability for Firm Debts.

Where one member of a partnership resides out of the state, he may be proceeded against by attachment by a partnership creditor, and his interest in the firm assets may be levied on and subjected to the payment of the debt. McHaney v. Cawthorn, 51 Tenn. 508, 1871 Tenn. LEXIS 196 (1871).

39. —Mortgagee as a Party.

A creditor attaching, under this statute, the property of a nonresident debtor, must, where the legal title is in a mortgagee, make the mortgagee a party defendant. Otherwise the mortgagee may assert his rights and cut off the attachment by foreclosure. King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914).

Where numerous creditors of a nonresident debtor were, by various bills, striving for priority by attachments on his property, the complainants in one of the bills, who did not make the mortgagee of the attached land a party defendant, are not entitled to amend their bill to correct the defect, where such attachment would deprive the complainants in the other attachment bills of their priority already acquired by valid attachment liens on the property, with the mortgagee made a party. King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914).

After the consolidation of various separate attachment bills against the property of a nonresident debtor, parties to some of the bills may move to quash the attachment in one of the bills, and except to the report of the master fixing priority, and where such parties were not parties to the bill until the consolidation of the suit, their right to object to the failure of the complainants therein to make the mortgagee of the attached property a party defendant was not waived, and might be raised by the objections made. King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914).

40. —Knowledge of Proceeding — Effect.

A decree cannot be impeached by one who is defendant in an attachment suit in which the affidavit was based upon nonresidence, although the affidavit was untrue, where the defendant knew of the pendency of such suit and failed to plead or answer denying the truth of the affidavit. People's Bank v. Williams, 36 S.W. 983, 1896 Tenn. Ch. App. LEXIS 28 (Tenn. Ch. App. 1896).

41. Removing or About to Remove from State.

42. —Sufficiency of Allegations.

That the defendant “has removed himself, so that the ordinary process of law cannot be served upon him” is no ground for attachment. McCulloch v. Foster, 12 Tenn. 162, 1833 Tenn. LEXIS 33 (1833); Maples v. Tunis, 30 Tenn. 108, 1850 Tenn. LEXIS 69 (1850).

“Left the state” is not sufficient ground for attachment. Mulherrin v. Hill, 52 Tenn. 58, 1871 Tenn. LEXIS 232 (1871).

A charge that a debtor hastily removed his live stock to another state, for the purpose of hindering and delaying complainant in the collection of his debts, is not equivalent to the requirement of this statute. Craigmiles v. Hays, 75 Tenn. 720, 1881 Tenn. LEXIS 178 (1881).

“From the jurisdiction of the court” is insufficient allegation of ground for attachment. Bucyrus Co. v. McArthur, 219 F. 266, 1914 U.S. Dist. LEXIS 1345 (M.D. Tenn. 1914).

43. —Requisite Amount of Property Removed.

It is not possible to define the amount of property removed, or about to be removed, which will bring the debtors within the scope of our attachment laws. It need not be all his property, nor will a comparative little suffice, but it is to be an amount of substantial consequence, in reference to the ability of his estate to bear honestly the withdrawal without affecting the security of his creditors in this state. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868); Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874).

The removal of an insignificant amount of a debtor's property will not support an attachment. A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

44. —Temporary Removal.

The mere taking of his property out of the state by a debtor, for a temporary purpose, to be returned, is not a removal from the state within the sense of the attachment laws. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868).

45. —Fraud or Injury Unnecessary.

Fraud or injury in the removal is not necessary to sustain attachment granted upon the ground that the defendant was about to remove, or had removed, himself or property from the state. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868); A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

46. —Debt Owing Nonresident Removed.

The removal of indebtedness owing by a debtor in Tennessee to the creditor or his assignee in a foreign state is a removal of property within the meaning of this statute. Dillingham v. Traders' Ins. Co., 120 Tenn. 302, 108 S.W. 1148, 1907 Tenn. LEXIS 49, 16 L.R.A. (n.s.) 220 (1907).

47. —“About to Remove” as Ground.

“About to remove himself or property” is sufficient ground for attachment, when alleged in positive terms. Runyan v. Morgan, 26 Tenn. 210, 1846 Tenn. LEXIS 105 (1846); Nelson v. Fuld, 89 Tenn. 466, 14 S.W. 1079, 1890 Tenn. LEXIS 72 (Tenn. Dec. 1891). See Phipps v. Burnett, 96 Tenn. 175, 33 S.W. 925, 1895 Tenn. LEXIS 22 (1896).

The word “about” must be taken in its common acceptance — near to in the performance of some act. Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874).

48. — —Steamboats.

An attachment will lie on the ground that the defendant, the owner and master of a steamboat, is about to remove himself and the steamboat beyond the limits of the state, but the departure of a steamboat in the course of regular trips from a port in this state to a port in another state, and return, is not a removal from this state in the sense of the attachment laws. If a steamboat not engaged in a regular trade is about to be removed with the intention of a removal from the state, then the attachment will lie. Runyan v. Morgan, 26 Tenn. 210, 1846 Tenn. LEXIS 105 (1846); Lyons v. Mason, 44 Tenn. 525, 1867 Tenn. LEXIS 73 (1867).

49. —Evidence Under Declaration of “About to Remove.”

Upon the issue to the ground of attachment laid, that “the defendant is about to remove his property out of the state,” it is competent to prove that the defendant removed his property out of the state soon after the suing out of the attachment. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868).

To sustain the issue of “about to remove,” it is not necessary to show the actual removal. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868).

50. Removing or About to Remove from County Privately.

51. —Corporations.

A corporation was deemed a person within this provision. State v. Nashville Univ., 23 Tenn. 157, 1843 Tenn. LEXIS 40 (1843).

52. —Openly Removing from One County to Another.

Where a person moves out of the county openly, and with a full knowledge of all his neighbors of his intended removal, and the place of his destination, an attachment is not authorized. Attachment does not lie where the defendant has openly moved, and has taken up his residence in another county in this state. Dunn v. Myres, 11 Tenn. 413, 11 Tenn. 414, 1832 Tenn. LEXIS 77 (1832); Bank of Ala. v. Berry, 21 Tenn. 443, 1841 Tenn. LEXIS 40 (1841).

53. Concealing or Absconding.

54. —Kind of Concealment Required.

Concealment of a debtor which will justify an attachment must be clandestine and intentional, and for the purpose of evading service of legal process. Farmers & Traders Bank v. Evans, 95 Tenn. 702, 34 S.W. 2, 1895 Tenn. LEXIS 144 (1895).

55. —Property Concealed — Sufficiency of Allegation.

An allegation that the defendant is “concealing his property and effects” is sufficient for an attachment, without an allegation that he is absconding or concealing himself, as the removal or concealment of the debtor's property is a substantive ground of attachment. Boyd v. Buckingham & Co., 29 Tenn. 434, 1850 Tenn. LEXIS 7 (1850).

56. —Absconding — Sufficiency of Allegation.

The charge that the defendant “hath absconded or conceals himself from said county” does not authorize an attachment. Conrad v. McGee, 17 Tenn. 428, 1836 Tenn. LEXIS 78 (1836).

To abscond, in a legal sense, means to hide, conceal, or absent one's self clandestinely, with intent to avoid legal process. A charge that the defendant is “about to abscond” is not sufficient cause. Bennett v. Avant, 34 Tenn. 152, 1854 Tenn. LEXIS 23 (1854).

57. —“Concealing” — Proof.

Statement of defendant that he was going to sell everything and leave the place of his residence, and that if plaintiff got a judgment he would be able to collect nothing, was sufficient to sustain a verdict for plaintiff under plea in abatement to attachment based on concealment of property. Wilson v. Bryant, 167 Tenn. 107, 67 S.W.2d 133, 1933 Tenn. LEXIS 12 (1934).

58. Fraudulent Disposal.

59. —Chancery Jurisdiction.

Where judgment creditor and judgment debtor were residents of Florida, and debtor sought fraudulently to convey property located in Tennessee in order to defeat the judgment, chancery court had exclusive jurisdiction of action to set conveyance aside. Anderson v. Stribling, 160 Tenn. 453, 26 S.W.2d 131, 1929 Tenn. LEXIS 121 (1930).

60. —Suit in Equity Unnecessary.

The creditor may treat a fraudulent sale as void and attach the property. No suit in equity is necessary. Cryer v. Mayfield, 5 Tenn. Civ. App. (5 Higgins) 537 (1914).

61. —Defendant About to Convey Away His Property as Ground.

An attachment by bill, which simply seeks to subject certain land of the debtor, upon the ground that the defendant is about to convey away his property fraudulently, is an attachment under this statute. Tarbox v. Tonder, 1 Cooper's Tenn. Ch. 163 (1873).

62. —“About” Defined — Sufficiency of Charge.

The word “about” is defined, in the sense of the attachment laws, to be “near to in action, or near to in the performance of some act.” To authorize an attachment on the ground that the defendant is about fraudulently to dispose of his property, the charge, if not in the words of the statute, must import that defendant is on the eve of such fraudulent disposition of his property, and the charge that the defendant will dispose of his property in order to defraud his creditors, is not sufficient. Jackson v. Burke, 51 Tenn. 610, 1871 Tenn. LEXIS 211 (1871); Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874).

63. —Fraudulent Transfer — Facts Not Constituting.

That complainant has reason to believe, and does believe, that defendant will convey and dispose of his groceries, in order to defraud his creditors, shows no sufficient grounds for an attachment. Jackson v. Burke, 51 Tenn. 610, 1871 Tenn. LEXIS 211 (1871); Brown v. Crenshaw, 64 Tenn. 584, 1875 Tenn. LEXIS 131 (1875); Nelson v. Fuld, 89 Tenn. 466, 14 S.W. 1079, 1890 Tenn. LEXIS 72 (Tenn. Dec. 1891); Phipps v. Burnett, 96 Tenn. 175, 33 S.W. 925, 1895 Tenn. LEXIS 22 (1896).

It is not a fraudulent transfer of an individual merchant's property, for which attachment lies, where he places part of his stock in a nearby town in partnership with another, provided the partnership was a fair one and there was a valuable consideration, no purpose to cheat creditors appearing. Mack v. Jones, 31 F. 189, 1887 U.S. App. LEXIS 2585 (W.D. Tenn. 1887).

Allegation that a debtor has or is about to fraudulently convey is not sustained by proof of a financial statement if that be so generally true that it fairly represents his condition, nor by proof that a successful merchant bought imprudently, where creditors pressed goods on him, nor by proof that a few articles were sold at or below cost to attract customers. Mack v. Jones, 31 F. 189, 1887 U.S. App. LEXIS 2585 (W.D. Tenn. 1887).

64. —Apprehension and Belief Insufficient.

A simple apprehension and belief that the defendant is about fraudulently to dispose of his property is not sufficient ground for an attachment. The law requires the allegation of an act accomplished or about to be accomplished, as a matter of fact. Brown v. Crenshaw, 64 Tenn. 584, 1875 Tenn. LEXIS 131 (1875); Nelson v. Fuld, 89 Tenn. 466, 14 S.W. 1079, 1890 Tenn. LEXIS 72 (Tenn. Dec. 1891).

The allegation that the complainant is informed and believes that the defendant is about to remove his property beyond the limits of the state, or an allegation in the affidavit that the creditor “is informed and believes” that his debtor “has fraudulently disposed of or is about fraudulently to dispose of his property,” without averring, as a matter of fact, that the debtor had made, or was about to make, such fraudulent disposition, is insufficient for the issuance of an attachment. Nelson v. Fuld, 89 Tenn. 466, 14 S.W. 1079, 1890 Tenn. LEXIS 72 (Tenn. Dec. 1891).

65. —Insufficient Allegations — Examples.

An allegation “that defendants, in conveying their property, will endeavor to defeat the collection of complainant's debt that they have avoided, and, as he believes, they intend, by future and fraudulent conveyances and transfers, to evade and avoid payment of his debt” is not ground for issuing the attachment writ. McHaney v. Cawthorn, 51 Tenn. 508, 1871 Tenn. LEXIS 196 (1871); Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874).

An affidavit which states the ground for an attachment to the best of the affiant's knowledge and belief is sufficient. Phipps v. Burnett, 96 Tenn. 175, 33 S.W. 925, 1895 Tenn. LEXIS 22 (1896).

66. Person Dying Out of State.

An attachment will lie against a nonresident decedent's estate here. 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).

67. —Administrator as Party.

It was intimated, but not decided, that the administrator of the nonresident decedent is not a necessary party, under this statute, but it was adjudged that the attachment was good, though the administrator was only made a party by an amendment or amended bill. Alston v. Sharp, 70 Tenn. 515, 1879 Tenn. LEXIS 191 (1879).

68. —Insolvent Estate Attached.

Where the creditor of an insolvent estate, prior to the suggestion of insolvency, attached, under this statute, the assets of the estate here, he is not entitled to priority of satisfaction in the settlement of the estate, and the subsequent suggestion of insolvency defeats the attachment lien. Bacchus v. Peters, 85 Tenn. 678, 4 S.W. 833, 1887 Tenn. LEXIS 10 (1887). See Hubbard v. Epps, 2 Shan. 132 (1876).

69. State Immunity.

This chapter contains no provision whereby the legislature has manifested its consent to attachment proceedings brought against the state and such a suit must be dismissed. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 218-248.

7 C.J.S. Attachment §§ 23-70.

Action based upon statute as one in which attachment will lie. 26 A.L.R. 563, 51 A.L.R. 1386.

Administrator's wrongful attachment, liability of estate for. 44 A.L.R. 674, 127 A.L.R. 687.

Alien enemy, attachment of property of. 147 A.L.R. 1309, 148 A.L.R. 1386, 149 A.L.R. 1454, 152 A.L.R. 1451, 153 A.L.R. 1419, 155 A.L.R. 1451, 156 A.L.R. 1448, 157 A.L.R. 1449.

Attachment and garnishment of funds in branch bank or main office of bank having branches. 12 A.L.R.3d 1088.

Attachment for goods or money embezzled, stolen, or converted. 4 A.L.R. 832.

Attachment in libel and slander cases. 11 A.L.R. 378, 61 A.L.R. 1347.

Attachment or garnishment as affected by trick or device by which the property of or indebtedness to nonresident was subjected to the jurisdiction. 37 A.L.R. 1255.

Attorney's compensation for services in attachment, amount of. 143 A.L.R. 788, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Bankruptcy, right to and form of judgment against one discharged in, in order to sustain attachment. 81 A.L.R. 81.

Death of grantee or transferee of property conveyed or transferred in fraud of creditors as affecting right of creditors of grantor or transferor to attach same. 116 A.L.R. 1196.

Divorce or alimony, jurisdiction on constructive service in suit for, to reach property within state as affected by attachment. 10 A.L.R.3d 212.

Duress, recovery upon ground of duress of money paid upon excessive or unfounded claim to avoid attachment. 18 A.L.R. 1233.

Equity suits, attachment statute as applicable to. 154 A.L.R. 95.

Excessive claim, attachment as affected by. 68 A.L.R. 853.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action. 14 A.L.R.2d 420.

Foreign corporation as a nonresident for purposes of attachment law of state in which it is doing business or is domesticated. 114 A.L.R. 1378.

Funds in hands of his attorney as subject of attachment or garnishment by client's creditor. 35 A.L.R.3d 1094.

Information, and belief, affidavits stating grounds of attachment on. 86 A.L.R. 588.

Intent to defraud or delay creditors as inferable as matter of law from fact that debtor has removed, or is about to remove, property from the state without making adequate provision for his creditors. 92 A.L.R. 966.

Interstate shipment, attachment under state law of railroad property in suit involving. 64 A.L.R. 359.

Inverse order of alienation, rule as to, on sale to subject land to lien of attachment. 131 A.L.R. 42.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one of the joint depositors. 11 A.L.R.3d 1465.

Judgment, attack upon attachment after, because of defects or irregularities. 129 A.L.R. 779.

Maintainability of replevin or similar possessory action where defendant, at time action is brought, is no longer in possession of property. 97 A.L.R.2d 896.

Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants. 93 A.L.R.2d 358.

Marketability of title as affected by attachment. 57 A.L.R. 1406, 81 A.L.R.2d 1020.

Mechanic's lien as waived by attachment. 65 A.L.R. 316.

Mere possession in plaintiff as basis of action for wrongful attachment. 150 A.L.R. 239.

Money only, what constitutes an action for recovery of, within statutes as to character of actions in which attachment may issue. 76 A.L.R. 1446.

Potential liability of insurer under liability policy as subject of attachment. 33 A.L.R.3d 992.

Practice of law by corporation, procuring attachment proceedings as. 73 A.L.R. 1335, 105 A.L.R. 1364, 157 A.L.R. 282.

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution. 83 A.L.R.3d 598.

Release or modification of lien to which property was subject when attachment was levied, effect of. 128 A.L.R. 1392.

Residence of partnership for purposes of statutes authorizing attachment on ground of nonresidence. 9 A.L.R.2d 471.

Seal as necessary to authentication of attachment. 30 A.L.R. 734.

Stoppage in transitu, termination of right of, by seizure of goods in possession of carrier under attachment. 7 A.L.R. 1408.

Third person, attachment of property conveyed by, to another third person, upon consideration furnished by debtor. 91 A.L.R. 741.

Trick or device by which property of nonresident was subjected to jurisdiction. 37 A.L.R. 1255.

Vendee's or optionee's interest in respect of real property, lien or attachment on, as attaching to title acquired by completion of contract or exercise of option. 85 A.L.R. 929.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment. 61 A.L.R.3d 984.

What constitutes nonresidence for purpose of attachment. 26 A.L.R. 180.

What is an action for “debt” within attachment or garnishment statute. 12 A.L.R.2d 787.

Worker's Compensation Act, attachment to enforce award (or judgment thereon), under. 126 A.L.R. 150.

Attachment 110-115.

NOTES TO DECISIONS

1. Nonresidence — Insufficiency of Grounds.

In an action ex contractu, an original attachment writ shall not issue for debts or demands not due, where the sole ground of the attachment is the nonresidence of the debtor or defendant. If any other ground exists, it may issue, although the debt is not due, as well against a nonresident as against a resident. Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865); Merchants Nat'l Bank v. McCarger, 56 Tenn. 401, 1872 Tenn. LEXIS 154 (1872).

2. Prematurity as Defense.

Where an attachment for debt not due at the commencement of the suit has been defeated by a plea in abatement, there can be no decree for the debt, if the prematurity of the suit be relied on as a defense in the answer. Pigue v. Young, 85 Tenn. 263, 1 S.W. 889, 1886 Tenn. LEXIS 39 (1886); Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891); Casey & Hedges Mfg. Co. v. Weatherly, 101 Tenn. 318, 47 S.W. 432, 1898 Tenn. LEXIS 67 (1898).

3. Subsequent Attaching Creditors — Impeachment of Attachment.

Subsequent attaching creditors may impeach an attachment for defects appearing on the face of the proceedings, as where the attachment was issued on the ground of the nonresidence of the defendant, to collect and secure debts not due; and, also, where the debtor and attaching creditor resided in the same foreign state, though this fact is not apparent on the face of the proceedings, and no affidavit was made by the attaching creditor, as required by § 29-6-109. Bank of Rome v. Haselton, 83 Tenn. 216, 1885 Tenn. LEXIS 45 (1885).

4. Knowledge of Proceedings — Effect.

While a debt not due is not enforceable by attachment, if the defendant knew of the proceeding and failed to defend on the ground of immaturity of the debt, he may not impeach a decree based thereon, so far as the property attached is concerned. People's Bank v. Williams, 36 S.W. 983, 1896 Tenn. Ch. App. LEXIS 28 (Tenn. Ch. App. 1896).

While an attachment based on a debt not due at the time the bill was filed and an affidavit of nonresidence was upheld as to property levied on where defendant had knowledge of the proceedings and failed to defend, a personal judgment was not enforceable as such, there being no service of process. People's Bank v. Williams, 36 S.W. 983, 1896 Tenn. Ch. App. LEXIS 28 (Tenn. Ch. App. 1896).

5. Successful Defendant — Liability for Costs.

Where a successful defendant in an attachment suit, by his conduct and misrepresentations, though innocently made, induced the complainant to believe that he had good cause for attachment, he may be taxed with costs. Pigue v. Young, 85 Tenn. 263, 1 S.W. 889, 1886 Tenn. LEXIS 39 (1886).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 56-59.

7 C.J.S. Attachment §§ 15, 86.

What is an action for “debt” within attachment statute. 12 A.L.R.2d 787.

What sort of claim, obligation, or liability is within contemplation of statute providing for attachment, or giving right of action for indemnity, before a debt or liability is due. 58 A.L.R.2d 1451.

Attachment 24.

NOTES TO DECISIONS

1. Construction.

This statute must be liberally construed in favor of the remedy of endorsers and sureties. Burrough v. Brooks, 40 Tenn. 392, 1859 Tenn. LEXIS 111 (1859).

2. Sureties on Guardian Bond Suing.

Where a debtor has conveyed by deed of trust and covered his property to avoid the effect of attachment suits pending against him, he has an equitable estate or equity existing in the property which the unsecured sureties on his guardian bond may attach to enforce their claim for indemnity against loss for their liability on such bond. Howell v. Cobb, 42 Tenn. 104, 1865 Tenn. LEXIS 26, 88 Am. Dec. 591 (1865); Greene v. Starnes, 48 Tenn. 582, 1870 Tenn. LEXIS 117 (1870); Saylors v. Saylors, 50 Tenn. 525, 1871 Tenn. LEXIS 109 (1871); Miller v. Speed, 56 Tenn. 196, 1872 Tenn. LEXIS 128 (1872); Howell v. Thompson, 95 Tenn. 396, 32 S.W. 309, 1895 Tenn. LEXIS 107 (1895).

3. Subsequent Endorser Against Prior Endorser.

This statute does not authorize an attachment by a subsequent accommodation endorser against a prior accommodation endorser for the same principal, for the prior endorser is not a “principal” of the subsequent endorser, within the meaning of this statute. Turner v. Newman, 23 Tenn. 329, 1843 Tenn. LEXIS 100 (1843); Union Bank v. Newman, 23 Tenn. 330, 1843 Tenn. LEXIS 101 (1843).

4. Sale of Property Attached.

The sureties of a guardian may attach his property, as indemnity for their liability, before they have paid the same, and unless he will give security satisfactory to the court to indemnify the sureties, the attached property will be decreed to be sold, and the funds applied to the payment of the liability of such guardian. Howell v. Cobb, 42 Tenn. 104, 1865 Tenn. LEXIS 26, 88 Am. Dec. 591 (1865).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 61, 222.

7 C.J.S. Attachment §§ 20, 21.

Attachment 16.

NOTES TO DECISIONS

1. Jurisdiction of Circuit Court.

This statute did not enlarge the powers of the circuit court nor confer on it authority to entertain procedure authorized by § 9406 of the 1932 Code which was cognizable only in courts of chancery. Lamb v. Quigg, 166 Tenn. 365, 61 S.W.2d 466, 1932 Tenn. LEXIS 142 (1932).

2. Money Due Nonresident for Services Rendered Out of State.

Money due to a nonresident for services rendered out of state to a foreign corporation can be subjected to attachment and garnishment in the hands of that corporation in Tennessee by a local creditor of the nonresident where the foreign corporation has an office or agency in this state and is amenable to process here and this is true even though the claim is for damages arising out of tort. Burnett v. Simmons, 175 Tenn. 422, 135 S.W.2d 452, 1939 Tenn. LEXIS 55 (1939).

3. Attestation of Affidavit.

Where suit against nonresident was by original attachment in circuit court for damages for tort committed by defendant, court properly sustained defendant's motion to quash the attachment because the affidavit in support of the writ was verified by oath attested by notary public instead of by the clerk who issued the writ. Campbell v. Brady, 158 Tenn. 98, 11 S.W.2d 687, 1928 Tenn. LEXIS 128 (1928).

4. Pauper's Oath.

An action in tort commenced by original attachment under the provisions of this section may be properly brought upon the pauper oath. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

The fact that replevin cannot be had on pauper oath is immaterial on the question of whether or not a suit in tort commenced on original attachment under this section can be commenced on pauper oath since in attachment the property is not turned over to the plaintiff and may be replevied by the defendant. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 40, 50-54.

7 C.J.S. Attachment § 10.

Attachment 7.

NOTES TO DECISIONS

1. Constitutionality.

Where, after several unsuccessful attempts to secure service of process on a debtor, the creditor proceeded to effect attachment and garnishment of the debtor's wages under this section and § 29-7-101, which do not provide notice or hearing prior to the issuance of the writ, the court held that the opportunity given for ultimate judicial determination was adequate and that mere postponement of such judicial determination did not constitute a denial of procedural due process of law under U.S. Const., amend. 14, § 1. Maxwell v. Hixson, 383 F. Supp. 320, 1974 U.S. Dist. LEXIS 6133 (E.D. Tenn. 1974), aff'd, 425 U.S. 927, 96 S. Ct. 1656, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1289 (1976).

2. Restrictions on Use of Attachment.

Attachment of property is not the ordinary mode of obtaining jurisdiction, but it is extraordinary, and not to be resorted to when personal service can be had in order to obtain jurisdiction. Green v. Snyder, 114 Tenn. 100, 84 S.W. 808, 1904 Tenn. LEXIS 74 (1905).

Attachment statutes are liberally construed as to the remedy once jurisdiction is obtained, but insofar as they prescribe the causes for which attachment may issue they are very strictly construed. Willshire v. Frees, 184 Tenn. 523, 201 S.W.2d 675, 1947 Tenn. LEXIS 406 (1947).

3. Defendant's Residence in County — Necessity.

If the sheriff's return shows that the defendant resides in another county, a judicial attachment will not lie. Slatton v. Jonson, 5 Tenn. 196, 5 Tenn. 197, 1817 Tenn. LEXIS 93 (1817).

The right of suit in all transitory actions follows, but does not precede, the person of the defendant so that jurisdiction is not acquired where such suit is brought against one not a resident of the county and not actually within the county when and where the suit is instituted, and such suit may be abated on plea of defendant. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404, 1904 Tenn. LEXIS 97 (1905), superseded by statute as stated in, Five Star Express v. Davis, 866 S.W.2d 944, 1993 Tenn. LEXIS 413 (Tenn. 1993).

4. Change of Residence — Effect.

If defendant were a resident and subject to be served with the ordinary process of law, when the suit was commenced, he cannot, by a subsequent change of residence, whether for the mere purpose of evading service or in good faith, defeat the plaintiff's right to a judicial attachment. James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

5. Temporary Absence — Effect.

The mere temporary absence of the defendant, for a lawful purpose and without any purpose to evade the process, is no ground for a judicial attachment. Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

6. Levy of Judicial Attachment and Publication — Effect.

Without both levy and publication in due form, a judicial attachment will not support a judgment, unless the defendant shall appear. Ingle v. McCurry, 48 Tenn. 26, 1870 Tenn. LEXIS 9 (1870); Bains v. Perry, 69 Tenn. 37, 1878 Tenn. LEXIS 37 (1878).

The judicial attachment, when all the requirements of the statutes are observed, performs the functions of both a summons and attachment, if followed by publication duly made according to law, but the record must affirmatively show the levy of the attachment and publication as required, and judgment without personal service of process or the publication prescribed by statute is void. Ingle v. McCurry, 48 Tenn. 26, 1870 Tenn. LEXIS 9 (1870); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Bains v. Perry, 69 Tenn. 37, 1878 Tenn. LEXIS 37 (1878); Wooten v. Daniel, 84 Tenn. 156, 1885 Tenn. LEXIS 130 (1885).

7. Court Order Unnecessary.

No order of the court is necessary to authorize the clerk to issue alias and pluries summons. Cherry v. Mississippi Valley Ins. Co., 84 Tenn. 292, 1886 Tenn. LEXIS 99 (1886).

8. Mode of Evasion of Service — Unimportance.

It cannot be of the slightest importance, in view of this remedy, in what way, or by what artifice, the service of process is evaded by the defendant, whether by concealment in the county of his residence, or in a different county, or by a change of residence to another state. James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

9. Return as Showing Statutory Facts.

In judicial attachments prescribed statutory facts are made to appear upon the record by the officer's return on the summons. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

10. Return of “Not to be Found in My County” — Effect.

The return implies that the residence of the defendant is in the county, and that the sheriff has been at his place of abode; and if these are not the facts, the return is a false one, and subjects the sheriff to an action for a false return. He should return the truth of the case, either that the defendant is not an inhabitant of his county, or that he resides in another county, naming it, if such be the case. Slatton v. Jonson, 5 Tenn. 196, 5 Tenn. 197, 1817 Tenn. LEXIS 93 (1817); Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872); Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

The language of the return imports that, after diligent inquiry and search by the sheriff, at the usual residence of the defendant and elsewhere, he is not to be found, being either actually absent from the county, or having concealed himself, so as to avoid the service of process. Welch v. Robinson, 29 Tenn. 264, 1849 Tenn. LEXIS 60 (1849); Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872); Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

Return “not to be found in my county” implies that the defendant is an inhabitant of this state at the time of the institution of the suit and that his residence is in the county in which the suit is commenced, and that he evades the service of process. James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851); Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872); Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

11. —Insufficient Return.

A judicial attachment is only authorized by the precise return provided by the statute. A return “The defendant not found in my county” does not give the court jurisdiction to issue such writ. Welch v. Robinson, 29 Tenn. 264, 1849 Tenn. LEXIS 60 (1849); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891).

12. —Insufficient Facts to Justify Return.

Where deputy serving a personal summons called at residence of defendant several times but never found her home and made no inquiry as to where she could be found, a return “after diligent search and inquiry not found,” and attachment issued pursuant to such return was void, and trial court erred in not dismissing defendant's plea in abatement where evidence showed that defendants was in her home every evening and in her place of business every day, and had no notice until she saw publication notice in the paper. Willshire v. Frees, 184 Tenn. 523, 201 S.W.2d 675, 1947 Tenn. LEXIS 406 (1947).

13. Original or Ancillary Attachment — Effect of Levy.

The levy of alias and pluries attachments, whether original or ancillary, and the officer's return thereon, and publication thereafter made, has the effect to bring the defendant, in legal contemplation, before the court, and confers jurisdiction necessary to authorize it to proceed to final judgment; and the plaintiff is not bound to resort to an alias or pluries summons, or judicial attachment. Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865).

14. Abatement of Attachment.

A judicial attachment, as well as the alias or pluries process, may be abated upon a plea denying the truth of the officer's such return. Examples of such pleas held to be sufficient. Grewar v. Henderson, 1 Cooper's Tenn. Ch. 76 (1872); Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Robson v. Hunter, 90 Tenn. 242, 16 S.W. 466, 1891 Tenn. LEXIS 16 (1891). See James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851).

If the defendant was not, in fact, a resident of the county when the suit was instituted, the return is false, and if alias summons issued thereon is served on the defendant, he may, notwithstanding the false return, abate the suit, on the plea that he was not a resident of the county, nor, in fact, in the county, at the time it was instituted. Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886). See Smyth v. Moffett, 6 Tenn. App. 381, 1927 Tenn. App. LEXIS 158 (1927).

A plea in abatement was the proper method of reaching and quashing a writ of attachment where the return was false. Smyth v. Moffett, 6 Tenn. App. 381, 1927 Tenn. App. LEXIS 158 (1927); Willshire v. Frees, 184 Tenn. 523, 201 S.W.2d 675, 1947 Tenn. LEXIS 406 (1947).

15. —Insufficient Plea in Abatement.

A plea in abatement to a judicial attachment, which alleges that the defendant was not a resident of the state, at the time of its issuance, is bad in substance, because it does not allege that he was a nonresident at the commencement of the suit. James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 19.

7 C.J.S. Attachment § 68.

Attachment 318-329.

NOTES TO DECISIONS

1. Construction.

Where an original attachment has been issued and levied on the property of a nonresident, and publication has been made as required by law, a judicial attachment may be issued to attach other or additional property discovered, or, where the leading process has been served on the nonresident defendant while within the jurisdiction of the court, a judicial attachment may be issued to attach any property here that may be discovered. James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851).

This section has no relation to § 29-6-107, which refers to residents of this state at the time the action was commenced, but applies only to nonresidents. James v. Hall, 31 Tenn. 297, 1851 Tenn. LEXIS 70 (1851).

2. Effect of Statute.

This section as applied to sales of land by sheriff on execution changed the common law requirements that owner out of possession of land claimed by another adversely could not execute a valid deed to the property and as a result a deed executed by sheriff on an execution against owner out of possession passed good title though another person was in possession claiming adversely to the debtor. Park's Lessee v. Larkin, 1 Tenn. 101, 1805 Tenn. LEXIS 3 (1799).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 219-230, 250.

7 C.J.S. Attachment §§ 95, 98.

Foreign attachment or garnishment as able in action by nonresident against nonresident or foreign corporation upon a foreign cause of action. 14 A.L.R.2d 420.

Foreign corporation as a nonresident for purposes of attachment law of state in which it is doing business or is domesticated. 114 A.L.R. 1378.

Residence of partnership for purposes of statutes authorizing attachment on ground of nonresidence. 9 A.L.R.2d 471.

What constitutes nonresidence for purpose of attachment. 26 A.L.R. 180.

Judgment 17(11).

NOTES TO DECISIONS

1. Nature and Effect of Statute.

The statute in this section was an amendment to the general attachment laws and especially was it intended to be amendatory to the whole of § 29-6-101, and applicable to subsection (7) thereof. Merchant v. Preston, 69 Tenn. 280, 1878 Tenn. LEXIS 85 (1878); Bryan v. Norfolk & W. R. Co., 119 Tenn. 349, 104 S.W. 523, 1907 Tenn. LEXIS 10 (1907).

The statute compiled in this section was intended to require the additional ground for attachment that the property of the debtor had been fraudulently removed to this state to evade the process of law in the state of the domicile or residence of both parties when they were both nonresidents of this state. Merchant v. Preston, 69 Tenn. 280, 1878 Tenn. LEXIS 85 (1878). See Beasley v. Parker, 3 Cooper's Tenn. Ch. 47 (1875); White v. Monahan, 3 Tenn. Civ. App. (3 Higgins) 195 (1912).

The provisions of this section do not either expressly or by implication deny foreign creditors the right to sue their debtors in personam when found within this state. Phillips v. Johns-Manville Sales Corp., 183 Tenn. 266, 191 S.W.2d 554, 1946 Tenn. LEXIS 210 (1946).

This section does not bar suit in circuit court by foreign corporation against Florida resident on a judgment secured in Florida where suit was in personam and not in rem. Phillips v. Johns-Manville Sales Corp., 183 Tenn. 266, 191 S.W.2d 554, 1946 Tenn. LEXIS 210 (1946).

Under this section a nonresident corporation cannot commence suit by attachment against another nonresident corporation. McEwan, Gearinger, Banks & Hutcheson v. Lookout Mt. Hotel, Inc., 207 Tenn. 197, 338 S.W.2d 601, 1960 Tenn. LEXIS 447 (1960).

2. Chancery Jurisdiction.

Though the debtor and creditor are nonresidents of this state, and both are residents of the same state, our chancery courts have jurisdiction under § 16-11-107, independently of the attachment laws, and notwithstanding this section, to aid such creditor to subject such debtor's real or personal property situate in this state to the payment of his debt, where the creditor has exhausted his legal remedy in the state of their common residence. Taylor v. Badoux, 92 Tenn. 249, 21 S.W. 522, 1892 Tenn. LEXIS 69 (1893); Commercial Nat'l Bank v. Matherwell Iron & Steel Co., 95 Tenn. 172, 31 S.W. 1002, 1895 Tenn. LEXIS 75, 29 L.R.A. 164 (1895); Bryan v. Norfolk & W. R. Co., 119 Tenn. 349, 104 S.W. 523, 1907 Tenn. LEXIS 10 (1907).

Where a nonresident loaned money to another nonresident, on the borrower's promise to repay the loan out of funds then in, or to come into, the hands of persons in Tennessee, for the borrower, such promise amounted to an equitable appropriation of an appropriate portion of such funds, which equity would enforce in this state. Allison v. Pearce, 59 S.W. 192, 1900 Tenn. Ch. App. LEXIS 77 (1900).

3. Fraudulent Removal — Necessity of Averment.

A nonresident creditor cannot subject the claim of his nonresident debtor residing in the same state, on a judgment recovered by such debtor in this state against his debtor, in the absence of allegation that such claim had been fraudulently removed. Brown v. Pace, 49 S.W. 355, 1898 Tenn. Ch. App. LEXIS 123 (1898).

This section comprehends actions by nonresidents who are seeking to impound property in this state for the satisfaction of damages claimed for a tort, and the omission of an averment in the affidavit that the property sought to be attached was removed to this state to evade the process of the law in the state of their domicile is fatal to the validity of the attachment. Bryan v. Norfolk & W. R. Co., 119 Tenn. 349, 104 S.W. 523, 1907 Tenn. LEXIS 10 (1907).

In suit by wife for support where bill showed on its face that husband and wife were nonresidents of Tennessee and residents of same state, attachment would not lie against Tennessee farm land even if otherwise proper since bill did not allege under oath that property was removed to Tennessee to evade the service of process in state of residence of parties. Pierce v. Pierce, 204 Tenn. 659, 325 S.W.2d 253, 1959 Tenn. LEXIS 324 (1959).

4. Lack of Oath — Effect.

The absence of the oath required by this section is a fatal defect to the attachment. Bank of Rome v. Haselton, 83 Tenn. 216, 1885 Tenn. LEXIS 45 (1885); Bryan v. Norfolk & W. R. Co., 119 Tenn. 349, 104 S.W. 523, 1907 Tenn. LEXIS 10 (1907).

5. Amendment of Void Affidavit.

An attempt to amend a void affidavit cannot supply jurisdiction. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

6. Heirs of Debtor and Creditor Resident of Same Foreign State.

If the creditor and debtor, or the widow and heirs of the creditor, if he be dead, are residents of the same state, and nonresidents of Tennessee, this statute is applicable, but an attachment will not lie under § 29-6-101(7), without alleging and showing the additional ground required by this section. Merchant v. Preston, 69 Tenn. 280, 1878 Tenn. LEXIS 85 (1878).

7. Attacking General Assignment.

A nonresident creditor may attack his nonresident debtor's general assignment for want of registration in this state, and by attachment of the property embraced therein, which is situated in this state, obtain priority over the assignment. Douglas v. Bank of Commerce, 97 Tenn. 133, 36 S.W. 874, 1896 Tenn. LEXIS 122 (1896).

Collateral References. 7 C.J.S. Attachment § 69.

Attachment 25.

NOTES TO DECISIONS

1. Effect of Section on Equity Jurisdiction.

This section and § 29-6-132 greatly enlarge and extend the remedy by original attachment; but, when properly construed, they do not alter the fundamental principles of equity jurisdiction, nor do they destroy the long established rules which distinguish the proceedings in courts of law and of equity. Lane v. Marshall, 48 Tenn. 30, 1870 Tenn. LEXIS 10 (1870).

2. Nonresident Complainant.

Use of the words “any person” without limitation in this section necessitates the conclusion that the nonresident complainants may obtain relief by attachment under this section. Hall v. Jordan, 190 Tenn. 1, 227 S.W.2d 35, 1950 Tenn. LEXIS 411 (1950), 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).

3. Statement of Grounds — Necessity.

Chancery jurisdiction of attachments is given by this statute, if the grounds for the attachment given in the statute are stated in the bill. Klepper v. Powell, 53 Tenn. 503, 1871 Tenn. LEXIS 388 (1871).

4. Equity of Redemption — Attachment.

A general creditor, without judgment, may, by bill in chancery, attach the equity of redemption of a nonresident debtor and defendant in land, and subject it to the payment of his debt. Herndon v. Pickard, 73 Tenn. 702, 1880 Tenn. LEXIS 201 (1880); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

5. Suit for Support of Children.

Under this section and § 29-6-101 nonresident wife was entitled to bring suit against nonresident husband in chancery by attachment of land for recovery of money expended for support of minor children under theory of quasi-contract without having recovered judgment at law. Hall v. Jordan, 190 Tenn. 1, 227 S.W.2d 35, 1950 Tenn. LEXIS 411 (1950), 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).

Collateral References. Attachment 68.

NOTES TO DECISIONS

1. Constitutionality.

The provision authorizing the chancellor himself to issue the attachment is not in conflict with Tenn. Const., art. VI, § 12, requiring all writs to bear teste and to be signed by the respective clerks. Lyle v. Longley, 65 Tenn. 286, 1873 Tenn. LEXIS 346 (1873).

2. Attachments in Aid of Suit.

Justices of the peace (now general sessions judges) have jurisdiction to issue ancillary attachments in aid of suits pending in the circuit court, just as upon original cause. Scott v. White, 1 Shan. 23 (1849).

Ancillary as well as original attachments may be issued by a justice (now general sessions judge), returnable to the circuit court. Thompson v. Carper, 30 Tenn. 542, 1851 Tenn. LEXIS 99 (1851).

Attachments in aid of a suit must be issued from the same court which had jurisdiction of the plaintiff's demand. Brown v. Brown, 34 Tenn. 431, 1854 Tenn. LEXIS 65 (1854).

3. Clerk's Jurisdiction.

The clerk of the court is authorized to issue the writ of attachment sued out upon the ground of the nonresidence of the defendant. Gardner v. Swift & Co., 113 Tenn. 1, 80 S.W. 764, 1904 Tenn. LEXIS 1 (1904).

4. Statutory Attachments.

Chancery courts, circuit courts, and justices of the peace (now general sessions judges) are empowered to issue attachments of property in certain specific cases. These may be called statutory attachments and in the cases provided for they may be issued by the clerk and master without a fiat, or by the clerk of the circuit court, a circuit judge, a chancellor, or a justice of the peace. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 277.

7 C.J.S. Attachment § 100.

Attachment 142.

NOTES TO DECISIONS

1. Construction.

Although the Tennessee attachment statutes are to be liberally construed as a general rule, a strict construction is afforded to the attachment statutes insofar as prescribed causes for which attachment may issue; however, avoidance of an attachment on the basis of a mere technicality in the plaintiff's affidavit appears to be contrary to public policy in Tennessee. A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

2. Person Making Affidavit.

An affidavit may be made by any member of a plaintiff firm, and where the affidavit merely recites that one of the firm of “Moody & Bigelow,” made oath and was subscribed “J. W. Moody & Bigelow,” and was duly attested, it was held that it sufficiently appeared that the affidavit was subscribed and sworn to by J. W. Moody, a member. Moody & Bigelow v. Alter, Winston & Co., 59 Tenn. 142, 1873 Tenn. LEXIS 36 (1873).

An attachment may be issued upon the oath of an agent or attorney, and his authority will be presumed, in the absence of evidence that he was not authorized to swear to the bill. Baker & Paul v. Huddleston, 62 Tenn. 1, 1873 Tenn. LEXIS 124 (1873); Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891).

3. Signing and Certifying — Necessity.

An affidavit neither signed nor certified is no affidavit. Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871).

4. Status of Affidavit — Parol Evidence to Vary.

The affidavit is the basis of the suit, and is a part of the record, and not subject to be aided or attacked by parol evidence. Maples v. Tunis, 30 Tenn. 108, 1850 Tenn. LEXIS 69 (1850); Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871).

5. Verified Bill as Affidavit.

Verified bill constitutes an affidavit for attachment, and dispenses with the necessity for a separate affidavit. Butterfeild v. Miller, 195 F. 200, 1912 U.S. App. LEXIS 1362 (6th Cir. Tenn. 1912).

6. Sufficiency of Allegations.

Affidavit stating grounds of attachment to the best of affiant's knowledge and belief is sufficient. Bank of Ala. v. Berry, 21 Tenn. 443, 1841 Tenn. LEXIS 40 (1841); Phipps v. Burnett, 96 Tenn. 175, 33 S.W. 925, 1895 Tenn. LEXIS 22 (1896).

An affidavit for attachment, which does not state the nature of the debt, whether by note, bill of exchange, or a breach of contract, will not authorize the issuance of the writ. Sullivan v. Fugate, 48 Tenn. 20, 1870 Tenn. LEXIS 7 (1870); Rumbough v. White, 58 Tenn. 260, 1872 Tenn. LEXIS 256 (1872); Sherry v. Divine, 58 Tenn. 722, 1872 Tenn. LEXIS 324 (1872); Willey v. Roirden, 61 Tenn. 227, 1872 Tenn. LEXIS 363 (1872); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874); Alston v. Sharp, 70 Tenn. 515, 1879 Tenn. LEXIS 191 (1879).

Affidavit for attachment stating that the defendant “is justly indebted” to the plaintiff is equivalent to the statement that the demand or debt is “a just claim,” for a bill or affidavit for attachment stating facts showing the claim to be just is sufficient, without stating in the very words that it is “a just claim.” Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874); Alston v. Sharp, 70 Tenn. 515, 1879 Tenn. LEXIS 191 (1879); Hart, Teneray & Co. v. N.T. Dixon & Bro., 73 Tenn. 336, 1880 Tenn. LEXIS 133 (1880); Lowenstine v. Gillespie, 74 Tenn. 641, 1881 Tenn. LEXIS 189 (1881).

Affidavit stating that creditor “is informed and believes” that defendant company “have fraudulently or are about fraudulently to dispose of their property” and without the averment that defendant company had done the one or was about to do the other was insufficient. Nelson v. Fuld, 89 Tenn. 466, 14 S.W. 1079, 1890 Tenn. LEXIS 72 (Tenn. Dec. 1891).

An affidavit for an attachment, reciting that the defendant was indebted to the plaintiff “in the sum of $1,500, debt and damages by open account,” is not defective as leaving the amount sued for indefinite by the use of the term “damages,” that word, from its connection, being construed to mean merely interest. Gardner v. Swift & Co., 113 Tenn. 1, 80 S.W. 764, 1904 Tenn. LEXIS 1 (1904).

Attachment was improperly issued in divorce case even though a divorce case is considered a proceeding in chancery where neither statutory grounds were alleged for attachment or the inherent jurisdiction of the court as a court of equity invoked. Humphreys v. Humphreys, 39 Tenn. App. 99, 281 S.W.2d 270, 1954 Tenn. App. LEXIS 159 (1954), superseded by statute as stated in, Moore v. Moore, — S.W.2d —, 1991 Tenn. App. LEXIS 869 (Tenn. Ct. App. Nov. 1, 1991).

7. Insufficient Affidavit — Effect on Proceedings.

If the affidavit be defective and is not amended, the proceedings will be void. Maples v. Tunis, 30 Tenn. 108, 1850 Tenn. LEXIS 69 (1850); New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

A judgment before a justice of the peace (now general sessions judge), based on an insufficient affidavit for the attachment, with attachment levied on land, will not authorize the condemnation of the land, and the suit should be dismissed. Sullivan v. Fugate, 48 Tenn. 20, 1870 Tenn. LEXIS 7 (1870).

An attachment issued upon an insufficient affidavit, and all proceedings based thereon, without appearance, are void. Sullivan v. Fugate, 48 Tenn. 20, 1870 Tenn. LEXIS 7 (1870); Sherry v. Divine, 58 Tenn. 722, 1872 Tenn. LEXIS 324 (1872).

Where the affidavit stated that the defendant was justly indebted to the plaintiff in a certain stated sum, without stating, in so many words, that it was a “just claim,” if the claim is a note, and is filed with the papers, and the land levied on in a suit before a justice (now general sessions judge), and judgment rendered, and the land condemned and sold in the circuit court, the proceedings cannot be collaterally impeached, though the judgment might have been reversed upon an appeal or writ of error. Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874).

8. Waiver of Insufficiency of Allegations.

Where the allegations for an attachment are insufficient, but there is an answer to the bill, and no steps taken, at the proper stage, to discharge the attachment, the insufficiency of the grounds for the attachment is waived by the answer, and the attachment will hold. Johnson v. Luckado, 59 Tenn. 270, 1873 Tenn. LEXIS 57 (1873); West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882).

9. Amendment by Creditor.

Where, prior to the conclusion of the trial, the plaintiff creditor made a motion to amend its affidavit supporting the attachment of the defendant debtor's property, and the plaintiff's request to amend merely involved the insertion of a punctuation mark (a semicolon) to clarify the plaintiff's averment concerning the imminency of the removal out of the state of defendant's equipment, the motion to amend would be granted. A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

10. Amendment by Clerk.

A clerk who has issued an ancillary attachment without an affidavit or upon a void affidavit has no power to amend the proceedings, and such attachment will be quashed on motion of defendant, after verdict and judgment on the merits. Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871); Wiley v. Bennett, 68 Tenn. 581, 1877 Tenn. LEXIS 54 (1877).

11. Priority Between Attachments.

An attachment issued regularly after the date of a levy of a previous defective attachment, before the amendment of the defect in the bill, is entitled to priority over the one first issued. Kendrick v. Mason, 62 S.W. 359, 1901 Tenn. Ch. App. LEXIS 47 (Tenn. Ch. App. 1901).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 254-275, 427, 429, 441.

7 C.J.S. Attachment § 106.

Attack upon attachment after judgment because of defects in affidavit. 129 A.L.R. 779.

Discharge of attachment, or bond for its dissolution, by subsequent amendment of pleadings or the writ. 74 A.L.R. 912.

Information and belief, affidavits stating grounds of attachment on. 86 A.L.R. 588.

Intent to defraud, sufficiency of affidavit respecting as against objection that it is a mere legal conclusion. 8 A.L.R.2d 578.

Jurat or signature of officer, omission of, from affidavit. 1 A.L.R. 1571, 116 A.L.R. 587.

Surety on bond given to prevent, or secure release of, attachment, right of, to attack attachment after recovery of judgment by plaintiff, on ground of defects in, or falsity of, affidavit. 89 A.L.R. 269.

Swearing to affidavit in attachment before unauthorized person as a defect curable by amendment. 91 A.L.R. 917.

Waiver of defects in affidavit. 72 A.L.R. 122.

Attachment 91.

NOTES TO DECISIONS

1. State — Exemption from Requirement.

The state cannot be required to give an attachment bond, and no liability can be created on the part of persons purporting to execute such bond as sureties. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

2. Pauper Oath.

An attachment may be issued upon the pauper oath, although in an action for tort, and the attachment is ancillary to the summons in such case. Barber v. Denning, 36 Tenn. 267, 1856 Tenn. LEXIS 94 (1856); Wiley v. Bennett, 68 Tenn. 581, 1877 Tenn. LEXIS 54 (1877).

Section 20-12-127 setting forth the instances where the pauper oath is authorized must be construed in pari materia with the provision of this section requiring a security bond in attachment, and under § 20-12-127 both original and ancillary attachment may be had on the pauper oath. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

3. Suit Not Requiring Bond.

The court did not err in failing to require statutory attachment bond under this section on part of plaintiffs where parties had agreed that garnishee hold $3,000 out of any funds that might be due the defendant. Tygart v. Frazer, 193 Tenn. 345, 246 S.W.2d 39, 1952 Tenn. LEXIS 297 (1952).

4. Conditions in Bond Not According to Law.

The clerk has no authority to take an attachment bond conditioned otherwise than as required by law, or the fiat of the judge, and any condition beyond such requirement would be void, and be treated as surplusage, the bond being valid to the extent of its legal conditions. Ranning v. Reeves, 2 Cooper's Tenn. Ch. 263 (1875); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883).

5. Indemnity Clause Lacking.

The execution of a bond is a necessary prerequisite to the issuance of the attachment, and if it contains no clause of indemnity for wrongfully suing out the attachment, it is fatally defective, and the bill may properly be dismissed for such defect, on motion, but the bond may be amended, or a new bond given, on application to the court below. Bank of Ala. v. Fitzpatrick, 23 Tenn. 311, 1843 Tenn. LEXIS 91 (1843); Alexander v. Lisby, 32 Tenn. 107, 1852 Tenn. LEXIS 28 (1852); United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, 1907 Tenn. LEXIS 53 (1907).

6. Disappearance of Bond — Effect.

Disappearance of bond executed under judge's fiat is no ground for dissolving the attachment and accompanying injunctive order. Gribble v. Ford, 52 S.W. 1007, 1898 Tenn. Ch. App. LEXIS 175 (Tenn. Ch. App. 1898).

7. Signing of Bond — Effect as to Suit Against Surety.

Where the bond was conditioned to be void if the suit was prosecuted with effect, or if the plaintiff in the attachment should pay all such costs and damages as should be recoverable against him, in any suit or suits which might thereafter be brought, for wrongfully suing out the attachment, if the bond was not signed by plaintiff, suit cannot be maintained against the surety until such costs and damages have been ascertained by suit against such plaintiff; but if the bond was signed by the plaintiff, an action may be maintained on the bond against him and his sureties jointly. Smith v. Eakin, 34 Tenn. 456, 1854 Tenn. LEXIS 69 (1854); Jennings v. Joiner & Norris, 41 Tenn. 645, 1861 Tenn. LEXIS 1 (1861); Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

8. Procedure for Assessment of Damages.

Motion by defendant to hear proof and assess damages in proceeding at law was not proper, as the practice is to institute a separate suit. Lawing v. Schaufflu, 162 Tenn. 79, 34 S.W.2d 1055, 1930 Tenn. LEXIS 65, 85 A.L.R. 633 (1931).

9. Election as to Proceeding on Bond at Law or in Equity.

A party who brought, concurrently, an action at law upon an attachment bond against the principal obligor alone, and motions in equity against the principal obligor and his sureties and also against the sureties alone, should have been put to his election, upon the court's own motion, as to whether he will proceed at law or in equity. Kendrick v. Moss, 104 Tenn. 376, 104 Tenn. 576, 58 S.W. 127, 1900 Tenn. LEXIS 4 (1900).

10. Joinder of Principal in Suit on Bond.

An action on an attachment bond should not be entertained against the sureties, without the joinder of their principal as a defendant. Kendrick v. Moss, 104 Tenn. 376, 104 Tenn. 576, 58 S.W. 127, 1900 Tenn. LEXIS 4 (1900).

11. Rules Governing Damage Suit.

In action for damages for wrongful suing out of an attachment, defendant's contention that the rule applicable to suits for malicious prosecution of civil suits should apply was not available to him, where the attachment was levied upon property not belonging to the attachment defendant, and the real owner of the property was not made a party to the attachment. South Knoxville Contracting & Constr. Co. v. Brakebill, 10 Tenn. App. 325, 1929 Tenn. App. LEXIS 38 (1929).

The principles of the common law on the subject of actions for malicious prosecution suits apply to actions for damages for wrongful suing out of an attachment, and in order to recover, plaintiff must show malice and lack of probable cause, and a decision of the attachment suit in his favor. Boyce v. Early-Stratton Co., 10 Tenn. App. 545, 1930 Tenn. App. LEXIS 1 (1930).

12. Beneficiaries of Attachment Bond — Suit by.

The attachment bond will inure to the benefit of each and all of the several defendants who may be aggrieved by the wrongful suing out of the attachment, and, among others, to the benefit of the defendant whose property is attached as the property of the debtor, although the bond is made payable to one defendant named “et al.,” and the defendant suing was not the one named. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

If one defendant alone, in the attachment, is aggrieved, he may sue in his own name, with an averment in his declaration that the other defendants had no interest in the damages claimed, or he may sue in the name of all the defendants to the attachment for his use, and the suit may be continued in his own name if the other plaintiffs die, or if, at the instance of his adversary, the trial court compels him so to do. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

13. Assignee in Bankruptcy — Extent of Right to Sue for Damages.

The right of action for a wrongful attachment, as to injury and actual damages to the property, passes to the assignee in bankruptcy, but the right to recover damages personal to the defendant in the attachment, and vindictive damages, if the case be one for such, remains with the bankrupt; but the aggregate recoveries cannot exceed the penalty of the bond, when the action is on the bond. Doll v. Cooper, 77 Tenn. 576, 1882 Tenn. LEXIS 106 (1882); Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

14. Judgment on Facts of Case as Bar to Suit on Bond.

A judgment in favor of the defendant in an action against him, on the facts of the case, for wrongful suing out of an attachment is conclusive between the parties, and may be relied on by the surety as res judicata in a subsequent suit against him. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883); Fowlkes v. State, 82 Tenn. 14, 1884 Tenn. LEXIS 98 (1884).

15. Damages for Wrongful Attachment — Elements.

The measure of damages for the wrongful suing out of an attachment is (1) loss by injuring, detaining, or converting the property attached; (2) loss by injury to plaintiff's business, reputation, and credit, as where plaintiff is thrown into bankruptcy by the attachment; (3) vindictive damages based on the falsity or mala fides of the claim, wanton abuse of process, or express malice in suing out, levying, or continuing the attachment; and these constitute the recovery in an action on the attachment bond, as well as in the action at common law. Vindictive damages cannot be recovered unless the declaration avers malice. Doll v. Cooper, 77 Tenn. 576, 1882 Tenn. LEXIS 106 (1882); Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883). See South Knoxville Contracting & Constr. Co. v. Brakebill, 10 Tenn. App. 325, 1929 Tenn. App. LEXIS 38 (1929).

In a suit on an attachment bond against a surety thereon, the plaintiff is not entitled to recover exemplary damages, unless the principal is fixed with malice, or a wrongful abuse of the process. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883).

A suit for damages for the wrongful suing out of an attachment may be either on the bond or on the facts of the case as against the plaintiff in the attachment suit. In both cases, the action is really on the facts of the case, and the measure of damages is precisely the same, except the damages on the bond are limited by the amount of the penalty. In both cases, malice and want of probable cause go in aggravation of damages. Renkert v. Elliott, 79 Tenn. 235, 1883 Tenn. LEXIS 49 (1883); Lipscomb v. Shofner, 96 Tenn. 112, 33 S.W. 818, 1895 Tenn. LEXIS 16 (1895).

Attorney's fees, incurred in defending a wrongful attachment or injunction suit, are not elements of the damages that may be recovered for the breach of an attachment or injunction bond, but costs paid are recoverable. Stringfield v. Hirsch, 94 Tenn. 425, 29 S.W. 609, 1894 Tenn. LEXIS 56, 45 Am. St. Rep. 733 (1894); Gordon v. Kentucky Midland Coal Co., 152 Tenn. 367, 278 S.W. 68, 1925 Tenn. LEXIS 79, 42 A.L.R. 1052 (1925); Sklar v. Bernstein, 7 Tenn. App. 593, — S.W.2d —, 1928 Tenn. App. LEXIS 83 (Tenn. Ct. App. 1928).

Where a fund already in custodia legis is impounded by a wrongful attachment or injunction, the taxes accruing thereon pending the litigation, and the receiver's compensation for lending the fund during the litigation, which was retained out of the accruing interest, are not elements of damages recoverable for breach of the attachment or injunction bond. Stringfield v. Hirsch, 94 Tenn. 425, 29 S.W. 609, 1894 Tenn. LEXIS 56, 45 Am. St. Rep. 733 (1894).

In suit on bond, defendant was entitled to recover as damages premiums paid for replevy or refunding bond executed to release the attachment. Gordon v. Kentucky Midland Coal Co., 152 Tenn. 367, 278 S.W. 68, 1925 Tenn. LEXIS 79, 42 A.L.R. 1052 (1925).

16. Insufficient Grounds Stated Where Sufficient Grounds Exist — Damages.

The attachment is wrongfully sued out where it is sued out upon insufficient grounds stated as the grounds of the attachment, although sufficient grounds may have, in fact, existed, without reference to the intent, and although the suit was prosecuted in good faith, as well as where it has been sued out and set on foot from motives of malice and oppression. The damages, however, would be confined, in the first case, to the actual damages for the injuries sustained, while in the second case, vindictive damages might be allowed. Smith v. Eakin, 34 Tenn. 456, 1854 Tenn. LEXIS 69 (1854); Cox v. Crumley, 73 Tenn. 529, 1880 Tenn. LEXIS 176 (1880); Doll v. Cooper, 77 Tenn. 576, 1882 Tenn. LEXIS 106 (1882); Lobenstein v. Hymson, 90 Tenn. 606, 18 S.W. 250, 1891 Tenn. LEXIS 51 (1891); Swepson v. Davis, 109 Tenn. 99, 70 S.W. 65, 1902 Tenn. LEXIS 62, 59 L.R.A. 501 (1902). See Boyce v. Early-Stratton Co., 10 Tenn. App. 545, 1930 Tenn. App. LEXIS 1 (1930).

17. Burden of Proof in Action for Damages.

In an action to recover damages for the wrongful suing out and prosecution of an attachment suit, the plaintiff must show that the suit was decided in his favor, or, at any rate, that the attachment was dismissed, and the burden is upon him to show the damages. Pharis v. Lambert, 33 Tenn. 228, 1853 Tenn. LEXIS 34 (1853); Memphis Gayoso Gas Co. v. Williamson, 56 Tenn. 314, 1872 Tenn. LEXIS 148 (1872), overruled, Roberts v. Federal Express Corp., 842 S.W.2d 246, 1992 Tenn. LEXIS 551 (Tenn. 1992); Boyce v. Early-Stratton Co., 10 Tenn. App. 545, 1930 Tenn. App. LEXIS 1 (1930); Ranning v. Reeves, 2 Cooper's Tenn. Ch. 263 (1875); Sloan v. McCracken, 75 Tenn. 626, 1881 Tenn. LEXIS 159 (1881); Swepson v. Davis, 109 Tenn. 99, 70 S.W. 65, 1902 Tenn. LEXIS 62, 59 L.R.A. 501 (1902); Scheibler v. Steinburg, 129 Tenn. 614, 167 S.W. 866, 1915D Am. Ann. Cas. 1162, 1914 Tenn. LEXIS 150 (1914).

18. Action for Malicious Prosecution in Absence of Attachment.

An action for malicious prosecution will lie where a civil suit, brought maliciously and without probable cause, has resulted in actual damages, although it was begun by mere personal service of process, and was unattended by attachment of property or deprivation of personal liberty. Lipscomb v. Shofner, 96 Tenn. 112, 33 S.W. 818, 1895 Tenn. LEXIS 16 (1895).

19. Appeal in Suit on Bond.

Appeal from the judgment on motion to assess damages in attachment suit, or from a suit at law upon the bond, does not carry to the appellate court, for revision, the judgment in the original cause. Macheca v. Panesi, 72 Tenn. 544, 1880 Tenn. LEXIS 61 (1880).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 252, 518-522.

7 C.J.S. Attachment §§ 145-147.

Assignment of judgment as carrying collateral rights of assignor as to attachment bonds. 63 A.L.R. 291.

Bankruptcy, obligation of surety on attachment bond as affected by attachment defendant's adjudication in. 68 A.L.R. 1331.

Bankruptcy of debtor within four months after attachment or execution as discharging surety on bond to release property. 36 A.L.R. 449, 107 A.L.R. 1138.

Constitutionality of statute making the giving of security a condition of right of defendant in foreign attachment to appear and defend. 17 A.L.R. 884.

Contempt by false justification by surety. 89 A.L.R.2d 1258.

Death of principal defendant as discharging surety on bond given for release of attachment. 21 A.L.R. 290, 131 A.L.R. 1146.

De minimis non curat lex as applied to deficiency in attachment bond. 44 A.L.R. 184.

Judgment by consent, confession or default of principal as affecting sureties whose obligation is conditioned upon judicial determination of liability of principal. 51 A.L.R. 1493.

Levy, or valid levy, as condition of liability on attachment bond. 108 A.L.R. 917.

Surety on bond given to prevent, or secure release of, attachment, right of, to attack attachment after recovery by plaintiff of judgment in attachment action, on ground of absence of, or defects in, bond of plaintiff in attachment. 89 A.L.R. 268.

Waiver of defects in bond. 72 A.L.R. 124.

Wrongful seizure of property, may or must claim for damages resulting from, be enforced by action on attachment bond. 85 A.L.R. 646.

NOTES TO DECISIONS

1. Real Estate — Attachment.

In the absence of any positive limitations of the right of attachment, real estate may be as well attached as personalty, and the existence, within the knowledge of the officer, of a sufficiency of personal property which he might seize, will not invalidate the levy on land, and such levy is sufficient to confer jurisdiction on the court. Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866).

Attachment under this section is against the “estate of the defendant” and it was not necessary to show that search was made and no personal property found in order for levy on realty of the defendant to be valid. Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866).

2. Levy on Land — What Constitutes.

A levy upon “all the right, title and interest” of the mortgagor in land is not merely a levy upon the mortgagor's equity, but is equivalent to a levy on the lands. McDonnell v. Amo, 162 Tenn. 36, 34 S.W.2d 212, 1930 Tenn. LEXIS 60 (1931).

3. Writ Not Specifying Property — Effect as to Lien.

While the attachment writ need not specifically describe the property to be attached, but may be issued broadly against the estate of the defendant, the lien does not attach before the levy, unless the property is specified in the bill or writ of attachment. Vance v. Cooper, 42 Tenn. 497, 1865 Tenn. LEXIS 93 (1865); Lacy & McGee v. Moore, Lewis & Govan, 46 Tenn. 348, 1869 Tenn. LEXIS 66 (1869); 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); Vance v. Cooper, 49 Tenn. 93, 1870 Tenn. LEXIS 196 (1870). See Hughes v. Tennison, 3 Cooper's Tenn. Ch. 641 (1878).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 283-287.

7 C.J.S. Attachment §§ 180-200.

Attachment 140-158.

NOTES TO DECISIONS

1. Attachments Covered.

The form prescribed is for an original attachment, and not for an ancillary attachment, which must refer to and identify the suit in aid of which it is issued. Peak v. Buck, 62 Tenn. 71, 1873 Tenn. LEXIS 142 (1873).

2. Date of Writ.

It is proper to date the writ of attachment with the date of its issuance, and not to teste it as of the term preceding its issuance; but if the date of the issuance is endorsed on the writ, it is sufficient, for this section is merely directory, and the attestation may be rejected as surplusage. Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865).

3. Person Issuing Writ.

The writ may be issued by a judge of the circuit court himself, or by the chancellor, or by a justice of the peace (now general sessions judge), or by the clerk of the court. Gardner v. Swift & Co., 113 Tenn. 1, 80 S.W. 764, 1904 Tenn. LEXIS 1 (1904).

4. Writ Incorporated with Summons.

The attachment writ may be incorporated with the leading process, so that it distinctly appears and is levied upon the property. Brown v. Brown, 34 Tenn. 431, 1854 Tenn. LEXIS 65 (1854); Hillman & Bros. v. Anthony, 63 Tenn. 444, 1874 Tenn. LEXIS 289 (1874); McLeod v. Capell, 66 Tenn. 196, 1874 Tenn. LEXIS 105 (1874).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 283-287.

7 C.J.S. Attachment §§ 184-198.

Attachment 145.

NOTES TO DECISIONS

1. Averments and Verification.

The averments of the plea in abatement must be positive, and leave nothing to inference, and it must be verified by affidavit. A statement upon information and belief of the affiant is insufficient. Bank of Tennessee v. Jones, 31 Tenn. 391, 1852 Tenn. LEXIS 125 (Tenn. Apr. 1852); Trabue v. Higden, 44 Tenn. 620, 1867 Tenn. LEXIS 81 (1867); Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868); Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874); Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891); Armstrong v. State, 101 Tenn. 389, 47 S.W. 492, 1898 Tenn. LEXIS 78 (1898).

The plea in abatement may be verified by attorney or agent, and the fact of the agency need not be stated on the face of the plea. Bank of Tennessee v. Jones, 31 Tenn. 391, 1852 Tenn. LEXIS 125 (Tenn. Apr. 1852); Carter v. Vaulx, 32 Tenn. 639, 1853 Tenn. LEXIS 98 (1853); Bank of Tennessee v. Anderson, McDermot & Cobb, 35 Tenn. 669, 1856 Tenn. LEXIS 40 (1856); Klepper v. Powell, 53 Tenn. 503, 1871 Tenn. LEXIS 388 (1871); Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 1886 Tenn. LEXIS 27 (1886); Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891).

A plea in abatement need not be verified before the court where the suit is pending. It may be verified before any officer within this state authorized to administer oaths; and it may be verified before any officer of another state who is authorized by the laws of this state to administer oaths. The verification may be made by affidavit before a notary public in and for another state. Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891).

2. —Waiver of Defects.

If the verification of the plea in abatement to the attachment is defective, but the plaintiff treats such plea as valid, and goes to a hearing upon it, he waives the defect. Such objection on the hearing comes too late. Wilson v. Eifler, 47 Tenn. 31, 1869 Tenn. LEXIS 5 (1869); Seifred v. People's Bank, 60 Tenn. 200, 1873 Tenn. LEXIS 436 (1873); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874).

3. Pauper Oath.

This section has application where pauper oath in lieu of bond has not been taken but does not operate to defeat the pauper oath. Doty v. Federal Land Bank, 173 Tenn. 140, 114 S.W.2d 953, 1937 Tenn. LEXIS 20 (1938).

4. Groundless Attachment — Effectiveness in Absence of Plea.

Where the suit does not rest upon the attachment as its leading process, and the only office of the attachment is to fasten a lien upon the property, it seems that, even if the attachment was groundlessly issued, it will accomplish its end, if not abated by a proper judicial action. Bittick v. Wilkins, 54 Tenn. 307, 1872 Tenn. LEXIS 52 (1872); Robinson v. Brown, 60 Tenn. 206, 1872 Tenn. LEXIS 473 (1872).

5. Defective Bond — Effect on Attachment.

The attachment issued on a defective bond is not void, but voidable only, and the sheriff cannot excuse himself, on that ground, for failing to execute the writ. Shaw v. Holmes, 51 Tenn. 692, 1871 Tenn. LEXIS 223 (1871). See Stevenson v. McLean, 24 Tenn. 332, 1844 Tenn. LEXIS 68 (1844); Reams v. McNail, 28 Tenn. 542, 1848 Tenn. LEXIS 119 (1848); Trotter v. Nelson, 31 Tenn. 7, 1851 Tenn. LEXIS 2 (1851); Cooper v. Reynolds, 77 U.S. 308, 19 L. Ed. 931, 1870 U.S. LEXIS 1123 (1870); Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884); State v. Hood, 84 Tenn. 235, 1886 Tenn. LEXIS 89 (1886); Cowan v. Sloan, 95 Tenn. 424, 32 S.W. 388, 1895 Tenn. LEXIS 111 (1895).

6. Defect Apparent on Face of Proceedings — Remedy.

Where the defect appears on the face of the proceedings, a plea in abatement is not necessary to bring it before the court. It is where the defect is not so apparent that a plea in abatement becomes indispensable. Where the defect is so apparent the attachment may be abated upon a motion to quash it, or by a plea in abatement. Parker v. Porter, 12 Tenn. 81, 1833 Tenn. LEXIS 17 (1833); Bryan v. Norfolk & W. R. Co., 119 Tenn. 349, 104 S.W. 523, 1907 Tenn. LEXIS 10 (1907); Gilbert v. Smith, 14 Tenn. App. 500, — S.W.2d —, 1932 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1932).

7. Amendment of Verification.

The affidavit to a plea in abatement may, by leave of the court, be amended by filing an additional affidavit. Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891).

8. All Grounds for Attachment to be Traversed.

Plea in abatement must traverse all grounds alleged for the issuance of the attachment. Cooke v. Richards, 58 Tenn. 711, 1872 Tenn. LEXIS 322 (1872).

9. Replication to Negative Plea Unnecessary.

Negative plea in abatement makes an issue without replication, though the complainant may file a replication. It is not necessary. Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891); Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891).

10. Effect of Answer on Plea in Abatement.

Where an attachment is obtained upon a bill in chancery, the ground of the attachment must be contested by plea in abatement, and not by denial in the answer, as matter of abatement is waived by answering. Foster v. Hall, 23 Tenn. 346, 1843 Tenn. LEXIS 110 (1843); Isaacks v. Edwards, 26 Tenn. 465, 1846 Tenn. LEXIS 160 (1846); Kendrick v. Davis, 43 Tenn. 524, 1866 Tenn. LEXIS 82 (1866), questioned, Sewell v. Tuthill & Pattison, 112 Tenn. 271, 79 S.W. 376, 1903 Tenn. LEXIS 102 (1904); Boyd v. Martin, 56 Tenn. 382, 1872 Tenn. LEXIS 150 (1872); Tarbox v. Tonder, 1 Cooper's Tenn. Ch. 163 (1873); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901); Pennel v. State, 122 Tenn. 622, 125 S.W. 445, 1909 Tenn. LEXIS 35 (1909); Cate v. Popejoy, 19 Tenn. App. 643, 94 S.W.2d 51, 1935 Tenn. App. LEXIS 74 (1935).

The defendant has the right to plead in abatement to ancillary attachment, and, at the same time, to the merits of the suit in which it is issued. Robb v. Parker, 51 Tenn. 58, 1871 Tenn. LEXIS 134 (1871); Price v. Bescher, Shultz & Co., 59 Tenn. 372, 1873 Tenn. LEXIS 76 (1873); Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

Where the attachment bill, in addition to the statutory grounds of attachment alleged, further charges facts and circumstances as evidence of such ground, the negative plea in abatement, denying such statutory grounds, must be supported by an answer denying such facts and circumstances, and such answer will not overrule the plea in abatement, and the answer may also contest the merits of the claim sued on. Seifred v. People's Bank, 60 Tenn. 200, 1873 Tenn. LEXIS 436 (1873); Pigue v. Young, 85 Tenn. 263, 1 S.W. 889, 1886 Tenn. LEXIS 39 (1886); Cheatham v. Pearce, 89 Tenn. 668, 15 S.W. 1080, 1890 Tenn. LEXIS 90 (1891); Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891).

Where personal jurisdiction is obtained upon a defendant after an original attachment the defendant may in such case, plead in abatement to the original attachment in chancery, and may at the same time answer to the merits, and such answer does not overrule the plea in abatement. Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

11. Pleading Abatement by Answer.

Where attachment is based upon allegation that defendant was about to dispose of his property fraudulently, and no plea in abatement filed, it was not sufficient merely to put in issue the ground for attachment by answer. Cate v. Popejoy, 19 Tenn. App. 643, 94 S.W.2d 51, 1935 Tenn. App. LEXIS 74 (1935).

12. Personal Appearance.

A plea in abatement to the attachment, putting in issue the grounds thereof, does not constitute such appearance as will warrant a personal judgment upon the cause of action, where the issue upon the ground of attachment is found in favor of the defendant. Freidlander, Stick & Co. v. S. Pollock & Co., 45 Tenn. 490, 1868 Tenn. LEXIS 37 (1868); Boon v. Rahl, 48 Tenn. 12, 1870 Tenn. LEXIS 5 (1870); Sherry v. Divine, 58 Tenn. 722, 1872 Tenn. LEXIS 324 (1872); Willey v. Roirden, 61 Tenn. 227, 1872 Tenn. LEXIS 363 (1872); Seifreid v. Peoples Bank, 2 Cooper's Tenn. Ch. 17 (1874).

Filing of replevy bond constitutes an appearance. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

13. —Effect on Original Attachment.

Where there has been personal service of process upon the defendant or he voluntarily enters his personal appearance, or appears otherwise than to plead in abatement to the attachment, the attachment then serves merely the purpose of an ancillary attachment. Bivins v. Mathews, 66 Tenn. 256, 1874 Tenn. LEXIS 117 (1874); Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

14. Effect of Abatement on Suit.

Where the attachment is used to bring a party into court, as well as to impound the property, if it be abated, the suit must be dismissed, but where the attachment is ancillary, the defendant being brought into court by summons, the abatement of the attachment will have no effect upon the trial of the case upon the merits. Kruger v. Stayton, 58 Tenn. 726, 1872 Tenn. LEXIS 325 (1872); Younger v. Younger, 90 Tenn. 25, 16 S.W. 78, 1890 Tenn. LEXIS 97 (1890).

Collateral References. Abatement and Revival 30.

NOTES TO DECISIONS

1. Grounds for Attachment — Strict Construction.

Although the attachment laws are to be liberally construed so far as they regard the application of the remedy, yet, so far as they prescribe the causes for which an attachment may issue, no material departure from the specific requirements of the statutes has ever been tolerated by the Supreme Court, and the statutes will not be strained to include cases, or causes of attachment, not embraced in the terms of the statute. Jackson v. Burke, 51 Tenn. 610, 1871 Tenn. LEXIS 211 (1871); Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874); Brown v. Crenshaw, 64 Tenn. 584, 1875 Tenn. LEXIS 131 (1875).

2. Time for Amendment.

Amendment to a defective affidavit should have been allowed where offered after the proof was taken in chancery proceeding but before the hearing. Wrompelmeir v. Moses, 62 Tenn. 467, 1874 Tenn. LEXIS 80 (1874).

The writ of attachment and the affidavit therefor may be amended any time before or during trial, but not afterwards. Dickinson v. Redmond, 3 Shan. 620 (1875).

After appearance, and defense to the merits in an original attachment suit, an amendment to the affidavit, showing the debt due by account, and the claim just, may be properly allowed. Allen v. New York & E. Tenn. Iron Co., 2 Shan. 388 (1877).

3. Extent of Amendment Permitted.

By this section an affidavit may be amended as to any defect in form but this does not authorize an amendment which affects the substance of the affidavit. Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871); A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

It is the public policy that nonresidents will not be permitted to escape attachment by technicalities or technical defects. McEwan, Gearinger, Banks & Hutcheson v. Lookout Mt. Hotel, Inc., 207 Tenn. 197, 338 S.W.2d 601, 1960 Tenn. LEXIS 447 (1960).

Plaintiff should be permitted to amend attachment bill to correct defect in placing name of wrong person in wrong bill and in not being specific although setting forth a ground for attachment. McEwan, Gearinger, Banks & Hutcheson v. Lookout Mt. Hotel, Inc., 207 Tenn. 197, 338 S.W.2d 601, 1960 Tenn. LEXIS 447 (1960).

Amendments are only allowable to cure defects of form, not to substitute a valid affidavit for one which is void. A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

Where, prior to the conclusion of the trial, the plaintiff creditor made a motion to amend its affidavit supporting the attachment of the defendant debtor's property, and the plaintiff's request to amend merely involved the insertion of a punctuation mark (a semicolon) to clarify the plaintiff's averment concerning the imminency of the removal out of the state of defendant's equipment, the motion to amend would be granted. A.G. Campbell & Co. v. Chemical Separations Corp., 29 B.R. 240, 1983 Bankr. LEXIS 6417 (Bankr. E.D. Tenn. 1983).

4. Insufficient Affidavit.

An affidavit neither signed nor sworn to is no affidavit, and therefore cannot be amended. If the clerk allows the plaintiff to amend it after his issuance of the attachment, it is a nullity, and does not cure the omission or render the attachment valid. Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871); Lillard v. Carter, 54 Tenn. 604, 1872 Tenn. LEXIS 92 (1872); Wiley v. Bennett, 68 Tenn. 581, 1877 Tenn. LEXIS 54 (1877).

This statute allows amendments of affidavits “for any defect of form” only, and was not intended to allow the substitution of a valid and sufficient affidavit for one wholly insufficient to authorize the issuance of an attachment. Lillard v. Carter, 54 Tenn. 604, 1872 Tenn. LEXIS 92 (1872); Keller v. Federal Bob Brannon Truck Co., 151 Tenn. 427, 269 S.W. 914, 1924 Tenn. LEXIS 76 (1924); New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

An affidavit certified to be signed without actual signature may be amended. West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882). See Johnson v. Luckado, 59 Tenn. 270, 1873 Tenn. LEXIS 57 (1873); Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874).

Where the affidavit is actually made, and the clerk or justice (now general sessions judge) failed to attest it, the defect may be cured by amendment. West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882). See Johnson v. Luckado, 59 Tenn. 270, 1873 Tenn. LEXIS 57 (1873); Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874).

5. Waiver of Defects.

An appearance and answer, or a plea to the merits, is a waiver of failure to attest affidavit or failure to sign affidavit certified to be signed. West Tenn. Agrl. & Mechanical Ass'n v. Madison, 77 Tenn. 407, 1882 Tenn. LEXIS 75 (1882). See Johnson v. Luckado, 59 Tenn. 270, 1873 Tenn. LEXIS 57 (1873); Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874).

Where there was a failure to give bond on issuance of an attachment, and later, on court's leave, one was filed, a plea in abatement based on the failure being overruled, there was no reversible error. Long v. Fisher Typewriter Co., 1 Tenn. Ch. App. 668 (1901).

6. Bond Amended in Lower Court — Effect.

Under this section it was proper for chancellor to allow defect in signature on bond to be corrected and upon such amendment complainant would be entitled to the full benefit of his attachment. Brooks & Co. v. Hartman, 48 Tenn. 36, 1870 Tenn. LEXIS 11 (1870).

7. Parties Added by Amendment — Effect as to Attachment Lien.

Where a bill for the enforcement of a mechanic's lien failed to make the trustees in a prior mortgage parties, but later brought them in by amendment, such amendment does not, under this section, destroy an attachment levied against the contractor and owner under the original bill, especially where there is no question as to any intervening attachments levied by others between the original bill and the amended bill. Niehaus v. C. B. Barker Const. Co., 135 Tenn. 382, 186 S.W. 461, 1916 Tenn. LEXIS 34 (1916).

8. Attachments at Law and in Equity — Election as to Procedure.

A plaintiff who has attached a party's effects, both at law and equity, may dismiss his attachment at law and proceed in equity. Niehaus v. C. B. Barker Const. Co., 135 Tenn. 382, 186 S.W. 461, 1916 Tenn. LEXIS 34 (1916).

Decisions Under Prior Law

1. Affidavit Lacking.

An affidavit for an attachment merely defective in form is amendable, but if there is no affidavit at all, one cannot be supplied or made as an amendment after the attachment has issued. McReynolds v. Neal, 27 Tenn. 12, 1845 Tenn. LEXIS 149 (1847); Scott v. White, 1 Shan. 23 (1849); Maples v. Tunis, 30 Tenn. 108, 1850 Tenn. LEXIS 69 (1850).

2. Insufficient Affidavit.

Where the affidavit was defective in not stating the cause for which issued and was not amended, the attachment proceedings were void and a sale thereunder passed no title, and the fact that the attachment recited that the affidavit was duly made did not cure the defect for the affidavit was part of the record as well as the attachment writ. Maples v. Tunis, 30 Tenn. 108, 1850 Tenn. LEXIS 69 (1850).

3. Levies Made Before Amendment of Bill — Effect.

If the attachment be levied on the property of one not a party to the suit, and afterwards he is made a party by an amended bill, other levies having been made by others in the meantime, the amendment will not relate so as to overreach the intervening levies. Lillard v. Porter, 39 Tenn. 177, 1858 Tenn. LEXIS 273 (Tenn. Dec. 1858).

4. Bond Amended in Lower Court — Effect.

Where a defective bond is amended, the effect is the same as if it had originally been sufficient, and a defective bond may be amended, or a new bond given, on application in the court below, but not in the appellate court. Bank of Ala. v. Fitzpatrick, 23 Tenn. 311, 1843 Tenn. LEXIS 91 (1843); Alexander v. Lisby, 32 Tenn. 107, 1852 Tenn. LEXIS 28 (1852).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 258, 284, 327-329, 519, 520, 527-546.

7 C.J.S. Attachment §§ 141, 170.

Amendment of attachment bond. 47 A.L.R.2d 971.

Abatement and revival 32.

NOTES TO DECISIONS

1. Constitutionality.

This section is not a denial of due process of law. Mountain City Mill Co. v. A. Waller & Co., 1 Tenn. Ch. App. 629 (1901).

2. Application.

An indebtedness due to one nonresident defendant, owing to him by a resident debtor, can be attached in chancery by a citizen of this state without judgment at law, on the ground that such nonresident is himself a debtor to another nonresident who is debtor to complainant. Mountain City Mill Co. v. A. Waller & Co., 1 Tenn. Ch. App. 629 (1901).

3. Sufficiency of Summons.

The question whether the warrant states a cause of action is determined from its face, unaided by statements in attachment writ or affidavit therefor. Rosenbaum v. Herron, 5 Tenn. Civ. App. (5 Higgins) 630 (1914).

Justice's (now general sessions judge's) warrant issued in attachment proceeding was defective where it failed to state the name of the plaintiff and the nature of the cause of action. J.C. Jacobs Banking Co. v. Security Banking Co., 6 Tenn. Civ. App. (6 Higgins) 127 (1915).

Without reference in the summons to an antecedent attachment, there is nothing to identify an original attachment and a summons subsequently issued as belonging to the same suit. There could not be two leading writs against the same defendants. Purnell v. Morton Live Stock Co., 156 Tenn. 383, 1 S.W.2d 1013, 1927 Tenn. LEXIS 131 (1928).

4. Necessity and Effect of Summons.

If the summons is served on the defendant, then it becomes the leading process in the case, the attachment, if levied on property, becomes equivalent to an ancillary attachment, and holds the property until the termination of the litigation. If the summons is not served, and the attachment is levied on property, then the case is to proceed as in other cases of original attachment suits. Bivins v. Mathews, 66 Tenn. 256, 1874 Tenn. LEXIS 117 (1874).

Attachment suit is not changed in its character, because process is personally served upon defendant coming within the jurisdiction of the court, after the attachment has been issued and levied, it then becoming practicable to summon the defendant personally. Grubbs v. Colter, 66 Tenn. 432, 1874 Tenn. LEXIS 160 (1874).

The plaintiff cannot recover judgment in attachment suit, without personal service of summons, where the attachment writ has not been levied on the property as required by law. Emmett v. Crawford, 78 Tenn. 21, 1882 Tenn. LEXIS 134 (1882). See Pennebaker v. Tomlinson, 1 Cooper's Tenn. Ch. 111 (1873).

Nothing in this section evinces a purpose to subject a suitor, brought into the jurisdiction of the court to challenge the validity of an original attachment suit, to service of process. Purnell v. Morton Live Stock Co., 156 Tenn. 383, 1 S.W.2d 1013, 1927 Tenn. LEXIS 131 (1928).

Where jurisdiction was obtained in suit against a nonresident by original attachment, service on the nonresident while within the state for the purpose of entering a special appearance by plea in abatement and motion to dismiss and for purpose of conferring with counsel did not give the court personal jurisdiction of the defendant upon dismissal of the original attachment. Purnell v. Morton Live Stock Co., 156 Tenn. 383, 1 S.W.2d 1013, 1927 Tenn. LEXIS 131 (1928).

5. Appearance — Effect.

Though appearance gives the court jurisdiction of the person of the defendant, it does not give jurisdiction of the property sought to be attached, if the attachment be not sustainable. John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

6. Effect of Dismissing Attachment.

A judgment for plaintiff's debt will not be rendered, where an original attachment is dismissed, unless there has been service of summons upon the defendant as provided by this statute. Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890).

Dismissal of the original attachment suit destroys the attachment writ as a leading process and ends the suit because jurisdiction is dependent upon the attachment. Purnell v. Morton Live Stock Co., 156 Tenn. 383, 1 S.W.2d 1013, 1927 Tenn. LEXIS 131 (1928).

7. Money Paid into Court Under Garnishment Proceedings.

Where a nonresident recovered a judgment against a resident, in this state, and the judgment debtor was garnisheed in an action against such judgment creditor, and the amount was paid into court and garnishment dismissed, the money so paid was not subject to attachment at instance of a nonresident under this section. Brown v. Pace, 49 S.W. 355, 1898 Tenn. Ch. App. LEXIS 123 (1898).

Where judgment on garnishment was paid into court and satisfied of record, a decree that any balance after payment of demand of attachment creditor and costs be returned to the judgment debtor was erroneous. Brown v. Pace, 49 S.W. 355, 1898 Tenn. Ch. App. LEXIS 123 (1898).

8. Replevy Bond.

Where a replevy bond is executed, the defendant thereby waives the right to traverse the grounds alleged for attachment if the attachment be valid on its face and the court has jurisdiction; otherwise judgment cannot be rendered on the bond. McWaters v. Hall, 15 Tenn. App. 46, 1932 Tenn. App. LEXIS 72 (1932).

A defendant is entitled to obtain the release of property attached either by giving a replevy bond or a forthcoming bond, but where the bond executed is in double the amount of plaintiff's claim and makes no provision for a return of the property, it is to be deemed a replevy bond. McWaters v. Hall, 15 Tenn. App. 46, 1932 Tenn. App. LEXIS 72 (1932).

9. Suit Against Carrier's Insurers.

The right of complainant insurance company to sue and recover of the carrier's insurers is but incidental to its litigation with the carrier, and such a litigation against the insurers, under this section, is in the nature of a garnishment proceeding against them, and stands on the same ground, so far as the question of removal from the state court to the federal court is concerned, as though these defendants were in fact garnishees. Insurance Co. of N. Am. v. Delaware Mut. Safety Ins. Co., 91 Tenn. 537, 19 S.W. 755 (1892), aff'd, Merchants' Cotton Press & Storage Co. v. Insurance Co. of North America, 14 S. Ct. 367, 151 U.S. 368, 38 L. Ed. 195, 1894 U.S. LEXIS 412 (1894).

10. Judgment for Debt and Attachment Quashed — Costs.

Where there was personal service on the defendant, and the attachment was quashed for fatal defects, judgment may be rendered against the defendant for the debt, and in such case, the defendant will be taxed with all costs incident to the suit and debt, and the plaintiff with all costs incident to the attachment branch of the suit. Dougherty v. Kellum, 71 Tenn. 643, 1879 Tenn. LEXIS 126 (1879); Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890).

11. Judgment in Supreme Court.

Where an attachment was sued out before a justice (now general sessions judge), and levied upon land, to enforce an alleged lien, and the enforcement of the lien was allowed by the justice, but no judgment for debt was asked for or rendered before him, and the papers were returned to the circuit court to have the land condemned and sold, no judgment for the debt can be rendered in the Supreme Court. Mayor, etc., of Nashville v. Wilson, 88 Tenn. 407, 12 S.W. 1082, 1889 Tenn. LEXIS 63 (1890).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 284, 344, 439, 445, 560, 562.

7 C.J.S. Attachment § 489.

Attachment 153.

NOTES TO DECISIONS

1. Purpose and Nature of Ancillary Attachment.

Office of ancillary attachment is to fasten upon the property of the defendant and to hold the same to secure the payment of the judgment which the plaintiff expects to recover. It is not leading process, and cannot be made the instrument by which the court acquires jurisdiction of the person of the defendant. Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891).

2. Allegations in Affidavit and Writ.

It should be stated in the affidavit and alleged in the ancillary attachment, whether the action be ex delicto or on contract, that a suit has been commenced by the plaintiff against the defendant, the nature thereof, the tribunal in which it is depending, the amount of the debt or damages claimed in the action, or the amount of damages laid in the action, and that the cause of action stated is just, or the proceeding will be void. Thompson v. Carper, 30 Tenn. 542, 1851 Tenn. LEXIS 99 (1851); Morris v. Davis, 36 Tenn. 452, 1857 Tenn. LEXIS 33 (1857); Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865); Smith v. Foster, 43 Tenn. 139, 1866 Tenn. LEXIS 29 (1866); Woodfolk v. Whitworth, 45 Tenn. 561, 1868 Tenn. LEXIS 47 (1868); Gibson v. Carroll, 48 Tenn. 23, 1870 Tenn. LEXIS 8 (1870); Ogg v. Leinart, 48 Tenn. 40, 1870 Tenn. LEXIS 12 (1870); Robb v. Parker, 51 Tenn. 58, 1871 Tenn. LEXIS 134 (1871); Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871); Ludlow v. Ramsey, 78 U.S. 581, 20 L. Ed. 216, 1870 U.S. LEXIS 1504 (1870); Lewis v. Woodfolk, 61 Tenn. 25, 1872 Tenn. LEXIS 337 (1872); Peak v. Buck, 62 Tenn. 71, 1873 Tenn. LEXIS 142 (1873); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Sparkman v. Sparkman, 63 Tenn. 45, 1874 Tenn. LEXIS 201 (1874); Dickinson v. Redmond, 3 Shan. 620 (1875).

3. Jurisdiction to Issue Writ.

Justices of the peace (now judges of the court of general sessions) have jurisdiction to issue ancillary attachment in aid of suits pending in the circuit court, just as upon original cause. Scott v. White, 1 Shan. 23 (1849).

4. Form of Writ.

The form of the original writ of attachment is not the appropriate form for the ancillary writ of attachment. Peak v. Buck, 62 Tenn. 71, 1873 Tenn. LEXIS 142 (1873).

5. Time of Attachment.

The ancillary writ of attachment in actions ex delicto may issue simultaneously with or subsequently to the original summons, or commencement of the suit. Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873).

6. Necessity of Service.

Summons must be served, because the levy of an ancillary attachment, without such service, does not bring the defendant into court. Ingle v. McCurry, 48 Tenn. 26, 1870 Tenn. LEXIS 9 (1870); Finley v. Gaut, 67 Tenn. 148, 1874 Tenn. LEXIS 341 (1874).

7. Amendment of Affidavit.

The omission to sign the sworn affidavit for an ancillary attachment sued out before a justice of the peace (now general sessions judge) in aid of a suit pending in the circuit court, may be amended in the circuit court. Scott v. White, 1 Shan. 23 (1849).

8. Plea in Abatement.

Where an ancillary attachment is levied upon property, the defendant may plead in abatement of the attachment any pleas allowable to an original attachment; and may have the issue tried before the trial on the merits, but the parties will be given a reasonable opportunity for preparation for such trial; and if the facts are sufficient, and found for the defendant, the property will be released; but, if found for the plaintiff, the defendant will not be precluded from his defense to the merits. Robb v. Parker, 51 Tenn. 58, 1871 Tenn. LEXIS 134 (1871); Price v. Bescher, Shultz & Co., 59 Tenn. 372, 1873 Tenn. LEXIS 76 (1873); Third Nat'l Bank v. Foster, 90 Tenn. 735, 18 S.W. 267, 1891 Tenn. LEXIS 67 (1891).

Collateral References. 7 C.J.S. Attachment §§ 1, 471.

Attachment 318-329.

NOTES TO DECISIONS

1. Equitable Property Attached — Requisites of Bill.

Where equitable property is sought to be attached, the bill must proceed against it as such, must state the nature of the title, and make the holder of the legal title a party. An attachment against land as the property of the defendant will be understood as directed against his legal interest, and if he has none, the attachment will be nugatory, and the purchaser at a sale thereunder will acquire no title. Lane v. Marshall, 48 Tenn. 30, 1870 Tenn. LEXIS 10 (1870); Rice v. O'Keefe, 53 Tenn. 638, 1871 Tenn. LEXIS 407 (1871); Hillman v. Werner, 56 Tenn. 586, 1872 Tenn. LEXIS 179 (1872); Hardwick v. Beard, 57 Tenn. 659, 1873 Tenn. LEXIS 284 (1873); Lyle v. Longley, 65 Tenn. 286, 1873 Tenn. LEXIS 346 (1873); Moore v. State Ins. Co., 2 Cooper's Tenn. Ch. 379 (1875); Rhodes v. Floyd, 1 Shan. 549 (1876); Fulghum v. Cotton, 74 Tenn. 590, 1880 Tenn. LEXIS 300 (1880); Blackburn v. Clarke, 85 Tenn. 506, 3 S.W. 505, 1886 Tenn. LEXIS 77 (1887); Jackson v. Coffman, 110 Tenn. 271, 75 S.W. 718, 1903 Tenn. LEXIS 57 (1903); King v. Patterson, 129 Tenn. 1, 164 S.W. 1191, 1913 Tenn. LEXIS 89 (1914); Prichard Bros. v. Causey, 158 Tenn. 53, 12 S.W.2d 711, 1928 Tenn. LEXIS 123 (1929).

2. Time of Return.

Where the sheriff endorsed on a slip a memorandum sufficiently describing the property levied on by him, with date and hour of levy, which slip was folded with the writ and handed to the attorney having control of the process, and the attorney two days later referring to registry records wrote out the return in full on the writ, which was signed by the sheriff, the time of the return was as shown by the slip. McMillan v. Gaylor, 35 S.W. 453, 1895 Tenn. Ch. App. LEXIS 6 (Tenn. Ch. App. 1895).

3. Specific Property Attached.

4. —Balance of Debt.

Where it is sought to attach and subject indebtedness owing to the defendant, only the surplus or balance of the debt, after deducting an opposing debt, is subject to attachment. Fay v. Reager, 34 Tenn. 200, 1854 Tenn. LEXIS 33 (1854); Arledge v. White, 38 Tenn. 241, 1858 Tenn. LEXIS 163 (Tenn. Dec. 1858); Johnson v. Hoyle, 40 Tenn. 56, 1859 Tenn. LEXIS 18 (1859); Nashville v. Potomac Ins. Co., 61 Tenn. 296, 1872 Tenn. LEXIS 375 (1872); Mann v. Mann, 59 Tenn. 245, 1873 Tenn. LEXIS 50 (1873); Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880); Steele v. Friarson, 85 Tenn. 430, 3 S.W. 649, 1886 Tenn. LEXIS 68 (1887).

5. —Bonds in Hands of Trustee as Evidence of Indebtedness on Condition.

Where a corporation signed and placed $10,000 of mortgage bonds in the hands of trustees to be issued and delivered to a bank in satisfaction of a debt assumed by the corporation, but the bank declined to accept the bonds and release the corporation on the indebtedness assumed, the bonds were to be evidences of indebtedness on condition not complied with, and were not assets subject to attachment. Alabama Marble & Stone Co. v. Chattanooga Marble & Stone Co., 37 S.W. 1004, 1896 Tenn. Ch. App. LEXIS 44 (1896).

6. —Interest in Partnership Assets.

By attachment chancery could acquire jurisdiction of nonresident members of a partnership, in a suit to subject the interest of one or more of the partners to the payment of a claim due from him or them to a resident creditor, and ascertain such interest or interests. Gaines v. Fourth Nat'l Bank, 52 S.W. 467, 1898 Tenn. Ch. App. LEXIS 158 (1898).

7. —Negotiable Note.

Where it was sought to attach a negotiable note, which was not actually seized and levied upon as tangible property, it can only be reached by garnishment of the payer, and the suit becomes a garnishment proceeding for this purpose but if the garnishee answered that the note was not in his possession and that he did not know who held the note, which had not yet matured, judgment cannot be rendered against him, where such note is not delivered up and he is not completely exonerated or indemnified from all liability thereon, as provided in § 29-7-105. Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

8. —Nonresident's Equity of Redemption.

A general creditor of a nonresident debtor may, by bill in chancery, attach the interest of his debtor in land sold by judicial sale for debt, and subject the same to the satisfaction of his demand, because he is not in a condition to redeem, and cannot put himself in such condition, for the reason that he has no judgment, and cannot obtain one. Herndon v. Pickard, 73 Tenn. 702, 1880 Tenn. LEXIS 201 (1880); Templeton v. Mason, 107 Tenn. 625, 65 S.W. 25, 1901 Tenn. LEXIS 117 (1901).

9. —Trust Property After Death of Cestui Que Trust.

Where land was conveyed in trust for use of married woman with power in her surviving husband to convey by will to such persons as she should appoint, and she died intestate, a creditor filing attachment bill against her son acquired a lien by levy on his interest without joining the trustee. Campbell v. Atwood, 47 S.W. 168, 1897 Tenn. Ch. App. LEXIS 135 (1897).

10. Perfection of Judgment Lien.

This section is inapplicable to the perfection of a judgment lien. Bodin Apparel, Inc. v. Lowe, 614 S.W.2d 571, 1980 Tenn. App. LEXIS 422 (Tenn. Ct. App. 1980).

11. Checks.

A check is subject to attachment. Peoples Nat'l Bank v. King, 697 S.W.2d 344, 1985 Tenn. LEXIS 554 (Tenn. 1985).

12. Letter of Credit.

Customer, who had payor bank issue an irrevocable letter of credit, was not entitled to an attachment of the proceeds of the letter of credit where the attachment issued after payor bank accepted draft complying with the letter of credit, and attachment was invalid under § 47-4-303. Union Export Co. v. N.I.B. Intermarket, A.B., 786 S.W.2d 628, 1990 Tenn. LEXIS 102 (Tenn. 1990).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 91-217.

7 C.J.S. Attachment §§ 71-90.

Branch banks, deposit in. 50 A.L.R. 1354, 136 A.L.R. 471.

Building and loan association or savings and loan association, members interest in, as within provisions of Uniform Stock Transfer Act as to levy on shares of stock. 143 A.L.R. 1152.

Commissions of trustee. 143 A.L.R. 190.

Contempt by levy on property pending receivership. 39 A.L.R. 22, 48 A.L.R. 241.

Contingent remainder as subject to levy and sale by creditor. 60 A.L.R. 803.

Creditors' rights as affected by grant to one for life, and afterwards, either absolutely or contingently, to grantor's heirs or next of kin. 16 A.L.R.2d 691.

Estate by entirety, levy on, for satisfaction of individual debt of spouse. 16 A.L.R. 969, 58 A.L.R. 1320.

Federal control, levy on property of public utility under. 4 A.L.R. 1680, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Fee simple conditional estate, liability of, for debts of tenant. 114 A.L.R. 615.

Growing crops as subject of levy and seizure. 103 A.L.R. 464.

Incompetent or infant under guardianship, property of, as subject to execution or attachment. 92 A.L.R. 919.

Interest subject to homestead right in others as subject to attachment or execution. 122 A.L.R. 1150.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor. 86 A.L.R.5th 527.

Judgment in tort action as subject of attachment pending appeal. 121 A.L.R. 420.

Levy by husband's creditors on curtesy initiate. 133 A.L.R. 633.

Liability insurance carried by a charity as subject to appropriation in satisfaction of judgment in tort. 25 A.L.R.4th 517.

Liability of unassigned dower right to seizure for widow's debt. 81 A.L.R. 1110.

Liquor license as subject to execution or attachment. 40 A.L.R.4th 927.

Massachusetts or business trust, levy on shares in. 88 A.L.R.3d 704.

Mortgagor's statutory right to redeem or his right to possession after foreclosure as subject of levy and seizure. 42 A.L.R. 884, 57 A.L.R. 1128.

Municipal funds and credits as subject to levy under execution against municipality. 89 A.L.R. 863.

Negotiable warehouse receipt, attachment of goods covered by. 40 A.L.R. 969.

Note or check itself as subject of levy and seizure. 41 A.L.R. 1003.

Pledgor's interest as subject to attachment by pledgee for another debt. 126 A.L.R. 188.

Prisoner, money or other property taken from, as subject of attachment or seizure under execution. 16 A.L.R. 378, 48 A.L.R. 583, 154 A.L.R. 758.

Property of nongovernmental charity as subject to execution under judgment for damages in tort. 25 A.L.R.4th 517.

Redemption, levy on debtor's statutory right of. 42 A.L.R. 884, 57 A.L.R. 1128.

Redemption money in hands of officer as subject to attachment or execution. 94 A.L.R. 1049.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment. 28 A.L.R.2d 1213.

Right of judgment creditor of joint tenant to levy on his interest in real property jointly held. 111 A.L.R. 171.

Safety deposit box, levy upon contents of. 11 A.L.R. 225, 19 A.L.R. 863, 39 A.L.R. 1215.

Seat in chamber of commerce, board of trade, or stock exchange as subject of attachment, garnishment, or execution. 14 A.L.R. 284.

Shares of corporate stock as subject of execution or attachment. 1 A.L.R. 653.

Situs of corporate stock (or stock in joint stock company) for purpose of execution or attachment. 122 A.L.R. 338.

Special bank deposits as subject of attachment or garnishment to satisfy depositor's general obligations. 8 A.L.R.4th 998.

Vendee's interest under conditional sales contract as subject to attachment or execution. 61 A.L.R. 781.

Vendee's interest under executory contract as subject to execution or attachment. 1 A.L.R.2d 727.

Verdict in tort action. 156 A.L.R. 1431.

Withdrawal value of stock in building and loan association as basis of attachment or execution by creditor of member. 94 A.L.R. 1017.

Attachment 178.

NOTES TO DECISIONS

1. Levy on Realty with Knowledge of Existence of Personalty.

The existence to the knowledge of the levying officer of sufficient personalty which he might seize will not invalidate levy on realty. Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866).

2. Order of Levy of Several Attachments.

Successive attachments are leviable in the order in which they come to the officer's hands, and if several writs are in his hands not impressed with any priorities, he cannot give priority to any of them by actually levying some before others. Lea v. Maxwell, 38 Tenn. 365, 1858 Tenn. LEXIS 191 (Tenn. Dec. 1858); Stone v. Abbott, 62 Tenn. 319, 1874 Tenn. LEXIS 49 (1874).

3. Failure to Make Return — Effect on Levy.

Where the levy of an attachment has been actually made, its efficacy cannot be impaired by the sheriff's failure to make return of it. Lea v. Maxwell, 38 Tenn. 365, 1858 Tenn. LEXIS 191 (Tenn. Dec. 1858).

4. Sheriff's Liability.

A sheriff is responsible in damages to the injured party for losses occasioned by his official negligence. So, it is his duty, in attaching property for a debt, to secure enough, if in his power, to make the debt; or, in taking a replevy bond in such case, to see that the security is sufficient. If he fail in either, whereby a loss of the debt is occasioned, he will be held liable therefor. McKinney v. Craig, 36 Tenn. 577, 1857 Tenn. LEXIS 59 (1857).

5. Surety's Liability.

A surety upon a delivery bond executed after a supposed levy, signing upon officer's representation of levy, when in fact none was made, is not bound, since officer did not “attach and take into his possession.” Connell v. Scott, 64 Tenn. 595, 1875 Tenn. LEXIS 134 (1875).

6. Liability for Rent.

Where property of a tenant, located in a room leased by him under a yearly lease, is levied on and left there in charge of a watchman, the tenant and not the levying officer is liable for rents pending a disposition of the property. Northwestern Mut. Life Ins. Co. v. Hill, 46 S.W. 1009, 1897 Tenn. Ch. App. LEXIS 117 (Tenn. Ch. App. 1897).

7. Taking Property into Possession.

Since the requirement that the officer take into his possession property upon which he is levying only refers to personal property, a levy of attachment upon land is not void because the officer levying the attachment did not go upon the land. Moore v. Walker, 178 Tenn. 218, 156 S.W.2d 439, 1941 Tenn. LEXIS 48 (1941).

Collateral References. 7 C.J.S. Attachment § 76.

Attachment 49.

NOTES TO DECISIONS

1. Amount of Levy — Duty of Officer.

It is the duty of an officer to levy on property sufficient to make the debt in his hands amply secure against all probable contingencies, but it should not be excessive. Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859); Beasly v. Johnson, 57 Tenn. 413, 1873 Tenn. LEXIS 225 (1873).

2. Officer's Title — Effect of Excessive Levy.

An excessive levy will not vitiate the title of the officer to the property levied on. Brown v. Allen, 40 Tenn. 429, 1859 Tenn. LEXIS 120 (1859); Beasly v. Johnson, 57 Tenn. 413, 1873 Tenn. LEXIS 225 (1873).

3. Plaintiff's Liability for Excessive Levy.

The creditor is not liable for an excessive levy made by the sheriff, at least unless it should appear that he had knowingly procured the sheriff to make such levy. Beasly v. Johnson, 57 Tenn. 413, 1873 Tenn. LEXIS 225 (1873).

4. Several Claiming Property — Reduction of Levy.

An excessive levy may be reduced by the court, upon the answer or petition of the defendants, the complainant being allowed to elect on which property he will retain the levy, and, in the absence of such election, the burden of the debt will be proportioned upon the defendants, where there are several claiming in different rights, and each defendant may replevy the property claimed by him, or become the receiver upon proper bond. Hughes v. Tennison, 3 Cooper's Tenn. Ch. 641 (1878).

Collateral References. 30 Am. Jur. 2d Executions § 70.

7 C.J.S. Attachment § 235.

De minimis non curat lex as applied to excessive levy. 44 A.L.R. 184.

Liability of creditor for excessive attachment or garnishment. 56 A.L.R.3d 493.

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution. 83 A.L.R.3d 598.

Sheriffs 109.

NOTES TO DECISIONS

1. Object and Scope of Provision.

The object of this statute was to prevent the debtor from evading the attachment, after the bill had been filed or the writ issued and before the levy, by sales or transfer of his estate. But this rule only applies to conveyances, transfers, sales, or assignments of property specifically mentioned and described in the attachment bill or writ. Burrough v. Brooks, 40 Tenn. 392, 1859 Tenn. LEXIS 111 (1859); Vance v. Cooper, 42 Tenn. 497, 1865 Tenn. LEXIS 93 (1865); Lacy & McGee v. Moore, Lewis & Govan, 46 Tenn. 348, 1869 Tenn. LEXIS 66 (1869); 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); Vance v. Cooper, 49 Tenn. 93, 1870 Tenn. LEXIS 196 (1870); Irvine v. Muse, 57 Tenn. 477, 1873 Tenn. LEXIS 244 (1873); Hambrick v. Bragg, 63 Tenn. 33, 1874 Tenn. LEXIS 198 (1874); Alley v. Myers, 2 Cooper's Tenn. Ch. 206 (1875); Doe v. Childress, 88 U.S. 642, 22 L. Ed. 549, 1874 U.S. LEXIS 1399 (1874).

This section has no extraterritorial effect, so as to defeat the right of a bona fide purchaser of a note in another state. Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

2. Type of Transfers.

The principle that the levy, under an attachment bill in which the property is specifically described or referred to, takes effect and becomes a lien from the date of the filing of the bill, does not apply to a contest between creditors, but is confined by statute to sales or transfers by the debtor. Peoples' Bank v. Mitchell, 2 Shan. 58 (1876). See Prichard Bros. v. Causey, 158 Tenn. 53, 12 S.W.2d 711, 1928 Tenn. LEXIS 123 (1929).

Pendency of attachment suit in circuit court, filed to enforce lien for labor or materials, operates as lis pendens, during which all transfers are void as to the lienor. Brantingham v. Beasley, 2 Tenn. App. 598, — S.W. —, 1926 Tenn. App. LEXIS 60 (Tenn. Ct. App. 1926).

3. Description of Property — Sufficiency to Warrant Applying Lis Pendens Doctrine.

To overreach a sale and conveyance to an innocent purchaser, after the filing of the attachment bill, but before the levy of the attachment writ, the particular property must be specified in the bill and attachment writ. If the property is not specifically mentioned in the attachment bill and writ, the attachment does not affect the property until actually levied, that is, where the attachment is against the defendant's estate generally, or against his goods and chattels, lands and tenements, the attaching creditor acquires no rights against the debtor's property until the attachment is actually levied, because the doctrine of lis pendens does not apply in such case. Lacy & McGee v. Moore, Lewis & Govan, 46 Tenn. 348, 1869 Tenn. LEXIS 66 (1869); 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); Vance v. Cooper, 49 Tenn. 93, 1870 Tenn. LEXIS 196 (1870); Alley v. Myers, 2 Cooper's Tenn. Ch. 206 (1875). See Hervey & New v. Champion, 30 Tenn. 569, 1851 Tenn. LEXIS 106 (1851); Hambrick v. Bragg, 63 Tenn. 33, 1874 Tenn. LEXIS 198 (1874).

An allegation in the bill of complaint for enforcement of lien describing the property as “one saw mill owned by me and unencumbered” is not sufficient to create lien lis pendens. Potter v. Foster, 16 Tenn. App. 336, 64 S.W.2d 520, 1932 Tenn. App. LEXIS 9 (1932).

4. Filing of Bill — Effect.

The filing of the bill does not create a lien, but it operates as a lis pendens, during which all transfers are void and the suit thus holds the property until the lien can be impressed on it by the levy or the attachment, as the levy and not the statute or suit, creates the lien. 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); Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Potter v. Foster, 16 Tenn. App. 336, 64 S.W.2d 520, 1932 Tenn. App. LEXIS 9 (1932).

5. Levy Creating Lien.

The levy of the attachment on land creates a mere lien thereon. Green v. Shaver, 22 Tenn. 139, 1842 Tenn. LEXIS 47 (1842); Perkins' Heirs v. Norvell, 25 Tenn. 151, 1845 Tenn. LEXIS 49 (1845); 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).

The levy of the attachment on personalty does not divest the title as the levy of the execution does. It merely creates a lien on it. Snell v. Allen, 31 Tenn. 208, 1851 Tenn. LEXIS 49 (1851); Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866); Doe v. Childress, 88 U.S. 642, 22 L. Ed. 549, 1874 U.S. LEXIS 1399 (1874); Herman v. Katz, 101 Tenn. 118, 47 S.W. 86, 1898 Tenn. LEXIS 39, 41 L.R.A. 700 (1897).

The doctrine of lis pendens does not apply to mere attachment bills, so as to give a lien upon the property sought to be attached, from the filing of the bill. The lien is only acquired from the levy of the attachment, and in cases of successive attachments, the one first levied has priority. Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880). See Lea v. Maxwell, 38 Tenn. 365, 1858 Tenn. LEXIS 191 (Tenn. Dec. 1858); Stone v. Abbott, 62 Tenn. 319, 1874 Tenn. LEXIS 49 (1874).

6. Date of Lien.

Where land upon which levy of attachment was levied was described in the attachment bill, the lien of attachment dated from the time the bill was filed and attachment was levied and not merely from the date of the service of summons. Moore v. Walker, 178 Tenn. 218, 156 S.W.2d 439, 1941 Tenn. LEXIS 48 (1941).

7. Deed Registered Before Levy — Priority.

Where land has been sold and conveyed before the filing of the bill, and the deed is registered afterwards, but before the levy of the attachment, it will overreach and prevail over the attachment. 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).

8. Levy Before Registry of Deed — Priority.

The levy of the attachment will overreach an unregistered deed previously executed, but not registered until after such levy. 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); Boyd v. Roberts, 57 Tenn. 474, 1873 Tenn. LEXIS 243 (1873); Parker v. Freeman, 2 Cooper's Tenn. Ch. 612 (1876); Moore v. Walker, 178 Tenn. 218, 156 S.W.2d 439, 1941 Tenn. LEXIS 48 (1941).

9. Purchaser Under Attachment — Status of Subsequent Purchaser from Owner.

The purchaser of corporation stock at a sale under an attachment will acquire a valid title as against a subsequent purchaser of the same stock from the nonresident owner, although the latter purchaser paid for the stock and obtained the stock certificates before receiving notice of the attachment. Young v. South Tredegar Iron Co., 85 Tenn. 189, 2 S.W. 202, 1886 Tenn. LEXIS 29, 4 Am. St. Rep. 752 (1886); Cates v. Baxter, 97 Tenn. 443, 37 S.W. 219, 1896 Tenn. LEXIS 164 (1896); McClung v. Colwell, 107 Tenn. 592, 64 S.W. 890, 1901 Tenn. LEXIS 115, 89 Am. St. Rep. 961 (1901) (decisions prior to Uniform Stock Transfer Law and § 48-1016 et seq. (repealed)).

10. Order of Sale — Election of Plaintiff.

The attachment is a proceeding in personam, and not in rem, and the property attached cannot be condemned to be sold until after judgment against the defendant debtor, when the plaintiff may have a writ of venditioni exponas awarded to sell the property held bound by the lien of the attachment, or he may have the ordinary writ of fieri facias awarded, and cause it to be levied on the property attached, or such other property of the defendant as may be found. Green v. Shaver, 22 Tenn. 139, 1842 Tenn. LEXIS 47 (1842); Perkins' Heirs v. Norvell, 25 Tenn. 151, 1845 Tenn. LEXIS 49 (1845); Snell v. Allen, 31 Tenn. 208, 1851 Tenn. LEXIS 49 (1851); Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866).

11. Loss of Lien.

The lien of the attachment levy may be lost by the laches, inaction, or negligence of the plaintiff in not properly and promptly pursuing it, and in failing, within a reasonable time, to take out final process on his judgment. Snell v. Allen, 31 Tenn. 208, 1851 Tenn. LEXIS 49 (1851); Mann v. Roberts, 79 Tenn. 57, 1883 Tenn. LEXIS 13 (1883); Pennebaker v. Tomlinson, 1 Cooper's Tenn. Ch. 111 (1873). See Etheridge v. Edwards, 31 Tenn. 426, 1852 Tenn. LEXIS 134 (1852).

A lien acquired by levy of an attachment on real estate was not lost by failure to bring the property to sale within a year from rendition of the judgment where there was nothing in the averment of facts to show it was lost or waived. Campbell v. Atwood, 47 S.W. 168, 1897 Tenn. Ch. App. LEXIS 135 (1897).

12. Lis Pendens Statute.

Lis pendens recordation requirements of § 20-3-101 apply to this section, and bank's judgment lien did not defeat the rights of bona fide purchasers where the abstract filing requirements of § 20-3-101 were not met. American Nat'l Bank & Trust Co. v. Wilds, 545 S.W.2d 749, 1976 Tenn. App. LEXIS 261 (Tenn. Ct. App. 1976).

An attaching creditor who records a notice of lis pendens has priority over a bona fide conveyee whose deed is not recorded until after the registration of the lis pendens notice. W. & O. Constr. Co. v. IVS Corp., 688 S.W.2d 67, 1984 Tenn. App. LEXIS 3187 (Tenn. Ct. App. 1984).

Collateral References. 7 C.J.S. Attachment §§ 272-276.

Attachment 182.

NOTES TO DECISIONS

1. Scope of Section.

This section can have no extraterritorial effect so as to defeat the bona fide purchaser of a note in another state. Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

Collateral References. 7 C.J.S. Attachment §§ 15, 272.

NOTES TO DECISIONS

1. Powers of Court.

Justice (now judge of general sessions court) may appoint a receiver, and order property of a perishable nature to be sold, and the fund to be held until the stay of the judgment expires. Spradlin v. Bratton, 74 Tenn. 685, 1881 Tenn. LEXIS 198 (1881).

2. Choses in Action of Bankrupt.

The choses in action of one in bankruptcy pass to the trustee in bankruptcy who alone can sue for same. State v. Allstadt, 166 Tenn. 349, 61 S.W.2d 473, 1932 Tenn. LEXIS 140 (1933), rehearing denied, 166 Tenn. 349, 62 S.W.2d 566 (1933).

3. Custody of Property in Absence of Receiver.

Personal property attached remains in the custody of the levying officer, if not replevied or placed in the hands of a receiver. Pennebaker v. Tomlinson, 1 Cooper's Tenn. Ch. 111 (1873).

Collateral References. 7 C.J.S. Attachment § 313.

Receivers 181.

NOTES TO DECISIONS

1. Nonresident Defendants — Adequacy of Notice.

There seems to be no authority sustaining a notice, such as is provided for in this and the following sections as being sufficient to give jurisdiction over a nonresident, in the absence of impounded res belonging to him. Dickson v. Simpson, 172 Tenn. 680, 113 S.W.2d 1190, 1937 Tenn. LEXIS 113, 116 A.L.R. 380 (1937).

Where, in an action attaching real property, nonresident parties defendant were properly notified by publication but not otherwise notified, although the plaintiffs in the action knew, or through reasonable diligence could have discovered, their actual addresses, it was held that the notice was insufficient, depriving the nonresident parties defendant of their property without due process of law under U.S. Const., amend. 14 and that the entire attachment action was void insofar as it affected their interests. Groves v. Witherspoon, 379 F. Supp. 52, 1974 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1974).

2. Time — Requisite Allegations.

The order of publication may be made when the attachment is granted, and before it is levied, where it provides that the publication notice shall be made when the levy is made. The order of publication need not be identical with the notice published, and it need not recite facts apparent from other parts of the record; but the notice, being intended to notify and inform the defendant, must contain statements sufficient for that purpose, as required by § 29-6-145. Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Netherland v. Johnson, 73 Tenn. 340, 1880 Tenn. LEXIS 134 (1880); Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Holland v. Mobile & O. R. Co., 84 Tenn. 414, 1886 Tenn. LEXIS 116 (1886); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886); Gardner v. Swift & Co., 113 Tenn. 1, 80 S.W. 764, 1904 Tenn. LEXIS 1 (1904).

3. Failure to File Order of Publication.

Attachment is not vitiated by clerk's failure to file, or enter on the rule docket, the order of publication, because the levy of the attachment and the publication of a sufficient notice are the essential requirements of the statute, and when this has been complied with, it is sufficient. Gardner v. Swift & Co., 113 Tenn. 1, 80 S.W. 764, 1904 Tenn. LEXIS 1 (1904).

Collateral References. 7 C.J.S. Attachment § 220.

Attachment 209(3).

NOTES TO DECISIONS

1. Failure to Enter on Docket — Effect.

The failure of the clerk to enter the order of publication on the docket will not avoid the proceedings. Gardner v. Swift & Co., 113 Tenn. 1, 80 S.W. 764, 1904 Tenn. LEXIS 1 (1904).

Collateral References. Attachment 209(3).

NOTES TO DECISIONS

1. Nonresident Defendants — Adequacy of Notice.

Where, in an action attaching real property, nonresident parties defendant were properly notified by publication but not otherwise notified, although the plaintiffs in the action knew, or through reasonable diligence could have discovered, their actual addresses, it was held that the notice was insufficient depriving the nonresident parties defendant of their property without due process of law under U.S. Const., amend. 14, and that the entire attachment action was void insofar as it affected their interests. Groves v. Witherspoon, 379 F. Supp. 52, 1974 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1974).

2. Want of Publication — Effect.

Failure to make publication in an attachment against a nonresident is a fatal defect. Rumbough v. White, 58 Tenn. 260, 1872 Tenn. LEXIS 256 (1872). But see Groves v. Witherspoon, 379 F. Supp. 52, 1974 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1974), noted above.

3. Requisite Number of Days of Publication.

To make the publication required by this section does not require a period of 35 days but it may be accomplished within 28 days next before the appearance day. Lowenstine v. Gillespie, 74 Tenn. 641, 1881 Tenn. LEXIS 189 (1881).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 313-315.

7 C.J.S. Attachment § 220.

Attachment 171.

NOTES TO DECISIONS

1. Application.

This section applies only when attachment is the leading process, and not where attachment is the means of fixing a lien upon property to secure a decree on the equities set up in the bill of complaint. Guthrie v. Brown, 57 Tenn. 380, 1872 Tenn. LEXIS 435 (1872).

This section is inapplicable where bill is to enforce vendor's lien. Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873).

2. Necessary Allegations.

Even if it be not indispensable to recite the fact of the levy, the notice must certainly show that the defendant was required to appear and answer a suit commenced by attachment of property. Bains v. Perry, 69 Tenn. 37, 1878 Tenn. LEXIS 37 (1878); Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Byram v. McDowell, 83 Tenn. 581, 1885 Tenn. LEXIS 83 (1885).

3. Attachment — Necessity.

There need be no attachment where the bill is filed to clear title to realty in this state or to enforce a contract in respect thereto. Ray v. Haag, 1 Tenn. Ch. App. 249 (1901).

4. Failure to Comply with Section — Effect.

A publication, under this section, not containing the requisites thereof, would give the court no jurisdiction of a judicial attachment, and a judgment by default founded thereon would be void. Riley v. Nichols, 48 Tenn. 16, 1870 Tenn. LEXIS 6 (1870), overruled in part, Lowenstine v. Gillespie, 74 Tenn. 641, 1881 Tenn. LEXIS 189 (1881).

5. Defective Publication.

A publication notice is fatally defective where it fails to show that the attachment had been issued, or that it had been levied, or the cause for which it had been issued. Riley v. Nichols, 48 Tenn. 16, 1870 Tenn. LEXIS 6 (1870), overruled in part, Lowenstine v. Gillespie, 74 Tenn. 641, 1881 Tenn. LEXIS 189 (1881); Bains v. Perry, 69 Tenn. 37, 1878 Tenn. LEXIS 37 (1878); Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Holland v. Mobile & O. R. Co., 84 Tenn. 414, 1886 Tenn. LEXIS 116 (1886).

6. Recital of Publication — Sufficiency.

Where a record, attacked collaterally, fails to show formal entry of actual publication in a suit begun by attachment, recital in decree or order in the record that such publication had been duly made suffices unless contradicted by the record itself. Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 313-315.

7 C.J.S. Attachment § 220.

Attachment 171.

NOTES TO DECISIONS

1. Adequate Notice Requirement of Due Process.

Where, in an action attaching real property, nonresident party defendants were properly notified by publication but not otherwise notified, and the plaintiffs in the action knew, or through reasonable diligence could have discovered, their actual addresses, it was held that the notice was insufficient, depriving the nonresident party defendants of their property without due process of law under U.S. Const., amend. 14, and that the entire attachment action was void insofar as it affected their interests. Groves v. Witherspoon, 379 F. Supp. 52, 1974 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1974).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 315.

7 C.J.S. Attachment § 489.

Attachment 73.

NOTES TO DECISIONS

1. Prerequisites to Attachment.

Attachment is an extraordinary mode and not to be resorted to when personal service can be had to obtain jurisdiction of the person. Green v. Snyder, 114 Tenn. 100, 84 S.W. 808, 1904 Tenn. LEXIS 74 (1905).

2. Jurisdiction of Nonresident — How Obtained.

Where a suit is commenced by original attachment against a nonresident debtor, and after the levy of the attachment on his property, he enters his appearance, publication is unnecessary. Allen v. New York & E. Tenn. Iron Co., 2 Shan. 388 (1877).

Courts of law cannot entertain suit against a nonresident for a personal demand, upon publication alone, without attachment or other impounding of property situated within the jurisdiction of the court. Farmers' & Traders' Bank of Allen County, 88 Tenn. 279, 12 S.W. 545, 1889 Tenn. LEXIS 48 (1889). See Southern R. Co. v. Williams, 141 Tenn. 46, 206 S.W. 186, 1918 Tenn. LEXIS 66 (1918).

Want of jurisdiction over the nonresident is not cured by the fact that a codefendant, jointly sued but severally liable for the demand, was duly served with process. Farmers' & Traders' Bank of Allen County, 88 Tenn. 279, 12 S.W. 545, 1889 Tenn. LEXIS 48 (1889).

Attempted attachment of funds in hands of clerk and master of chancery court subject to the orders of the chancellor for distribution in connection with partition suit was void and did not authorize circuit court to proceed against nonresident or give the court jurisdiction of her person. Martin v. Wood, 212 Tenn. 389, 370 S.W.2d 478, 1963 Tenn. LEXIS 433 (1963).

Proceeding under this section only binds the property and does not give the court jurisdiction of the person of the nonresident or authorize it to enter a personal judgment against him. Martin v. Wood, 212 Tenn. 389, 370 S.W.2d 478, 1963 Tenn. LEXIS 433 (1963).

3. Failure to Comply with Statutory Requirements — Effect.

Without both a levy of the attachment and publication made in due form, and the record reciting the facts, the judgment will be void, unless the defendant appears. Riley v. Nichols, 48 Tenn. 16, 1870 Tenn. LEXIS 6 (1870), overruled in part, Lowenstine v. Gillespie, 74 Tenn. 641, 1881 Tenn. LEXIS 189 (1881); Ingle v. McCurry, 48 Tenn. 26, 1870 Tenn. LEXIS 9 (1870); Rumbough v. White, 58 Tenn. 260, 1872 Tenn. LEXIS 256 (1872); Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Bains v. Perry, 69 Tenn. 37, 1878 Tenn. LEXIS 37 (1878); Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Holland v. Mobile & O. R. Co., 84 Tenn. 414, 1886 Tenn. LEXIS 116 (1886).

4. Recitals in Order and Notice.

The clerk's order of publication need not recite that the attachment was levied, but this recital must be in the published notice. The order of publication may be made when the attachment is granted, and before the levy thereof, and may be general; and, consequently, it cannot recite the levy. The order of publication need not be identical with the published notice, and it need not recite the facts apparent from other parts of the record, but the published notice must contain statements sufficient to notify and inform the defendant of the suit. Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Holland v. Mobile & O. R. Co., 84 Tenn. 414, 1886 Tenn. LEXIS 116 (1886).

5. Sufficiency of Recitals of Publication.

The recital in the order pro confesso, whether before the master or the chancellor, or in the judgment by default at law, that publication was duly made, is sufficient to show that fact, unless it appears from something in the record that the facts were positively otherwise. Kilcrease's Heirs v. Blythe, 25 Tenn. 378, 1845 Tenn. LEXIS 108 (1845); Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Claybrook v. Wade, 47 Tenn. 555, 1870 Tenn. LEXIS 172 (1870); Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Netherland v. Johnson, 73 Tenn. 340, 1880 Tenn. LEXIS 134 (1880); Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Harris v. McClanahan, 79 Tenn. 181, 1883 Tenn. LEXIS 37 (1883); Byram v. McDowell, 83 Tenn. 581, 1885 Tenn. LEXIS 83 (1885); Pope v. Harrison, 84 Tenn. 82, 1885 Tenn. LEXIS 118 (1885); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886); Reinhardt v. Nealis, 101 Tenn. 169, 46 S.W. 446, 1898 Tenn. LEXIS 47 (1898).

The following recitations in decrees, or orders pro confesso, as to the publication, have been held sufficient: “It appearing to the satisfaction of the court that publication has been made” (Kilcrease v. Blythe, 25 Tenn. 378, 1845 Tenn. LEXIS 108 (1845)); “that publication was duly made” (Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Claybrook v. Wade, 47 Tenn. 555, 1870 Tenn. LEXIS 172 (1870); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873)); “that defendant was regularly before the court by the levy of an attachment and by publication in a newspaper” (Kyle v. Philips, 65 Tenn. 43, 1873 Tenn. LEXIS 296 (1873)); “that publication has been regularly made” (Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880); Netherland v. Johnson, 73 Tenn. 340, 1880 Tenn. LEXIS 134 (1880)); “that publication has been made according to law” (Allen v. Gilliland, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886)).

6. Recitals in Pro Confesso at Rules — Effect.

Recitals in orders pro confesso, taken before the master at rules, have the same effect as if entered in the decree of the court. Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886).

7. Recitals in Decree — Contradiction.

The recitals in the decree as to publication can only be contradicted by the record in the case, and extrinsic evidence is not admissible to contradict a record when collaterally attacked, except for fraud. Gilchrist v. Cannon, 41 Tenn. 581, 1860 Tenn. LEXIS 111 (1860); Claybrook v. Wade, 47 Tenn. 555, 1870 Tenn. LEXIS 172 (1870); Walker v. Cottrell, 65 Tenn. 257, 1873 Tenn. LEXIS 344 (1873); Gilliland v. Cullum, 74 Tenn. 521, 1880 Tenn. LEXIS 287 (1880); Davis v. Reaves, 75 Tenn. 585, 1881 Tenn. LEXIS 155 (1881); Byram v. McDowell, 83 Tenn. 581, 1885 Tenn. LEXIS 83 (1885); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886); Reinhardt v. Nealis, 101 Tenn. 169, 46 S.W. 446, 1898 Tenn. LEXIS 47 (1898).

8. Recitals in Judgment at Law — Conclusiveness.

A recital of publication in a judgment at law, there being nothing in the record to contradict it, nor any bill of exceptions in the case, is as conclusive as a like recital in a chancery decree under like circumstances. Netherland v. Johnson, 73 Tenn. 340, 1880 Tenn. LEXIS 134 (1880); Robertson v. Winchester, 85 Tenn. 171, 1 S.W. 781, 1886 Tenn. LEXIS 28 (1886).

9. Fraud — Effect and Remedy.

Where the attachment suit was based on false grounds, and publication made accordingly, the decree with proper recitals, valid on its face, and not contradicted by the record, may be attacked and annulled by original bill for fraud, but not collaterally. Walker v. Day, Griswold & Co., 67 Tenn. 77, 1874 Tenn. LEXIS 333 (1874); Haynes v. Powell, 69 Tenn. 347, 1878 Tenn. LEXIS 95 (1878); Maddox v. Apperson, 82 Tenn. 596, 1885 Tenn. LEXIS 2 (1885); Keith v. Alger, 114 Tenn. 1, 85 S.W. 71, 1904 Tenn. LEXIS 66 (1904); Puckett v. Griffith, 128 Tenn. 565, 162 S.W. 581, 1913 Tenn. LEXIS 71 (1913).

Jurisdiction of a nonresident obtained by fraud by attachment of property invalidates the proceeding. J.G. Battelle & Co. v. Youngstown Rolling Mill Co., 84 Tenn. 355, 1886 Tenn. LEXIS 109 (1886), overruled, Simpson v. East T., V. & G. R.R. Co., 89 Tenn. 304, 15 S.W. 735, 1890 Tenn. LEXIS 53 (1890).

10. —Fraud Occurring at Certain Point in Suit.

Where, upon bill to set aside attachment proceedings for fraud, the court finds that the fraud occurred at a certain point in the progress of the suit, and did not go to the entire cause, and that the original complainants were entitled to take up the litigation anew at the point where the fraud occurred, they should apply for that redress in that suit, and obtain the necessary decree for the purpose; but if the decree was rendered without reservation, it was final and conclusive against their right to take up the litigation at the point where the fraud occurred. Day, Griswold & Co. v. Walker, 75 Tenn. 712, 1881 Tenn. LEXIS 176 (1881). See Howard v. Jenkins, 73 Tenn. 176, 1880 Tenn. LEXIS 107 (1880).

Collateral References. Attachment 207-209.

NOTES TO DECISIONS

1. Compliance with Statutory Requirements — Necessity.

The right to replevy attached property is fixed by statute, and the bond is prescribed by statute, and should not be interfered with by an order of the court. Raht v. Mining Co., 2 Shan. 8 (1876).

A replevy bond made payable to the officer instead of the plaintiff, and not conditioned as required by law, is good, and entitles the plaintiff to all the remedies given on correct replevy bonds. Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880).

The court cannot read conditions into replevy bonds, but liability is in accordance with the statute. United States Fidelity & Guaranty Co. v. Rainey, 120 Tenn. 357, 113 S.W. 397, 1907 Tenn. LEXIS 53 (1907); Gilbert v. Smith, 14 Tenn. App. 500, — S.W.2d —, 1932 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1932).

Where after original attachment action defendant filed replevin action against sheriff in justice (now general sessions) court, and executed bond showing on face that it was filed in different proceeding and was not payable to plaintiff, and was not delivered to levying officer or clerk of court having original jurisdiction, the bond was not properly issued so as to constitute a replevy bond under this and the following sections and the court could not make such bond a part of record or enter judgment against surety without notice. Allstadt v. Stephenson, 31 Tenn. App. 552, 218 S.W.2d 744, 1948 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1948).

2. Property Subject to Replevy.

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

3. Giving Bond — Liability Under.

A replevy bond cannot properly be given by anyone except the defendant to an attachment suit, and judgment upon such a bond cannot be entered against anyone except the defendant and his sureties. Smith v. Winkler, 8 Tenn. App. 207, 1928 Tenn. App. LEXIS 128 (1928).

4. Agreement Operating as Bond.

Where, after property is attached, instead of executing a formal statutory bond, the defendant agrees in writing that the property shall be released and that if suit and attachment are sustained, the defendant and surety will pay the value of the property, not to exceed the sum of $2,000, such agreement will be treated as a bond conditioned to pay the value of the property attached. Wilson v. Bryant, 167 Tenn. 107, 67 S.W.2d 133, 1933 Tenn. LEXIS 12 (1934).

5. Effect of Bond.

Where real estate is attached on statutory grounds and bond executed, the bond stands in lieu of the property attached, but where complainant has an independent equitable lien and resorts to attachment of the land and other property, it is competent for the chancellor, complainant assenting, at the instance of a surety on the bond, to provide for the enforcement, and exhaustion of such lien before proceeding on the replevy bond. Chrisenberry v. Wylie, 54 S.W. 49, 1899 Tenn. Ch. App. LEXIS 104 (Tenn. Ch. App. 1899).

Where defendant gave replevy bond he was entitled to possession of goods, since bond stood in the place of the property and trial court was not entitled to appoint a receiver to sell the property attached. Phillips-Buttorff Mfg. Co. v. Williams, 63 S.W. 185 (Tenn. 1900).

A replevy bond which dissolves the attachment and discharges the property, constitutes an appearance and a waiver of questions of jurisdiction of the person, but does not validate attachment proceedings which are void and not merely voidable, nor confer jurisdiction of the subject-matter where the court did not have it. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930); Gilbert v. Smith, 14 Tenn. App. 500, — S.W.2d —, 1932 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1932); McWaters v. Hall, 15 Tenn. App. 46, 1932 Tenn. App. LEXIS 72 (1932).

The makers of a replevy bond are under § 29-6-152 estopped to deny the validity of the bond, although it may not accurately conform in its conditions to the provisions of this section. Sadler v. Murphy, 18 Tenn. App. 340, 77 S.W.2d 70, 1934 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1934).

The replevy bond, as distinguished from a replevin bond, is a substitute for the property attached in the way of personal security, and releases it from the lien of attachment, and leaves it subject to be levied on, under other attachments or executions, though it was originally attached on the ground of a fraudulent conveyance and was replevied by the fraudulent purchaser. Third Nat'l Bank v. Keathley, 35 Tenn. App. 82, 242 S.W.2d 760, 1951 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1951).

6. —Bond as Appearance.

Where a replevy of property attached dissolves the attachment and discharges the property it constitutes an appearance and operates as a waiver of any question with respect to the jurisdiction of the court over the person of the defendant, however, a replevy bond given in a void attachment suit does not confer jurisdiction upon the court. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

7. —Asserting Lien in Answer to Obligation on Bond.

The obligors on the replevy bond are bound to surrender the property itself, and cannot say, when called upon to do so, that the property was, at the time of the giving of the bond, subject to a lien in their favor, in virtue of which they have since seized and will hold it. In order to assert their lien, they must resort to other remedies than that of giving a replevy bond. Having taken this course, they must abide their obligation. It has been distinctly held that they cannot set up, in answer to their obligation, a right to the property in some third person, or in themselves. Central Trust Co. v. Evans, 73 F. 562, 1896 U.S. App. LEXIS 1818 (6th Cir. 1896).

8. —Defense of Right to Pro Rata Share in Property Made After Giving Bond.

Where plaintiffs in an action under the Bulk Sales Act to set aside the conveyance of property to the defendants attached the property whereon the defendants gave bond and replevied the property thereby substituting personal security for the property and judgment in the action was for the plaintiffs, plaintiffs were entitled to recover on the replevy bond and the defendants could not set up as a defense the fact that if they had not given the bond they would have been entitled to claim a pro rata in the property attached. Third Nat'l Bank v. Keathley, 35 Tenn. App. 82, 242 S.W.2d 760, 1951 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1951).

9. —Lien Released by Bond.

Where purchaser of land under oral contract brought suit to rescind the contract because of the defendant seller's failure to comply with the contract, and sought to recover the payment made by him on the land, and to declare a lien on the land for the amount of the payment, and attached the land, defendant's replevy bond released the attachment lien, but not the lien for purchase money paid. Chrisenberry v. Wylie, 54 S.W. 49, 1899 Tenn. Ch. App. LEXIS 104 (Tenn. Ch. App. 1899).

10. —Right to Levy Other Attachments on Property Replevied.

The replevy bond is a substitute for the property attached, in the way of personal security, and releases it from the lien of the attachment, and leaves it subject to be levied on, under other attachments or executions, though it was originally attached upon the ground of a fraudulent disposition, and was replevied by the fraudulent purchaser. However, to subject such property to other levies, the bond must be a replevy bond, and not a bond for the forthcoming of the property. Jacobi v. Schloss, 47 Tenn. 385, 1870 Tenn. LEXIS 159 (1870); Cheatham v. Galloway, 54 Tenn. 678, 1872 Tenn. LEXIS 104 (1872); Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Frankle v. Douglas, 69 Tenn. 476, 1878 Tenn. LEXIS 121 (1878); Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895).

Where a fraudulent vendee replevies the property, he cannot transfer good title by a trust deed thereon to secure the sureties on the replevy bond as against other levying creditors of the fraudulent vendor. Frankle v. Douglas, 69 Tenn. 476, 1878 Tenn. LEXIS 121 (1878).

11. Amount and Type of Bond.

The defendant replevying the property attached may, at his election, give a replevy bond, either in double the amount of the plaintiff's demand, conditioned to pay the debt, interest, and costs, or in double the value of the property attached, conditioned to pay the value of the property attached, with interest, in the event he shall be cast in the suit. Caution should be exercised as to the liability intended to be assumed. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Muhling v. Ganeman, 63 Tenn. 88, 1874 Tenn. LEXIS 214 (1874); Fleshman v. Trollinger, 163 Tenn. 157, 40 S.W.2d 1029, 1930 Tenn. LEXIS 141 (1930). See Bond v. N. Greenwald & Co., 51 Tenn. 453, 1871 Tenn. LEXIS 187 (1871).

A defendant, whose property is attached, has the option of giving, either of two bonds, one in double the amount of complainant's demand, or one in double the value of the property attached, and upon giving either kind of bond he is entitled to a release of the property from the attachment and its restoration to him, and should the complainant recover the decree should be rendered upon the bond. Phillips-Buttorff Mfg. Co. v. Williams, 63 S.W. 185 (Tenn. 1900).

12. —Value of Property — Necessity for Fixing.

Where the condition of the replevy bond is to pay the value of the property attached, its value should be fixed in the bond, and where there are several articles, the value of each should, perhaps, be fixed separately. Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872).

13. —Conditions and Amount — Respective Weight in Construing Bond.

Where a replevy bond was given under this section, but not clearly showing whether it was for double the amount of plaintiff's demand, or double the value of the property, but which was conditioned “to be satisfied by delivery of the property or its value,” the condition as thus expressed must control, and the bond construed to be one for double the value of the property, so that a personal judgment or decree for the amount of the recovery could not be entered against the sureties on such bond, without the right to satisfy such judgment or decree by returning the property. Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895); Central Trust Co. v. Evans, 73 F. 562, 1896 U.S. App. LEXIS 1818 (6th Cir. 1896).

More weight should be given to the condition than to the amount; and where the bond is for double the amount of the demand, but not conditioned to pay the debt, interest and cost, and yet does not show the value of the property to be fixed but is conditioned on return of property, it does not comply in terms with either form prescribed and will be construed to comply with the second and to allow of return of the property. Fleshman v. Trollinger, 163 Tenn. 157, 40 S.W.2d 1029, 1930 Tenn. LEXIS 141 (1930).

14. —Bonds in Double the Amount of Debt.

Where the replevy bond is in fact for about double the amount of plaintiff's demand, without purporting to be for double plaintiff's demand, and conditioned to “abide by and perform and satisfy the order and judgment of the court,” and not fixing the value of the property, or providing for its return, the bond will be construed to be one in double the amount of the debt, and the judgment or decree will be for the amount of the debt, interest, and costs, however much exceeding the value of the property replevied; and notwithstanding the hardship of the case, the legal result of the terms of the bond must be enforced. Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Dale & Frierson v. Heffner & Duncan, 63 Tenn. 217, 1874 Tenn. LEXIS 231 (1874).

15. —Bonds in Double the Value of Property.

A replevy bond conditioned in a fixed sum “to produce the property, if demanded, in as good condition as it then was, and deliver it to the proper officer of the court,” is construed to be a bond in double the value of the property, conditioned to pay its value and interest, in the event defendant be cast in the suit; and the proper judgment is for the penalty of the bond, which may be satisfied by the delivery of the property or the payment of its value. Kuhn v. Spellacy, 71 Tenn. 278, 1879 Tenn. LEXIS 76 (1879); Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880); Smyth v. Barbee, 77 Tenn. 173, 1882 Tenn. LEXIS 32 (1882); Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895).

A replevy bond in the penalty of double the value of the property, conditioned for the forthcoming of the property to answer the final decree, must be construed as falling under the second class of bonds mentioned in this section, and as conditioned to pay the value of the property, with interest, in the event the defendant be cast in the suit, though there be no stipulation for interest, and a judgment for that sum, with interest thereon, is proper, neither party demanding a reference. Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880).

In a suit to recover $20,000, where the property was attached, a replevy bond given in the penalty of $1,200, conditioned to produce the property or pay the value thereof, without being expressly made payable either in double the amount of plaintiff's demand or in double the value of the property attached, as required by this section, must be construed as given in double the value of the property attached, although the value thereof be not fixed in the bond, and the judgment thereon should allow its satisfaction by the return of the property as provided in § 29-6-154. Johnston v. Phillips, 4 Tenn. Civ. App. (4 Higgins) 662 (1913); Massachusetts Bonding Co. v. McLemore, 4 Tenn. Civ. App. (4 Higgins) 633 (1914).

Bond executed to release attached property by the defendant which appears to be in double the amount of the plaintiff's claim, and which makes no provision for return of the property released, is not a forthcoming bond, but a replevy bond liable for any judgment rendered thereon for the plaintiff. McWaters v. Hall, 15 Tenn. App. 46, 1932 Tenn. App. LEXIS 72 (1932).

Where there was no proof of the value of the property and where it was evident that the replevy bond was not for double the amount of the plaintiff's demand, it will be assumed that the defendant elected to give bond for double the value of the property and that the officer taking the bond fixed the value of the property at half the penal sum of the bond. Sadler v. Murphy, 18 Tenn. App. 340, 77 S.W.2d 70, 1934 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1934).

16. Estoppel to Deny Validity of Bond — Want of Title as Defense.

A defendant obtaining a replevy of property attached, and the sureties on his replevy bond, are estopped to deny the validity of the bond or proceedings under which the possession was obtained, and, where the bond was conditioned to pay the debt, they cannot prevent a decree on the bond by showing that the defendant had no title to the property. Stephens v. Green County Iron Co., 58 Tenn. 71, 1872 Tenn. LEXIS 229 (1872); Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Dale & Frierson v. Heffner & Duncan, 63 Tenn. 217, 1874 Tenn. LEXIS 231 (1874); Smyth v. Barbee, 77 Tenn. 173, 1882 Tenn. LEXIS 32 (1882).

17. Estoppel to Contest Validity of Attachment.

Where attachment was issued, garnishment served and bond in double the amount of the debt executed, conditioned that if attachment be sustained the bond was to be in force, and the only question raised by the pleading was as to residence of defendant as to which plaintiff prevailed, defendant could not later insist on no liability on the bond because plaintiff had not proved that garnishee did not owe defendant. Gilbert v. Smith, 14 Tenn. App. 500, — S.W.2d —, 1932 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1932).

18. Goods Wrongfully Attached for Debt of Another — Estoppel by Result of Suit.

The owner of goods wrongfully attached for the debt of another, upon a false averment of fraud, who retains possession and gives forthcoming bond for them in the attachment case, to which he is not a party, and declines to become a party otherwise, is estopped, after they have been condemned to sale in the attachment suit, to maintain an independent suit against the plaintiff in the attachment proceedings for the value of the goods thus wrongfully converted. His remedy was by assertion of his rights in the attachment suit. But the owner is not estopped in such case to maintain an independent suit against the plaintiff in the attachment proceedings for goods other than those attached where the same have been seized under execution to satisfy the balance of the judgment in the attachment case. McCadden v. Lowenstein, 92 Tenn. 614, 22 S.W. 426, 1893 Tenn. LEXIS 18 (1893).

19. Liability of Surety.

The surety upon a replevy bond for delivery of the property, executed after the supposed levy of an attachment, being led to sign the bond by the representation of the officer that a levy had been made, is not bound thereby, where, in fact, there was no levy. Connell v. Scott, 64 Tenn. 595, 1875 Tenn. LEXIS 134 (1875).

Where no judgment or decree can be rendered against the defendant, none can be rendered against the surety on the replevy bond. Federlicht v. Glass, 81 Tenn. 481, 1884 Tenn. LEXIS 60 (1884).

Any doubt as to surety's liability should be resolved in his favor. Fleshman v. Trollinger, 163 Tenn. 157, 40 S.W.2d 1029, 1930 Tenn. LEXIS 141 (1930).

20. —Dismissal of Suit as to One Defendant.

The sureties on a replevy bond are discharged from liability by the plaintiff's voluntary dismissal of the suit as to one of the joint defendants in whose joint behalf was the undertaking of the sureties on such bond. Harris v. Taylor, 35 Tenn. 536, 1856 Tenn. LEXIS 22 (1856). See Kelly v. Gordon, 40 Tenn. 683, 1859 Tenn. LEXIS 200 (1859); Smith v. Roby, 53 Tenn. 546, 1871 Tenn. LEXIS 393 (1871).

21. —Failure to Fix Value of Property in Bond.

Failure to fix value of property in bond will not release surety. Dale & Frierson v. Heffner & Duncan, 63 Tenn. 217, 1874 Tenn. LEXIS 231 (1874).

22. —Use and Wear on Property.

Sureties on replevy bond are not liable for loss of value by use or wear during the time it was held under the bond. Richards v. Craig, 67 Tenn. 457, 1874 Tenn. LEXIS 400 (1874).

23. —Court's Sale of Property Pending Suit.

Where the court ordered the property attached and replevied to be delivered up by the defendant and sold, which was done, there could be no decree against the sureties on the replevy bond for the difference between what was actually realized by the sale and the value fixed in the bond. Richards v. Craig, 67 Tenn. 457, 1874 Tenn. LEXIS 400 (1874).

24. —Sale of Property Under Execution — Effect.

A replevy bond construed to be one in double the amount of the debt means that the surety is obligated to pay the judgment, if one is recovered; and, in that event, a judgment may be rendered on the bond for the penalty thereof, to be satisfied by the payment of the recovery against the defendant, but not to be satisfied, as to the surety, by the return of the property or its value. This is so, though the property attached and replevied has been sold under execution, and the proceeds applied to the judgment, leaving a large balance unpaid. Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872).

25. —Binding Effect of Judgment on Surety.

A surety on a replevy bond is bound by result of litigation against his principal, and is bound by the judgment in the case against his principal who acquiesces therein. The surety cannot, by writ of error, review the proceedings in that case, even though they be irregular and erroneous. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Greenlaw v. Logan, 70 Tenn. 185, 1879 Tenn. LEXIS 153 (1879); Central Trust Co. v. Evans, 73 F. 562, 1896 U.S. App. LEXIS 1818 (6th Cir. 1896).

A bill will not lie by the sureties on a replevy bond, after judgment on the bond in the suit in which it was given, valid on its face, merely upon the ground that the interest of the principal in the goods replevied was that of a partner in a firm insolvent at the time of the attachment, the bill not being good as a bill of review nor as an original bill to impeach the judgment for fraud. Smyth v. Barbee, 77 Tenn. 173, 1882 Tenn. LEXIS 32 (1882). See Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880).

26. Nature of Bond as Affecting Judgment.

Where the replevy bond is in the penalty of double the plaintiff's debt, conditioned, in the alternative, to pay the debt, interest, and costs, or the value of the property, without fixing the value thereof in the bond, as might have been done, the judgment on the bond shall be for the amount of the debt, interest, and costs, and not merely for the value of the property. Bond v. N. Greenwald & Co., 51 Tenn. 453, 1871 Tenn. LEXIS 187 (1871); Dale & Frierson v. Heffner & Duncan, 63 Tenn. 217, 1874 Tenn. LEXIS 231 (1874); Johnston v. Phillips, 4 Tenn. Civ. App. (4 Higgins) 662 (1913).

Where the penalty is double the amount of the debt, judgment may be rendered for the penalty, to be satisfied with the payment of the debt, interest, and costs, or the judgment may be rendered on the bond for the amount of the debt and costs, if not in excess of the penalty. If the penalty of the bond is in double the value of the property, judgment may be rendered for the penalty, to be satisfied by the return of the property or the payment of its value, with interest from the date of the bond, and costs, or the payment of the recovery. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Muhling v. Ganeman, 63 Tenn. 88, 1874 Tenn. LEXIS 214 (1874); Kuhn v. Spellacy, 71 Tenn. 278, 1879 Tenn. LEXIS 76 (1879); Chattanooga, R. & C. R. Co. v. Evans, 66 F. 809, 1895 U.S. App. LEXIS 2693 (6th Cir. Tenn. 1895); Johnston v. Phillips, 4 Tenn. Civ. App. (4 Higgins) 662 (1913).

Where the condition of the bond was that the defendant “shall abide by, and faithfully perform, such order and decree as the court may make in this cause, and return the property or pay such moneys as the court may order,” the proper judgment on the bond would be for the penalty of the bond, to be satisfied by paying the value of the property, with interest from its date, or by returning the property. Muhling v. Ganeman, 63 Tenn. 88, 1874 Tenn. LEXIS 214 (1874); Richards v. Craig, 67 Tenn. 457, 1874 Tenn. LEXIS 400 (1874).

If complainant recovers and replevy bond is double the amount of demand, the decree should be for the penalty of the bond to be satisfied by payment of recovery, but if replevy bond is double the amount of the property attached, the decree should be for the penalty of the bond to be satisfied by the delivery of the property or its value. Phillips-Buttorff Mfg. Co. v. Williams, 63 S.W. 185 (Tenn. 1900).

A judgment on the replevy bond given under this section, whether by the original defendant or an intervening defendant, should be for the amount of the bond or the debt, without any provisions for a return of the property so replevied, because there is no such requirement in this section, which must be distinguished from a replevin bond in an action of replevin. People's Nat'l Bank v. Corse, 133 Tenn. 720, 182 S.W. 917, 1915 Tenn. LEXIS 131 (1915). But see § 29-6-154.

27. Interest.

Interest will be allowed on the value of the property replevied from the date of the bond, but interest will not be allowed on the penalty of the bond, though the judgment rendered on the bond will bear interest pending the appeal, notwithstanding the fact that the allowance of such interest will make the judgment in the appellate court exceed the penalty of the bond. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Muhling v. Ganeman, 63 Tenn. 88, 1874 Tenn. LEXIS 214 (1874).

28. Attachment Wrongfully Sued Out — Recovery of Cost of Bond.

Where attachment was wrongfully sued out, defendant may recover cost of the execution of replevy bond, in action on the attachment bond. Gordon v. Kentucky Midland Coal Co., 152 Tenn. 367, 278 S.W. 68, 1925 Tenn. LEXIS 79, 42 A.L.R. 1052 (1925).

29. Discharge in Bankruptcy — Effect on Obligation under Bond.

The obligation created by a replevy bond given in an attachment suit to pay the value of the property attached and replevied, if the defendant fail to sustain his title, is not a debt created by fraud, but is a contingent debt provable under the bankruptcy law, and the obligor's discharge releases him from his liability on the bond; but a discharge of the principal on such bond does not operate to discharge the surety thereon. Wolf v. Stix, 99 U.S. 1, 25 L. Ed. 309, 1878 U.S. LEXIS 1501 (1879).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 523-526, 544.

7 C.J.S. Attachment §§ 305, 315.

Bankruptcy of debtor as affecting necessity of compliance with conditions precedent to enforcement of bond in attachment or other judicial proceeding. 130 A.L.R. 1162.

Bankruptcy, right to and form of judgment against one discharged in, in order to perfect right of action against one secondarily liable as surety on bond given to dissolve attachment. 81 A.L.R. 81.

Death of principal defendant as discharging surety on bond given for release of attachment. 21 A.L.R. 290, 131 A.L.R. 1146.

Discharge of surety on bond given to release property by bankruptcy of debtor within four months after attachment or execution. 36 A.L.R. 449, 107 A.L.R. 1138.

Filing bond to secure release or return of seized property as appearance. 57 A.L.R.2d 1109.

Posting of redelivery bond by defendant in attachment as waiver of damages for wrongful attachment. 57 A.L.R.2d 1376.

Right of surety on bond given to prevent, or secure release of, attachment, to attack attachment after recovery by plaintiff or judgment in attachment action. 89 A.L.R. 266.

Value of attached property as limit of liability on bond to release attachment. 80 A.L.R. 595.

Waiver of objections to attachment by giving bond for release thereof. 72 A.L.R. 122.

Attachment 300.

NOTES TO DECISIONS

1. Duty and Liability of Sheriff.

It is the duty of the sheriff, in taking a replevy bond for the property attached, to see that the security is sufficient; and, for his failure to do so, he will be held liable for the loss occasioned thereby. McKinney v. Craig, 36 Tenn. 577, 1857 Tenn. LEXIS 59 (1857).

Collateral References. 7 C.J.S. Attachment §§ 307, 308.

Replevin 5.

NOTES TO DECISIONS

1. Prima Facie Correctness of Clerk's Valuation.

Clerk's valuation upon taking the replevy bond is prima facie correct. Muhling v. Ganeman, 63 Tenn. 88, 1874 Tenn. LEXIS 214 (1874).

2. Relief from Clerk's Valuation.

The valuation made by the clerk, upon taking the bond, is not conclusive. Either party desiring it may show by proof the true value, or have an order of reference to ascertain the same. Muhling v. Ganeman, 63 Tenn. 88, 1874 Tenn. LEXIS 214 (1874); Richards v. Craig, 67 Tenn. 457, 1874 Tenn. LEXIS 400 (1874); Kuhn v. Spellacy, 71 Tenn. 278, 1879 Tenn. LEXIS 76 (1879).

3. Demand for Reference — Necessity.

Unless a reference is moved for, an appeal is not necessary, and the party is not entitled, as a matter of right, to a reference in the appellate court where it was not demanded in the lower court, though it may be allowed at his cost. Kuhn v. Spellacy, 71 Tenn. 278, 1879 Tenn. LEXIS 76 (1879); Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880).

Collateral References. Replevin 5.

NOTES TO DECISIONS

1. Effect of Replevy.

The replevy of property attached constitutes a general appearance, and a waiver of questions of jurisdiction of the person. New York Casualty Co. v. Lawson, 160 Tenn. 329, 24 S.W.2d 881, 1929 Tenn. LEXIS 110 (1930).

2. Validity of Bond.

A replevy bond is not affected, though it be called a delivery bond by the sheriff in his return. Stephens v. Green County Iron Co., 58 Tenn. 71, 1872 Tenn. LEXIS 229 (1872).

A condition in the replevy bond to abide by and perform and satisfy the order and judgment of the court, at the return term of the attachment, or that the defendant will surrender himself into the custody, is a good statutory bond, there being no other objections to it. Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872).

3. —Bond Not Executed in Course of a Judicial Proceeding.

A replevy bond cannot be regarded as one executed in the course of judicial proceedings and properly filed, where the sheriff failed to return the attachment and bond, as required by law, and such bond is not cured by this section. Green v. Lanier, 52 Tenn. 662, 1871 Tenn. LEXIS 294 (1871).

4. Common Law Bond — Obligors' Remedies.

If the replevy bond is a common law bond, and not a strictly statutory bond, the obligors are subject to the remedies given upon strictly statutory bonds. Kuhn v. Spellacy, 71 Tenn. 278, 1879 Tenn. LEXIS 76 (1879); Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880).

5. Estoppel to Deny Validity of Bond or Proceedings.

A party obtaining a replevy of property attached is estopped to deny the validity of the bond or the proceedings under which he obtained the possession, and so are the sureties on the replevy bond. Stephens v. Green County Iron Co., 58 Tenn. 71, 1872 Tenn. LEXIS 229 (1872); Upton v. Philips, 58 Tenn. 215, 1872 Tenn. LEXIS 249 (1872); Gilbert v. Smith, 14 Tenn. App. 500, — S.W.2d —, 1932 Tenn. App. LEXIS 59 (Tenn. Ct. App. 1932).

Makers of bond estopped to deny its validity, though its conditions may not accurately conform to statute. Sadler v. Murphy, 18 Tenn. App. 340, 77 S.W.2d 70, 1934 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1934).

6. —Ancillary Attachment.

The defendant is not estopped from objecting to the legality of the ancillary attachment proceedings by the execution of a replevy bond. Dickinson v. Redmond, 3 Shan. 620 (1875).

Collateral References. Replevin 33.

NOTES TO DECISIONS

1. Form of Judgment.

While § 29-6-149 does not prescribe a condition that the bond may be satisfied by a return of the property, yet under this section and § 29-6-155, judgment should be for the penalty of the bond, which may be satisfied by the payment of the plaintiff's recovery, interest, and costs, or by the delivery or forthcoming of the property, or by the payment of its value, with interest as the case may be, that is, according as the bond may be in the one form or the other. If the bond be in a penalty double the plaintiff's demand, then the judgment should be for such penalty to be satisfied by the payment of the plaintiff's recovery, interest, and costs; but if the bond be in double the value of the property, the judgment should be for the penalty, to be satisfied by a return or forthcoming of the property, or paying its value, with interest from the date of the bond. Richards v. Craig, 67 Tenn. 457, 1874 Tenn. LEXIS 400 (1874); Kuhn v. Spellacy, 71 Tenn. 278, 1879 Tenn. LEXIS 76 (1879); Ward v. Kent, 74 Tenn. 128, 1880 Tenn. LEXIS 217 (1880).

A judgment for the plaintiff sustaining the attachment and ordering its enforcement, though awkwardly expressed, was manifestly intended as a judgment in the alternative for either return of the replevied property or for payment of the judgment. Sadler v. Murphy, 18 Tenn. App. 340, 77 S.W.2d 70, 1934 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1934).

The court is not empowered to enter any other form of judgment on the bond than the two forms alternately provided by this section and § 29-6-155 and as called for by the contract expressed in the bond. Third Nat'l Bank v. Keathley, 35 Tenn. App. 82, 242 S.W.2d 760, 1951 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1951).

2. Judgment on Bond.

A judgment, against sureties on a replevy bond given for the replevy of property attached, rendered before a judgment against the defendant upon the cause of action for which the suit was brought, is void. Morning v. Alexander, 57 Tenn. 606, 1873 Tenn. LEXIS 273 (1873).

Both the debt and the lien must be adjudged before the bond can be enforced. Where only the debt has been adjudged, and the question of lien is yet to be adjudged, the appellate court cannot render a judgment upon the replevy bond, but must remand the cause for adjudication as to lien, where the lien exists. Casey & Hedges Mfg. Co. v. Weatherly, 97 Tenn. 297, 37 S.W. 6, 1896 Tenn. LEXIS 143 (1896).

3. Judgment for Less Than Penalty of Bonds.

If, in an action on a replevy bond executed by defendant, judgment was rendered for less than the penalty of the bonds, the defendant and the surety on the bonds cannot complain on that account in view of this section and § 29-6-155. Sadler v. Murphy, 18 Tenn. App. 340, 77 S.W.2d 70, 1934 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1934).

4. Perishable Property Sold Pending Suit — Judgment Against Sureties for Deficiency.

Where perishable property was sold by the court under forced sale pending suit, judgment against sureties upon bond for difference between the value of the property as estimated in the bond and the amount for which it sold was improper. Richards v. Craig, 67 Tenn. 457, 1874 Tenn. LEXIS 400 (1874).

5. Decree Providing for Exhausting Lien of Complainant Before Proceeding on Bond.

The chancellor, complainant assenting, may at instance of surety provide in his decree for exhaustion of the lien of complainant before proceeding on the bond. Chrisenberry v. Wylie, 54 S.W. 49, 1899 Tenn. Ch. App. LEXIS 104 (Tenn. Ch. App. 1899).

Collateral References. Attachment 338.

NOTES TO DECISIONS

1. Loss of Property — Nonstatutory Bond.

Where the bond was not conditioned as required by statute, or where there was simply a forthcoming bond, and the property was destroyed or died, the sureties of the replevy bond were not bound. Green v. Lanier, 52 Tenn. 662, 1871 Tenn. LEXIS 294 (1871); Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872); Guthrie v. Brown, 57 Tenn. 380, 1872 Tenn. LEXIS 435 (1872).

2. Loss of Property — Replevy Bond.

Death or destruction of property does not release surety on the replevy bond. Barry v. Frayser, 57 Tenn. 206, 1872 Tenn. LEXIS 416 (1872).

Where the property attached is replevied, the replevy bond represents the debt, and stands in lieu of the property, and judgment may be given on the bond for the value of the property where it has been lost before the trial. Epperson v. Van Pelt, 68 Tenn. 73, 1876 Tenn. LEXIS 22 (1876).

Collateral References. 7 C.J.S. Attachment § 302.

Replevin 127-135.

NOTES TO DECISIONS

1. Prayer for Sale Unnecessary.

Special prayer for sale of the property attached is not necessary. Eaton v. Breathett, 27 Tenn. 534, 1847 Tenn. LEXIS 126 (1847); Quinn v. Leake, 1 Cooper's Tenn. Ch. 67 (1872).

2. Order of Sale — Necessity.

The fact that the justice (now general sessions judge) in rendering judgment did not order the attached property sold did not operate as an abandonment of the attachment where the justice adjudged that the attachment be sustained. Sadler v. Murphy, 18 Tenn. App. 340, 77 S.W.2d 70, 1934 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1934).

3. Venditioni Exponas — Authority to Issue.

Venditioni exponas is an important link in the purchaser's chain of title, and the clerk must look alone to the judgment for his authority to issue it, and he has no authority to issue it under a judgment that awards execution generally, but does not order a condemnation. Staunton v. Harris, 56 Tenn. 579, 1872 Tenn. LEXIS 178 (1872); Hillman v. Werner, 56 Tenn. 586, 1872 Tenn. LEXIS 179 (1872); Hurst v. Liford, 58 Tenn. 622, 1872 Tenn. LEXIS 311 (1872).

4. Division of County Before Sale — Effect.

Where, after the condemnation of land attached and the award of a writ of venditioni exponas, and after its issuance, that part of the county in which the land lay was taken off of the county for the creation of a new county, the sheriff of the county in which the suit was prosecuted may sell the land under the writ of venditioni exponas. Tyrell's Heirs v. Rountree, 32 U.S. 464, 8 L. Ed. 749, 1833 U.S. LEXIS 358 (1833).

5. Dismissal of Bill — Effect on Intervenor's Petition.

Where one intervenes in an attachment case, without independently attaching property, and without publication notice as to nonresident defendant, such petition fails on dismissal of the original bill of complaint. Doak v. Stahlman, 58 S.W. 741, 1899 Tenn. Ch. App. LEXIS 178 (1899).

6. Appeal — Effect on Third Person's Bill.

Where appeal is prayed from judgment in attachment case, it is error to dismiss a bill filed by third person claiming title to the property, for want of equity, since complainant could not seek relief by petition in the court below, as the appeal removed the case from that court. Jones v. Stewart, 61 S.W. 105, 1900 Tenn. Ch. App. LEXIS 147 (Tenn. Ch. App. 1900).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 570.

7 C.J.S. Attachment § 318.

Attachment 13.

NOTES TO DECISIONS

1. Necessity of Return.

Where the justice's (now general sessions judge's) attachment has been levied on land, judgment should be rendered by the justice for the debt, and the final judgment against a defendant without service of process or appearance stayed; and if it is necessary to sell the land to satisfy the judgment, the papers shall be returned to the circuit court for condemnation of the land to be sold to satisfy such judgment, as in cases of levy on land by a justice's execution. Sullivan v. Fugate, 48 Tenn. 20, 1870 Tenn. LEXIS 7 (1870); Rumbough v. White, 58 Tenn. 260, 1872 Tenn. LEXIS 256 (1872); Boyd v. Gentry, 59 Tenn. 625, 1874 Tenn. LEXIS 18 (1874). See State v. Covington, 72 Tenn. 51, 1879 Tenn. LEXIS 5 (1879).

2. Affidavit — Entry — Effect of Defect.

The affidavit upon which the attachment issued must be entered on the minutes, in the judgment of condemnation, as required by § 19-3-104(d) (now 16-15-804), and if the affidavit fails to state a sufficient ground for the attachment, the sale under the condemnation judgment will be void, for the affidavit in attachment cases is the basis of the suit, and is a part of the record. Maples v. Tunis, 30 Tenn. 108, 1850 Tenn. LEXIS 69 (1850); Jas. N. Watt & Co. v. Carnes, 51 Tenn. 532, 1871 Tenn. LEXIS 200 (1871).

3. Effect of Erroneous Proceedings.

Where the justice (now general sessions judge) failed to make publication for a nonresident defendant, failed to stay final judgment and the affidavit failed to state the nature of the debt, or that it was a just debt, upon appeal or writ of error from the judgment of condemnation of the land in the circuit court, the appellate court will reverse such judgment and discharge the attachment. Rumbough v. White, 58 Tenn. 260, 1872 Tenn. LEXIS 256 (1872); Crabtree v. Bank of Winchester, 108 Tenn. 483, 67 S.W. 797, 1901 Tenn. LEXIS 49 (1902).

4. Right of Survivorship.

The right of survivorship, previously conveyed or attached by a judgment creditor, is not destroyed by the dissolution of a tenancy by the entireties. Third Nat'l Bank v. Knobler, 789 S.W.2d 254, 1990 Tenn. LEXIS 173 (Tenn. 1990).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 570.

51 C.J.S. Justices of the Peace § 77.

Attachment 167.

NOTES TO DECISIONS

1. Constitutionality.

A personal judgment for money rendered against a nonresident, who is not served with process and does not appear, in a proceeding by attachment of his property, subjecting the attached property and awarding execution for the unsatisfied balance and costs, is coram non judice and void, as being without due process of law, when called in question, either in the courts of this state or of any other state, so far as it exceeds the amount for which the attached property is sold. Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 444, 67 S.W. 856, 1901 Tenn. LEXIS 46 (1902).

2. Nature of Attachment.

Attachment is not in rem but is in personam, and is only a means of security. Green v. Shaver, 22 Tenn. 139, 1842 Tenn. LEXIS 47 (1842); Perkins' Heirs v. Norvell, 25 Tenn. 151, 1845 Tenn. LEXIS 49 (1845); Snell v. Allen, 31 Tenn. 208, 1851 Tenn. LEXIS 49 (1851).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 570.

7 C.J.S. Attachment §§ 324, 333.

NOTES TO DECISIONS

1. Manner of Accomplishing Stay.

After the return of the attachment levied, the stay may be accomplished by proceeding no further with the suit until the time expires, or by rendering judgment and providing on its face for the stay of the execution of the same for the required time. Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865); Claybrook v. Wade, 47 Tenn. 555, 1870 Tenn. LEXIS 172 (1870); Mulloy v. White, 3 Cooper's Tenn. Ch. 9 (1875).

2. Necessity of Stay.

In an original attachment case before a justice (now general sessions judge) where publication is required for the nonresident, and the defendant does not appear, a final judgment, rendered within the six months after the return of the attachment levied, is void, and the proceedings will be quashed upon appeal. Sorrels v. Wiley, 53 Tenn. 318, 1871 Tenn. LEXIS 364 (Tenn. Oct. 14, 1871). See Rumbough v. White, 58 Tenn. 260, 1872 Tenn. LEXIS 256 (1872); Nashville & C.R.R. v. Todd, 58 Tenn. 549, 1872 Tenn. LEXIS 298 (1872).

3. Court of Record — Discretion as to Stay.

It is discretionary with a court of record whether the judgment be stayed, and the appellate court will be slow to revise this discretion. Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865); Boggess v. Gamble, 43 Tenn. 148, 1866 Tenn. LEXIS 30 (1866).

4. Stay as to Nonresident.

Where the attachment is sued out upon the ground that the defendant is a nonresident, the judgment must be stayed unless sufficient cause to the contrary is made to appear. Swan v. Roberts, 42 Tenn. 153, 1865 Tenn. LEXIS 34 (1865); Claybrook v. Wade, 47 Tenn. 555, 1870 Tenn. LEXIS 172 (1870); Mulloy v. White, 3 Cooper's Tenn. Ch. 9 (1875).

5. Notice for Nonresidents — Return.

The publication notice for nonresidents in attachment cases may be made returnable to a regular rule day, like process. Fellows v. Cook, 57 Tenn. 81, 1872 Tenn. LEXIS 401 (1872); Harris v. Bogle, 115 Tenn. 701, 92 S.W. 849, 1905 Tenn. LEXIS 99 (1906).

6. Execution upon Expiration of Stay.

The complainant under attachment bill, without personal service of process, but upon publication for a nonresident, is entitled to have his final decree executed at the expiration of the stay, without the imposition of other terms. Mulloy v. White, 3 Cooper's Tenn. Ch. 9 (1875).

Collateral References. 7 C.J.S. Attachment §§ 315, 491.

Justices of the peace 135(4).

NOTES TO DECISIONS

1. Adequate Notice Requirement of Due Process.

Where, in an action attaching real property, nonresident party defendants were properly served by publication but not otherwise notified, although the plaintiffs in the action knew, or through reasonable diligence could have discovered, their actual addresses, it was held that the notice was insufficient, depriving the nonresident party defendants of their property without due process of law under U.S. Const., amend. 14 and that the entire attachment action was void insofar as it affected their interests. Groves v. Witherspoon, 379 F. Supp. 52, 1974 U.S. Dist. LEXIS 8982 (E.D. Tenn. 1974).

2. Requirement of Nonresidence.

It must appear as a matter of fact that the defendant was a nonresident. Gill v. Wyatt, 53 Tenn. 88, 1871 Tenn. LEXIS 322 (1871); Cain v. Jennings, 2 Shan. 209 (1877), aff'd, 3 Cooper's Tenn. Ch. 131 (1876).

3. Grounds of Attachment As Determining Rights of Nonresident.

Where the attachment was sued out upon several grounds stated in the alternative, some of which were the grounds stated in this section, the court would, upon application of the defendant and good cause shown, within the time limited, have power to set aside the judgment, and permit defense, upon his showing that the true ground of the attachment, stated in the attachment, was one of the grounds in this section, and that the other grounds stated were not true. Smith v. Foster, 43 Tenn. 139, 1866 Tenn. LEXIS 29 (1866); Gill v. Wyatt, 53 Tenn. 88, 1871 Tenn. LEXIS 322 (1871); Cain v. Jennings, 3 Cooper's Tenn. Ch. 131 (1876).

When the issuance of the attachment is based upon the ground that the nonresident is an absconding debtor, he will be precluded from the mode of redress prescribed by this section, and must seek his remedy on the bond, as provided in § 29-6-162. Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867); Gill v. Wyatt, 53 Tenn. 88, 1871 Tenn. LEXIS 322 (1871).

4. Prompt Assertion of Rights — Necessity.

The affidavit should affirmatively show that the applicant has come forward at the earliest possible moment, or at least with reasonable speed, to assert his legal rights. The year is not given as a matter of right, and if the defendant is guilty of laches, does not show good cause. Cain v. Jennings, 3 Cooper's Tenn. Ch. 131 (1876).

5. Application of Defendant — Nature.

An application is in the nature of a motion for a new trial or a petition for a rehearing, and may be supported by affidavits, but the petition and affidavits are not parts of the record, unless made so by a bill of exceptions. Smith v. Foster, 43 Tenn. 139, 1866 Tenn. LEXIS 29 (1866); State ex rel. Sneed v. Hall, 43 Tenn. 255, 1866 Tenn. LEXIS 49 (1866); Wilson v. Waters, 47 Tenn. 323, 1869 Tenn. LEXIS 48 (1869).

6. Time for Disposition of Application.

The application must be made within the 12 months, but it is not required that it shall be disposed of within that time. The address of the application to the proper tribunal, and the filing of it in the right office, with good cause shown in the application, is a compliance with the law. Bledsoe v. Wright, 61 Tenn. 471, 1873 Tenn. LEXIS 210 (1873).

7. “Good Cause.”

The “good cause” must go to the merits. If the matter relied on be in abatement, it must be distinctly and unequivocally stated, and must negative the ground of attachment. Gill v. Wyatt, 53 Tenn. 88, 1871 Tenn. LEXIS 322 (1871); Collins v. Knight, 3 Cooper's Tenn. Ch. 183 (1876); Cain v. Jennings, 3 Cooper's Tenn. Ch. 131 (1876). See Smith v. Foster, 43 Tenn. 139, 1866 Tenn. LEXIS 29 (1866); State ex rel. Sneed v. Hall, 43 Tenn. 255, 1866 Tenn. LEXIS 49 (1866); Fellows v. Cook, 57 Tenn. 81, 1872 Tenn. LEXIS 401 (1872); Ledgerwood v. Miller, 2 Shan. 66 (1876).

Where the defendant fails to dispute or contest the justice of the debt on which the suit is based, and shows no excuse for not making defense after full notice, he fails to show good cause. Gill v. Wyatt, 53 Tenn. 88, 1871 Tenn. LEXIS 322 (1871); Cain v. Jennings, 2 Shan. 209 (1877), aff'd, 3 Cooper's Tenn. Ch. 131 (1876).

8. Action of Nonresident as General Appearance.

Where following a suit commenced by attachment of his property and judgment by default, a nonresident defendant filed a petition which under this section he prayed be treated as an answer to the original bill and later filed an answer to the original bill, a plea in abatement filed after the petition and answer was made too late in that the petition and answer constituted a general appearance and the defendant could not thereafter object to the jurisdiction. Gore v. McDaid, 27 Tenn. App. 111, 178 S.W.2d 221, 1943 Tenn. App. LEXIS 135 (1943).

9. Resident Sued as Nonresident.

Where the defendant was proceeded against as a nonresident, when in fact he was a resident, and a decree has been rendered against him, his petition stating that he was a resident, that he had no knowledge of the pendency of the suit, showing merits, and praying for supersedeas, and leave to make defense, must not be taken from the files, upon the ground that it was unaccompanied by an answer. It was not necessary for him to answer until it was determined by the court that he was entitled, upon the fact stated in the petition, to make defense by answer. A reasonable time must be given him to make answer. Metcalf v. Landers, 62 Tenn. 35, 1873 Tenn. LEXIS 133 (1873).

10. Payment of Debt After Sale.

Before the confirmation of a chancery sale, under an attachment against a nonresident defendant, it may be set aside, on payment of the attaching creditor's debt, though the bidder be a third person; and while, regularly, the application should be made before the confirmation of the sale, where the party was thrown off his guard by a promise from complainant's attorney to take the money, the sale was set aside after its confirmation, but during the term at which the confirmation was had. Abbott v. Fagg, 48 Tenn. 742, 1870 Tenn. LEXIS 141 (1870).

11. Effect of Final Decree.

After final decree, and service of a copy of the decree upon him, the nonresident will only be permitted to defend, under § 21-1-404, within six months after such service, by answer, upon petition for leave, showing a meritorious defense, and giving security for costs. Ledgerwood v. Miller, 2 Shan. 66 (1876).

A decree for complainant and against defendant for the debt, and for a sale of the property attached to satisfy the same, is a final decree in the sense of the statute allowing a nonresident defendant not served with process to make defense at any time before final decree, although further action in regard to another fund impounded is suspended till another suit about the same is terminated. Cain v. Jennings, 2 Shan. 209 (1877), aff'd, 3 Cooper's Tenn. Ch. 131 (1876).

Collateral References. 7 C.J.S. Attachment § 497.

Attachment 225-279.

NOTES TO DECISIONS

1. Remedies of Defendant.

Where attachment is based upon ground that debtor is absconding, he must seek remedy upon the bond. Patterson v. Arnold, 44 Tenn. 364, 1867 Tenn. LEXIS 57 (1867).

If defendant is successful in attachment suit he has three remedies: (1) he may sue on the bond and recover according to its conditions, (2) he may sue the plaintiff on the facts and recover according to the statute as though a bond was given, (3) he may sue for malicious prosecution as at common law and recover according to the common law, where there has been malice and want of probable cause. Jerman v. Stewart, Gwynne & Co., 12 F. 266, 1882 U.S. App. LEXIS 2498 (C.C.D. Tenn. 1882).

2. Requisite Showings by Plaintiff.

The plaintiff in action must show that the suit complained of is ended and by a decision in his favor; also, malice and lack of probable cause. Boyce v. Early-Stratton Co., 10 Tenn. App. 545, 1930 Tenn. App. LEXIS 1 (1930).

3. Reference as to Damages.

A reference to ascertain damages for wrongfully suing out an attachment being in the nature of a new suit, an appeal from a decree thereon does not bring up for review the decree in the original cause or on the merits of those issues. Rouss v. Kendrick, 41 S.W. 1074, 1897 Tenn. Ch. App. LEXIS 23 (Tenn. Ch. App. 1897).

Reference in chancery to master of question of damages, where grounds for attachment were not supported by proof, was not error. Russellville Bank & Trust Co. v. McGhee, 16 Tenn. App. 460, 65 S.W.2d 202, 1932 Tenn. App. LEXIS 16 (Tenn. Ct. App. 1932).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 546-549, 642.

7 C.J.S. Attachment §§ 509, 542.

Right to recover attorneys' fees for wrongful attachment. 65 A.L.R.2d 1426.

Attachment 341-354.

NOTES TO DECISIONS

1. Constitutionality.

Where, after several unsuccessful attempts to secure service of process on a debtor, the creditor proceeded to effect attachment and garnishment of the debtor's wages under this section and § 29-6-107, which do not provide notice or hearing prior to the issuance of the writ, the court held that the opportunity given for ultimate judicial determination was adequate and that mere postponement of such judicial determination did not constitute a denial of procedural due process of law under U.S. Const., amend. 14, § 1. Maxwell v. Hixson, 383 F. Supp. 320, 1974 U.S. Dist. LEXIS 6133 (E.D. Tenn. 1974), aff'd, 425 U.S. 927, 96 S. Ct. 1656, 48 L. Ed. 2d 170, 1976 U.S. LEXIS 1289 (1976).

2. Applicability.

Under Fed. R. Civ. P., Rule 69(a), Tennessee Code Annotated and case law thereunder are applicable to garnishments in bankruptcy court. First Tenn. Bank Nat'l Ass'n v. Warner (In re Warner), 191 B.R. 705, 1996 Bankr. LEXIS 332 (Bankr. W.D. Tenn. 1996).

3. Nature of Proceeding.

Garnishment proceedings merely subrogate judgment creditor to the debtor's rights against the garnishee, and only to rights that the debtor could enforce against such garnishee. Dickson v. Simpson, 172 Tenn. 680, 113 S.W.2d 1190, 1937 Tenn. LEXIS 113, 116 A.L.R. 380 (1937).

4. Right of Garnishment.

A debt sued on, either at law or in equity, and a judgment or decree, and debts due or to become due may be reached by garnishment. Penniman & Bro. v. Smith, 73 Tenn. 130, 1880 Tenn. LEXIS 98 (1880); Bryan v. Zarecor, 112 Tenn. 503, 81 S.W. 1252, 1903 Tenn. LEXIS 118 (1904).

This section makes no distinction between the wages or salary of the debtor and other property owned by the debtor. Crook v. L. H. Brooks Co., 174 Tenn. 194, 124 S.W.2d 259, 1938 Tenn. LEXIS 79 (1939).

This section does not authorize attachment by garnishment as against wages due state employee. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

Obligation of insurer, under settlement option elected by life insurance beneficiary to make instalment payments, is subject to attachment by garnishment. John Hancock Mut. Life Ins. Co. v. Frost Nat'l Bank, 393 F. Supp. 204, 1974 U.S. Dist. LEXIS 5766 (E.D. Tenn. 1974), aff'd without opinion, 516 F.2d 901 (6th Cir. Tenn. 1975), aff'd without opinion, John Hancock Mut. Life Ins. Co. v. Frost Nat'l Bank, 516 F.2d 901 (6th Cir. 1975).

5. —Bill in Chancery.

A garnishment bill lies in chancery where attachment is sought, and, answer of the garnishee may in any case be fully contested in such case. McCrae v. Bank of West Tennessee, 46 Tenn. 474, 1869 Tenn. LEXIS 82 (1869); Nashville v. Potomac Ins. Co., 61 Tenn. 296, 1872 Tenn. LEXIS 375 (1872); Parsons v. McGavock, 2 Cooper's Tenn. Ch. 581 (1875).

6. —Federal Court.

A suit by attachment in the ordinary or garnishment form could not be maintained in federal court without personal service on the principal defendant or his voluntary appearance. Central Trust Co. v. Chattanooga, R. & C.R.R., 68 F. 685, 1895 U.S. App. LEXIS 3493 (C.C.E.D. Tenn. 1895).

Suit could not be maintained by residents of Tennessee in federal court in Tennessee to garnish wages of employees of receiver for foreign railroad corporation whose lines extended into Tennessee where both receiver and employees were nonresidents. Central Trust Co. v. Chattanooga, R. & C.R.R., 68 F. 685, 1895 U.S. App. LEXIS 3493 (C.C.E.D. Tenn. 1895).

7. —Liability Contingent and Uncertain.

Where under automobile liability contract it is provided that the insurer should not be liable until amount of liability of insured has been determined, the insured had no right to attach by garnishment of the insurer in action against nonresident defendant, since the insured's obligation was but contingent and uncertain, at that stage. Gray v. Houck, 167 Tenn. 233, 68 S.W.2d 117, 1933 Tenn. LEXIS 31 (1934).

8. —National Bank as Defendant.

The federal statute forbidding issuance of attachment against a national bank or property thereof in any suit in a state court prohibits garnishment in an action against such bank as principal defendant, before final judgment. Rosenheim Real-Estate Co. v. Southern Nat'l Bank, 46 S.W. 1026, 1897 Tenn. Ch. App. LEXIS 124 (1897).

9. —Plaintiff Garnisheeing Self.

No Code provision authorizes a plaintiff to garnish himself for a debt due defendant. Rice v. Sharpleigh Hdwe. Co., 85 F. 559, 1898 U.S. App. LEXIS 2895 (W.D. Tenn. 1898).

10. —Prisoner's Personal Property.

Personal property in no way connected with the criminal charge, taken by police officer from prisoner, for the safekeeping of such property, or to remove from his control the possible means of effecting his escape, is not subject to attachment by garnishment in the officer's hands. Hill v. Hatch, 99 Tenn. 39, 41 S.W. 349, 1897 Tenn. LEXIS 6, 63 Am. St. R. 822 (1897).

11. —Resident's Debt to Nonresident.

The debt of a resident to a nonresident is property of the latter in this state, in such sense that it may be attached and subjected, by garnishment and publication, to the indebtedness of the nonresident to another citizen. Kemper-Thomas Paper Co. v. Shyer, 108 Tenn. 444, 67 S.W. 856, 1901 Tenn. LEXIS 46 (1902).

12. —Salary Paid in Advance.

Where salary was paid an employee in advance by employer garnisheed who answered that he owed employee nothing, the fact that the check drawn for payment did not show payment in advance did not charge the employer as garnishee, if in fact it was a payment in advance. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

13. Status of Claims.

After an attaching creditor's rights to a fund have been fixed by garnishment process, they cannot be affected by debtor's consent that the fund be applied on another claim. Eddington v. Matthews, 53 S.W. 1099, 1899 Tenn. Ch. App. LEXIS 98 (Tenn. Ch. App. 1899).

An attaching creditor seeking jurisdiction of a nonresident by garnishment can occupy no higher ground than the debtor in asserting rights against the garnishee and can enforce no demand against the garnishee which the debtor himself could not. Gray v. Houck, 167 Tenn. 233, 68 S.W.2d 117, 1933 Tenn. LEXIS 31 (1934).

Where the garnishee (third-party debtor) was obligated to pay royalties to the debtor, and the debtor assigned his right to receive these royalties, but the assignee failed to notify the garnishee of this assignment before garnishment, the garnishor (creditor) had priority over the assignee. Union Livestock Yards, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 552 S.W.2d 392, 1976 Tenn. App. LEXIS 210 (Tenn. Ct. App. 1976).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 1-12, 330-407, 511-517, 587-649.

7 C.J.S. Attachment § 1; 38 C.J.S. Garnishment § 70.

Accounts in one's hands for collection as subject of garnishment. 60 A.L.R. 884.

Another court of the state in which it was rendered, judgment as subject to garnishment in. 43 A.L.R. 190.

Attached property, right of creditor upon dissolution of his own attachment to garnish custodian of. 59 A.L.R. 526.

Bank deposit as subject of garnishment for debt of depositor as affected by previous acts by bank in relation to deposit. 107 A.L.R. 697.

Banks, garnishment or similar proceeding as within statute prohibiting attachment, injunction, or execution against, before final judgment. 90 A.L.R. 345.

Branch bank, garnishment of deposit in. 50 A.L.R. 1354, 136 A.L.R. 471.

Cash transaction, right to garnish amount payable under contract contemplating. 95 A.L.R. 1497.

Check, giving of, by debtor before garnishment as affecting right to garnish debt. 94 A.L.R. 1391.

Checks, garnishment of bank in suit against payee or other holder of a check upon the bank. 5 A.L.R. 589.

Commissions of debtor as executor or administrator or trustee. 143 A.L.R. 190.

Contents of a safety deposit box. 11 A.L.R. 225, 19 A.L.R. 863, 39 A.L.R. 1215.

Contractor under construction contract, liability of obligor to garnishment in respect of obligation to. 82 A.L.R. 1115, 16 A.L.R.5th 548.

Conversion of property, liability for, as subject of garnishment by creditor of the owner. 91 A.L.R. 1337.

Cooperation, aid, and (or) assistance, breach by assured of requirement as to, as affecting garnishment proceedings by injured person against insurer. 139 A.L.R. 808.

Corporate stock or stock in joint stock company, situs of, for purpose of garnishment. 122 A.L.R. 338.

County as subject to garnishment process. 60 A.L.R. 823.

Director general of railroads. 4 A.L.R. 1717, 8 A.L.R. 969, 10 A.L.R. 956, 11 A.L.R. 1450, 14 A.L.R. 234, 19 A.L.R. 678, 52 A.L.R. 296.

Employee retirement pension benefits as exempt from garnishment, attachment, levy, execution, or similar proceedings. 93 A.L.R.3d 711.

Escrow, garnishment of money in. 10 A.L.R. 741.

Exemption of nonresident from garnishment as impairing obligation of existing contracts. 93 A.L.R. 185.

Facility of payment clause, garnishment of proceeds of policy containing. 166 A.L.R. 54.

Fire insurer, garnishment of. 38 A.L.R. 1072, 53 A.L.R. 724.

Foreign attachment or garnishment as available in action by nonresident against nonresident or foreign corporation upon a foreign cause of action. 14 A.L.R.2d 420.

Foreign attachment or garnishment upon which jurisdiction is dependent resting upon property coming into hands of garnishee, or obligations having their inception, after service of the writ. 53 A.L.R. 1022.

Funds deposited in court as subject of garnishment. 1 A.L.R.3d 936.

Funds in hands of his attorney as subject of attachment or garnishment of client's creditor. 35 A.L.R.3d 1094.

Garnishment against executor or administrator by creditor of estate. 60 A.L.R.3d 1301.

Garnishment against executor or administrator by creditor of heir, legatee, distributee, or creditor of estate. 59 A.L.R. 768.

Garnishment as remedy in case of violation of Bulk Sales Law. 155 A.L.R. 1061.

Garnishment of carrier in respect of goods shipped. 46 A.L.R. 933.

Garnishment of Federal Railroad Administration. 28 A.L.R. 839.

Garnishment of salaries, wages, or commissions not expressly exempted by statute. 56 A.L.R. 601.

Garnishment of salaries, wages, or other compensation of public officials or employees. 56 A.L.R. 903, superseded by statute as stated in, G.W. Equip. Leasing, Inc. v. Mt. McKinley Fence Co., 97 Wn. App. 191, 982 P.2d 114, 1999 Wash. App. LEXIS 1169 (1999).

Garnishment of salary, wages, or commissions where defendant-debtor is indebted to garnishee-employer. 93 A.L.R.2d 995.

Harassment or garnishment by employee's creditor as constituting misconduct connected with employment so as to disqualify employee from unemployment compensation. 86 A.L.R.2d 1013.

Home Owners' Loan Corporation or other similar agency as subject to garnishment. 108 A.L.R. 705.

Homestead, proceeds of voluntary sale of. 1 A.L.R. 483, 46 A.L.R. 814.

Incompetent or infant under guardianship, property of, as subject to garnishment. 92 A.L.R. 919.

Indebtedness to partnership as subject of attachment or garnishment by creditor of individual partner. 71 A.L.R. 77.

Interest of mortgagor or pledgor in property in possession of mortgagee or pledgee as subject of garnishment. 83 A.L.R. 1383.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor. 86 A.L.R.5th 527.

Judgment in tort action as subject of garnishment pending appeal. 121 A.L.R. 420.

Jurisdiction to garnish a debt due from a foreign corporation doing business within the state to a nonresident, arising from business outside the state. 27 A.L.R. 1396.

Liability insurer's potential liability for failure to settle claim against insured as subject to garnishment by insured's judgment creditors. 60 A.L.R.3d 1190.

Money due only on further performance of contract by debtor. 2 A.L.R. 506.

Money or other property taken from prisoner as subject of garnishment. 16 A.L.R. 378, 154 A.L.R. 758.

Municipal funds and credits as subject to garnishment on judgments against municipality. 89 A.L.R. 863.

Negotiable Instruments Law as affecting theory that a check is an assignment of the drawer's funds as between holder of check and creditor of the drawer garnishing the bank. 5 A.L.R. 1672.

Negotiable warehouse receipt, garnishment of goods covered by. 40 A.L.R. 969.

Note or check itself as subject of garnishment. 41 A.L.R. 1003.

Notice to debtor of assignment, priority of assignment of chose in action over subsequent garnishment as affected by lack of. 52 A.L.R. 109.

Options or other benefits available to insured in his lifetime as subject to garnishment by his creditors. 37 A.L.R.2d 268.

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution. 83 A.L.R.3d 598.

Redemption money in hands of officers as subject to garnishment. 94 A.L.R. 1049.

Residence of partnership for purposes of statutes authorizing garnishment on ground of nonresidence. 9 A.L.R.2d 471.

Resident or foreign corporation doing business within state as subject to garnishment because of indebtedness to nonresident who in turn is indebted to nonresident principal defendant. 116 A.L.R. 387.

Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment. 28 A.L.R.2d 1213.

Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served. 57 A.L.R.2d 700.

Right of one to summon or charge himself as garnishee. 31 A.L.R. 711, 61 A.L.R. 1458.

Salaries or wages payable in advance. 56 A.L.R. 629.

Seat in chamber of commerce, board of trade, or stock exchange. 14 A.L.R. 284.

Sharecropper's share in crop wholly or partly unharvested as subject to garnishment. 82 A.L.R.2d 858.

Special bank deposits as subject of attachment or garnishment to satisfy depositor's general obligations. 8 A.L.R.4th 998.

Spendthrift trust, garnishment of surplus accumulations in hands of trustee. 36 A.L.R.2d 1215.

Statute exempting from garnishment debt evidenced by negotiable instrument, construction, application, and effect of. 71 A.L.R. 581.

Suit, garnishment as, within rule that state may not be sued without its consent. 114 A.L.R. 261.

Tenant's obligation in respect of rent, garnishment of, by landlord's creditor. 100 A.L.R. 307.

Tort, unliquidated claims of damage in, as subject of garnishment. 93 A.L.R. 1088.

Vendee's interest under conditional sale contract as subject to garnishment. 61 A.L.R. 781.

Wages earned after service of writ. 56 A.L.R. 634, 637.

Waiver by municipal corporation of immunity from garnishment. 2 A.L.R. 1586.

What amounts to a contingency within statute or rule permitting garnishment before an obligation is due or payable, if payment or delivery is not dependent upon a contingency. 134 A.L.R. 853.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment. 61 A.L.R.3d 984.

Wife's claim to alimony or other allowances in divorce or separation suit as passing or exempt from passing, to trustee in wife's bankruptcy, under § 70(a) of Bankruptcy Act (11 USC § 110(a)). 10 A.L.R. Fed. 881.

Withdrawal value of stock in building and loan association as subject to garnishment. 94 A.L.R. 1017.

NOTES TO DECISIONS

1. Constitutionality.

This statute is constitutional. Taylor v. Mosley, 157 Tenn. 592, 11 S.W.2d 876, 1928 Tenn. LEXIS 225 (1928); Merrill v. Merrill, 188 Tenn. 10, 216 S.W.2d 705, 1948 Tenn. LEXIS 486, 7 A.L.R.2d 488 (1948).

2. Causes of Action Arising Within State — Example.

Garnishment proceedings against wages earned out of the state but payable within the state brought by a mother, a resident of Tennessee, against her former husband, a nonresident, to recover medical expenses paid out by her for medical expenses for their minor children was a suit on a cause of action arising in this state notwithstanding the fact that the mother obtained a divorce and support order for the children in another state as the divorce decree did not discharge the obligation of defendant for cost of such emergency expenses. Merrill v. Merrill, 188 Tenn. 10, 216 S.W.2d 705, 1948 Tenn. LEXIS 486, 7 A.L.R.2d 488 (1948).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 33, 176.

38 C.J.S. Garnishment §§ 123, 125.

NOTES TO DECISIONS

1. Sufficiency of Notice.

The service of a garnishment upon one member of a partnership is notice to all the members, and the payment of the debt by a partner, in ignorance of the service of such garnishment, to the debtor, does not discharge the garnishee from liability to the execution creditor. State ex rel. Arnold v. Linaweaver, 40 Tenn. 51, 40 Tenn. 151, 1859 Tenn. LEXIS 16, 75 Am. Dec. 757 (1859); Bolling v. Anderson, 1 Cooper's Tenn. Ch. 127 (1873).

Service of garnishment notice upon a depot agent of a railroad company, in a county other than that in which the company has its principal office for business, is not service on the company, in the absence of any reason for not serving it on the president, treasurer, directors, or some officer at its principal place of business. Lambreth & Co. v. Clarke, 57 Tenn. 32, 1872 Tenn. LEXIS 390 (1872); Nashville & C.R.R. v. Todd, 58 Tenn. 549, 1872 Tenn. LEXIS 298 (1872).

Oral notice given to the garnishee by the officer to appear and answer will not suffice. Nashville & C.R.R. v. Todd, 58 Tenn. 549, 1872 Tenn. LEXIS 298 (1872); Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

Garnishees had sufficient notice of garnishment proceeding where they were served with a subpoena duces tecum. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

2. —Service on Commissioner of Commerce and Insurance.

Acceptance of service of garnishment by the commissioner does not suffice to impound right under a policy in favor of principal defendant, there being no manucaption or seizure of the policy. Fidelity Phenix Fire Ins. Co. v. Ford & Cantrell, 164 Tenn. 107, 46 S.W.2d 64, 1931 Tenn. LEXIS 19 (1932), rehearing denied, 164 Tenn. 107, 47 S.W.2d 558 (1932).

Since actual notice to the debtor is required, an acceptance of service of the garnishment notice by the commissioner of insurance (now commissioner of commerce and insurance) in behalf of the debtor garnisheed, a foreign insurance company, does not impound the debt. Sentinel Fire Ins. Co. v. Nall, 166 Tenn. 647, 64 S.W.2d 505, 1933 Tenn. LEXIS 131 (1933).

3. Lack of Notice — Effect.

A judgment against a garnishee, rendered without due service of written notice upon him, and without his appearance or waiver of notice, is void. Nashville & C.R.R. v. Todd, 58 Tenn. 549, 1872 Tenn. LEXIS 298 (1872); Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

If the conditional judgment is void for want of service upon or appearance by the garnishee, then the final judgment rendered upon service of the scire facias, but without appearance of the garnishee, will be void also. Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

4. Sufficiency of Appearance.

In obedience to notice, the garnishee must appear and be examined. An ex parte statement prepared in the absence of the plaintiff and filed as an answer is not a compliance. Foster v. Saffell, 31 Tenn. 90, 1851 Tenn. LEXIS 24 (1851).

5. Levy on Book Accounts — Effect.

Where a book containing accounts was levied on, but the debtors shown thereon were not brought before the court by garnishment, there was nothing attached, and plea in abatement was not necessary to raise the point. Gordonsville Milling Co. v. Jones, 57 S.W. 630, 1900 Tenn. Ch. App. LEXIS 45 (1900).

6. Amendments.

A sheriff may amend his return on a garnishment so as to change the date of answer thereof, particularly when ordered to do so by the court. Newport v. Semones, 39 Tenn. App. 647, 286 S.W.2d 876, 1955 Tenn. App. LEXIS 92 (1955).

The property of a debtor impounded by an attachment by garnishment which was valid in the beginning was not thereafter invalidated nor was the status of the impounded property changed by reason of amendments which postponed the date on which the garnishees were to answer the court. Newport v. Semones, 39 Tenn. App. 647, 286 S.W.2d 876, 1955 Tenn. App. LEXIS 92 (1955).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 335, 337, 339, 340, 359.

38 C.J.S. Garnishment § 119.

Assignment by principal defendant to nonresident served constructively, as affecting jurisdiction to garnish debt. 39 A.L.R. 1465.

Attorney's compensation for services in garnishment, amount of. 143 A.L.R. 788, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Bond, assignment of judgment as carrying rights of assignor as to. 63 A.L.R. 291.

Content of notice to nonresident principal essential to garnishment. 92 A.L.R. 570.

Discharge of garnishment, or bond for its dissolution, by subsequent amendment of pleadings or the writ. 74 A.L.R. 912.

Estoppel or waiver, necessity of pleading, in garnishment proceeding. 120 A.L.R. 97.

Information and belief, answer on, by trustee or garnishee in garnishment or trustee process. 125 A.L.R. 253.

Joint debtors, debt owing to two or more as subject of garnishment in action against less than all. 57 A.L.R. 844.

Jurisdictional amount in garnishment proceeding by several. 72 A.L.R. 205.

Jurisdiction of justice's court (or similar court) of garnishment proceeding incidentally involving title to land. 115 A.L.R. 540.

Service of process in garnishment of foreign corporation doing business in state. 113 A.L.R. 140.

Trick or device by which indebtedness to nonresident was subjected to jurisdiction. 37 A.L.R. 1255.

Waiver or admission by garnishee as affecting principal defendant. 64 A.L.R. 430.

Who may serve writ, summons, or notice of garnishment. 75 A.L.R.2d 1437.

Garnishment 188-190.

NOTES TO DECISIONS

1. Effect of Garnishment on Custody of Property.

Upon the service of the garnishment notice, the property, effects, or debt in the hands of the garnishee pass into the custody of the law, and beyond the control of either the garnishee or the judgment debtor. State ex rel. Arnold v. Linaweaver, 40 Tenn. 51, 40 Tenn. 151, 1859 Tenn. LEXIS 16, 75 Am. Dec. 757 (1859); Beaumont v. Eason, 59 Tenn. 417, 1873 Tenn. LEXIS 86 (1873).

2. Effect of Garnishment on Lien.

Lien passes with debt, under attachment and garnishment bill. Merrill v. Elam, 63 Tenn. 235, 1874 Tenn. LEXIS 236 (1874).

Collateral References. 38 C.J.S. Garnishment § 152.

Garnishment 90-103.

NOTES TO DECISIONS

1. Purpose.

One of the purposes of this section is to make Tennessee's garnishment laws conform with the rights of a holder of a note set forth in § 47-3-301. Pepper/Holt Joint Venture v. Roderick Group (In re Hodevco, Inc.), 165 B.R. 855, 1994 Bankr. LEXIS 460 (Bankr. M.D. Tenn. 1994).

2. Paper Not Delivered and Garnishee Not Indemnified.

The garnishee cannot be held liable unless the note be delivered up, or he be completely indemnified against liability on it, after paying it as garnishee, which may be done in equity but not at law. Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871); Matheny v. Hughes, 57 Tenn. 401, 1873 Tenn. LEXIS 222 (1873); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

A garnishment is properly discharged where the garnishee's acknowledged indebtedness is evidenced by his negotiable notes, which are not surrendered, and owner of which is not shown, and as to which no indemnity is given or offered to the garnishee. Hughes v. Powers, 99 Tenn. 480, 42 S.W. 1, 1897 Tenn. LEXIS 56 (1897); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

Where a foreign fire insurance company remitted the amount of a loss by a negotiable draft, which was delivered to payee on February 15th, and a garnishment notice was not effectually served by a judgment creditor at that time, the debt was one due by negotiable paper, and the garnishment was ineffectual because the instrument was not delivered nor the garnishee company indemnified. Sentinel Fire Ins. Co. v. Nall, 166 Tenn. 647, 64 S.W.2d 505, 1933 Tenn. LEXIS 131 (1933).

3. Garnishor Not Holder of Note.

Where garnishor of note served notice of the garnishment on the note's maker, which honored the garnishment by paying three quarterly payments of principal and interest to the circuit court, later collected, but garnishor never became the holder of the note, nor agreed to indemnify the maker against double liability to the debtor, the attempted garnishment failed to attach the judgment to the note, and never disturbed the debtor's legal right to receive payments under the note as holder and payee. Since such right was a legal interest recognized by Tennessee law, the debtor's right to receive payments under the note became property of the bankruptcy estate upon the debtor's filing under 11 U.S.C. § 541(a)(1). Pepper/Holt Joint Venture v. Roderick Group (In re Hodevco, Inc.), 165 B.R. 855, 1994 Bankr. LEXIS 460 (Bankr. M.D. Tenn. 1994).

4. Note Not Due in Hands of Defendant as Payee.

Where the garnishee answers that he is indebted by note still in the hands of the defendant as payee, if it is not past due, he cannot be held, because the surrender of the note cannot be effected in the proceeding, and if the note should be transferred before maturity to a bona fide holder, the garnishment judgment would be no defense against it. Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871); Matheny v. Hughes, 57 Tenn. 401, 1873 Tenn. LEXIS 222 (1873).

5. Past Due Unassigned Paper.

If suit has been brought on past due negotiable paper and it has no assignment on it, then the garnishee is liable to judgment. Huff v. Mills, 15 Tenn. 41, 15 Tenn. 42, 1834 Tenn. LEXIS 10 (1834); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

It is a good defense to an action by the assignee of a bill single against the maker, that, after maturity of the paper and prior to its assignment, the maker has been served with process of garnishment by an execution creditor of the payee, and, upon an answer stating the facts, had been compelled to pay the amount by judgment upon the process. Daniel v. Rawlings, 25 Tenn. 403, 1846 Tenn. LEXIS 1 (1846).

6. Whereabouts of Paper Unknown.

While negotiable paper is in some cases subject to garnishment, if the garnishee answers that he does not know where it is or who holds the instrument, though it is then past due, no judgment can be rendered against him. Huff v. Mills, 15 Tenn. 41, 15 Tenn. 42, 1834 Tenn. LEXIS 10 (1834); Turner v. Armstrong, 17 Tenn. 412, 1836 Tenn. LEXIS 72 (1836); Moore v. Green, 23 Tenn. 299, 1843 Tenn. LEXIS 87 (1843); Daniel v. Rawlings, 25 Tenn. 403, 1846 Tenn. LEXIS 1 (1846); Moses v. McMullen, 44 Tenn. 242, 1867 Tenn. LEXIS 39 (1867); Hughes v. Powers, 99 Tenn. 480, 42 S.W. 1, 1897 Tenn. LEXIS 56 (1897); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

Where garnishee answers that he has no knowledge of the whereabouts of note and it distinctly appears in his answer that the note is not matured, no valid judgment can be rendered against him. Hughes v. Powers, 99 Tenn. 480, 42 S.W. 1, 1897 Tenn. LEXIS 56 (1897); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

7. Payment of Note into Court.

Action of court affording indemnity to garnishees upon their payment of a note into court unless their conduct showed collusion and/or fraud afforded the protection from additional liability contemplated by this section. Wilson v. Johnson, 566 S.W.2d 855, 1978 Tenn. LEXIS 560 (Tenn. 1978).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 77, 147-158, 449, 489, 490.

38 C.J.S. Garnishment § 293.

Note or check itself as subject of garnishment. 41 A.L.R. 1003.

Statute exempting from garnishment debt evidenced by negotiable instrument, construction, application, and effect of. 71 A.L.R. 581.

Garnishment 38.

NOTES TO DECISIONS

1. Attorney's Fee.

Although a garnishee is entitled to compensation and privileges of a witness for his attendance and answer, there is no provision for an attorney's fee for a garnishee and the trial court was in error in making such an award. Mayer v. Mayer, 532 S.W.2d 54, 1975 Tenn. App. LEXIS 194 (Tenn. Ct. App. 1975).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 407.

38 C.J.S. Garnishment § 264.

Liability of creditor for excessive attachment or garnishment. 56 A.L.R.3d 493.

Garnishment 136.

NOTES TO DECISIONS

1. Prerequisites to Judgment.

No judgment can be rendered against a garnishee until a valid judgment has been first rendered against the defendant debtor, and if the judgment against such defendant is void, the judgment against the garnishee will also be void. Seawell v. Murphy, 3 Tenn. 478, 1814 Tenn. LEXIS 38 (1814); Woodfolk v. Whitworth, 45 Tenn. 561, 1868 Tenn. LEXIS 47 (1868); Nashville & C.R.R. v. Todd, 58 Tenn. 549, 1872 Tenn. LEXIS 298 (1872); Walton v. Sharp, 79 Tenn. 578, 1883 Tenn. LEXIS 110 (1883).

2. Construction with Other Sections.

Both T.C.A. §§ 26-2-209 and 29-7-114 authorize the imposition of a conditional judgment if the garnishee fails to answer; the appellate court, mindful of the trial court's explicit findings that the agents of the mother's employer acted in bad faith and persistently worked in concert with the mother to defeat the garnishments and that certain penalties or sanctions may have been called for, nevertheless held that under the plain language of the garnishment statutes at issue, a conditional judgment was not among the available options, (here $82,817 for child support due), where the employer admitted that the mother was employed during the pertinent period, provided information about the mother's salary, and asserted that the reason for its failure to answer the garnishment in a timely manner was due to simple negligence. Smith v. Smith, 165 S.W.3d 285, 2004 Tenn. App. LEXIS 105 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 761 (Tenn. Sept. 7, 2004).

3. Payment Covered by Garnishment.

Trial court erred in denying a former wife's motion for a judgment against a corporation as garnishee for the amount it paid to a former husband's attorney because the corporation was liable to the wife pursuant to T.C.A. § 29-7-112 since the payment was covered by the garnishment; because the corporation had a debt to the husband at the time of the garnishment notice, although the debt was not payable until a later time, the garnishment notice attached the payment made to the attorney, and since the corporation made the payment directly to the husband, it was liable to the former wife. McKee-Livingston v. Livingston, — S.W.3d —, 2010 Tenn. App. LEXIS 42 (Tenn. Ct. App. Jan. 21, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 755 (Tenn. Aug. 25, 2010).

Collateral References. 6 Am Jur. 2d Attachment and Garnishment §§ 384-388.

38 C.J.S. Garnishment § 244.

Effect as between garnisher and principal defendant of judgment against garnishee. 103 A.L.R. 839.

Effect of judgment in garnishment proceedings as between garnishee and principal defendant. 166 A.L.R. 272.

Estoppel of garnishee or surety on delivery bond to deny indebtedness to principal defendant by judgment against the latter which the garnishee, surety or his reinsurer sought to prevent. 27 A.L.R. 1543.

Foreign country, conclusiveness as to merits of judgment of courts of, in garnishment proceeding. 46 A.L.R. 449, 148 A.L.R. 991.

Liability insurer's potential liability for failure to settle claim against insured as subject to garnishment by insured's judgment creditors. 60 A.L.R.3d 1190.

Garnishment 174-187, 234-237.

NOTES TO DECISIONS

1. Effect of Section.

The garnishment fastens on debts, whether due or not and if not due judgment may be rendered and execution stayed until the debt falls due. Lockett v. Beaver, 97 Tenn. 396, 37 S.W. 140, 1896 Tenn. LEXIS 158 (1896).

This section clearly indicates that ordinarily, choses in action may be garnisheed, whether due or not, but under § 26-2-105 (now § 26-2-102) only such wages and salary as are due at the time of the service of the garnishment are liable to it. Weaver v. Hill, 97 Tenn. 402, 37 S.W. 142, 1896 Tenn. LEXIS 159 (1896).

Obligation of insurer, under settlement option elected by life insurance beneficiary to make instalment payments, is subject to attachment by garnishment as the payments become due. John Hancock Mut. Life Ins. Co. v. Frost Nat'l Bank, 393 F. Supp. 204, 1974 U.S. Dist. LEXIS 5766 (E.D. Tenn. 1974), aff'd without opinion, 516 F.2d 901 (6th Cir. Tenn. 1975), aff'd without opinion, John Hancock Mut. Life Ins. Co. v. Frost Nat'l Bank, 516 F.2d 901 (6th Cir. 1975).

2. Contingent and Uncertain Rights.

Where, by the terms of a contract of insurance, insured had no right of action for indemnity stipulated until a judgment is rendered against him, the right of the insurer was contingent and uncertain, and the insurer was not chargeable as garnishee prior to such judgment. Gray v. Houck, 167 Tenn. 233, 68 S.W.2d 117, 1933 Tenn. LEXIS 31 (1934) (This section not cited in the opinion.)

Collateral References. Garnishment 41.

NOTES TO DECISIONS

1. In General.

The conditional judgment is not punitive, but is an enforcement tool; it serves as a “wakeup call” to the garnishee, alerting it that a proper answer and defense must be forthcoming in order to prevent entry of a final judgment. First Tenn. Bank Nat'l Ass'n v. Warner (In re Warner), 191 B.R. 705, 1996 Bankr. LEXIS 332 (Bankr. W.D. Tenn. 1996).

Both T.C.A. §§ 26-2-209 and 29-7-114 authorize the imposition of a conditional judgment if the garnishee fails to answer; the appellate court, mindful of the trial court's explicit findings that the agents of the mother's employer acted in bad faith and persistently worked in concert with the mother to defeat the garnishments and that certain penalties or sanctions may have been called for, nevertheless held that under the plain language of the garnishment statutes at issue, a conditional judgment was not among the available options, (here $82,817 for child support due), where the employer admitted that the mother was employed during the pertinent period, provided information about the mother's salary, and asserted that the reason for its failure to answer the garnishment in a timely manner was due to simple negligence. Smith v. Smith, 165 S.W.3d 285, 2004 Tenn. App. LEXIS 105 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 761 (Tenn. Sept. 7, 2004).

2. Applicability.

Under Fed. R. Civ. P., Rule 69(a), Tennessee Code Annotated and case law thereunder are applicable to garnishments in bankruptcy court. First Tenn. Bank Nat'l Ass'n v. Warner (In re Warner), 191 B.R. 705, 1996 Bankr. LEXIS 332 (Bankr. W.D. Tenn. 1996).

Creditor's prosecution of a conditional judgment against the bankruptcy debtor's employer under T.C.A. §§ 26-2-209, 29-7-114, 29-7-115, 29-7-116, for failure to answer the garnishment, was not a violation of the discharge injunction of 11 U.S.C. § 524, because the conditional judgment was sought only against the employer as a defendant-garnishee. Kanipe v. First Tenn. Bank (In re Kanipe), 293 B.R. 750, 2002 Bankr. LEXIS 1695 (Bankr. E.D. Tenn. 2002).

3. Suits Against State.

This section is unworkable and has no application to suits against the state to garnishee salary or wages of state employees. State ex rel. Allen v. Cook, 171 Tenn. 605, 106 S.W.2d 858, 1937 Tenn. LEXIS 143 (1937).

4. Existence of Debt.

Factual disputes over whether the garnishee (a professional corporation of which defendant was an employee) was indebted to defendant did not defeat entry of a conditional judgment against the garnishee, where no representative of the garnishee, other than the defendant's (and presumably the garnishee's) attorney appeared at the hearing upon the motion to compel the garnishee to pay funds to the court. First Tenn. Bank Nat'l Ass'n v. Warner (In re Warner), 191 B.R. 705, 1996 Bankr. LEXIS 332 (Bankr. W.D. Tenn. 1996).

Plain language of T.C.A. §§ 26-2-209 and 29-7-114 authorizes the imposition of a conditional judgment if the garnishee fails to answer the garnishment, but there is no language in the statutes indicating that if the answer is not timely or sufficient, a conditional judgment may be entered. The conditional judgment remedy is clearly intended to be a “wake-up call” to the garnishee; however, if the garnishee files an answer before the conditional judgment is imposed, this obviates the need for such a “wake-up call.” Smith v. Smith, 165 S.W.3d 285, 2004 Tenn. App. LEXIS 105 (Tenn. Ct. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 761 (Tenn. Sept. 7, 2004).

Trial court properly held an estate executrix liable for failing to honor a garnishment by distributing funds from the estate to the judgment debtor after the executrix had been properly served notice of the garnishment and her attorney had assured the judgment creditor that his judgment would be paid from the debtor's share of the estate. Stocklin v. Lord, — S.W.3d —, 2014 Tenn. App. LEXIS 602 (Tenn. Ct. App. Sept. 29, 2014).

5. Entry of Judgment.

Trial court erred by entering a final judgment against garnishees for the full amount of a debt because no conditional judgment was entered, and the record failed to demonstrate that the required notice of a conditional judgment was served upon the garnishees; moreover, a judgment should not have been entered against the garnishees for the entire amount of the debt since they answered and properly informed the trial court regarding the amount of their payments made to the debtor. The trial court should only have entered judgment against garnishees if it determined that the amount they had already paid into the court's registry was insufficient to satisfy the garnishees' statutory obligations. Emrick v. Moseley, — S.W.3d —, 2014 Tenn. App. LEXIS 448 (Tenn. Ct. App. July 30, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 986 (Tenn. Nov. 20, 2014).

Conditional judgment against a garnishee was properly vacated because the garnishee responded within the time allowed by a trial court's order, even though that time exceeded ten days. Smith v. Smith, — S.W.3d —, 2019 Tenn. App. LEXIS 59 (Tenn. Ct. App. Jan. 31, 2019).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment § 399.

38 C.J.S. Garnishment § 255.

Garnishment 179.

NOTES TO DECISIONS

1. Defense by Garnishee.

The garnishee is, upon the return of the scire facias, in the same situation as he was on the return of the original garnishment summons or notice, of which the scire facias is, in effect, only a repetition. He may answer precisely as he might have answered had he appeared then. Hogshead v. Carruth, 13 Tenn. 226, 13 Tenn. 227, 1833 Tenn. LEXIS 147 (1833); Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

If the attachment proceedings are wholly void, the garnishee may, and he should, avail himself of this, as any judgment against him in such a case will not protect him afterwards against his creditor. Woodfolk v. Whitworth, 45 Tenn. 561, 1868 Tenn. LEXIS 47 (1868).

2. —Matter in Abatement of Attachment.

A garnishee cannot insist on matter which, by plea, would be good in abatement only of the attachment, for that must come from the defendant. Cheatham v. Trotter, 7 Tenn. 198, 1823 Tenn. LEXIS 38 (1823).

3. Construction with Other Statutes.

Creditor's prosecution of a conditional judgment against the bankruptcy debtor's employer under T.C.A. §§ 26-2-209, 29-7-114, 29-7-115, 29-7-116, for failure to answer the garnishment, was not a violation of the discharge injunction of 11 U.S.C. § 524, because the conditional judgment was sought only against the employer as a defendant-garnishee. Kanipe v. First Tenn. Bank (In re Kanipe), 293 B.R. 750, 2002 Bankr. LEXIS 1695 (Bankr. E.D. Tenn. 2002).

4. Notice Not Given.

Trial court erred by entering a final judgment against garnishees for the full amount of a debt because no conditional judgment was entered, and the record failed to demonstrate that the required notice of a conditional judgment was served upon the garnishees; moreover, a judgment should not have been entered against the garnishees for the entire amount of the debt since they answered and properly informed the trial court regarding the amount of their payments made to the debtor. The trial court should only have entered judgment against garnishees if it determined that the amount they had already paid into the court's registry was insufficient to satisfy the garnishees' statutory obligations. Emrick v. Moseley, — S.W.3d —, 2014 Tenn. App. LEXIS 448 (Tenn. Ct. App. July 30, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 986 (Tenn. Nov. 20, 2014).

Collateral References. Garnishment 179.

NOTES TO DECISIONS

1. Applicability.

Creditor's prosecution of a conditional judgment against the bankruptcy debtor's employer under T.C.A. §§ 26-2-209, 29-7-114, 29-7-115, 29-7-116, for failure to answer the garnishment, was not a violation of the discharge injunction of 11 U.S.C. § 524, because the conditional judgment was sought only against the employer as a defendant-garnishee. Kanipe v. First Tenn. Bank (In re Kanipe), 293 B.R. 750, 2002 Bankr. LEXIS 1695 (Bankr. E.D. Tenn. 2002).

Collateral References. Garnishment 188-190.

NOTES TO DECISIONS

1. Notice of Assignment — Effect on Garnisheeing Creditor.

Where the payee of notes placed them with an attorney for collection, and afterwards assigned them, and, thereafter, a party who had recovered a void judgment against the payee, and who knew of the assignment of the notes, garnisheed the attorney, and, out of the fund in his hands, procured satisfaction of his void judgment, his assignee could recover from the plaintiff what he had recovered from the attorney, as the judgment was a nullity, and the garnishment proceedings, with knowledge of the assignment, were a fraud upon the assignee. Haynes v. Gates, 39 Tenn. 598, 1859 Tenn. LEXIS 286 (Tenn. Apr. 1859); Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880).

2. Void Attachment.

This section does not cure a void attachment proceeding, and notwithstanding its positive provision as to the conclusiveness of the judgment, a judgment against a garnishee, based upon a void attachment proceeding, is void. Woodfolk v. Whitworth, 45 Tenn. 561, 1868 Tenn. LEXIS 47 (1868); Alley v. Myers, 2 Cooper's Tenn. Ch. 206 (1875).

3. Wrongful Judgment.

Where the garnishee was indebted by a note dischargeable in iron to be delivered on a given day, which not being done, the note became a money demand, but he answered that he owed the defendant the iron, which was accordingly condemned and sold, it was held that this judgment did not discharge him from his money liability to the principal defendant (the garnishee's creditor). Miller v. McClain, 18 Tenn. 245, 1837 Tenn. LEXIS 10 (1837).

Collateral References. 6 Am. Jur. 2d Attachment and Garnishment §§ 392, 393.

38 C.J.S. Garnishment § 293.

Judgment 705.

NOTES TO DECISIONS

1. Scope of Section.

This section contemplates an appeal by the respective parties who may be aggrieved. Atnip v. Gilbert, 1 Shan. 119 (1859).

2. Nature and Effect of Proceedings.

The garnishment proceeding is not a distinct suit, and, upon appeal from a justice (now general sessions judge) to the circuit court, the defendant may have an issue formed and submitted to a jury as to whether the original judgment has been paid, and in such case, the execution being already in court, a certiorari is unnecessary. Kaylor v. Brunswick & Bro., 53 Tenn. 235, 1871 Tenn. LEXIS 348 (1871).

An appeal from a judgment at law in a garnishment proceeding will be treated as an appeal in the nature of a writ of error. Saunders v. Moore, 21 Tenn. App. 375, 110 S.W.2d 1046, 1937 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1937).

3. Default Judgment — Appeal.

Judgment by default against garnishee is appealable. Marshall v. Johnson Hdwe. Co., 5 Tenn. App. 369, 1926 Tenn. App. LEXIS 145 (1926).

4. Appeal by Defendant Debtor — Effect as to Garnishee.

The original debtor defendant has no right of appeal from a judgment rendered against a garnishee when he does not complain of the judgment and execution against himself, but only that the garnishee is aggrieved by the judgment against him. Such appeal will be dismissed. Atnip v. Gilbert, 1 Shan. 119 (1859).

The defendant debtor may appeal from a judgment against the garnishee although the latter does not complain. Kalisky v. Currey, 68 Tenn. 214, 1877 Tenn. LEXIS 20 (1877).

An appeal by the judgment debtor does not bring up the case as to the nonappealing garnishee. Bryant v. Bigelow, 77 Tenn. 135, 1882 Tenn. LEXIS 22 (1882).

Collateral References. Appeal and error 78(1), 99.

NOTES TO DECISIONS

1. Maiden Name.

There is no legal requirement in Tennessee that a married woman automatically assume the surname of her husband and she may elect to retain her own surname or adopt the surname of her husband. Dunn v. Palermo, 522 S.W.2d 679, 1975 Tenn. LEXIS 724 (Tenn. 1975).

2. Prisoner Petitions.

Prisoner's involuntary presence in county by virtue of incarceration did not establish residency for purposes of petition requesting a name change for religious reasons, thus trial court properly dismissed the petition. In re Joseph, 87 S.W.3d 513, 2002 Tenn. App. LEXIS 302 (Tenn. Ct. App. 2002).

3. Minors.

Where a father was incarcerated for sexually abusing his stepdaughter, there was a sufficient basis in the record to support the trial court's determination that changing his two minor children's surname was in their best interest. Hill v. Hill, — S.W.3d —, 2011 Tenn. App. LEXIS 455 (Tenn. Ct. App. Aug. 24, 2011).

Right to change one's name applied to minor child so long as the change was in the child's best interest. In re Leyna A., — S.W.3d —, 2017 Tenn. App. LEXIS 614 (Tenn. Ct. App. Sept. 15, 2017).

Collateral References. 57 Am. Jur. 2d Name §§ 10-16; 66 Am. Jur. 2d Records § 9.

65 C.J.S. Names § 11.

Duty and discretion of court in passing upon petition to change name of individual. 79 A.L.R.3d 847.

Right of married woman to use maiden name. 67 A.L.R.3d 1266.

Courts 472.3.

NOTES TO DECISIONS

1. Applicability.

Decedent's adoptive father had no standing to contest the name chosen by the decedent's surviving spouse to be inscribed on the decedent's headstone because, inter alia, T.C.A. § 29-8-102 did not apply when a name other than the decedent's legal name was used on a headstone. In re Estate of Love, — S.W.3d —, 2015 Tenn. App. LEXIS 751 (Tenn. Ct. App. Sept. 18, 2015).

Petition provided the required facts, as the parents presented three witnesses and the statements of three professionals who unequivocally stated that the requested name change was in the child's best interest, the child had committed no crimes, and there was no evidence of intent to defraud or mislead, of not acting in good faith, or of the possibility of injury to an individual. In re Leyna A., — S.W.3d —, 2017 Tenn. App. LEXIS 614 (Tenn. Ct. App. Sept. 15, 2017).

Collateral References. 57 Am. Jur. 2d Name § 13.

65 C.J.S. Names § 11.

Circumstances justifying grant denial or denial of petition to change adult's name. 79 A.L.R.3d 562.

Right of married woman to use maiden surname. 67 A.L.R.3d 1266.

Names 8-11.

NOTES TO DECISIONS

1. Minors.

Where a father was incarcerated for sexually abusing his stepdaughter, there was a sufficient basis in the record to support the trial court's determination that changing his two minor children's surname was in their best interest. Hill v. Hill, — S.W.3d —, 2011 Tenn. App. LEXIS 455 (Tenn. Ct. App. Aug. 24, 2011).

Collateral References. 57 Am. Jur. 2d Name § 16.

65 C.J.S. Names § 11.

Names 20.

NOTES TO DECISIONS

1. Powers of Court.

The power to punish for contempt is inherent in the courts of justice. Thigpen v. Thigpen, 874 S.W.2d 51, 1993 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1993).

2. City Judge.

City judge is authorized to punish for contempt. State ex rel. May v. Krichbaum, 152 Tenn. 416, 278 S.W. 54, 1925 Tenn. LEXIS 85 (1925).

3. Procedure and Practice.

The nature of the inquiry in a contempt proceeding should admit of no strict or technical rulings against the accused but the freest opportunity should always be given him to produce his defense. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

As a father who was charged with indirect criminal contempt in post-divorce proceedings was not provided with adequate notice of the charges, as required, the contempt charge against him could not stand. Sprague v. Sprague, — S.W.3d —, 2013 Tenn. App. LEXIS 358 (Tenn. Ct. App. May 30, 2013).

4. —Presumption of Innocence.

In the trial of a criminal contempt case the defendant is presumed to be innocent until he is found guilty beyond a reasonable doubt. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

5. —Defenses.

Criminal contempt of court may not be committed with impunity upon advice of counsel. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

While fact that person charged with contempt acted upon advice of counsel will not bar punishment, such fact may be considered in mitigation of such punishment. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

6. —Appeal.

Supreme court may revise and reduce the sentence on appeal in contempt proceeding if the punishment seems to be excessive. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

7. Contempt Not Found.

From a doctor's suit against a public hospital regarding his staff privileges being revoked, the doctor's lawyers should not have been held in civil contempt after they sought public records from the hospital while the doctor's interlocutory appeal regarding a discovery dispute was pending because the plain language of the order staying “all proceedings below” was not broad enough to apply to separate actions under T.C.A. § 10-7-505(a) seeking access to public records; the appellate court's stay order could reasonably have been interpreted to apply only to the pending legal and administrative proceedings between the doctor and the hospital. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 2008 Tenn. LEXIS 103 (Tenn. Feb. 13, 2008).

8. Illustrative Cases.

Case brought under T.C.A. § 29-9-101 for criminal contempt of court through willful failure to pay ordered child support was not a criminal case, as defined in T.C.A. § 40-14-301(3), that triggered the due process mandates of Tenn. R. Crim. P. 37(c)(2) or T.C.A. § 40-14-307(a) to provide the indigent defendant with a verbatim transcript at the state's expense. State ex rel. Creighton v. Foster, — S.W.3d —, 2011 Tenn. App. LEXIS 173 (Tenn. Ct. App. Apr. 7, 2011).

Father was held in criminal contempt by a trial court in post-divorce proceedings, as the contempt was not conditioned on his correcting or remedying a failure to comply with a past order and there was no opportunity to purge the contempt; rather, the trial court's action in “reserving punishment” pending compliance was tantamount to the imposition of a suspended sentence. Sprague v. Sprague, — S.W.3d —, 2013 Tenn. App. LEXIS 358 (Tenn. Ct. App. May 30, 2013).

Trial court did not abuse its discretion in a foreclosure proceeding by denying the borrower's motion for a continuance of the damages hearing to procure a court reporter because neither party retained a court reporter to attend the damages hearing, despite having ample time to do so, and the court noted that the case had been set for some time and that the borrower should have had a court reporter present if the had wanted one there. Starkey v. Wells Fargo Bank, N.A., — S.W.3d —, 2019 Tenn. App. LEXIS 190 (Tenn. Ct. App. Apr. 23, 2019).

Collateral References. 17 Am. Jur. 2d Contempt §§ 1-10, 62-76, 116-118, 119-141.

17 C.J.S. Contempt § 53.

Admissibility, in contempt proceeding against witness, of evidence of incriminating nature of question as to which he invoked privilege against self-incrimination. 88 A.L.R.2d 463.

Defense of entrapment in contempt proceedings. 41 A.L.R.3d 418.

Disqualification of judge in proceedings to punish contempt against or involving himself or court of which he is a member. 64 A.L.R.2d 600, 37 A.L.R.4th 1004, 3 A.L.R. Fed. 420.

Oral court order implementing prior written order or decree as independent basis of charge of contempt within contempt proceedings based on violation of written order. 100 A.L.R.3d 889.

Prejudicial effect of holding accused in contempt of court in presence of jury. 29 A.L.R.3d 1399.

Right to counsel in contempt proceedings. 52 A.L.R.3d 1002.

Contempt 36.

NOTES TO DECISIONS

1. Scope of Power Generally.

The matter of determining and dealing with contempts is within the court's sound discretion subject to the absolute provisions of law and its determination is final unless there is plain abuse of discretion. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

While the power to punish for contempt may and should be used in appropriate cases, it should not be used unless the case clearly calls for its exercise and such power should be exercised only when necessary to prevent actual, direct obstruction of, or interference with the administration of justice. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

In the event that criminal contempt was at issue, the trial court was not permitted to award the wife attorney's fees in the criminal contempt proceeding. Parimore v. Parimore, — S.W.3d —, 2017 Tenn. App. LEXIS 110 (Tenn. Ct. App. Feb. 17, 2017).

Assuming that civil contempt was at issue, the record was devoid of any order actually finding the husband's conduct to be willful or finding him in contempt, and in the absence of both an evidentiary hearing on the contempt petition and specific findings supporting the award of attorney's fees, this portion of the judgment was reversed. Parimore v. Parimore, — S.W.3d —, 2017 Tenn. App. LEXIS 110 (Tenn. Ct. App. Feb. 17, 2017).

2. —Statutory Basis of Contempt.

The inferior courts have no power to punish contempts, except such acts or omissions as are embraced within the statutes, because the vast and undefined scope of contempts at common law have been repealed, except such as have been reenacted in our statutes. State v. Galloway, 45 Tenn. 326, 1868 Tenn. LEXIS 15 (1868); Scott v. State, 109 Tenn. 390, 71 S.W. 824, 1902 Tenn. LEXIS 82 (1902); Derryberry v. Derryberry, 8 Tenn. Civ. App. 401 (1918).

Power to punish for contempt is inherent but not unlimited and it can be exercised only within the rules of law. Loy v. Loy, 32 Tenn. App. 470, 222 S.W.2d 873, 1949 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1949).

In order for perjury to amount to contempt, there must be an additional element of obstruction of justice or interference with the processes of the court. Maples v. State, 565 S.W.2d 202, 1978 Tenn. LEXIS 544 (Tenn. 1978).

3. —Civil and Criminal Contempt Distinguished.

The distinction between criminal and civil contempts is observed in the Code. While particular acts do not always readily lend themselves to classification as civil or criminal contempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public. Higgins v. Lewis, 23 Tenn. App. 648, 137 S.W.2d 308, 1939 Tenn. App. LEXIS 72 (Tenn. Ct. App. 1939).

Criminal contempt actions are those to preserve the power and vindicate the dignity of the court while civil contempt actions are those brought to enforce private rights. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

Even though the trial court at one point stated that it was citing appellant for civil contempt, his conduct in violating a court order forbidding him to harass his former wife was more properly criminal contempt, which is punishment for an offense against the authority of the court. Sherrod v. Wix, 849 S.W.2d 780, 1992 Tenn. App. LEXIS 848 (Tenn. Ct. App. 1992).

This section invokes the civil authority of the court to vindicate its authority, and, unlike § 36-5-104, does not state a criminal penalty. Smith v. Smith, 924 S.W.2d 682, 1996 Tenn. App. LEXIS 145 (Tenn. Ct. App. 1996), appeal denied, 1996 Tenn. LEXIS 454 (Tenn. July 1, 1996).

In civil contempt, the imprisonment is meted out for the benefit of a party litigant; however, where a court imprisons and/or fines an individual simply as punishment for the contempt, this remedy is commonly referred to as “criminal contempt.” Ahern v. Ahern, 15 S.W.3d 73, 2000 Tenn. LEXIS 137 (Tenn. 2000).

In parties' post-divorce proceedings, the father was held in criminal, rather than civil, contempt because the contempt holding was not conditioned on his correcting or remedying a failure to comply with a past order, and he was not given an opportunity to purge his contempt. Sprague v. Sprague, — S.W.3d —, 2013 Tenn. App. LEXIS 398 (Tenn. Ct. App. June 18, 2013).

Trial court did not reversibly err in failing to specify whether the contempt found was civil or criminal because the trial court's utilization of the remedy of incarceration to compel performance was civil contempt; because the trial court directed that the father could purge himself of contempt by making an arrearage payment, the trial court found him to be in civil contempt, not criminal contempt. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

Trial court found that defendant willfully disobeyed its order in posting materials online and the punishment imposed was for the purpose of vindicating the authority of the court and to discipline defendant, not for the purpose of forcing him to comply with an order or to benefit a private party; defendant was mistaken in arguing that the nature of the contempt was civil and that he should have been permitted to remove the posts and thereby avoid the punishment. State v. Thigpen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 92 (Tenn. Crim. App. Feb. 14, 2020).

4. —Direct and Indirect Contempt.

There are two species of contempt, direct and indirect, which differ, among other ways, in the minimal procedures that will satisfy the requirements of due process in the case of each. State v. Maddux, 571 S.W.2d 819, 1978 Tenn. LEXIS 649 (Tenn. 1978).

Direct contempt is based upon acts committed in the presence of the court, and may be punished summarily. State v. Maddux, 571 S.W.2d 819, 1978 Tenn. LEXIS 649 (Tenn. 1978).

Indirect contempt is based upon acts not committed in the presence of the court, and may be punished only after the offender has been given notice, and the opportunity to respond to the charges at a hearing. State v. Maddux, 571 S.W.2d 819, 1978 Tenn. LEXIS 649 (Tenn. 1978).

An act not committed in the presence of the court is treated as indirect contempt even though the act may be admitted by the offender in open court. State v. Maddux, 571 S.W.2d 819, 1978 Tenn. LEXIS 649 (Tenn. 1978).

5. —Criminal Courts.

The criminal courts possess the same power as circuit courts to punish for contempt, and may impose a fine not exceeding $50.00 and imprisonment not exceeding ten (10) days, or such other punishment as the circuit courts may inflict for contempts, where otherwise specially provided. McCarthy v. State, 89 Tenn. 543, 15 S.W. 736, 1890 Tenn. LEXIS 77 (1890).

Where four state witnesses testified the defendant advised and counseled them to swear falsely and defendant denied that he did so, the evidence did not preponderate against the judgment of contempt of court for suborning perjury. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 1964 Tenn. LEXIS 403 (1964).

6. —City Judge.

A city judge is authorized to punish for contempt. State ex rel. May v. Krichbaum, 152 Tenn. 416, 278 S.W. 54, 1925 Tenn. LEXIS 85 (1925).

7. —Punishment.

Punishment for contempt for disobeying a subpoena which was fixed within the limits set by the statute was within the sound discretion of the trial court. Wahlquist v. State, 213 Tenn. 626, 378 S.W.2d 742, 1964 Tenn. LEXIS 430 (1964).

Where neither the plain language of T.C.A. § 29-9-105 nor T.C.A. § 29-9-102(3) required that disobedience of a trial court's order be ongoing, the trial court erred in dismissing a company's petition for contempt against a union as moot because, although the union had willfully disobeyed the court's orders regulating the conduct of the parties during the strike, the court found that that activity had ended before the hearing on the petition for contempt and damages. Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 2005 Tenn. LEXIS 550 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 799 (Tenn. Sept. 28, 2005).

Under the plain language of T.C.A. § 29-9-105, damages were available to a party injured by a contemnor's acts in violation of a court's order. When the contempt consisted of the performance of a forbidden act, the cessation of the contemptuous conduct after the entry of the order prohibiting that conduct did not preclude a finding of civil contempt and an award of damages. Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 2005 Tenn. LEXIS 550 (Tenn. 2005), rehearing denied, — S.W.3d —, 2005 Tenn. LEXIS 799 (Tenn. Sept. 28, 2005).

Although a trial court did not err in holding a husband in willful contempt, pursuant to T.C.A. §§ 16-1-103 and 29-9-102, for violating a statutorily-mandated temporary injunction, the trial court did err in banning all contact between the husband and the parties'  child as punishment for the contemptuous behavior because the total suspension of the husband's visitation was not the least drastic measure available and was therefore unjustified. Slagle v. Slagle, — S.W.3d —, 2012 Tenn. App. LEXIS 281 (Tenn. Ct. App. Apr. 30, 2012).

8. —Successive Contempts.

Where there is an additional contempt of court, committed after the fine and imprisonment for the first contempt, there may be imposed on the contemnor another fine and imprisonment for the additional or second contempt. In re Vanvaver, 88 Tenn. 334, 12 S.W. 786, 1889 Tenn. LEXIS 55 (1890).

An attorney's conduct amounted to three successive acts of contempt where he committed an act in the presence of the jury which disrupted the trial and led to removal of the jury from the courtroom, attempted to leave the courtroom and continued disrespectful remarks and baiting of the trial judge, and refused to gain control of himself leading to his removal from the courtroom. State v. Turner, 914 S.W.2d 951, 1995 Tenn. Crim. App. LEXIS 705 (Tenn. Crim. App. 1995).

9. —Injunction Against Contempt Order.

A judge of any court, proceeding according to law, has authority to control the officers of court and to punish them for contempt, and no other judge has any authority to enjoin the execution of the order made for this purpose. Sanders v. Metcalf, 1 Cooper's Tenn. Ch. 419 (1873).

10. —After Appeal.

Contention that an appellate court has no jurisdiction to examine witnesses and, therefore, can pronounce no judgment of contempt, is unsound. State v. Anderson, 6 Tenn. Civ. App. (6 Higgins) 1 (1915).

After a broad appeal from the final decree of the chancery court, making a temporary injunction perpetual, that court has no jurisdiction to entertain contempt proceedings against the defendant for his violation of the injunction. A broad appeal from a final decree in chancery vacates that decree. McCormick v. Phillips, 140 Tenn. 268, 204 S.W. 636, 1918 Tenn. LEXIS 40, 1918F L.R.A. (n.s.) 791 (1918).

Where a broad appeal is so taken the appellate court has jurisdiction to punish the defendant for contempt, because of his violation of the injunction. McCormick v. Phillips, 140 Tenn. 268, 204 S.W. 636, 1918 Tenn. LEXIS 40, 1918F L.R.A. (n.s.) 791 (1918).

An appeal from a chancery decree making a temporary injunction perpetual does not prevent an indictment of the defendant for public contempt for violation of the injunction, and his punishment in a criminal court. McCormick v. Phillips, 140 Tenn. 268, 204 S.W. 636, 1918 Tenn. LEXIS 40, 1918F L.R.A. (n.s.) 791 (1918).

11. Procedure and Practice.

Formal charge of contempt against a person in violation of Tenn. R. Sup. Ct. 9, § 25 shall be filed in the supreme court of Tennessee, and upon receipt, the supreme court shall appoint a special master who shall conduct an evidentiary hearing, make findings of fact, and return the record and its findings to the supreme court; upon review, the supreme court shall make a determination as to whether a contemptuous act has been committed and what, if any, punishment will follow. Doe v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn., 104 S.W.3d 465, 2003 Tenn. LEXIS 371 (Tenn. 2003).

Husband's argument that he was not properly served with the wife's petition for contempt was without merit under T.C.A. § 29-9-102(3) because the certificate of service required by Tenn. R. Civ. P. 5.03 was prima facie evidence that the document was served in the manner described in the certificate and it raised a rebuttable presumption that it was received by the person to whom it was sent. Dhillon v. Dhillon, — S.W.3d —, 2010 Tenn. App. LEXIS 487 (Tenn. Ct. App. Aug. 2, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. App. LEXIS 542 (Tenn. Ct. App. Aug. 17, 2010), rehearing denied, — S.W.3d —, 2010 Tenn. App. LEXIS 821 (Tenn. Ct. App. Aug. 25, 2010).

Although the trial court witnessed defendant's absence from the attorney setting, defendant's alleged willful conduct occurred outside of the trial court's presence or ability to perceive, and thus the trial court erred by proceeding summarily and should have followed the notice and hearing procedures; defendant was not provided with notice, an adequate opportunity to prepare a defense, and an opportunity to be heard, plus he was entitled to bail on the contempt charge, but there was no indication in the record that such bail was provided. State v. Cathey, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 655 (Tenn. Crim. App. Sept. 1, 2016).

Mother was properly served with the motion for criminal contempt because service upon the mother's attorney constituted service upon her. Howell v. Smithwick, — S.W.3d —, 2017 Tenn. App. LEXIS 71 (Tenn. Ct. App. Feb. 1, 2017).

Tennessee law was well established as to the de novo nature of a hearing before a juvenile court judge of a matter previously heard by a magistrate, and the father had proper notice of the type of hearing he was requesting; his procedural due process rights were not violated by the trial court's consideration of all evidence presented regarding his compliance or noncompliance with the December 2013 order through the time of the August 2016 rehearing. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

Trial court did not err by applying a preponderance-of-the-evidence standard and declining to apply a clear-and-convincing evidentiary standard, and the court rejected the fathers requests to follow precedent regarding the evidentiary standard related to civil contempt proceedings in federal courts and other select states rather than precedent established in Tennessee courts under the state statutory scheme. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

11.5. —Assisting Unrepresented Party.

Plaintiff failed to establish that counsel's conduct in assisting defendant in the underlying action, without being recognized as attorney of record, rose to the level of criminal contempt, T.C.A. § 29-9-102, because aiding an unrepresented person in a limited advisory capacity did not obstruct the administration of justice. Green v. Champs-Elysees, Inc., — S.W.3d —, 2013 Tenn. App. LEXIS 244 (Tenn. Ct. App. Apr. 9, 2013), appeal denied, Green v. Champs-Elysees, Inc., — S.W.3d —, 2013 Tenn. LEXIS 707 (Tenn. Aug. 26, 2013).

12. —Jury Trial.

An individual charged with contempt under T.C.A. § 29-9-102 is not entitled to a jury trial when the remedy sought is that of criminal contempt. Ahern v. Ahern, 15 S.W.3d 73, 2000 Tenn. LEXIS 137 (Tenn. 2000).

13. —Action at Chambers.

A chancellor may at chambers deal with one charged with contempt in respect of his orders. Derryberry v. Derryberry, 8 Tenn. Civ. App. 401 (1918).

14. —Instituting Prosecution.

The mode of proceeding in equity for breach of an injunction is to give the adverse party notice that, on a certain day in the term, a motion will be made against him to show cause why an attachment should not issue; and on that day the parties will be heard, and attachment issue, if a proper case be made out, on which the defendant will be arrested, and may give bail; the plaintiff may then file interrogatories, and if the contempt is denied, an issue may be made, and proof heard. Rutherford v. Metcalf, 6 Tenn. 58, 1818 Tenn. LEXIS 22 (1818).

It is not necessary that a prosecution be instituted by petition. An oral motion, based on an affidavit making out a prima facie case, is sufficient. If the affidavit on which the motion is based be meager, it may be amended on remand. Scott v. State, 109 Tenn. 390, 71 S.W. 824, 1902 Tenn. LEXIS 82 (1902).

Summary contempt hearing was unnecessary to prevent obstruction of or interference with the administration of justice because (1) nothing showed a wife obstructed proceedings in a manner constituting exceptional circumstances, (2) the court found it unnecessary to act “swiftly and firmly” to prevent misconduct, when the court ordered the parties to undergo drug testing and return to court, and (3) the court did not order the testing due to the wife obstructing a hearing. McKenzie v. McKenzie, — S.W.3d —, 2015 Tenn. App. LEXIS 100 (Tenn. Ct. App. Feb. 27, 2015).

15. —Proper Charge.

Contempt of court for suborning perjury — advising, counseling and encouraging others to testify falsely — is a proper charge for a contempt proceeding. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 1964 Tenn. LEXIS 403 (1964).

It was error to hold a mother in contempt for enrolling the parties'  child in a school program without the father's required consent because (1) the mother was held in criminal contempt when the mother's fine was not conditioned on remedying the mother's noncompliance, and (2) Tenn. R. Crim. P. 42(b) was not followed, as the mother was not given notice in the father's petition or by the court that the mother was charged with criminal contempt. Thomas v. Miller, — S.W.3d —, 2015 Tenn. App. LEXIS 102 (Tenn. Ct. App. Feb. 27, 2015).

16. —Contempt Order Improper.

From a doctor's suit against a public hospital regarding his staff privileges being revoked, the doctor's lawyers should not have been held in civil contempt after they sought public records from the hospital while the doctor's interlocutory appeal regarding a discovery dispute was pending because the plain language of the order staying “all proceedings below” was not broad enough to apply to separate actions under T.C.A. § 10-7-505(a) seeking access to public records; the appellate court's stay order could reasonably have been interpreted to apply only to the pending legal and administrative proceedings between the doctor and the hospital. Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 2008 Tenn. LEXIS 103 (Tenn. Feb. 13, 2008).

Imposition of summary contempt on an attorney pursuant to T.C.A. § 29-9-102 was inappropriate because the hearing at which the trial court exercised its summary authority was held more than three weeks after the alleged contempt and was not the type of summary proceeding authorized and the need for summary punishment had greatly diminished. Daniels v. Grimac, 342 S.W.3d 511, 2010 Tenn. App. LEXIS 695 (Tenn. Ct. App. Nov. 9, 2010), review or rehearing denied, Daniel v. Grimac, — S.W.3d —, 2011 Tenn. LEXIS 398 (Tenn. Apr. 13, 2011).

Trial court erred by finding a father in criminal contempt for failure to pay child support. The father was not provided notice under Tenn. R. Crim. P. 42(b) as the petition stated only that the state was asking that the father be found to be in willful contempt, and the only relief sought was a judgment for a child support arrearage and an income assignment. State ex rel. Farris v. Bryant, — S.W.3d —, 2011 Tenn. App. LEXIS 84 (Tenn. Ct. App. Feb. 24, 2011).

Although a mother had the parties'  children baptized without the father's knowledge or consent contrary to the parties'  parenting plan, a trial court erred in finding the mother in civil contempt, T.C.A. § 29-9-102(3), because the trial court sought to punish the mother for her past violation of the parenting plan, rather than to compel her compliance with such. Jarrell v. Jarrell, — S.W.3d —, 2012 Tenn. App. LEXIS 202 (Tenn. Ct. App. Mar. 28, 2012).

Trial court erred in holding a father in criminal contempt, T.C.A. § 29-9-102(3), for repaying funds he borrowed from his parents after April 3, 2009, because the order failed to expressly and precisely spell out which loans the father was forbidden from repaying to his parents. Beyer v. Beyer, 428 S.W.3d 59, 2013 Tenn. App. LEXIS 229 (Tenn. Ct. App. Apr. 5, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 827 (Tenn. Oct. 16, 2013).

Trial court erred in finding a husband in criminal contempt for failure to pay pendente lite support on five occasions, as the evidence was insufficient to permit any trier of fact to find beyond a reasonable doubt that he had the ability to pay the support owed. Patton v. Patton, — S.W.3d —, 2013 Tenn. App. LEXIS 643 (Tenn. Ct. App. Sept. 25, 2013).

Circuit court erred in summarily finding a defendant's attorney in criminal contempt for his allegedly wilful failure to appear at a scheduled court appearance because the attorney's conduct occurred outside the presence of the court where the court relied upon text messages from the attorney, in which he explained that he was aware of the 8:00 a.m. appearance time, but that he chose to appear in another court at 9:00 a.m., the trial court should have provided the attorney with notice, a reasonable time to prepare his defense, and an opportunity to be heard. State v. Anderson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 733 (Tenn. Crim. App. Sept. 9, 2015).

Evidence did not support a finding that the husband acted willfully for criminal contempt purposes; during the period of his unemployment, the husband's failure to pay support was not willful, but even after he regained employment, the proof failed to show that he possessed a culpable state of mind. Lee v. Lee, — S.W.3d —, 2017 Tenn. App. LEXIS 215 (Tenn. Ct. App. Mar. 31, 2017).

17. —Presumption of Innocence.

Contempt proceedings in chancery partake of a criminal nature to the extent that the presumption of innocence obtains, and guilt must be clearly established. Kornik v. Kornik, 3 Tenn. Civ. App. (3 Higgins) 41 (1913).

Once it has been determined that the contempt is criminal in nature, the law requires that the defendants' guilt be established beyond a reasonable doubt. Strunk v. Lewis Coal Co., 547 S.W.2d 252, 1976 Tenn. Crim. App. LEXIS 333 (Tenn. Crim. App. 1976).

18. —Sworn Denial as Conclusive.

In a contempt case at common law, the sworn answer of the defendant charged with contempt of court, denying the contempt and making such statement as will free him from the imputed contempt, was conclusive and entitled him to his discharge; but in chancery the truth may be inquired into and ascertained by the court upon the interrogatories and the answer thereto. Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

The common law rule that the sworn denial of the defendant charged with contempt of court, and making such statement as would free him from the imputed contempt, was conclusive, has fallen into desuetude and evidence is admissible to controvert the statements therein, and the whole matter is subject to inquiry and ascertainment by the court, in cases at law as well as in chancery. Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

19. —Evidence.

As provided by §§ 40-2402 and 40-2403 (now §§ 40-17-102 (repealed) and 40-17-103), the alleged contemnor may testify. Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

The defendant cannot be compelled to give evidence against himself; but his claim of immunity must be made by him; and exception to the action of the court in asking him questions cannot be urged for the first time in the appellate court. Kornik v. Kornik, 3 Tenn. Civ. App. (3 Higgins) 41 (1913).

Uncontroverted evidence established that on the occasion when defendant was alleged to have advised four men to commit perjury the men were all together and were instructed as a group; therefore, defendant's action constituted one contempt and his sentence of four consecutive terms of confinement and cumulative separate fines was erroneous. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 1964 Tenn. LEXIS 403 (1964).

An attorney's admissions as to several out-of-court statements concerning his belief that his appointment to represent a criminal defendant had been politically motivated, his informing the judge that he had not yet worked on the case, and his assertion that he did not feel able to represent the defendant were not such acts as would support a finding of contempt in a summary proceeding. State v. Maddux, 571 S.W.2d 819, 1978 Tenn. LEXIS 649 (Tenn. 1978).

Evidence was sufficient to support findings that an attorney's gestures and comments to the jury as the verdicts were being read and comments and conduct outside the courtroom toward the jurors and opposing counsel constituted willful misbehavior so near to the court that it obstructed the administration of justice, and a finding of two counts of criminal contempt was justified. Black v. Blount, 938 S.W.2d 394, 1996 Tenn. LEXIS 807 (Tenn. 1996).

Although the evidence presented at trial sufficiently establishes that defendant failed to pay child support on the dates in question and failed to pay alimony in any amount, the evidence was insufficient to prove that defendant had the ability to pay these amounts at the time that they were due or that the failure to pay was willful, and the record was insufficient to find beyond a reasonable doubt that defendant's failure to pay child support was willful or that he had the ability to pay child support in the amount ordered at the time the support was due; the record was devoid of any evidence that defendant had the ability to make the alimony payments at the time that they were due. Cottingham v. Cottingham, 193 S.W.3d 531, 2006 Tenn. LEXIS 442 (Tenn. 2006).

Evidence was insufficient to support a criminal contempt finding because it did not show that ex-husband willfully violated trial court's order to have his ex-wife designated as the surviving spouse for purposes of his pension and retirement benefits. Pruitt v. Pruitt, 293 S.W.3d 537, 2008 Tenn. App. LEXIS 717 (Tenn. Ct. App. Dec. 1, 2008).

Defendants'  contempt convictions were proper because repeated withdrawals of large sums of money from the bank, which depleted the company's collateral, constituted criminal contempt of court. Further, it was clear that one of the defendants was aware that money was being taken from the CDs purchased as collateral. State v. Aaron Bonding Co., — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 30, 2011).

Ten counts of criminal contempt based on defendant's 10 separate withdrawals against the equity line of credit in violation of the marital dissolution agreement were affirmed because the bank records provided proof beyond a reasonable doubt that defendant made the withdrawals. Simpkins v. Simpkins, 374 S.W.3d 413, 2012 Tenn. App. LEXIS 131 (Tenn. Ct. App. Feb. 27, 2012).

Evidence was sufficient to support defendant's convictions for his failure to pay the 2009 real estate taxes for the marital residence and his failure to pay his wife her pendente lite support as required by the marital dissolution agreement because the record showed that defendant had the ability to pay the financial obligations at the time they were due but that he failed to do so. The bank records showed that during the time defendant was not paying his obligations, he was spending an extraordinary amount on fine dining and travel and that he was receiving payments from his business in amounts between $ 11,000 and $ 14,000 each month. Simpkins v. Simpkins, 374 S.W.3d 413, 2012 Tenn. App. LEXIS 131 (Tenn. Ct. App. Feb. 27, 2012).

In a criminal contempt proceeding, the trial court erred in admitting a bank statement under Tenn. R. Evid. 803(6)'s business record exception to the hearsay rule, because it was not properly self-authenticated under Tenn. R. Evid. 902(11). Patton v. Patton, — S.W.3d —, 2013 Tenn. App. LEXIS 643 (Tenn. Ct. App. Sept. 25, 2013).

Insufficient evidence supported a criminal contempt finding because (1) the court could not rely on extrinsic evidence of the results of drug testing, since the finding had to be based on the court's knowledge obtained through the court's own senses, (2) the test was not competent for determining intoxication, and (3) the evidence preponderated against a finding that the wife was intoxicated. McKenzie v. McKenzie, — S.W.3d —, 2015 Tenn. App. LEXIS 100 (Tenn. Ct. App. Feb. 27, 2015).

Trial court's order did not address appellee's alleged use of appellant's social security number, nor was such conduct one of the grounds for contempt enumerated in T.C.A. § 29-9-102; the trial court reached the correct result of finding no contempt, but its reasoning was flawed because appellant had no basis for relief. Portice v. Portice, — S.W.3d —, 2017 Tenn. App. LEXIS 541 (Tenn. Ct. App. Aug. 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 865 (Tenn. Dec. 6, 2017).

Evidence supported a determination that the wife willfully disobeyed a court directive where she refused to provide the names as directed, she was evasive and often not forthcoming, and thus, she had interfered with the court process under T.C.A. § 29-9-102(3). Odom v. Odom, — S.W.3d —, 2018 Tenn. App. LEXIS 419 (Tenn. Ct. App. July 23, 2018).

20. —Judgment.

The ground of contempt, upon which the judgment is rendered, must be set out upon the face of the judgment as the ground of jurisdiction upon which the judgment rests for its validity. State v. Galloway, 45 Tenn. 326, 1868 Tenn. LEXIS 15 (1868).

In a prosecution for contempt, by motion based on affidavit, the action of the court thereon in awarding or denying the attachment should substantially appear in the order of the court, and such order or judgment should show the substance of the motion and the charge contained in the affidavit, but not evidentiary details. The substance of the order should appear in the attachment if awarded. Scott v. State, 109 Tenn. 390, 71 S.W. 824, 1902 Tenn. LEXIS 82 (1902).

Where the judgment in a prosecution for contempt of court is too general and meager in not sufficiently setting out the ground on which the accused was found guilty, it may be corrected in the Supreme Court, so as to set out the sufficient facts. Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

In garnishment proceedings, it was error to refuse to hear a judgment creditor's evidence of a garnishee's bad faith because (1) it was a fact issue, (2) the judgment creditor properly raised the issue, (3) the court had statutory authority to enforce its orders in a garnishment proceeding, and (4) the garnishee was properly served with a contempt petition. Smith v. Smith, — S.W.3d —, 2019 Tenn. App. LEXIS 59 (Tenn. Ct. App. Jan. 31, 2019).

20.5. Habeas Corpus.

Judgment granting a habeas corpus writ was reversed because the general sessions court, regardless of any legal error, had the authority to summarily hold defendant in contempt and under T.C.A. § 16-15-713, the general sessions court judge was authorized to impose a punishment of five days imprisonment upon finding defendant in contempt; although the general sessions court failed to provide the required notice and hearing, nothing in either the judgment or the record showed that the general sessions court lacked jurisdiction. The claimed illegality regarding the failure to provide notice and a hearing rendered the contempt judgment merely voidable, which did not entitle defendant to habeas corpus relief. Lambert v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 223 (Tenn. Crim. App. Apr. 10, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 536 (Tenn. Aug. 15, 2012), cert. denied, Lambert v. Tennessee, 184 L. Ed. 2d 740, 133 S. Ct. 950, 568 U.S. 1131, 2013 U.S. LEXIS 860 (U.S. 2013).

20.7. Post-conviction Relief.

Court of Criminal Appeals properly dismissed a wife's petition for post-conviction relief because a criminal contempt adjudication in a divorce action did not amount to a criminal conviction under the general criminal laws for purposes of the Post-Conviction Procedure Act. Baker v. State, 417 S.W.3d 428, 2013 Tenn. LEXIS 715 (Tenn. Sept. 6, 2013).

21. —Attorney's Fees.

In an action against an attorney for criminal contempt, the trial court had authority to order him to pay a private prosecutor's attorney's fees. Black v. Blount, 938 S.W.2d 394, 1996 Tenn. LEXIS 807 (Tenn. 1996).

Damages under T.C.A. § 29-9-105 may include attorney's fees. Reed v. Hamilton, 39 S.W.3d 115, 2000 Tenn. App. LEXIS 295 (Tenn. Ct. App. 2000).

Trial court did not make a finding that the AG was in contempt of court, and the record failed to support a finding that the AG was in willful disobedience or resistance of any order or rule of court, particularly Tenn. R. Civ. P. 56.03, which was the rule at issue; the mere fact the AG failed to comply with the requirements of Tenn. R. Civ. P. 56.03 was wholly insufficient to conclude the AG was in willful disobedience of the rule, and accordingly T.C.A. § 29-9-102(3) was inapplicable to the matters at issue. Cooper v. Creative Learning Child Care Ctr., 240 S.W.3d 230, 2007 Tenn. App. LEXIS 421 (Tenn. Ct. App. June 27, 2007).

Because no statutory authority permitted a party to recover attorney's fees incurred to prosecute a petition for criminal contempt and the mother did not rely on a contractual provision in seeking to recover her attorney's fees in the context of the petition for criminal contempt, the father was not liable for the attorney's fees the mother incurred in prosecuting her petition for criminal contempt for failure to pay child support. Watts v. Watts, 519 S.W.3d 572, 2016 Tenn. App. LEXIS 402 (Tenn. Ct. App. June 8, 2016).

22. —Appeal.

A judgment imposing a fine or imprisonment, or both, for contempt of court, not committed in the presence of the court, is subject to revision, on behalf of the alleged contemnor, brought up by appeal, writ of error, or certiorari. Hundhausen v. U. S. Marine Fire Ins. Co., 52 Tenn. 702, 1871 Tenn. LEXIS 300 (1871); Brooks v. Fleming, 65 Tenn. 331, 1873 Tenn. LEXIS 360 (1873), criticized, 81 Tenn. 52, 1884 Tenn. LEXIS 7 (1884).

Appeal does not lie from a judgment inflicting punishment for contempt committed in the presence of the court. The remedy against arbitrary and oppressive judgments in such cases is by habeas corpus, or by writ of error or certiorari, with supersedeas to be granted by the Supreme Court, or a member thereof. Brizendine v. State, 103 Tenn. 677, 54 S.W. 982, 1899 Tenn. LEXIS 146 (1899).

In a suit to enjoin depredations on land, where the defendants were discharged in complainant's contempt proceedings against them for violation of the temporary injunction, complainant is not entitled to an appeal to the court of appeals, because contempt proceedings are in their nature criminal. Gunter v. Seaboard Copper Mining Co., 142 Tenn. 14, 215 S.W. 273, 1919 Tenn. LEXIS 30 (1919), superseded by statute as stated in, Overnite Transp. Co. v. Teamsters Local Union No. 480, — S.W.3d —, 2005 Tenn. LEXIS 402 (Tenn. May 16, 2005), superseded by statute as stated in, Overnite Transp. Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507, 2005 Tenn. LEXIS 550 (Tenn. 2005).

Supreme court on appeal of contempt proceeding is entitled to revise decree if punishment is excessive. Metcalf v. Eastman, 190 Tenn. 206, 228 S.W.2d 490, 1950 Tenn. LEXIS 440 (1950).

Supreme court has jurisdiction of appeal based merely on contempt feature of case, since contempt proceedings are criminal in nature. Metcalf v. Eastman, 190 Tenn. 206, 228 S.W.2d 490, 1950 Tenn. LEXIS 440 (1950).

Finding that the defendant property owner was in civil contempt and an award of attorney fees and costs to the other property owner and trustee were proper because the defendant property owner failed to provide the appellate court with a transcript or statement of the evidence. Outdoor Mgmt. v. Thomas, 249 S.W.3d 368, 2007 Tenn. App. LEXIS 222 (Tenn. Ct. App. Apr. 18, 2007), appeal denied, Outdoor Mgmt., LLC v. Thomas, — S.W.3d —, 2007 Tenn. LEXIS 833 (Tenn. Sept. 17, 2007).

In a property dispute wherein a trial court ruled a right-of-way “should remain open and unobstructed,” the trial court did not abuse its discretion in finding defendant in civil contempt for erecting a gate over the right-of-way because the fact that the order did not contain language explicitly prohibiting a “gate” did not make the order ambiguous or unsupported; the erection of a gate clearly constituted an “obstruction.” Gilreath v. Peters, — S.W.3d —, 2011 Tenn. App. LEXIS 665 (Tenn. Ct. App. Dec. 13, 2011).

23. Willful Misbehavior.

Trial attorney's convictions for contempt were invalid where obtained under circumstances in which trial judge should have appointed another judge to hear the case, and where the actions of the trial attorney were motivated by the sincere pursuit of vigorous advocacy he deemed necessary to represent a client on trial for his life and were thus not willful. State v. Green, 783 S.W.2d 548, 1990 Tenn. LEXIS 41 (Tenn. 1990).

Evidence supported mother's conviction of criminal contempt beyond a reasonable doubt where child's account of incident at his school was that both his parents were engaged in pushing, shoving, and yelling in the hallway of his school and that his mother tried to pull him away from his father. No matter how provoked or well-intentioned, the mother's conduct was willful and was inconsistent with order that directed parties to refrain from harassing, aggravating or demeaning conduct toward the other. Thigpen v. Thigpen, 874 S.W.2d 51, 1993 Tenn. App. LEXIS 716 (Tenn. Ct. App. 1993).

A finding of willful misconduct must precede a judgment for contempt; thus, a holding that a father was in contempt of prior court orders for the payment of child support was unjustified where the court found the father's “contempt” was not willful. Haynes v. Haynes, 904 S.W.2d 118, 1995 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1995).

Based on evidence of an attorney's direct confrontation with the trial judge and boisterous conduct which required his removal from the courtroom, the court did not abuse its discretion in invoking summary disposition of three direct criminal contempts. State v. Turner, 914 S.W.2d 951, 1995 Tenn. Crim. App. LEXIS 705 (Tenn. Crim. App. 1995).

To find contempt under T.C.A. § 29-9-102, a court must find the misbehavior, disobedience, resistance, or interference to be willful. Ahern v. Ahern, 15 S.W.3d 73, 2000 Tenn. LEXIS 137 (Tenn. 2000).

In order to find defendant's failure to pay alimony and child support was contemptuous, the court must first determine that the defendant had the ability to pay at the time the support was due and then determine that the failure to pay was willful. Ahern v. Ahern, 15 S.W.3d 73, 2000 Tenn. LEXIS 137 (Tenn. 2000).

Inmate was not entitled to a declaratory judgment stating that because of his medical condition he should be drug tested by patch rather than urine sample when the Declaratory Judgment Act, T.C.A. § 29-14-101 et seq., does not permit the filing of a suit against the state to construe statutes; the chancery court lacked the jurisdiction to hear a declaratory judgment action against the Department of Correction and T.C.A. §§ 4-5-223 and 4-5-225 did not apply to the internal management of state government if the policy did not affect the private rights, privileges, or procedures available to the public pursuant to the Administrative Procedures Act, T.C.A. § 4-5-102(10)(A) (now § 4-5-102(12)(A)). Fuller v. Campbell, 109 S.W.3d 737, 2003 Tenn. App. LEXIS 36 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 533 (Tenn. May 27, 2003), appeal denied, —S.W.3d —, 2003 Tenn. LEXIS 564 (Tenn. 2003).

Appellate court affirmed an order of contempt imposed against the members of a compensation self-insured group pursuant to T.C.A. § 29-9-102 because the members were ordered by the court to make periodic payments, the members repeatedly failed to make the payments, and the members had notice of the contempt hearing and possible sanctions. State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust, 209 S.W.3d 602, 2006 Tenn. App. LEXIS 251 (Tenn. Ct. App. 2006), appeal denied, State ex rel. Flowers v. Tenn. Trucking Ass'n Self Ins. Group Trust & Trucking Servs., — S.W.3d —, 2006 Tenn. LEXIS 1010 (Tenn. 2006).

As an attorney committed fifty acts of willful criminal contempt pursuant to T.C.A. § 29-9-102(3) where his actions violated an order of suspension from the practice of law, concurrent and consecutive terms of imprisonment were imposed on him pursuant to T.C.A. § 29-9-103(b); the attorney failed to cease practicing law, did not inform his clients of his suspension, and continued to accept new clients, and committed other actions that violated the suspension and constituted violations of Tenn. Sup. Ct. R. 9, §§ 18.1, 18.5, 18.6, 18.7, and 18.8.In re Sneed, 302 S.W.3d 825, 2010 Tenn. LEXIS 434 (Tenn. Jan. 26, 2010).

Dismissal of the husband's contempt motion against the wife after she fell behind in payments that she was to put in a trust account for their child's benefit was inappropriate because the husband was entitled to a hearing on the merits as to whether the wife's failure to comply was willful under T.C.A. § 29-9-102(3) and, if so, whether the husband was entitled to relief. The wife had already paid the $ 6,600 that she was behind, she could not be imprisoned for non-payment; however, that did not mean that the husband was not entitled to additional relief if the wife's conduct was contemptuous. Brumit v. Durham, — S.W.3d —, 2010 Tenn. App. LEXIS 179 (Tenn. Ct. App. Feb. 3, 2010).

Evidence was sufficient to support the juvenile court's finding of willfulness where the appellate record contained sufficient evidence to conclude that the mother knew the contents of the juvenile court order, and intentionally claimed the child as a deduction, thereby disobeying the juvenile court's order. In re Sydney T.C.H., — S.W.3d —, 2010 Tenn. App. LEXIS 246 (Tenn. Ct. App. Mar. 31, 2010).

Juvenile court clerk's failure to produce files requested by the juvenile court referees was found to be willful under T.C.A. § 29-9-102(3) based on the clerk's nonresponsive answers to questions about what he did to produce the files specified in the referees'  order, including complaints about the lack of financial resources, descriptions of his attempts to secure more funding, references to discussions about the procedures for the dismissal docket, assertions that judicial officers sometimes fail to return checked-out files, observations that court files were scanned and could be accessed by computer, and claims that many files other than the files specified in the orders were regularly furnished to the referees. In re Lineweaver, 343 S.W.3d 401, 2010 Tenn. App. LEXIS 75 (Tenn. Ct. App. Jan. 28, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 769 (Tenn. Aug. 25, 2010).

Dismissal of a third count of contempt against the husband was inappropriate under T.C.A. § 29-9-102(3) because he was given sufficient notice since the wife's contempt petition satisfied all three requirements of Tenn. R. Crim. P. 42(b)(1). In part, the wife's petition for contempt clearly and accurately referenced the prior orders that prohibited the husband from contacting the wife or coming around her for any reason. Fox v. Fox, — S.W.3d —, 2010 Tenn. App. LEXIS 663 (Tenn. Ct. App. Oct. 26, 2010).

When a county sued to recover an unexecuted marriage license issued to Davy Crockett, and the license's possessor did not obey a court order to surrender the license, the possesor was properly held in contempt because: (1) the trial court's order was lawful in that the trial court had jurisdiction over both the subject matter of the case and the parties; (2) the order in question expressly and precisely spelled out the details of compliance in a way that would enable reasonable persons to know exactly what actions were required or forbidden, so the order was clear, specific, and unambiguous; (3) the record clearly indicated that the possessor violated the trial court's order by not returning the license to the court until twelve days after the trial court's order required the possessor to surrender the document; and (4) the possessor offered no evidence showing that the possessor's conduct in violating the court order was anything other than intentional and voluntary. Jefferson County v. Smith, — S.W.3d —, 2011 Tenn. App. LEXIS 402 (Tenn. Ct. App. July 26, 2011).

Husband's contempt conviction under T.C.A. § 29-2-102(3) was not supported by sufficient evidence of willfulness as there was no evidence that the husband acted with a bad purpose when he drove on a city street to get to the wife's home 10 minutes after he was supposed to be at the wife's house to repair her car under an ambiguous order. Furlong v. Furlong, 370 S.W.3d 329, 2011 Tenn. App. LEXIS 559 (Tenn. Ct. App. Oct. 14, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 278 (Tenn. Apr. 11, 2012).

Attorney who, during a court proceeding, communicated with his client's co-defendant who was represented by other counsel, violated Tenn. Sup. Ct. R. Prof. Conduct 8, 4.2, and was sufficient to support a conviction for criminal contempt in violation of T.C.A. § 29-9-102(1). State v. Beeler, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Oct. 26, 2011), rev'd, 387 S.W.3d 511, 2012 Tenn. LEXIS 810 (Tenn. May 9, 2012).

Defendant was entitled to reversal of his conviction for contempt, which was based on fact he talked to a client's codefendant who was represented by another attorney, because the evidence was insufficient to show “willful misconduct” for purposes of contempt; defendant vigorously contended that he had effective consent by virtue of the close cooperation of both attorneys in preparing a joint defense and the other attorney testified that he would have permitted the attorney to ask his client the question had the attorney sought permission. State v. Beeler, 387 S.W.3d 511, 2012 Tenn. LEXIS 810 (Tenn. May 9, 2012).

Sufficient evidence supported defendant's criminal contempt conviction under T.C.A. §§ 29-9-102, 40-11-150(i)(2), and 39-11-302(a) where defendant signed a no contact order as a condition of his bail, and the testimony of the parents of defendant's wife that defendant dropped off the wife at their house while the no contact order was in effect was credited. State v. Meadows, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 99 (Tenn. Crim. App. Feb. 16, 2012).

Trial court did not err in finding the father guilty of four counts of criminal contempt based on e-mails and text messages from the father to the mother, following the parties' divorce, that were disparaging of the mother's parenting style and criticized specific parenting decisions she had made because the father's acts were intentional, not inadvertent or accidental, and because, while the father claimed that he sent the texts and e-mails out of concern for his children's welfare, the record demonstrated that he was aware that his acts would violate the trial court's directives. Duke v. Duke, — S.W.3d —, 2014 Tenn. App. LEXIS 627 (Tenn. Ct. App. Oct. 3, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 165 (Tenn. Feb. 13, 2015).

Trial court did not err in finding the father guilty of criminal contempt based on the father's statement to the children following the parties' divorce that the mother, or someone working for her, was responsible for the death of a dog that belonged to the father's then-girlfriend because, regardless of the factual support the comment provided, the father decided to make the statement voluntarily and with knowledge that such a derogatory comment would violate the court's orders and his statutory obligations. Duke v. Duke, — S.W.3d —, 2014 Tenn. App. LEXIS 627 (Tenn. Ct. App. Oct. 3, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 165 (Tenn. Feb. 13, 2015).

Magistrate did not abuse his discretion in concluding that exceptional circumstances existed to warrant summarily punishing an attorney for direct criminal contempt because the conduct constituted willful misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice; the imposition of summary punishment was justified given the attorney's boisterous conduct in the courtroom and his failure to obey the magistrate's directives. In re Brown, 470 S.W.3d 433, 2015 Tenn. App. LEXIS 137 (Tenn. Ct. App. Mar. 23, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 654 (Tenn. Aug. 14, 2015).

Trial court erred in remanding a father to jail until he paid the mother because it found that the father was indigent, and thus, no further incarceration was warranted for the father's civil contempt in failing to pay the obligations he owed to the mother; the father's refusal or inability to pay would not be remedied by further jail time. Hopwood v. Hopwood, — S.W.3d —, 2017 Tenn. App. LEXIS 472 (Tenn. Ct. App. July 12, 2017).

Trial court did not err in finding a father in civil contempt for his failure to meet his financial obligations because the father's inability to pay, if any, was the result of his own intentional conduct; the father was willfully and voluntarily underemployed, and he lacked credibility and candor regarding his income and employment prospects. Hopwood v. Hopwood, — S.W.3d —, 2017 Tenn. App. LEXIS 472 (Tenn. Ct. App. July 12, 2017).

Trial court properly found a husband guilty of criminal contempt because the husband committed two separate acts that constituted contempt; there was evidence to support a finding that the husband lied about the amount of taxes that were due on the parties'  real property, and there was also sufficient evidence that he intentionally withheld information that he had approximately $ 411,000 in an account at the same time he represented that he was in dire need of money to pay these taxes. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court did not err in finding a husband guilty of criminal contempt for failure to disclose his ownership interest in property because the trial court explained its findings regarding the property in substantial detail and concluded that the husband's testimony regarding the property was emblematic of his overall disregard for his sworn oath; the record did not preponderate against the trial court's findings. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court properly found a husband guilty of criminal contempt because the record supported its conclusion that the husband violated statutory injunctions by purchasing, buying, or selling real estate after being served with the divorce complaint and notice of injunction. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court properly found contempt against a husband for failure to disclose one of the two parcels that comprised property because there was sufficient evidence upon which a trier of fact could have found the husband's failure to have the full value of the property appraised was willful. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court had a sufficient basis to find a husband willfully violated its order because he willfully failed to disclose the entire value of property; the trial court heard testimony at trial and still came to the conclusion that the husband willfully violated its order requiring him to disclose all information regarding, among other things, the property. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court properly found a husband guilty of criminal contempt because the record contained adequate evidence upon which it could determine that, in light of the husband's pattern of contemptuous behavior, he willfully violated its order by not producing court-ordered information; the husband did not provide any explanation as to why he failed to comply with an order of the court until after the wife filed a petition for contempt. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court properly found a husband guilty of criminal contempt for not allowing the wife access to her email accounts; given the nature of the petition filed by the wife and the record of proceedings surrounding the trial court's order, including the husband's incorrect assertion that the wife had no work email account, the trial court's order was sufficiently clear for the husband to have known that he was required to restore the wife's access to her email. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

There was sufficient evidence in the record to support the trial court's finding of contempt because although a husband had been ordered to procure a life insurance policy by a certain date, the husband did not even argue on appeal that he did actually comply with the trial court's order and properly secured a life insurance policy for the benefit of his wife within the required time frame. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court properly found a husband guilty of criminal contempt because there was sufficient proof that the husband's misconduct hindered and obstructed the trial court in its administration of justice; based on the volumes upon volumes of pleadings and transcripts of hearings devoted to clearing up the confusion caused by the husband's misrepresentations of the contents and value of the parties'  estate, there was sufficient proof that his misconduct hindered and obstructed the trial court. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court properly found a husband guilty of criminal contempt because it had ample basis to determine that the husband's deliberate misrepresentations to the trial court obstructed its ability to carry out its duties and detracted from the authority of the court; the trial court determined that the husband made a deliberate choice to undervalue his net worth in his representations to the trial court. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Trial court did not err in holding appellant in civil contempt; contrary to the court orders, he did not conduct company business only in the usual, regular and ordinary course, and he deliberately and willfully took steps to recruit company employees, solicit company customers, and deplete the company's inventory. Keller v. Estate of McRedmond, — S.W.3d —, 2018 Tenn. App. LEXIS 305 (Tenn. Ct. App. May 31, 2018).

Trial court did not err in finding that a property owner was in contempt of court because–following the trial court's injunctive order not to obstruct the use of one of the two easements at issue–the owner willfully placed T-posts in the other easement near the point of intersect of the two easements which obstructed a neighbor's use of the easement that was not to be obstructed. The owner's argument that the trial court's order did not clearly and specifically prohibit him from placing T-posts in the other easement was without merit. Perry v. Niles, — S.W.3d —, 2018 Tenn. App. LEXIS 566 (Tenn. Ct. App. Sept. 26, 2018).

Evidence did not preponderate against a finding that the father had financial resources but consistently placed paying child support lower on the priority list than other obligations; he had the ability to pay and therefore willfully violated the agreed order, and he failed to prove that he did not have the ability to pay the contempt purge payment required by a later order, and thus the trial court did not abuse its discretion by finding him in civil contempt of court and ordering the purge payment. State ex rel. Groesse v. Sumner, — S.W.3d —, 2019 Tenn. App. LEXIS 23 (Tenn. Ct. App. Jan. 18, 2019).

Trial court did not err by holding the father in criminal contempt for returning the children two days late and failing to provide the mother with his new cell phone number for 11 days because his violations were willful. Renken v. Renken, — S.W.3d —, 2019 Tenn. App. LEXIS 92 (Tenn. Ct. App. Feb. 20, 2019).

Judgment holding the mother in criminal contempt was affirmed, as her failure to have the child in Ohio for the father's parenting time as per court order was voluntary and intentional; her failure in the time since learning of her travel restrictions in early October to make arrangements to satisfy her obligations under the order relative to the father's Thanksgiving visitation demonstrated a conscious and deliberate decision to disregard the order. In re Khrystchan D., — S.W.3d —, 2020 Tenn. App. LEXIS 297 (Tenn. Ct. App. June 26, 2020).

24. Purpose.

The purpose of subdivision (1) was to subject any person to the penalties for contempt, where he willfully, by clamorous or violent language, or by turbulent conduct in the presence of the court, or near thereto, interrupted its proceedings, and thereby obstructed the administration of justice. Harwell v. State, 78 Tenn. 544, 1882 Tenn. LEXIS 221 (1882).

25. Application to Direct Contempts Only.

Subdivision (1) refers to direct contempts committed in the presence of the court, or so near thereto as to amount to the same thing; it relates to direct personal misbehavior, and cannot be extended so as to embrace the effect that a newspaper article, published at some remote place, might have upon the attendants on the court, who happened to read such article. In re Hickey, 149 Tenn. 344, 258 S.W. 417, 1923 Tenn. LEXIS 103 (1923).

When committed in the presence of the court, court may proceed on its own knowledge of the facts. State ex rel. May v. Krichbaum, 152 Tenn. 416, 278 S.W. 54, 1925 Tenn. LEXIS 85 (1925).

26. —Court in Recess.

Whether the court was in session or in recess, contempt punishable where the judge criticized was yet in the courtroom. State ex rel. May v. Krichbaum, 152 Tenn. 416, 278 S.W. 54, 1925 Tenn. LEXIS 85 (1925).

Where the defendant made remarks to the prosecutor when the court was not in session and the parties were merely in the courtroom awaiting the jury's return, the remarks, although inappropriate, did not “obstruct the administration of justice,” warranting a contempt conviction. State v. Creasy, 885 S.W.2d 829, 1994 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App. 1994).

27. Disobedience.

Where witness in civil suit refused to produce written agreement when orally ordered to do so by chancellor and was ordered confined to jail, such contempt was civil, did not have to be reduced to writing, was disobedience of a command of the court, and confinement was lawful. Huggins v. Follin, 500 S.W.2d 435, 1973 Tenn. LEXIS 447 (Tenn. 1973).

Where the state was aware of a deadline for the filing of pretrial memoranda, the court graciously extended the deadline, and the state indicated that it would obey the order within the extended deadline but failed to do so, the state was in contempt and an award of sanctions was properly ordered against it. State ex rel. Comm'r DOT v. Cox, 840 S.W.2d 357, 1991 Tenn. App. LEXIS 1006 (Tenn. Ct. App. 1991).

28. —Generally.

The power to punish for contempts is absolutely essential to the protection and existence of courts. It existed at common law, and has been declared by statute. Subsection (3) expressly concedes the power of the several courts of this state to issue attachments and inflict punishment for contempt of court, for the causes therein stated. State v. Rust, 2 Cooper's Tenn. Ch. 181 (1874).

In order to authorize the imprisonment of a person to secure his attendance as a witness, he must be shown to be in actual contempt of the court, in refusing to obey the process of the court. Where a party is unable to give bond for his appearance, he must be discharged upon his own personal undertaking to appear, having committed no contempt warranting his imprisonment. Arrowood v. State, 2 Shan. 347 (1877).

Trial court erred in assessing a $1,830 judgment against a daughter for failing to return her mother to a nursing home in a timely way pursuant to a court order because although the daughter's actions led to additional costs, no legal basis for the judgment appeared in the record, and the trial court did not indicate that the judgment was a sanction for contempt; the daughter's failure to obey the trial court's order without further action by the conservator and the courts could factually support a finding of contempt under T.C.A. § 29-9-102(3), but no petition for contempt was filed, the procedures mandated by Tenn. R. Crim. P. 42 were not followed, and the amount of the judgment did not comply with T.C.A. § 29-9-103. In re Conservatorship of Goldie Childs, — S.W.3d —, 2011 Tenn. App. LEXIS 5 (Tenn. Ct. App. Jan. 5, 2011).

29. Ambiguous Order.

Husband's contempt conviction under T.C.A. § 29-9-102(3) was not supported as the order violated was ambiguous as to whether the husband's appearance on a city street 10 minutes later than the husband could have been lawfully present in a driveway off the street to repair the wife's car violated it; the husband, the wife, and the trial court were justifiably confused about whether the husband should have gone to repair the car, or stayed away. Furlong v. Furlong, 370 S.W.3d 329, 2011 Tenn. App. LEXIS 559 (Tenn. Ct. App. Oct. 14, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 278 (Tenn. Apr. 11, 2012).

30. —Erroneous Order or Decree.

It is a contempt of court to violate or disobey an injunction, however erroneously, improperly, or improvidently issued, for, until it is properly dissolved, it must be implicitly observed, and the party enjoined is not allowed to speculate upon the equity of the bill, or the legality or regularity of the writ, but his duty is to obey. Rutherford v. Metcalf, 6 Tenn. 58, 1818 Tenn. LEXIS 22 (1818); Blair v. Nelson, 67 Tenn. 1, 1874 Tenn. LEXIS 314 (1874); State v. Rust, 2 Cooper's Tenn. Ch. 181 (1874); State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

Disobedience to a valid and subsisting, though erroneous and reversible judgment, is a contempt of court; and such judgment is valid where the court has jurisdiction of the parties and subject matter. Such judgment is not vacated or suspended by prayer for appeal, although the court erroneously refused to grant it. In re Vanvaver, 88 Tenn. 334, 12 S.W. 786, 1889 Tenn. LEXIS 55 (1890).

Violation of injunction issued without notice, when notice is required by statute, is punishable as a contempt, because such issuance is erroneous only as a matter of procedure. State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689, 1914 Tenn. LEXIS 146 (1914).

31. —Nonattendance of Witness.

Subsection (3) applies to the refusal of a witness to attend although under subpoena. State v. Reinhart, 92 Tenn. 270, 21 S.W. 524, 1892 Tenn. LEXIS 72 (1893).

32. —Refusal to Serve as Juror.

Subsection (3) applies to a refusal to serve on a jury. Osborn v. State, 160 Tenn. 599, 28 S.W.2d 49, 1929 Tenn. LEXIS 139 (1929).

33. Interference with Proceedings.

Defendant who conversed with two prospective grand jurors one of whom actually served on grand jury relative to merits of matter to come before grand jury could properly be found guilty of contempt. Snodgrass v. State, 217 Tenn. 166, 395 S.W.2d 815, 1965 Tenn. LEXIS 530 (1965).

34. —Application to Pending Suits Only.

Subsection (4) applies to pending, not terminated, suits. In re Hickey, 149 Tenn. 344, 258 S.W. 417, 1923 Tenn. LEXIS 103 (1923).

35. —Interference with Grand Jury.

The grand jury is a constitutional part of the court, and any illegal or corrupt interference with the grand jurors in the discharge of their duties, whether in or out of the courthouse, is a contempt of court. Harwell v. State, 78 Tenn. 544, 1882 Tenn. LEXIS 221 (1882).

Defendant who talked to husband of prospective grand juror fell within purview of statute relative to otherwise tampering with jury. Snodgrass v. State, 217 Tenn. 166, 395 S.W.2d 815, 1965 Tenn. LEXIS 530 (1965).

Fact that trial court on own motion issued show cause order based on what court considered reliable information relating to possible tampering with grand jury did not require trial judge to excuse himself as having prejudged case. Snodgrass v. State, 217 Tenn. 166, 395 S.W.2d 815, 1965 Tenn. LEXIS 530 (1965).

Separate telephone conversations to prospective grand jury members could properly be considered separate attempts to tamper with grand jury. Snodgrass v. State, 217 Tenn. 166, 395 S.W.2d 815, 1965 Tenn. LEXIS 530 (1965).

Where trial court issued show cause order on what it considered reliable information concerning tampering with prospective grand jurors and court assured itself of substance of charges before issuing order, failure to support order with affidavit was not prejudicial to defendants and did not require such order to be quashed. Snodgrass v. State, 217 Tenn. 166, 395 S.W.2d 815, 1965 Tenn. LEXIS 530 (1965).

Evidence was sufficient to support defendant's contempt conviction for four separate acts of publishing online certain materials related to his underlying charge of misdemeanor assault; the posts demonstrated both his unique style and the trial court found that he acted willfully in posting the material he knew was under a protective order and that he intended to interfere with the proceedings by intimidating and harassing the grand jurors in an effort to taint the jury pool for his trial. State v. Thigpen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 92 (Tenn. Crim. App. Feb. 14, 2020).

36. —Interference with Jurors Before Acceptance.

The attempt to induce officers to summon as jurors, in the particular case then to be tried, certain specified persons in preference to others, is a contempt of court, as an unlawful interference with the process or proceedings of the court in violation of this statute. Sinnott v. State, 79 Tenn. 281, 1883 Tenn. LEXIS 59 (1883); Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

One charged with an offense, trying to influence in his behalf persons summoned for jurors, before their acceptance or nonacceptance on the jury, is guilty of a contempt of court. Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

Each separate attempt to influence a juror constitutes a separate contempt. Snodgrass v. State, 217 Tenn. 166, 395 S.W.2d 815, 1965 Tenn. LEXIS 530 (1965).

37. —Juror Accepting Bribe.

Though a juror who accepts a bribe is guilty of the felony of bribery and also of contempt of court, and could be prosecuted for the felony or subjected to contempt proceedings, the spirit of the law is against such double punishment. Osborn v. State, 160 Tenn. 599, 28 S.W.2d 49, 1929 Tenn. LEXIS 139 (1929).

A prospective juror who deliberately disqualifies himself to serve by agreeing to accept a bribe is guilty of contempt. Osborn v. State, 160 Tenn. 599, 28 S.W.2d 49, 1929 Tenn. LEXIS 139 (1929).

38. —Judicial Sales.

Person who made a bid at judicial sale with the idea of inspecting the property before complying with the terms of the order of sale and told the clerk and master that he would be back the following Monday to comply with the bid but then refused to do so was guilty of contempt as abusing and interfering with the proceedings of the court. Matthews v. Eslinger, 41 Tenn. App. 116, 292 S.W.2d 543, 1955 Tenn. App. LEXIS 118 (1955).

39. —Preventing Attendance of Witnesses.

To prevent, or to attempt to prevent, the attendance of a witness constitutes a contempt of court, even if done by a person not a party to the cause, and though done outside of the state and to prevent a nonresident witness from attending and to induce him to disobey a lawful summons. Such conduct is a contempt as interfering with the process or proceedings of the court. McCarthy v. State, 89 Tenn. 543, 15 S.W. 736, 1890 Tenn. LEXIS 77 (1890).

To sustain a charge of contempt for decoying a witness from the state, it is necessary to show that a subpoena was issued for the witness; that is, the existence of process which was interfered with under subsection (4) must be shown by proper proof. Scott v. State, 109 Tenn. 390, 71 S.W. 824, 1902 Tenn. LEXIS 82 (1902).

Where, in a prosecution for contempt by decoying a witness from the state to prevent his appearance before the grand jury, the defenses interposed are based upon alleged technical defects in the subpoena and manner of service on the witness, they should be given no weight when invoked by parties under prosecution for so decoying, it appearing that the witness himself recognized the validity of the subpoena and the legality of the service. Scott v. State, 109 Tenn. 390, 71 S.W. 824, 1902 Tenn. LEXIS 82 (1902).

T.C.A. §§ 29-9-102(3) and (4), 29-9-103(a), and 39-16-507, evidence a clear public policy that a lawfully issued subpoena shall be honored both by the person against whom it is issued and other. Such a policy is in accord with society's self-evident goal of maintaining the integrity of its judicial system by insuring access to evidence necessary to the administration of justice; thus, a claim for retaliatory discharge in violation of public policy lies in cases where a substantial factor in an employer's decision to terminate an employee is the fact that the employee honored a lawful subpoena. Willard v. Golden Gallon-TN, LLC, 154 S.W.3d 571, 2004 Tenn. App. LEXIS 510 (Tenn. Ct. App. 2004).

40. —Procuring False Testimony.

Where a defendant in a criminal prosecution, by persuasion and threats of personal violence before the trial, induced a witness to testify falsely in his favor as to a material fact in issue, he is guilty of contempt of court, and of unlawful abuse of and interference with the process and proceedings of the court. Ricketts v. State, 111 Tenn. 380, 77 S.W. 1076, 1903 Tenn. LEXIS 32 (1903); Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908).

Contempt of court for suborning perjury — advising, counseling and encouraging others to testify falsely — is a proper charge for a contempt proceeding. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 1964 Tenn. LEXIS 403 (1964).

Uncontroverted evidence established that on the occasion when defendant was alleged to have advised four men to commit perjury the men were all together and were instructed as a group; therefore, defendant's action constituted one contempt and his sentence of four consecutive terms of confinement and cumulative separate fines was erroneous. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 1964 Tenn. LEXIS 403 (1964).

Where four state witnesses testified the defendant advised and counseled them to swear falsely and defendant denied that he did so, the evidence did not preponderate against the judgment of contempt of court for suborning perjury. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391, 1964 Tenn. LEXIS 403 (1964).

41. —Publication.

The courts have the power to prevent the publication of testimony and other proceedings, during the progress of the trial of a case. This power and the mode of preventing the publication rest largely in the discretion of the judge. It is, in its nature and the occasion and manner of its exercise, without the possibility of control by a supervising court. State v. Galloway, 45 Tenn. 326, 1868 Tenn. LEXIS 15 (1868).

It is the inherent right and power of the courts to punish for contempt the publishers of newspapers who, pending the trial of a case, publish matter for public circulation which is calculated to impede, embarrass, or affect the orderly trial and disposition of the case being heard. Tate v. State ex rel. Raine, 132 Tenn. 131, 177 S.W. 69, 1915 Tenn. LEXIS 6 (1915).

The power of the court to punish for contempt one publishing during the pendency of litigation, matter tending to hinder or embarrass the court in the discharge of its functions, is not dependent upon any preliminary order forbidding such publication being served by the court upon the publisher, since one violating the law becomes amenable to punishment, irrespective of previous warning. Tate v. State ex rel. Raine, 132 Tenn. 131, 177 S.W. 69, 1915 Tenn. LEXIS 6 (1915).

Publication relating to pending litigation is a contempt of court, where it is calculated to destroy the effect of the testimony of a witness, and such publication is within the statutory power of the court to punish as a contempt. Tate v. State ex rel. Raine, 132 Tenn. 131, 177 S.W. 69, 1915 Tenn. LEXIS 6 (1915).

The publication of a newspaper article, charging that the circuit court judge (naming him) is wholly unfit and incapacitated to hold court, and that as a result, the court has broken down and ceased to function, not relating to any pending suit, nor questioning the integrity of the court, is not punishable under this statute as contempt; defendant's positive disclaimer of an intention to question the integrity of the court was a good defense, where the contrary did not clearly appear. In re Hickey, 149 Tenn. 344, 258 S.W. 417, 1923 Tenn. LEXIS 103 (1923).

Any person, including a non-lawyer who violates the confidentiality mandate embodied in Tenn. R. Sup. Ct. 9, § 25 may be charged with contempt, and a charge of contempt arising from a violation of Rule 9, § 25 is criminal in nature and may be brought by the complainant or respondent whose rights of confidentiality have been violated; additionally, the Supreme Court of Tennessee, or its agent the Board of Professional Responsibility of the Supreme Court of Tennessee, may bring an action for contempt to vindicate the dignity and authority of the Supreme Court, our rules, and orders. Doe v. Bd. of Prof'l Responsibility of the Supreme Court of Tenn., 104 S.W.3d 465, 2003 Tenn. LEXIS 371 (Tenn. 2003).

42. Other Acts or Omissions.

Trial court had a sufficient basis upon which to find a husband guilty of criminal contempt for failing to disclose the sale of a lot because it reasonably concluded that the husband orchestrated the sale of the lot by a company in which he owned an interest. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

43. —Statute Declaring Act Contempt — Necessity.

Subsection (6) was not intended to embrace, and does not embrace, the vast and undefined scope of contempts at common law, outside of the classes prescribed by our statutory enactments. State v. Galloway, 45 Tenn. 326, 1868 Tenn. LEXIS 15 (1868).

Subsection (6) is applicable to only such acts or omissions as may be declared by statute to be contempt, for it adds nothing to the other five specifications, nor does it make the common law applicable. State v. Galloway, 45 Tenn. 326, 1868 Tenn. LEXIS 15 (1868); Coleman v. State, 121 Tenn. 1, 113 S.W. 1045, 1908 Tenn. LEXIS 1 (1908); In re Hickey, 149 Tenn. 344, 258 S.W. 417, 1923 Tenn. LEXIS 103 (1923).

Chancellor may imprison husband for contempt for failure to comply with order to pay wife's counsel fees and alimony during the pendency of suit for divorce. Kornik v. Kornik, 3 Tenn. Civ. App. (3 Higgins) 41 (1913).

Where the husband refuses to pay the counsel fees and temporary alimony allowed the wife, the burden of proof is upon him, when arraigned for contempt for such refusal, to prove his financial inability to make the payment. Kornik v. Kornik, 3 Tenn. Civ. App. (3 Higgins) 41 (1913).

A court ordering defendant in a divorce bill to pay alimony may imprison him until it is paid, if satisfied that the refusal is willful and contemptuous. Hooks v. Hooks, 8 Tenn. Civ. App. 507 (1918).

It is the general rule that where a man is actually unable to pay the alimony decreed he cannot be held to be guilty of contempt of court. However, a man cannot refuse to pay alimony at the time that he is employed and receiving wages, and then when he has spent the money and lost his job plead that he is unable to pay it. In such case he may be fined and imprisoned for contempt. Bradshaw v. Bradshaw, 23 Tenn. App. 359, 133 S.W.2d 617, 1939 Tenn. App. LEXIS 45 (1939).

44. Contemptuous Pleadings.

Where pleadings filed in court by defendant in replevin action contained abusive, slanderous and scurrilous matter among which were charges of crookedness by the court and star-chamber proceedings, a conviction for criminal contempt was proper. McCraw v. Adcox, 217 Tenn. 591, 399 S.W.2d 753, 1966 Tenn. LEXIS 613 (1966).

45. Attorney's Contempt — Effect on Criminal Defendant.

Defendant was not prejudiced by the action of the court in holding his attorney in contempt, where all jurors stated they were not prejudiced against defendant or his attorney. State v. Jefferson, 529 S.W.2d 674, 1975 Tenn. LEXIS 582 (Tenn. 1975), rehearing denied, , 529 S.W.2d 674, 1975 Tenn. LEXIS 583 (Tenn. 1975), overruled in part, State v. Mitchell, 593 S.W.2d 280, 1980 Tenn. LEXIS 395 (Tenn. 1980).

46. Contempt Advised by Counsel.

Criminal contempt of court may not be committed with impunity upon advice of counsel. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

While fact that person charged with contempt acted upon advice of counsel will not bar punishment, such fact may be considered in mitigation of such punishment. Robinson v. Air Draulics Engineering Co., 214 Tenn. 30, 377 S.W.2d 908, 1964 Tenn. LEXIS 444 (1964).

47. No Double Jeopardy Found.

The contempt of court, committed by defendant in a criminal prosecution, by inducing a witness for the state to testify falsely for him as to a material fact in issue is not merged into the subornation of perjury. The offenses are distinct and independent, and punishment may be inflicted for both. Ricketts v. State, 111 Tenn. 380, 77 S.W. 1076, 1903 Tenn. LEXIS 32 (1903).

A summary contempt citation followed by a prosecution for perjury does not subject an accused to the successive trials and prosecutions forbidden under the double jeopardy clause because the essential nature and elements of each offense and the proof necessary to establish each are not the same. Maples v. State, 565 S.W.2d 202, 1978 Tenn. LEXIS 544 (Tenn. 1978).

Where defendant removed child in violation of court custody orders and was cited for contempt, contempt citation did not constitute double jeopardy bar to subsequent criminal prosecution for kidnapping; the statutes involved had different purposes, different elements of proof, contempt proceedings are not criminal prosecutions, and the offense under each statute was not the same offense. State v. Sammons, 656 S.W.2d 862, 1982 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1982).

Neither the double jeopardy clause of the United States Constitution nor that of the Tennessee Constitution bars separate proceedings and punishments for contempt and the substantive offense underlying the contempt. State v. Winningham, 958 S.W.2d 740, 1997 Tenn. LEXIS 632 (Tenn. 1997).

47.5. Double Jeopardy Found.

Although a father asserted the trial court erred in failing to hold the mother in criminal contempt regarding alleged violations of the parties'  parenting plan, the father's appeal was dismissed because an acquittal of criminal contempt implicated constitutional double jeopardy provisions; thus, the father's appeal from the mother's acquittal of criminal contempt was barred. Adkisson v. Adkisson, — S.W.3d —, 2013 Tenn. App. LEXIS 175 (Tenn. Ct. App. Mar. 11, 2013).

48. Visitation and Custody Orders.

Court improperly sentenced defendant to six months imprisonment for contempt for removing child in violation of court orders under § 36-5-104 because the only contempt power conferred upon the trial court for infractions of visitation and custody orders is found in this section. State v. Sammons, 656 S.W.2d 862, 1982 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. 1982).

Where husband intentionally placed himself in a position in which he would be unable to comply with the court's visitation order, but despite his conviction for contempt of court, there was no satisfactory evidence that he was thereafter able to procure his children's return to the court's jurisdiction, he could not be sentenced for repeated offenses but only for a single act of contempt. Hawk v. Hawk, 855 S.W.2d 573, 1993 Tenn. LEXIS 202 (Tenn. 1993).

Evidence supported a trial court's findings of criminal contempt as it showed a mother violated a trial court's order governing communications between parties and that the mother willfully refused to allow the father visitation. Sloan v. Poff, — S.W.3d —, 2011 Tenn. App. LEXIS 153 (Tenn. Ct. App. Mar. 29, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 558 (Tenn. May 26, 2011), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 673 (Tenn. July 14, 2011).

Appellate court erred by affirming a trial court's contempt findings and ordering a mother to pay the grandparents seeking visitation $32,000 of their attorney's fees because the trial court declined to make specific findings of fact as to the contempt. Lovlace v. Copley, 418 S.W.3d 1, 2013 Tenn. LEXIS 718 (Tenn. Sept. 6, 2013).

Trial court erred in holding a father in contempt for violating the spring break provisions of the parties ‘ parenting plan because the mother agreed to let the children go with the father when they got out of school and “spring break” was not so well defined that a person of ordinary prudence would have known the weekends on both sides of the actual week school was out were not included, especially since the parties had treated them as being included the year before. Adkisson v. Adkisson, — S.W.3d —, 2013 Tenn. App. LEXIS 175 (Tenn. Ct. App. Mar. 11, 2013).

Trial court erred in holding the mother in contempt for another incident in which the mother escorted the three-year-old child off the soccer field during a game when he was throwing a tantrum as it was unlikely that a reasonable person in the mother's position would expect to be held in criminal contempt for simply attending to the immediate needs of her very young child. Knellinger v. Knellinger, — S.W.3d —, 2013 Tenn. App. LEXIS 576 (Tenn. Ct. App. Aug. 29, 2013).

Trial court erred in holding the mother in contempt for failing to get the son to his baseball games 30 minutes prior to their start as the father's petition did not identify a specific date that the mother was late in this respect, and there was no evidence of a specific date for which she was tardy. Moreover, there was no evidence showing that the mother willfully intended to violate any court order. Knellinger v. Knellinger, — S.W.3d —, 2013 Tenn. App. LEXIS 576 (Tenn. Ct. App. Aug. 29, 2013).

Trial court erred in holding the mother in contempt for an incident in which the mother reacted to the step-mother offering candy to the mother's child as the mother's reaction to the step-mother pushing herself upon the mother and the child in this situation did not constitute a willful violation of a clear and unambiguous court order and, thus, could not be a basis for criminal contempt under this section. Knellinger v. Knellinger, — S.W.3d —, 2013 Tenn. App. LEXIS 576 (Tenn. Ct. App. Aug. 29, 2013).

In a divorce proceeding, there was sufficient evidence to support the trial court's finding that the mother was in criminal contempt based on her failing to ensure that the child completed his school work, failing to return a school book causing the father to purchase it again, failing to ensure that the child participated in scheduled speech therapy during her parenting time, failing to allow the child telephone contact with the father, and other failings. S. A. M. D. v. J. P. D., — S.W.3d —, 2013 Tenn. App. LEXIS 650 (Tenn. Ct. App. Sept. 30, 2013), review denied and ordered not published, S.A.M.D. v. J.P.D., — S.W.3d —, 2014 Tenn. LEXIS 177 (Tenn. Feb. 11, 2014).

Trial court did not err in finding the father guilty of criminal contempt because the father to provide the mother with a written itinerary of his travel plans with the children when the father took the children on a trip to Colorado, in violation of the permanent parenting plan order; and the father was aware of his obligation to provide the mother with the itinerary, and that, despite repeated requests from the mother for that information, the father willfully failed and refused to provide it. Duke v. Duke, — S.W.3d —, 2014 Tenn. App. LEXIS 627 (Tenn. Ct. App. Oct. 3, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 165 (Tenn. Feb. 13, 2015).

Trial court properly found a mother in criminal contempt for refusing and delaying a father's visitation because the mother was bound by the terms of the agreed temporary parenting plan, which provided for approved child care providers while in the other parent's care; the mother had the option of requesting mediation or a hearing if she felt that modification was necessary. Howell v. Smithwick, — S.W.3d —, 2017 Tenn. App. LEXIS 71 (Tenn. Ct. App. Feb. 1, 2017).

Trial court erred in finding a mother in criminal contempt for deviating from a temporary parenting plan on a certain day because the father agreed for the mother to exercise parenting time on that day. Howell v. Smithwick, — S.W.3d —, 2017 Tenn. App. LEXIS 71 (Tenn. Ct. App. Feb. 1, 2017).

Trial court imposed punishment for criminal contempt on a father in custody dispute where it specified that the eight-day suspended sentence was the consequence for failing to notify the mother within 24 hours of one child's medical hospitalization and treatment, failing to provide the mother with information regarding the second child's academic awards and both bhildren's academic grades and attendance records, sending disparaging and damaging statements against the mother to one child during the mother's co-parenting time, and failing to take the children to court-ordered counseling. McClain v. McClain, — S.W.3d —, 2017 Tenn. App. LEXIS 634 (Tenn. Ct. App. Sept. 21, 2017).

49. Child Support.

Contempt finding under T.C.A. § 29-9-102(3) was reversed because there was no direct evidence that the mother had the ability to pay the child support during the time period at issue; the trial court's finding that the mother's attitude was lackadaisical during the time her case was assigned to a problem solving program was not germane to the issue. State ex rel. Martin v. Lynch, — S.W.3d —, 2010 Tenn. App. LEXIS 505 (Tenn. Ct. App. Aug. 5, 2010).

Order finding a father in criminal contempt for a failure to pay child support was vacated because  the Tenn. R. Crim. P. 42 requirements of notice were not satisfied; the attached exhibit to the petition for contempt did not clarify for the father the proper number of alleged violations or the correct amount of jail time he faced. The trial court also failed to give the father notice orally in open court as required by Tenn. R. Crim. P. 42(b)(2), and the record raised serious doubts concerning whether the father clearly understood the criminal nature of the proceedings and that incarceration might have been the result of the hearing. Brown v. Batey, — S.W.3d —, 2010 Tenn. App. LEXIS 509 (Tenn. Ct. App. Aug. 9, 2010).

Evidence supported a trial court's finding that a father's failure to pay child support was willful because the evidence showed that, although the father's mother had given the father $ 20,000 to assist with his financial needs and that the father received normal income from his business, the father did not make any effort to pay portion of his mounting child support arrearage during the relevant period, nor was there any evidence as to why the father failed to comply with his obligation to provide health insurance for his children. There was no evidence in the record to indicate that the father's decision to ignore his obligation was anything but willful. State ex rel. Creighton v. Foster, — S.W.3d —, 2011 Tenn. App. LEXIS 173 (Tenn. Ct. App. Apr. 7, 2011).

Husband's criminal contempt convictions for failure to pay child support and alimony were reversed as the trial court failed to first determine whether he had the ability to pay before finding his failure to pay was willful under T.C.A. § 29-9-102. Bowers v. Bowers, — S.W.3d —, 2011 Tenn. App. LEXIS 174 (Tenn. Ct. App. Apr. 7, 2011).

Sufficient evidence supported a trial court's finding that a husband was in criminal contempt, pursuant to T.C.A. §§ 36-5-104 and 29-9-102(3), for failing to pay monthly pendente lite support because the husband made only a partial payment in May 2009 and no payment in June 2009, even though the husband had the ability to pay; the husband was sentenced to 20 days of incarceration. Wilkinson v. Wilkinson, — S.W.3d —, 2011 Tenn. App. LEXIS 642 (Tenn. Ct. App. Nov. 29, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 269 (Tenn. Apr. 11, 2012).

In criminal contempt proceedings, T.C.A. § 29-9-102(3), sufficient evidence established that but for the time he was incarcerated and in the hospital, a father had the ability to pay sixteen bi-weekly child support payments because the father worked numerous jobs for years and his substance abuse problem did not excuse the obligation to pay support. State ex rel. Eason v. Swinger, — S.W.3d —, 2012 Tenn. App. LEXIS 115 (Tenn. Ct. App. Feb. 22, 2012), rehearing denied, — S.W.3d —, 2012 Tenn. App. LEXIS 190 (Tenn. Ct. App. Mar. 13, 2012).

Although a trial court properly held a husband in contempt, the trial court erred in sentencing the husband to 180 days of imprisonment because the husband was held in civil, not criminal contempt, and purged his contempt prior to a certain date by paying his child support and alimony obligations. Mays v. Mays, — S.W.3d —, 2012 Tenn. App. LEXIS 267 (Tenn. Ct. App. Apr. 23, 2012).

Sufficient evidence supported a trial court's finding a father guilty of five counts of criminal contempt, pursuant to T.C.A. § 29-9-102(3), for failing to pay $ 850 in monthly child support because the father received checks from his employer during the five months at issue that exceeded his child support obligation, and, as such, the father had the ability to pay. Rutledge v. Kelly, — S.W.3d —, 2012 Tenn. App. LEXIS 596 (Tenn. Ct. App. Aug. 28, 2012).

Substantial and material evidence supported a trial court holding a father in contempt for failing to comply with the parenting plan's provisions concerning the payment of his share of the children's uncovered medical expenses, T.C.A. § 29-9-102(3), because there was no question the father did not pay his share of the therapist's fees and refused to pay many of the other bills. Adkisson v. Adkisson, — S.W.3d —, 2013 Tenn. App. LEXIS 175 (Tenn. Ct. App. Mar. 11, 2013).

Trial court erred in awarding attorney's fees to a mother for a father's alleged willful failure to supply the mother with proof of his income in connection with a 2001 final decree requiring him to pay 21 percent of his fluctuating income as child support because the father was reasonable in assuming a 2003 order replaced the child support portion of the final decree and he was no longer required to comply with the proof of income; the 2003 order did not clearly require the father to provide proof of income. Allen v. Allen, — S.W.3d —, 2013 Tenn. App. LEXIS 677 (Tenn. Ct. App. Oct. 9, 2013).

Because there was a reasonable basis for doubt regarding the meaning of the provision requiring the father to pay the non-school related expenses incurred on behalf of the children, the provision could not support a finding of civil contempt. Duke v. Duke, — S.W.3d —, 2014 Tenn. App. LEXIS 627 (Tenn. Ct. App. Oct. 3, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 165 (Tenn. Feb. 13, 2015).

Trial court did not abuse its discretion in finding the father in civil contempt for failing to pay child support, as the evidence showed that the father had the ability to work and was able to meet other obligations. Cisneros v. Cisneros, — S.W.3d —, 2015 Tenn. App. LEXIS 938 (Tenn. Ct. App. Nov. 25, 2015), appeal dismissed, Cisneros v. Miller, — S.W.3d —, 2017 Tenn. App. LEXIS 7 (Tenn. Ct. App. Jan. 6, 2017).

Because a father admitted his obligation to pay medical bills, and the trial court declined to find the father in contempt based on his failure to pay, the father was not harmed by the trial court's decision that the bills were due and owing; it appeared that the trial court merely affirmed the father's own admission that he was required to meet the obligations. Hopwood v. Hopwood, — S.W.3d —, 2017 Tenn. App. LEXIS 472 (Tenn. Ct. App. July 12, 2017).

Trial court's order holding the father in criminal contempt for failing to pay child support in full each month was vacated because it contained insufficient findings of fact, as the trial court did not make a willfulness finding. The trial court only found that the father had failed to voluntarily make a child support payment to the mother since early December 2016 and the amount of the child support arrearage. Neely v. Neely, — S.W.3d —, 2019 Tenn. App. LEXIS 339 (Tenn. Ct. App. July 8, 2019).

49.5. Violation of Parenting Plan.

Mother willfully violated the parenting plan by asking the child to repeat to her that his father and stepmother touched his privates, had the ability to comply with the plan, and her conduct constituted civil, not criminal, contempt. Cremeens v. Cremeens, — S.W.3d —, 2015 Tenn. App. LEXIS 599 (Tenn. Ct. App. July 24, 2015).

Trial court did not err by denying the father's request to hold the mother in contempt because the evidence did not preponderate against its finding that the mother did not act willfully in violating the amended permanent parenting plan by not permitting the father to exercise his visitation as her actions were based on medical necessity, as the proof showed that the mother was allowed only once weekly visits of 24 hours at a time. Colley v. McBee, — S.W.3d —, 2017 Tenn. App. LEXIS 68 (Tenn. Ct. App. Feb. 2, 2017).

Trial court properly held a former spouse in contempt for failing to comply with the court's orders in the final decree of divorce by failing to cooperate with their ex-spouse in renewing their child's passport when the ex-spouse wanted to travel with the child to Europe. Bradley v. Bradley, — S.W.3d —, 2018 Tenn. App. LEXIS 249 (Tenn. Ct. App. May 7, 2018).

Father had received adequate notice that he faced a criminal contempt charge in a child custody modification proceeding where the mother's petition clearly stated that it was for criminal contempt and included the essential facts, the petition alleged that the father had violated the court's July 2016 consent order by taking the child to his attorney's office on January 13, 2017, to discuss her preference and sign an affidavit, the court's fiat informed the father that he faced possible incarceration if convicted, and the father was informed in open court on May that the criminal contempt hearing would take place when court convened on June 8, giving the father ample time to prepare a defense. Wassenberg v. Wassenberg, — S.W.3d —, 2020 Tenn. App. LEXIS 309 (Tenn. Ct. App. July 9, 2020).

50. Conduct at Depositions.

Plaintiff's poor conduct during a deposition, including repeated outbursts of profanity, constituted criminal contempt under T.C.A. § 29-9-102(1). Dargi v. Terminix Int'l Co., L.P., 23 S.W.3d 342, 2000 Tenn. App. LEXIS 67 (Tenn. Ct. App. 2000).

51. Disruption.

Evidence was sufficient for the trial court to hold defendant, a criminal defense attorney, in summary criminal contempt under Tenn. R. Crim. P. 42(a), as the record showed that his angry, disruptive, and disrespectful behavior towards the court, which devolved into a temper tantrum, was willful and obstructed the administration of justice. State v. Whetstone, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 805 (Tenn. Crim. App. Oct. 31, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 282 (Tenn. Apr. 11, 2012).

Trial court did not abuse its discretion by holding appellant in contempt because it did not err by determining that appellant's statements constituted willful misbehavior obstructing the administration of justice, as appellant made the statements after leaving the courtroom without permission and after calling an opposing attorney a liar, she made the statements in response to the trial court's request that she apologize to the attorney, and the trial court warned appellant that he could hold her in contempt but the warning did not deter her from describing some of the people in the gallery as pedophiles and abusers of her children. Kenyon v. Plump, — S.W.3d —, 2020 Tenn. App. LEXIS 12 (Tenn. Ct. App. Jan. 13, 2020).

52. Violation of Injunction.

Wife was properly held in criminal contempt for violating an injunction requiring that the parties comply with all Tennessee Rules of Civil Procedure, specifically with regard to giving notice, regardless of the wife's use of the subpoenaed information in other actions, as a husband was not given proper notice of the subpoenas under Tenn. R. Civ. P. 45.02. Malmquist v. Malmquist, 415 S.W.3d 826, 2011 Tenn. App. LEXIS 504 (Tenn. Ct. App. Sept. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 115 (Tenn. Feb. 21, 2012).

Wife was properly held in criminal contempt for violating an injunction against filing or making charges of any kind against a husband, even though an arrest warrant was issued after a probable cause hearing. Malmquist v. Malmquist, 415 S.W.3d 826, 2011 Tenn. App. LEXIS 504 (Tenn. Ct. App. Sept. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 115 (Tenn. Feb. 21, 2012).

Wife was properly held in criminal contempt for violating an injunction against filing or making charges of any kind against a husband, even though she non-suited a petition for emergency injunctive relief, as the injunction enjoined the parties from simply filing suits against the other party, regardless of whether the party was required to appear and defend. Malmquist v. Malmquist, 415 S.W.3d 826, 2011 Tenn. App. LEXIS 504 (Tenn. Ct. App. Sept. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 115 (Tenn. Feb. 21, 2012).

Wife was properly held in criminal contempt for violating an injunction against filing or making charges of any kind against a husband, even though the federal cases were filed during the pendency of a first contempt action, as the cases were still pending when the second contempt order was entered. Malmquist v. Malmquist, 415 S.W.3d 826, 2011 Tenn. App. LEXIS 504 (Tenn. Ct. App. Sept. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 115 (Tenn. Feb. 21, 2012).

Wife was properly held in criminal contempt for violating an injunction since the wife had notice of the injunction as she had previously been found in violation of the same injunction and had been ordered to spend three nights in jail, and had consented to be bound by the injunction. Malmquist v. Malmquist, 415 S.W.3d 826, 2011 Tenn. App. LEXIS 504 (Tenn. Ct. App. Sept. 16, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 115 (Tenn. Feb. 21, 2012).

In a divorce matter, a trial court did not err in holding a husband in willful contempt, pursuant to T.C.A. §§ 16-1-103 and 29-9-102, for violating the statutorily-mandated temporary injunction in T.C.A. § 36-4-106(d)(1)-(7) because the husband withdrew, transferred, and used, hundreds of thousands of dollars in marital assets to finance the “start-up costs” of a new business venture after the parties'  divorce was filed. Slagle v. Slagle, — S.W.3d —, 2012 Tenn. App. LEXIS 281 (Tenn. Ct. App. Apr. 30, 2012).

Although a corporation leased the real property that it owned, and upon which an injunction had been issued due to zoning violations, as it was aware that the lessee intended to, and in fact did, carry on the prohibited conduct on the property, the corporation was properly held in contempt under T.C.A. §§ 29-9-102 and 29-9-103 for violations of the injunction pursuant to Tenn. R. Civ. P. 65.02(2). Smith County Planning Comm'n v. Carver Trucking, Inc., — S.W.3d —, 2012 Tenn. App. LEXIS 463 (Tenn. Ct. App. July 11, 2012).

Despite the fact that a corporation was allegedly dissolved pursuant to T.C.A. §§ 48-24-202(c) and 48-24-105(b), as it still owned property upon which zoning violations continued despite a court-ordered injunction, the trial court had the power under T.C.A. §§ 29-9-102 and 29-9-103 to hold the corporation in criminal contempt for violations of the injunction. Smith County Planning Comm'n v. Carver Trucking, Inc., — S.W.3d —, 2012 Tenn. App. LEXIS 463 (Tenn. Ct. App. July 11, 2012).

Juvenile court did not abuse its discretion in holding a parent in civil contempt because the court found that the parent violated certain of the court's orders enjoining the parent from making comments about the other parent, the school situation of the parties'  child, and the judicial proceedings, both in person and on social media, through the parent's social media comments. Gider v. Hubbell, — S.W.3d —, 2017 Tenn. App. LEXIS 265 (Tenn. Ct. App. Apr. 27, 2017).

Trial court properly found a husband guilty of criminal contempt because it determined that the husband willfully violated the statutory injunctions and its order by selling a lot without approval. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Husband was properly found guilty of criminal contempt because the trial court made the specific findings of fact that supported the allegation that the husband's failure to disclose the full value of properties constituted deliberate attempts on more than one occasion to conceal the information from the wife and the trial court; the trial court found that he violated the mandatory injunction by purchasing real estate after being served with the divorce complaint and notice of injunctions. Trezevant v. Trezevant, — S.W.3d —, 2018 Tenn. App. LEXIS 213 (Tenn. Ct. App. Apr. 25, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 622 (Tenn. Sept. 18, 2018).

Competitor was properly convicted of criminal contempt because his recording of a substitute trustee's deed without adhering to the notice requirement of a temporary injunction demonstrated willful disobedience or resistance to the injunction and was directly attributable to the competitor; a trustee was bound to follow the competitor's directions, including recording the deed conveying property to the trust and, upon its sale, distributing a portion of the proceeds to pay his legal fees. Family Trust Servs., LLC v. Reo Holdings, LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 262 (Tenn. Ct. App. May 14, 2018), appeal denied, Family Trust Servs., LLC v. REO Holdings, LLC, — S.W.3d —, 2018 Tenn. LEXIS 561 (Tenn. Sept. 13, 2018).

Trial court did not err in finding that a property owner was in contempt of court because–following the trial court's injunctive order not to obstruct the use of one of the two easements at issue–the owner willfully placed T-posts in the other easement near the point of intersect of the two easements which obstructed a neighbor's use of the easement that was not to be obstructed. The owner's argument that the trial court's order did not clearly and specifically prohibit him from placing T-posts in the other easement was without merit. Perry v. Niles, — S.W.3d —, 2018 Tenn. App. LEXIS 566 (Tenn. Ct. App. Sept. 26, 2018).

53. Failure to Pay Alimony.

Evidence supported a finding of criminal contempt for a former spouse's willful failure to comply with a final decree of divorce, which incorporated a marital dissolution agreement (MDA) that required the spouse to pay alimony and provide insurance, because the spouse had the ability to pay the financial obligations under the MDA, but purposefully transferred major assets to the spouse's second marital partner in an attempt to avoid the spouse's financial obligations under the MDA. Lattimore v. Lattimore, — S.W.3d —, 2013 Tenn. App. LEXIS 696 (Tenn. Ct. App. Oct. 24, 2013), appeal dismissed, — S.W.3d —, 2014 Tenn. LEXIS 88 (Tenn. Jan. 23, 2014), review denied and ordered not published, Lattimore v. Lattiimore, — S.W.3d —, 2014 Tenn. LEXIS 341 (Tenn. Apr. 11, 2014).

Trial court erred by declining to find a husband in civil contempt of court for failure to comply with the alimony provision of the parties'  marital dissolution agreement because the evidence preponderated against its determination that the husband's failure to comply was not willful; the husband created the situation causing his alleged inability to pay because he transferred significant assets of to his new wife. Lattimore v. Lattimore, — S.W.3d —, 2019 Tenn. App. LEXIS 177 (Tenn. Ct. App. Apr. 12, 2019).

Trial court erred by declining to find a husband in civil contempt of court for failure to comply with the alimony provision of the parties'  marital dissolution agreement because the trial court predicated its contempt adjudication on a clearly erroneous assessment of the evidence. Lattimore v. Lattimore, — S.W.3d —, 2019 Tenn. App. LEXIS 177 (Tenn. Ct. App. Apr. 12, 2019).

Trial court erred by declining to find a husband in civil contempt of court for failure to comply with the alimony provision of the parties'  marital dissolution agreement because the evidence preponderated in favor of a determination that the husband's failure to pay his spousal support obligation was intentional and voluntary; while he had the assets available to him to pay his obligation, he chose not to do so. Lattimore v. Lattimore, — S.W.3d —, 2019 Tenn. App. LEXIS 177 (Tenn. Ct. App. Apr. 12, 2019).

54. Protective Order.

Trial court's factual findings, including that the wife credibly testified she did not send emails from the husband's account to her email address, was sufficient to prove that the husband violated the order of protection when he indirectly contacted the wife through email on four occasions Reynolds v. Reynolds, — S.W.3d —, 2014 Tenn. App. LEXIS 809 (Tenn. Ct. App. Dec. 12, 2014).

55. Property Settlement.

Husband was aware of his obligations under the divorce decree and had the ability to comply with them at the time of the contempt hearing; he failed to participate in the trial court proceedings in any meaningful way, and in light of his persistent refusal to appear before the trial court and offer testimony in his own behalf, there was no reason to grant him relief from the trial court's order holding him in civil contempt as enforcement for the property settlement provisions of the parties'  marital dissolution agreement. Gibbs v. Gibbs, — S.W.3d —, 2016 Tenn. App. LEXIS 661 (Tenn. Ct. App. Sept. 7, 2016).

Contempt was an appropriate method of enforcing the property settlement provisions of the parties'  marital dissolution agreement. Gibbs v. Gibbs, — S.W.3d —, 2016 Tenn. App. LEXIS 661 (Tenn. Ct. App. Sept. 7, 2016).

Trial court did not abuse its discretion in finding the wife in willful civil contempt for denying the husband access to certain areas of the property and piled his belongings haphazardly atop the boat and in the yard, which belongings he was awarded in the parties' marital dissolution agreement. Landis v. Landis, — S.W.3d —, 2016 Tenn. App. LEXIS 803 (Tenn. Ct. App. Oct. 27, 2016).

Parties were painstakingly specific when they enumerated in the marital dissolution agreement (MDA) the items the husband was entitled to retrieve, and absent from the exhaustive list was a boat trailer; the trial court erred in finding that the MDA required the wife to return the boat trailer to the husband, and thus the trial court erred in holding the wife in contempt for refusing to return it. Landis v. Landis, — S.W.3d —, 2016 Tenn. App. LEXIS 803 (Tenn. Ct. App. Oct. 27, 2016).

Trial court erred in holding a former spouse in contempt for willfully disobeying an order in the final decree of divorce to cooperate with their ex-spouse's lender because the evidence showed that the former spouse believed that their ex-spouse was trying to refinance the former spouse's loan and add the ex-spouse's name to the spouse's deed rather than purchase the marital home outright. Bradley v. Bradley, — S.W.3d —, 2018 Tenn. App. LEXIS 249 (Tenn. Ct. App. May 7, 2018).

Trial court had subject matter jurisdiction over a wife's contempt petition where the petition sought to secure the husband's compliance with the marriage dissolution agreement that had been made an order of the court, and Tennessee courts were empowered to inflict punishments for contempt of court. Foster v. Foster, — S.W.3d —, 2019 Tenn. App. LEXIS 214 (Tenn. Ct. App. May 2, 2019).

56. Bankruptcy.

While the bankruptcy petition's filing suspended the contempt proceedings, it did not have any effect on the trial court's previous adjudication of contempt, and as the automatic stay had expired, it had no effect on the contempt order or this appeal. Gibbs v. Gibbs, — S.W.3d —, 2016 Tenn. App. LEXIS 661 (Tenn. Ct. App. Sept. 7, 2016).

57. Compensatory Damages.

Trial court did not err in finding that appellant's violation of court orders actually harmed the winning bidders of the company, because by depleting the company's inventory and recruiting employees for his own business, he diminished the value of business assets; because the trial court awarded $ 375,000 to compensate the bidders for breach of fiduciary duty, interference with business relations, and violation of court orders, it could not be determined if the evidence supported the amount awarded, and the award was vacated. Keller v. Estate of McRedmond, — S.W.3d —, 2018 Tenn. App. LEXIS 305 (Tenn. Ct. App. May 31, 2018).

Collateral References. 17 Am. Jur. 2d Contempt §§ 13-61.

17 C.J.S. Contempt § 43.

Acquittal of criminal charges other than contempt as precluding contempt proceedings relating to same transaction. 88 A.L.R.3d 1089.

Affidavit to disqualify judge as contempt. 29 A.L.R. 1273.

Alimony, right to impose fine for failure to pay. 14 A.L.R. 717.

Allowance of attorneys' fees in civil contempt proceedings. 43 A.L.R.3d 793.

Appealability of acquittal from or dismissal of charge of contempt of court. 24 A.L.R.3d 650.

Appealability of contempt adjudication or conviction. 33 A.L.R.3d 448.

Assault on attorney as contempt. 61 A.L.R.3d 500.

Assault on judge, juror or witness as contempt. 18 A.L.R. 213, 55 A.L.R. 1230, 52 A.L.R.2d 1297.

Attorney, conduct of, in connection with making objections or taking exceptions during trial as contempt of court. 68 A.L.R.3d 314.

Attorney's alteration, substitution, abstraction, withholding, or destruction of pleadings and papers as criminal contempt. 151 A.L.R. 746.

Attorney's compensation for services in contempt proceedings, amount of. 57 A.L.R.3d 475.

Attorney's failure to attend court, or tardiness, as contempt. 97 A.L.R.2d 431, 13 A.L.R.4th 122.

Attorney's failure to attend court, or tardiness, as contempt. 13 A.L.R.4th 122.

Attorney's refusal to accept appointment to defend indigent, or to proceed in such defense, as contempt. 36 A.L.R.3d 1221.

Bail jumping after conviction, failure to surrender or to appear for sentencing and the like, as contempt. 34 A.L.R.2d 1100.

Boycott, violation of injunction against, as contempt. 6 A.L.R. 978, 16 A.L.R. 230, 27 A.L.R. 651, 32 A.L.R. 779, 116 A.L.R. 484.

Circumstances under which one court can punish a contempt against another court. 99 A.L.R.2d 1100.

Clerk of court, refusal or failure of, to comply with direction of court or judge, upon ground of its invalidity or supposed invalidity, as contempt. 119 A.L.R. 1380.

Collective bargaining agreement, violation of injunction against breach of, as a criminal contempt. 95 A.L.R. 51.

Commitment for contempt in failing to obey order of court as purging one of contempt. 56 A.L.R. 701.

Communicating with grand jury as contempt. 29 A.L.R. 489.

Conduct in delaying or obstructing discovery as basis for contempt proceeding. 8 A.L.R.4th 1181.

Contempt adjudication or conviction as subject to review, other than by appeal or writ of error. 33 A.L.R.3d 589.

Contempt for violation of compromise and settlement the terms of which were approved by court but not incorporated in court order, decree, or judgment. 84 A.L.R.3d 1047.

Decree or order which merely declares rights of parties without an express command or prohibition as basis of contempt proceeding. 29 A.L.R. 134.

De facto status of officer as affecting his criminal responsibility or liability to punishment for contempt. 64 A.L.R. 534.

Degree of proof necessary in contempt proceedings. 49 A.L.R. 975.

Delay in adjudication of contempt committed in the actual presence of court as affecting court's power to punish contemnor. 100 A.L.R.2d 439.

Demand as condition precedent to enforcement of payment of alimony by contempt proceedings. 63 A.L.R. 1220.

Disclosure of grand jury proceedings to outsider. 127 A.L.R. 272.

Disqualification of judge or change of venue, contempt proceeding as a “civil proceeding,” within statute relating to. 102 A.L.R. 398.

Duration of imprisonment for refusal to answer question as a witness before the grand jury. 28 A.L.R. 1364.

Emergency Price Control Act, criminal contempt for violation of. 156 A.L.R. 1462, 157 A.L.R. 1457, 158 A.L.R. 1464.

Enforcement of contract by party to procure insurance on his own life by contempt proceedings. 12 A.L.R.2d 983.

Executor, guardian, conservator, trustee, receiver or other fiduciary, refusal or failure of, to pay over or account for funds as contempt. 60 A.L.R. 322, 134 A.L.R. 927.

Failure to turn over property upon order of court, or violation of order of court other than the one appointing receiver. 39 A.L.R. 34, 48 A.L.R. 241.

False or inaccurate report of judicial proceedings as contempt. 99 A.L.R.2d 440.

Forcing party or prosecuting witness to withdraw or not to institute action or proceeding as contempt of court. 23 A.L.R. 187.

Habeas corpus proceedings, liability for contempt in connection with. 84 A.L.R. 812.

Holding jurors in contempt under state law. 93 A.L.R.5th 493.

Identity or whereabouts of, or other information relating to, his client, refusal of attorney to disclose. 101 A.L.R. 470.

Inability to comply with judgment or order as defense to charge of contempt. 22 A.L.R. 1256, 31 A.L.R. 649, 40 A.L.R. 546, 76 A.L.R. 390, 120 A.L.R. 703.

Inability to purge contempt as affecting adequacy of other remedies for purposes of prohibition against contempt proceedings. 136 A.L.R. 724.

Interference with enforcement of judgment in criminal or juvenile delinquent case as contempt. 8 A.L.R.3d 657.

Interlocutory decree of divorce, effect of contempt of court after. 109 A.L.R. 1013, 174 A.L.R. 519.

Judge, reflection on, by juror or grand juror as contempt. 125 A.L.R. 1280.

Judgment debtor's conveyance or transfer of property pending stay of execution as contempt. 122 A.L.R. 1346.

Judgment, statutes empowering court to require payment of, out of income of judgment debtor or by instalments, and to commit debtor to jail for failure to pay. 111 A.L.R. 404.

Judicial officer's civil liability for ordering arrest for contempt. 13 A.L.R. 1364, 55 A.L.R. 282, 173 A.L.R. 802.

Judicial or execution sale, acts interfering with or prejudicing, as contempt. 27 A.L.R. 1225.

Jurors, witness's attempt to influence, as contempt. 63 A.L.R. 1279.

Legislative power to abridge, limit, or regulate power of courts with respect to contempt. 121 A.L.R. 215.

Letter to court or judge with regard to a pending case, contempt by. 31 A.L.R. 1239.

Liquor law, criticism of attitude of court of judge toward violations of, as contempt. 58 A.L.R. 1001.

Mandamus, contempt for disobedience of. 30 A.L.R. 148.

Misconduct by jurors or grand jurors as contempt. 125 A.L.R. 1274.

Mistreatment of prisoner as contempt. 40 A.L.R. 1278.

Necessity and sufficiency of subsidiary or detailed findings supporting adjudication of direct contempt. 154 A.L.R. 1227.

Necessity of affidavit or sworn statement as foundation for constructive contempt. 2 A.L.R. 225, 41 A.L.R.2d 1263.

Perjury or false swearing as contempt. 89 A.L.R.2d 1258.

Picketing court or judge as contempt. 58 A.L.R.3d 1297.

Practicing or pretending to practice law without authority as contempt. 36 A.L.R. 533, 100 A.L.R. 236.

Privilege of defendant in contempt proceedings as to testifying against himself. 54 A.L.R. 1436.

Procuring or attempting to procure witness to leave jurisdiction as contempt. 21 A.L.R. 247, 33 A.L.R. 607.

Procuring perjury as contempt. 29 A.L.R.2d 1157.

Profane, or obscene language by party, witness, or observer during trial proceedings as basis for contempt citation. 29 A.L.R.5th 702.

Prosecuting witness, forcing withdrawal of, or abandonment of proceeding by, as contempt. 23 A.L.R. 187.

Publication or broadcast, during course of trial, of matter prejudicial to criminal defendant as contempt. 33 A.L.R.3d 1116.

Published article or broadcast as direct contempt of court. 69 A.L.R.2d 676.

Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemnor. 14 A.L.R.2d 580.

Punishment of election officers for contempt. 64 A.L.R. 1019.

Receiver, criticism of court's appointment of. 97 A.L.R. 903.

Receivership, conduct pending, as contempt of court. 39 A.L.R. 6, 48 A.L.R. 241.

Receivership, contempt by interference with property pending. 39 A.L.R. 6, 48 A.L.R. 241.

Replevin, failure or refusal to surrender possession or disclose whereabouts of property in, as contempt. 130 A.L.R. 632.

Restitution as purging contempt in violating injunction. 2 A.L.R. 169.

Reversal, modification, dismissal, dissolution, or resettlement of judgment or injunctive order as affecting prior disobedience as contempt. 148 A.L.R. 1024.

Right of witness in contempt proceeding to refuse to answer on the ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group. 19 A.L.R.2d 388.

Right to punish for contempt for failure to obey court order or decree either beyond power or jurisdiction of court or merely erroneous. 12 A.L.R.2d 1059.

Search warrant, preventing, obstructing, or delaying service or execution of. 39 A.L.R. 1354.

Selection or summoning of jurors or grand jurors, misconduct of officers in, as contempt of court. 7 A.L.R. 345.

Self-incriminating evidence before grand jury, refusal to give, as contempt. 27 A.L.R. 140.

Self-incrimination, refusal to keep promise to waive privilege against, as contempt. 69 A.L.R. 855.

Separate acts of contempt as punishable in a single contempt proceeding. 160 A.L.R. 1104.

Shadowing, or tampering or communicating with, jurors as contempt. 63 A.L.R. 1269.

Specific performance of separation agreement, enforcement of decree for, by contempt proceedings. 154 A.L.R. 462.

Subpoenaing unnecessary witnesses as contempt. 37 A.L.R. 1113.

Sufficiency of notice to, or service upon, contemnor's attorney in civil contempt proceedings. 60 A.L.R.2d 1244.

Tenant of, or purchaser from, defendant in the suit, violation of injunction against use of premises for sale of intoxicating liquors by. 15 A.L.R. 391.

Use of affidavits to establish contempt. 79 A.L.R.2d 657.

Validity or scope of command of subpoena duces tecum, right to question, in proceeding for contempt in disobeying. 130 A.L.R. 332.

Validity, propriety, and effect of allowing or prohibiting media's broadcasting, recording, or photographing court proceedings. 14 A.L.R.4th 121.

Verdict, conduct of juror in respect of, as basis of charge of contempt. 32 A.L.R. 436.

Violation of injunction by one not a party to injunction suit. 15 A.L.R. 386.

Violation of state court order by one other than party as contempt. 7 A.L.R.4th 893.

What courts or officers have power to punish for contempt. 8 A.L.R. 1543, 54 A.L.R. 318, 73 A.L.R. 1185.

Witness, failure to obey order to procure, or aid in procuring, attendance of. 56 A.L.R. 174.

Contempt 32-36.