Chapter 1
Issuance and Return in General

Part 1
General Provisions

26-1-101. Writs to secure property.

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

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

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

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

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

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

Law Reviews.

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

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

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

NOTES TO DECISIONS

1. Construction and Interpretation.

2. —Common Law Power of Courts.

It is the principle of the common law that every court has the inherent power to enforce its decrees and judgments, which must necessarily involve such convenient legal means as will effectuate the end. Arnold v. Jones, 77 Tenn. 545, 1882 Tenn. LEXIS 98 (1882).

3. —Judgment on Merits Requisite.

The section does not apply where there is no judgment or decree on the merits, but only a dismissal without prejudice at instance of complainant. Myers v. Northcutt, 127 Tenn. 54, 152 S.W. 1034, 1912 Tenn. LEXIS 7 (1912).

4. —Homestead — Setting Aside in Ejectment.

A liberal construction of this section would fairly include the setting aside of homestead in ejectment by reserving the homestead, to be subsequently assigned, in the judgment of recovery. Arnold v. Jones, 77 Tenn. 545, 1882 Tenn. LEXIS 98 (1882).

5. Execution — Sufficiency.

6. —Identification of Court and Suit Requisite.

If the execution is so defective as not to identify the court from which it issues, or the suit in which it issues, it is void. Trotter v. Nelson, 31 Tenn. 7, 1851 Tenn. LEXIS 2 (1851).

7. —Conformity of Execution to Judgment.

Execution must follow or pursue the judgment, and conform to the same. Boyken v. State, 11 Tenn. 425, 11 Tenn. 426, 1832 Tenn. LEXIS 81 (1832); Love v. Smith, 12 Tenn. 116, 12 Tenn. 117, 1833 Tenn. LEXIS 24 (1833); Jennings v. Pray, 16 Tenn. 85, 1835 Tenn. LEXIS 48 (1835); Saunders v. Gallaher, 21 Tenn. 445, 1841 Tenn. LEXIS 41 (1841); Fowlkes v. L. Poppenheimer & Co., 72 Tenn. 422, 1880 Tenn. LEXIS 36 (1880).

Execution in the name of the firm, where the warrant and judgment were in the name of the individual members thereof, on a note payable to the firm, is valid, and it cannot be superseded upon that ground. Gunn v. Benson, Hunt & Co., 13 Tenn. 220, 13 Tenn. 221, 1833 Tenn. LEXIS 144 (1833).

A judgment on a sale note in favor of the clerk and master and special commissioner in a specified cause and execution in favor of the complainants in that cause, omitting the name of the clerk and master, will not invalidate a sale made thereunder, though the execution might be quashable for such irregularity. Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884).

8. —Amount Varying Between Judgment and Execution.

A slight variation between the amount of the judgment and the execution renders the execution voidable only, and a sale of land made thereunder is valid. Trotter v. Nelson, 31 Tenn. 7, 1851 Tenn. LEXIS 2 (1851); Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884).

9. —Execution for Use of Another.

The execution on a judgment in favor of one party for the use of another is irregular and voidable, but not void, where the execution shows the judgment to be in favor of the nominal plaintiff. Stevenson v. McLean, 24 Tenn. 332, 1844 Tenn. LEXIS 68 (1844); Barnes v. Hayes, 31 Tenn. 304, 1851 Tenn. LEXIS 72 (1851).

Execution in favor of one party for the use of another on a judgment in favor of the latter alone protects the officer and gives the purchaser a good title. Barnes v. Hayes, 31 Tenn. 304, 1851 Tenn. LEXIS 72 (1851); Harlan v. Harlan, 82 Tenn. 107, 1884 Tenn. LEXIS 112 (1884).

10. —Interest Rate Varying Between Judgment and Execution.

An execution, bearing a different rate of interest from the judgment upon which it is issued, will be quashed upon being brought into the circuit court by writs of certiorari and supersedeas. Fowlkes v. L. Poppenheimer & Co., 72 Tenn. 422, 1880 Tenn. LEXIS 36 (1880); Ramsey & Darby v. Jones, 73 Tenn. 500, 1880 Tenn. LEXIS 171 (1880).

11. —One Defendant's Name Omitted.

Execution omitting the name of one defendant may be superseded and quashed for the irregularity, but a sale under it passes title to the purchaser. Lee v. Crossna, 25 Tenn. 281, 1845 Tenn. LEXIS 82 (1845); Wilson & Wheeler v. Nance & Collins, 30 Tenn. 189, 1850 Tenn. LEXIS 88 (1850); 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).

12. —Amount Blank in Execution.

Execution for blank amount is void, where it contains on its face no reference to the bill of costs on its back, part of the items of which are in abbreviated terms, and any sale under it is also void. Maxwell v. King, 11 Tenn. 459, 11 Tenn. 460, 1832 Tenn. LEXIS 93 (1832); Trotter v. Nelson, 31 Tenn. 7, 1851 Tenn. LEXIS 2 (1851).

13. —Against All Defendants.

Where some of the judgment debtors die after the judgment, the execution must issue against them as well as the survivors, including the stayor, where there has been no revivor; but it would be proper to suggest the death of the deceased defendant or defendants. Such execution can be levied on the property of the surviving defendants only. Cabiness v. Garrett, 9 Tenn. 490, 9 Tenn. 491, 1831 Tenn. LEXIS 30 (1831); Cheatham v. Brien, 40 Tenn. 552, 1859 Tenn. LEXIS 162 (1859); H.S. Dickinson & Son v. Bowers, 66 Tenn. 307, 1874 Tenn. LEXIS 131 (1874).

Execution must issue against all defendants, and where judgment was rendered against several defendants, the execution cannot issue against part of them, but must be issued against all. Boyken v. State, 11 Tenn. 425, 11 Tenn. 426, 1832 Tenn. LEXIS 81 (1832); Love v. Smith, 12 Tenn. 116, 12 Tenn. 117, 1833 Tenn. LEXIS 24 (1833).

14. Writ of Possession.

15. —Forcible Entry and Detainer Suit.

Writ of possession cannot be awarded defendant upon mere dismissal of bill enjoining prosecution of forcible entry and detainer suit against complainant, where the injunction was broadly issued without any terms being prescribed in the fiat therefor, and the dismissal of the bill was without prejudice, by a decree entered upon complainant's own motion, where the defendant merely answered the bill without filing a cross bill, so that there was not, and, under the pleadings, could not be, any judgment or decree that defendant recover or be put in possession of the specific property. Myers v. Northcutt, 127 Tenn. 54, 152 S.W. 1034, 1912 Tenn. LEXIS 7 (1912).

16. —Ejectment Proceedings Enjoined as to Part of Land.

Where ejectment proceedings in circuit court were enjoined by chancery court, on confession of judgment in circuit court, with stay of execution, and chancery court made the injunction perpetual as to a certain part of the land, but dissolved it as to the balance thereof, the circuit court properly proceeded to judgment as to such balance, and awarded writ of possession as to such balance. Brier Hill Collieries v. Pile, 9 Tenn. App. 16, — S.W.2d —, 1928 Tenn. App. LEXIS 209 (Tenn. Ct. App. 1928).

17. —Restitution.

The judgment in ejectment is enforced by the writ of possession; and if the plaintiff is put in possession of more land than he is entitled to by his recovery, the defendant will be restored to the possession by a writ of restitution, upon petition. Blair v. Pathkiller's Lessee, 13 Tenn. 230, 1833 Tenn. LEXIS 148 (1833); Hickman's Lessee v. Dale, 15 Tenn. 148, 15 Tenn. 149, 1834 Tenn. LEXIS 30 (1834); Wallen v. Huff, 35 Tenn. 82, 1855 Tenn. LEXIS 19 (1855).

18. Alternative Methods of Enforcement.

The holder of a judgment in Tennessee may seek enforcement either through execution under this chapter or through garnishment but there is no provision for supplementary proceedings for the collection of judgments aside from the supplementary procedure for examination. Nelson v. Maiden, 402 F. Supp. 1307, 1975 U.S. Dist. LEXIS 12131 (E.D. Tenn. 1975).

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

In all cases where judicial process or execution, according to the principles of the common law, cannot be made to apply to the purpose of carrying into effect any judgment or decree of a court of record, the court may enforce the judgment or decree by attachment for contempt, in the nature of an execution. The proceedings under this writ are the same as are prescribed by this Code for the enforcement of the decrees of the chancery court, in §§ 21-1-80121-1-809.

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

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

Law Reviews.

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

26-1-103. Enforcement of money judgments.

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

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

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

Law Reviews.

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

NOTES TO DECISIONS

1. Constitutionality.

Although this section allows levy of execution after judgment without providing a hearing to determine whether the property to be levied upon is exempt under other statutory provisions, it is not unconstitutional. Langford v. Tennessee, 356 F. Supp. 1163, 1973 U.S. Dist. LEXIS 14326 (W.D. Tenn. 1973).

2. Order for Issuance Unnecessary.

An execution issues, as a matter of course, upon a judgment at law or decree in chancery for a specific sum of money, without any order awarding or directing its issuance in express terms. The judgment or decree is in and of itself an award of execution. The execution issues, without express direction, even for balance due after sale of land under foreclosure, where the decree directing the sale reserves the right to render a decree enforcing any balance. Hyder v. Butler, 103 Tenn. 289, 52 S.W. 876, 1899 Tenn. LEXIS 107 (1899).

3. Alimony in Futuro.

Decrees awarding alimony in futuro are valid and may be enforced by execution. Buchholtz v. Buchholtz, 175 Tenn. 87, 132 S.W.2d 208, 1939 Tenn. LEXIS 14 (1939).

4. Compliance with Other Statutes Not Required.

As long as the statutory requirements governing execution liens and writs of execution are observed, persons claiming an execution lien need not comply with the filing requirements of Article 9 of the Commercial Code because execution liens are not consensual security interests created by contract, and compliance with motor vehicle title and registration statutes is not required since execution liens depend on possession. Keep Fresh Filters v. Reguli, 888 S.W.2d 437, 1994 Tenn. App. LEXIS 503 (Tenn. Ct. App. 1994).

26-1-104. Property subject to execution.

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

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

1. Constitutionality.

Although this section allows levy of execution after judgment without providing a hearing to determine whether the property to be levied upon is exempt under other statutory provisions, it is not unconstitutional. Langford v. Tennessee, 356 F. Supp. 1163, 1973 U.S. Dist. LEXIS 14326 (W.D. Tenn. 1973).

2. Remainder Estates in Land.

A remainder estate in land or personalty is subject to attachment and execution. Fowler v. Plunk, 7 Tenn. App. 29, — S.W.2d —, 1928 Tenn. App. LEXIS 20 (Tenn. Ct. App. 1928).

3. Equitable Estates in Realty.

Equitable estates in land are not in general subject to levy of execution, but all trust estates dependent on a legal estate of freehold, including resulting trusts, are subject to levy of execution. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816); Shute v. Harder, 9 Tenn. 3, 1818 Tenn. LEXIS 59 (1818); Smitheal v. Gray, 20 Tenn. 491, 1840 Tenn. LEXIS 8, 34 Am. Dec. 664 (1840); Butler v. Rutledge, 42 Tenn. 4, 1865 Tenn. LEXIS 2 (1865); Henderson v. Hill, 77 Tenn. 25, 1882 Tenn. LEXIS 10 (1882).

Where father acquired land and was given a bond for title but deed was never registered, and thereafter while insolvent persuaded grantor to make a deed to children which was registered, an execution against land for debt of father was valid and purchaser at execution sale secured good title, since deed to children was void as to creditors. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816).

4. Adverse Possession — Effect.

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

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

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

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

1. Tort Action — Receiver Not Appointed.

A receiver will not be appointed at the instance of complainant to secure expected judgment in an action of tort against a corporation, especially where it is not shown to be insolvent. 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).

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

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

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

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

NOTES TO DECISIONS

1. Right to Substitution.

If the officer is not entitled to the remedy given by § 26-5-114, his sureties would not be entitled to this remedy. Where the execution shows by the officer's return that it was levied upon property of the principal debtor, of value sufficient to satisfy it, and abandoned by the officer, who failed to return the execution for more than a year after its issuance, whereupon his sureties paid the judgment in discharge of their liability for his such default, such sureties cannot dispute the truth of the return and show that the property was not actually seized under the levy, where they cause an alias execution to issue for their benefit as provided in this section, and the stayor sues out writs of certiorari and supersedeas to have such execution brought up to the circuit court, and quashed upon the ground that such return showed his discharge from liability. Holt v. Manier, 69 Tenn. 488, 1878 Tenn. LEXIS 123 (1878).

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

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

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

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

NOTES TO DECISIONS

1. Extension of Right by Section.

By this section, the relief was extended to cases where property was recovered by the defendant, his heirs or representatives, as well as by third persons. Where the proceedings are ineffectual to pass the defendant's title, and he recovers the property, this section points out the remedy of the purchaser, which is not to recover the money paid, but to revive the original judgment or judgments for his benefit. Mays v. Wherry, 3 Tenn. Ch. 80 (1875); Edwards v. Ervin, 2 Shan. 510 (1877).

2. Failure of Title.

3. —Rights of Purchaser.

Where a judgment was satisfied for the time by the sale of land that did not belong to the judgment debtor, the satisfaction is subject to be set aside for the benefit of the purchaser. Hudgins v. Fanning, 63 Tenn. 574, 1874 Tenn. LEXIS 307 (1874).

Where the property of the surety on an injunction bond of a personal representative is sold under the judgment against them on such bond and execution issued thereon for a sum sufficient to satisfy the execution, the purchaser, a stranger to the execution, upon failure of the title to the property, is entitled to have satisfaction of the judgment set aside, and himself substituted to the rights of the execution or judgment creditor. Vallentine v. Vallentine, 3 Shan. 539 (1875).

4. —Claimant Through Purchaser — Rights.

One standing in the shoes of the purchaser by proper assignments is entitled to the same relief that the purchaser would be entitled to. McKnight v. Hughes, 72 Tenn. 522, 1880 Tenn. LEXIS 56 (1880).

The vendee of the purchaser is entitled to the remedy of the purchaser. Owen, Moseley & Co. v. Beard, 3 Tenn. Civ. App. (3 Higgins) 82 (1911).

5. —Refund to Purchaser.

This section does not apply where property not belonging to debtor was sold but was not applied on judgment and was in hands of deputy sheriff at time of suit by purchaser. Estes v. Doty, 169 Tenn. 683, 90 S.W.2d 754, 1935 Tenn. LEXIS 96 (1936).

6. —Contract Not to Pay Bid Unless Property Can Be Held.

The title of a purchaser at execution sale is not vitiated by the fact that he purchased the property under a contract with the plaintiff in the execution that he was not to pay the price bid for it unless he was able to hold it by law. Goodwin v. Floyd, 18 Tenn. 520, 1837 Tenn. LEXIS 75 (1837).

7. Rights After Satisfaction Set Aside.

The substituted purchaser has a claim against the estate which he may file in an insolvent proceeding to sell lands to pay debts, and receive his pro rata. The judgment proves itself, and should be allowed without further proof. The burden is upon the heirs to show that the estate is not liable. Vallentine v. Vallentine, 3 Shan. 539 (1875); Owen, Moseley & Co. v. Beard, 3 Tenn. Civ. App. (3 Higgins) 82 (1911).

Setting aside satisfaction does not restore parties to rights under original levy. The language of the Code does not allow such construction. Both § 26-5-114 and this section provide for setting aside the satisfaction and reviving the original judgment or decree, but not any previous execution or levy; and nothing can be revived, except what the statute expressly allows. Moreover, a revivor cannot be allowed to affect the rights acquired while the judgment was extinct. The fact that the purchaser was also the plaintiff in the execution makes no difference, if he is not repelled from court by his conduct. Mays v. Wherry, 3 Tenn. Ch. 80 (1875).

8. Reversal — Rights of Defendant Paying Judgment.

If the defendant pay a judgment which is afterwards reversed, he may have an order on the plaintiff, or on his personal representative if the plaintiff be dead, for the amount so paid to be restored to him. Gates v. Brinkley, 72 Tenn. 710, 1880 Tenn. LEXIS 80 (1880).

9. Preliminary Suit to Test Title — When Unnecessary.

Where the sale was made without the statutory notice of 20 days to the tenant in possession, or where the judgment debtor had no leviable interest in the land sold, or where the levy itself is void upon its face, a preliminary suit, to test the title to property properly sold, would be an idle and useless form. Anderson v. Lyons, 2 Cooper's Tenn. Ch. 61 (1874).

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

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

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

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

NOTES TO DECISIONS

1. Directory Nature of Section.

This section is merely directory, and an execution issued without compliance with it is not fatally defective. Wade v. Pratt, 59 Tenn. 231, 1873 Tenn. LEXIS 47 (1873).

2. Simultaneous Issuance to Different Counties or Premature Issuance of Alias.

The simultaneous issuance of two executions on the same judgment, directed to different counties, or the issuance of an alias execution before the return of both of such executions, is irregular, but cannot affect the liability of the sheriffs acting under such execution, or such alias execution. Wiseman v. Bean, 49 Tenn. 390, 1871 Tenn. LEXIS 22 (1871).

3. Void Execution.

Where plaintiff in error insisted that first of two executions issued by justice of peace (now general sessions court) was void, and same had been canceled by justice of peace (now general sessions court) before second was issued, invalidity of second execution could not properly be asserted by plaintiff in error under statute providing that no alias or pluries execution shall issue until the previous execution is returned or satisfactorily accounted for by affidavit. Saunders v. Moore, 21 Tenn. App. 375, 110 S.W.2d 1046, 1937 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1937).

26-1-109. When executions tested.

Court executions are tested the day of issuance.

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

Decisions Under Prior Law

1. Effect of Teste.

2. —Death of Debtor After Teste but Before Execution Issued.

Under an execution issued after, but tested before, the debtor's death, personalty belonging to his estate may be levied on and sold. Nashville Trust Co. v. Weaver, 102 Tenn. 66, 50 S.W. 763, 1898 Tenn. LEXIS 8 (1899).

3. —Special Term.

An execution on a judgment rendered at a special term, and issuing before the next regular term, must be tested as of the first day of such special term, and not as of the first day of the preceding regular term. Schaller & Gerke v. Wickersham, 47 Tenn. 376, 1870 Tenn. LEXIS 157 (1870).

4. —Accrual of Lien.

An execution is a lien upon all leviable property of the defendant from the date of its teste and avoids all intervening sales or assignments. John Weis, Inc. v. Reed, 22 Tenn. App. 90, 118 S.W.2d 677, 1938 Tenn. App. LEXIS 9 (Tenn. Ct. App. 1938).

A judgment creditor's execution lien on the debtor's automobile arose on the date the clerk and master issued a writ of execution. Keep Fresh Filters v. Reguli, 888 S.W.2d 437, 1994 Tenn. App. LEXIS 503 (Tenn. Ct. App. 1994).

5. —Subsequently Acquired Property.

Lien of execution by relation to its teste does not attach to subsequently acquired property, as where the bankrupt purchased property within 60 days of the petition, the property passed to the trustee freed from the execution lien, because it cannot relate to its teste more than four months before the filing of the petition, so as to attach to property not then owned by the bankrupt. In re Darwin, 117 F. 407, 1902 U.S. App. LEXIS 4447 (6th Cir. Tenn. 1902).

6. —Growing Crops.

A growing crop is not subject to execution lien and levy prior to the 15th of November, and the lien of the execution will not relate to its teste, so as to overreach or defeat a prior bona fide sale of the growing crop by the owner before the same is leviable. Edwards v. Thompson, 85 Tenn. 720, 4 S.W. 913, 1887 Tenn. LEXIS 15, 4 Am. St. Rep. 807 (1887); Cecil v. Carson, 86 Tenn. 139, 5 S.W. 532, 1887 Tenn. LEXIS 30 (1887).

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

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

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

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

Acts 1994, ch. 836, § 1.

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

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

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

Acts 2006, ch. 677, § 1.

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

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

Part 2
Time for Issuance

26-1-201. Issuance without demand.

The clerks of the several courts may issue executions in favor of the successful party on all judgments as soon after the adjournment of the court as practicable within the time prescribed by this code, without any demand of the party.

Code 1858, § 3002; Shan., § 4732; Code 1932, § 8866; T.C.A. (orig. ed.), § 26-111; Acts 1985, ch. 131, § 2.

Cross-References. Writs issued by chancery, § 21-1-802.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Clerks of Court, § 12; 12 Tenn. Juris., Executions, §§ 3, 5, 7.

Law Reviews.

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

NOTES TO DECISIONS

1. Regularity of Issuance of Execution — Presumption.

The presumption is, nothing to the contrary appearing, that the execution was regularly issued. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

2. Recoveries Covered.

Recoveries in all courts are included, decrees in chancery as well as judgments at law. Hyder v. Butler, 103 Tenn. 289, 52 S.W. 876, 1899 Tenn. LEXIS 107 (1899).

26-1-202. Time of issuance from Supreme Court.

Each clerk of the supreme court is authorized and directed to issue execution and writ of possession upon any final judgment or decree of the supreme court for such clerk's division at any time after the expiration of the ten (10) days allowed for the filing of petition to rehear after the final judgment or decree is rendered by the court.

Acts 1903, ch. 58, § 1; 1907, ch. 82, § 6; Shan., § 4733a1; mod. Code 1932, § 8867; mod. C. Supp. 1950, § 8867; T.C.A. (orig. ed.), § 26-112.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 679.

Tennessee Jurisprudence, 2 Tenn. Juris., Appeal and Error, § 51; 12 Tenn. Juris., Executions, § 3.

Law Reviews.

The Tennessee Court System — Court of Appeals (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 219.

NOTES TO DECISIONS

1. Purpose of Section.

The purpose of this section was to relieve from the delay on issuing executions in the supreme court and in the court of appeals, and not to extend the time for taking the case from the court of appeals to the supreme court on account of a petition filed for the finding of additional facts. Brosnan v. Lancaster, 96 S.W. 958, 1906 Tenn. LEXIS 107 (Tenn. 1906).

2. Cause When in Supreme Court.

This section did not apply where supreme court did not grant writ of certiorari until second petition for rehearing was filed since case was not in supreme court until writ was granted. McArthur v. Faw, 183 Tenn. 504, 193 S.W.2d 763, 1946 Tenn. LEXIS 230 (1946).

3. Section Inapplicable to Clerk of Court of Appeals.

Execution or other final process may not properly issue on a judgment or decree of the court of appeals until the lapse of 30 days after final disposition, including action on a petition to rehear. Third Nat'l Bank v. Keathley, 35 Tenn. App. 82, 242 S.W.2d 760, 1951 Tenn. App. LEXIS 117 (Tenn. Ct. App. 1951).

4. Waiver of Judgment Lien.

The issuance of execution upon the affirmance of the judgments in the supreme court against the executor and the sureties on the appeal bond, which were not levied or satisfied, does not operate as a waiver of the judgment lien. Bangess v. Partee, 2 Shan. 264 (1877).

26-1-203. Time of issuance from courts of record.

The clerks of the various courts of record may issue writs of possession and execution in any case at any time after thirty (30) days after judgment.

Code 1858, § 3005; Acts 1868-1869, ch. 47, § 1; 1870-1871, ch. 62, § 1; Shan., § 4734; mod. Code 1932, § 8868; T.C.A. (orig. ed.), § 26-113; Acts 1985, ch. 131, § 3.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 301, 309.

Law Reviews.

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

NOTES TO DECISIONS

1. Timely Issuance — Example.

An execution is legally and regularly issued, so as to require proceedings against the debtor's equitable realty to be commenced within 30 days after its return nulla bona, where it was issued during the term at which the judgment was rendered, but 30 days after its rendition. Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

26-1-204, 26-1-205. [Reserved.]

  1. After the adjournment of the court, and before the expiration of the time prescribed by §§ 26-1-202 — 26-1-206, the clerk shall issue execution without delay, upon affidavit made and filed in that clerk's office, that the defendant is about fraudulently to dispose of, conceal, or remove the defendant's property, to the endangering of plaintiff's debt.
  2. Upon the rendition of judgment or decree, execution may be issued, by leave of the court, before the adjournment thereof, the plaintiff or the plaintiff's agent or attorney of the plaintiff, showing sufficient cause by affidavit.
  3. In like manner, general sessions courts may, immediately after judgment and before the expiration of the time allowed by law for the stay of execution, issue execution on good cause shown by affidavit; and affidavit by the plaintiff, or the plaintiff's agent or attorney of the plaintiff, as prescribed in subsection (a), shall be good cause within the meaning of this subsection (c).
  4. The issuance of execution under subsections (b) and (c), shall not deprive the defendant of any right the defendant would otherwise have had.

Code 1858, §§ 3009-3012 (deriv. Acts 1835-1836, ch. 17, § 10); Shan., §§ 4737-4740; Code 1932, §§ 8871-8874; impl. am. Acts 1979, ch. 68, §§ 2, 3; modified; T.C.A. (orig. ed.), §§ 26-116 — 26-119.

Compiler's Notes. Sections 26-1-204 and 26-1-205, referred to in this section, were repealed by Acts 1985, ch. 131, § 3.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 5; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, §§ 32, 33.

Law Reviews.

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

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

The Procedural Details of the Proposed Tennessee Rules of Appellate Procedure, III. Security and Stay Pending Appeal (John L. Sobieski, Jr.), 46 Tenn. L. Rev. 23.

NOTES TO DECISIONS

1. Clerk's Powers and Duties.

After the adjournment of court, the clerk may issue execution at any time, and it is made his duty to issue it, upon affidavit filed that the defendant is about fraudulently to dispose of, conceal, or remove his property, thereby endangering the plaintiff's debt. Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880).

2. Presumed Regularity Upon Issuance Before Statutory Time.

An execution cannot properly issue before the time fixed by statute, without an order of court; but, nothing appearing in the record to the contrary, it will be presumed that a proper case was made out, and that the execution was regularly issued by authority of the court. Esselman v. Wells & Ewing, 27 Tenn. 482, 1847 Tenn. LEXIS 110 (1847); Clark v. Bond, 66 Tenn. 288, 1874 Tenn. LEXIS 126 (1874); Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880); Weaver v. Smith, 102 Tenn. 47, 50 S.W. 771, 1898 Tenn. LEXIS 7 (1899).

3. Insufficient Affidavit.

An execution prematurely issued within the time allowed for an appeal from a court of record, or by a justice (now general sessions court) within the time allowed to appeal or stay the justice's judgment, upon an insufficient affidavit, is merely irregular and not void, but valid until set aside, and no one, not even a garnishee, can take advantage of the irregularity, except the judgment debtor, nor even he collaterally, but only by certiorari and supersedeas, or by some other direct way. Stanley v. Nelson & Dickinson, 23 Tenn. 484, 1844 Tenn. LEXIS 145 (1844); Carpenter, Ross & Lockett v. Mechanics Sav. Bank, 69 Tenn. 202, 1878 Tenn. LEXIS 68 (1878); Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880); Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

An affidavit by the judgment creditor that “if execution was not issued instanter the debt would be lost” is insufficient to warrant the justice (now general sessions court) in issuing execution before the expiration of two days from the date of the judgment. Clark v. Bond, 66 Tenn. 288, 1874 Tenn. LEXIS 126 (1874).

4. Right to Complain of Premature Issuance.

The qualification made by subsection (c) can be availed of only by the defendant and if he permit a plaintiff to have execution issued before time for stay has elapsed, no one else can complain, there being no fraudulent collusion between defendant and creditors to defeat other creditors. Carpenter, Ross & Lockett v. Mechanics Sav. Bank, 69 Tenn. 202, 1878 Tenn. LEXIS 68 (1878).

26-1-207. Issuance on demand.

In all other cases, the clerk shall issue to the plaintiff, the plaintiff's agent or attorney, on demand, an execution on any judgment or decree to which the plaintiff is entitled. Any clerk, who fails or refuses to issue execution as prescribed in this section, forfeits five hundred dollars ($500), to be recovered by action, and is liable to the party aggrieved in damages, and commits a Class C misdemeanor, for which, upon conviction, such clerk shall be removed from office.

Code 1858, §§ 3013, 3014 (deriv. Acts 1832, ch. 3, §§ 1, 2); Shan., §§ 4741, 4742; mod. Code 1932, §§ 8875, 8876; modified; T.C.A. (orig. ed.), § 26-120; Acts 1989, ch. 519, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 617.

Tennessee Jurisprudence, 12 Tenn. Juris., Execution, §§ 5, 7; 18 Tenn. Juris., Mandamus, § 9.

Attorney General Opinions. Unauthorized practice of law by licensed collection agencies, OAG 86-159, 1985 Tenn. AG LEXIS 53 (9/10/86) .

Part 3
Endorsement and Docketing

26-1-301. Endorsement on execution.

The clerk shall endorse on the execution, when issued, the date and amount of the judgment, and the items of the bill of costs, written in words, and the amounts distinctly stated in figures, and the date of issuance.

Code 1858, § 3015 (deriv. Acts 1794, ch. 1, § 9; 1796, ch. 7, § 9; 1803, ch. 6, § 2); Shan., § 4743; Code 1932, § 8877; modified; T.C.A. (orig. ed.), § 26-121.

NOTES TO DECISIONS

1. Costs Not Itemized — Effect.

The failure to set out in words at length the items of the bill of costs on the execution will not invalidate a levy and sale thereunder. Warder v. Millard, 76 Tenn. 581, 1881 Tenn. LEXIS 49 (1881); Meadows v. Earles, 80 Tenn. 299, 1883 Tenn. LEXIS 172 (1883).

2. Omission in Recital of Amount — Supplying from Endorsement.

The omission of the word “hundred” in the recital of the amount of the judgment in the body of an execution may be supplied by the amount of the judgment endorsed in figures on the back of the execution, as required by law, because the endorsement is as much a part of the execution as the body of it. Warder v. Millard, 76 Tenn. 581, 1881 Tenn. LEXIS 49 (1881).

26-1-302. Docket entry.

The clerk shall also enter upon the execution docket the date of the issuance of such execution, and to what county and officer issued; the return of the officer, with the date of such return; the dates and amounts of all moneys received into or paid out of the office thereon; the entries to be made at the time of the issuance, receipt, or payment, as the case may be.

Code 1858, § 3016 (deriv. Acts 1831, ch. 8, § 2); Shan., § 4744; Code 1932, § 8878; T.C.A. (orig. ed.), § 26-122.

Law Reviews.

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

26-1-303. Penalties for failure to endorse or docket.

Any clerk neglecting § 26-1-301 or § 26-1-302 is liable to a penalty of one hundred twenty-five dollars ($125), to be recovered by action, one-half (½) to the informer and the other one-half (½) to the state, to damages at the suit of the party aggrieved, and commits a Class C misdemeanor, for which, on conviction, such clerk shall be removed from office.

Code 1858, § 3017 (deriv. Acts 1794, ch. 1, § 9); Shan., § 4745; Code 1932, § 8879; modified; T.C.A. (orig. ed.), § 26-123; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

26-1-304. Endorsement by executive officer.

  1. The officer to whom an execution is legally issued, shall, in like manner, endorse thereon the day on which such officer received it, any levy, sale or other act done by virtue thereof, with the date, and the dates and amounts of any receipts or payments in satisfaction thereof, the endorsements to be made at the time of the receipt or act done.
  2. Any officer, who fails or neglects to comply with the provisions of this section, forfeits one hundred twenty-five dollars ($125) to any person who will sue therefor, and also commits a Class C misdemeanor, for which, on conviction, such officer may be removed from office.

Code 1858, §§ 3018, 3019 (deriv. Acts 1794, ch. 1, § 9); Shan., §§ 4746, 4747; Code 1932, §§ 8880, 8881; T.C.A. (orig. ed.), § 26-124; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 28, 29.

Part 4
Return

26-1-401. When executions returnable.

  1. All executions issuing from the supreme court, court of appeals, circuit, chancery, criminal and special courts shall be returnable within thirty (30) days after the date of their issuance.
  2. All general sessions executions shall be returnable within thirty (30) days after the date of their issuance either to the court that issued them or to the court that has possession of the original judgment.

Code 1858, §§ 3021-3024 (deriv. Acts 1835-1836, ch. 6, § 10; ch. 17, § 4; Acts 1837-1838, ch. 190, § 2); Shan., §§ 4749-4752; mod. Code 1932, §§ 8883-8886; Acts 1955, ch. 270, § 1; impl. am. Acts 1979, ch. 68, §§ 2, 3; modified; T.C.A. (orig. ed.), §§ 26-125—26-128; Acts 1985, ch. 131, § 4.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 22, 28; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 32.

Law Reviews.

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

NOTES TO DECISIONS

Decisions Under Prior Law

1. Object of Statute.

The object of this statute is to secure promptness on the part of the sheriff, in the performance of his official duty, and in no degree to paralyze the vigor and effectiveness of the process itself. McDonough v. Prater, 2 Shan. 114 (1876).

2. Return Day — Executions in Full Force Thereon.

Executions remain in full force during the return day, and a sale of land made on that day under an execution is valid. Valentine v. Cooley, 20 Tenn. 38, 1839 Tenn. LEXIS 6 (1839), overruled in part, Browning v. Jones, 23 Tenn. 69, 1843 Tenn. LEXIS 19 (1843); Browning v. Jones, 23 Tenn. 69, 1843 Tenn. LEXIS 19 (1843).

3. Return Day — What Constitutes.

The first day of the term of court is the return day of the executions of the court. Browning v. Jones, 23 Tenn. 69, 1843 Tenn. LEXIS 19 (1843).

4. Status of Execution After Thirty Days.

Justice's execution is functus officio after 30 days, and consequently a levy and sale thereafter is a nullity. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Shannon v. Erwin, 58 Tenn. 337, 1872 Tenn. LEXIS 268 (1872).

5. Clerk's Order of Sale After Execution Return Levied.

Where an execution from the supreme court is levied upon land, and without sale returned by order of plaintiff, within the time prescribed by the statute, the supreme court clerk may, without direction of the court, issue an order of sale to the sheriff to sell the land. McDonough v. Prater, 2 Shan. 114 (1876).

26-1-402. Duties of executing officer.

Every sheriff or other officer to whose hands an execution may legally come shall give a receipt therefor, if required, and make sufficient return thereof, together with the money collected, on or before the return day as prescribed in § 26-1-401.

Code 1858, § 3025 (deriv. Acts 1837-1838, ch. 190, § 1); Shan., § 4753; Code 1932, § 8887; T.C.A. (orig. ed.), § 26-129.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 20, 22, 28.

NOTES TO DECISIONS

1. Executions Which Are Functus Officio.

Execution is functus officio, whenever the judgment has been paid. Harwell v. Worsham, 21 Tenn. 524, 1841 Tenn. LEXIS 61 (1841).

Execution is functus officio after the return day thereof. Clingman v. Barrett, 25 Tenn. 20, 1845 Tenn. LEXIS 3 (1845); Shannon v. Erwin, 58 Tenn. 337, 1872 Tenn. LEXIS 268 (1872).

Execution is functus officio when the officer has returned it with his endorsement thereon. Paine v. Hoskins, 71 Tenn. 284, 1879 Tenn. LEXIS 77 (1879).

26-1-206. Accelerated execution.

Chapter 2
Exemptions—Garnishment

Part 1
Exemptions

26-2-101. Short title.

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

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

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

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

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

Surviving spouse and minor children, §§ 30-2-10130-2-102.

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

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

Law Reviews.

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

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

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

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

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

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

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

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

NOTES TO DECISIONS

Decisions Under Prior Law

1. Constitutionality.

A constitutional provision or statute of a state, creating exemptions or increasing the amount of property which shall be exempt, is, as to the debts previously contracted, or judgments previously rendered, unconstitutional, because in violation of the U.S. Const., art. I, § 10; and such provision is also unconstitutional because in violation of the Tenn. Const., art. I, § 20. Deatherage v. Walker, 58 Tenn. 45, 1872 Tenn. LEXIS 225 (1872); Dickinson v. Mayer, 58 Tenn. 515, 1872 Tenn. LEXIS 295 (1872); Harris v. Austell, 61 Tenn. 148, 1872 Tenn. LEXIS 353 (1872); Gunn v. Barry, 82 U.S. 610, 21 L. Ed. 212, 1872 U.S. LEXIS 1292 (1872); Hannum v. McInturf, 65 Tenn. 225, 1873 Tenn. LEXIS 338 (1873); Douglass v. Gregg, 66 Tenn. 384, 1874 Tenn. LEXIS 148 (1874); Nichols v. Eaton, 91 U.S. 716, 23 L. Ed. 254, 1875 U.S. LEXIS 1427 (1875); Woodlie v. Towles, 68 Tenn. 592, 1877 Tenn. LEXIS 57 (1877); Edwards v. Kearzey, 96 U.S. 595, 24 L. Ed. 793, 1877 U.S. LEXIS 1704 (1877).

2. Construction with Other Acts.

The several exemption statutes must be considered and construed as constituting one system of laws, to be interpreted together. Denny v. White, 42 Tenn. 283, 1865 Tenn. LEXIS 59 (1865); Jordan v. Gower, 60 Tenn. 103, 1873 Tenn. LEXIS 419 (1873); Collier v. Latimer, 67 Tenn. 420, 1874 Tenn. LEXIS 392 (1874).

3. Federal Executions.

The exemptions under the state laws exist against executions in favor of the United States as well as against private persons. Fink v. O'Neil, 106 U.S. 272, 1 S. Ct. 325, 27 L. Ed. 196, 1882 U.S. LEXIS 1539 (1882). Compare with Rogers v. McKenzie, 48 Tenn. 514, 1870 Tenn. LEXIS 101 (1870).

4. Favorable to Debtor.

Exemption laws are to be broadly and liberally construed in favor of the debtor class so as to favor and promote the remedy the legislature intended to afford. Bachman v. Crawford, 22 Tenn. 213, 1842 Tenn. LEXIS 71 (1842); Wolfenbarger v. Standifer, 35 Tenn. 659, 1856 Tenn. LEXIS 37 (1856); Denny v. White, 42 Tenn. 283, 1865 Tenn. LEXIS 59 (1865); Richardson v. Duncan, 49 Tenn. 220, 1870 Tenn. LEXIS 218 (1870); Webb v. Brandon, 51 Tenn. 285, 1871 Tenn. LEXIS 164 (1871); Pyett v. Rhea, 53 Tenn. 136, 1871 Tenn. LEXIS 331 (Tenn. Sep. 27, 1871); Simons v. Lovell, 54 Tenn. 510, 1872 Tenn. LEXIS 80 (1872); Collier v. Latimer, 67 Tenn. 420, 1874 Tenn. LEXIS 392 (1874); Searcy v. Short, 69 Tenn. 749, 1878 Tenn. LEXIS 173 (1878); Ren v. Driskell, 79 Tenn. 642, 1883 Tenn. LEXIS 119 (1883); Byous v. Mount, 89 Tenn. 361, 17 S.W. 1037, 1890 Tenn. LEXIS 57 (1890); Harvey v. Harrison, 89 Tenn. 470, 14 S.W. 1083, 1890 Tenn. LEXIS 73 (1891); Collier v. Murphy, 90 Tenn. 300, 16 S.W. 465, 1891 Tenn. LEXIS 22, 25 Am. St. Rep. 698 (1891); Rose v. Wortham, 95 Tenn. 505, 32 S.W. 458, 1895 Tenn. LEXIS 123, 30 L.R.A. 609 (1895).

5. Nonresidents Not Covered.

The exemption laws are for the benefit of the residents of this state only, and not for nonresidents. Nonresidents who may be casually or transiently in this state, or have property in this state, do not come within the policy and provisions. Howkins v. Pearce, 30 Tenn. 44, 1850 Tenn. LEXIS 48 (1850); Carson v. Memphis & C. R. Co., 88 Tenn. 646, 13 S.W. 588, 1890 Tenn. LEXIS 2, 17 Am. St. Rep. 921, 8 L.R.A. 412 (1890); Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, 1913 Tenn. LEXIS 97, L.R.A. (n.s.) 1915A421 (1914).

6. Children of Deceased Persons.

If father and mother both be dead, the property is protected in the hands of the personal representative for the use of the children. Denny v. White, 42 Tenn. 283, 1865 Tenn. LEXIS 59 (1865).

7. Legislative Change.

Where some of the items of an account were contracted before the exemption law became operative, and some were contracted after that date, and judgment is taken in one action on the consolidated account as a whole, the execution issued on such judgment cannot be legally levied on the exempt property. Bachman v. Crawford, 22 Tenn. 213, 1842 Tenn. LEXIS 71 (1842).

Where property was not exempt when obligation was incurred, exemption which allowed by statute at time of execution was not available for debtor, since creditor cannot be deprived of reaching this property. Hair v. Ramsey, 165 Tenn. 149, 53 S.W.2d 381, 1932 Tenn. LEXIS 28 (1932).

The exemption laws, in effect when the obligation was created and not those in effect when execution issues, determine what personal property is exempt. Saunders v. Moore, 21 Tenn. App. 375, 110 S.W.2d 1046, 1937 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1937).

Where an indebtedness was created and judgment obtained during the time a $750 personal property exemption was in effect but execution was not issued until after the time that the amount of the exemption was reduced to $450, the debtor was only entitled to an exemption of $450. Majors v. Carter, 175 Tenn. 450, 135 S.W.2d 924, 1939 Tenn. LEXIS 60 (1940).

An exemption which exists by statute may be reduced or withdrawn by a later statute. Sherwin-Williams Co. v. Morris, 25 Tenn. App. 272, 156 S.W.2d 350, 1941 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1941).

Where a note was executed on November 20, 1937, but garnishment was issued on August 6, 1940, the exemption act of 1939 governs the exemptions and determines what property of the debtor is exempt from execution. Sherwin-Williams Co. v. Morris, 25 Tenn. App. 272, 156 S.W.2d 350, 1941 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1941).

8. Law of Forum.

Questions of exemptions are to be determined solely by the laws of the forum, thus suit on a note executed in Georgia which waived exemptions could not be relied on in Tennessee, since in Tennessee a stipulation in a note waiving the right of exemption is void as against public policy. Sherwin-Williams Co. v. Morris, 25 Tenn. App. 272, 156 S.W.2d 350, 1941 Tenn. App. LEXIS 105 (Tenn. Ct. App. 1941).

26-2-102. Part definitions.

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

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

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

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

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

NOTES TO DECISIONS

1. Exemption from Garnishment.

The exemption from garnishment under § 26-2-106 is available to independent contractors, as well as employees, to the extent that the compensation sought to be garnished is for personal services. In re Duncan, 140 B.R. 210, 1992 Bankr. LEXIS 675 (Bankr. E.D. Tenn. 1992).

Bankruptcy is not a form of garnishment as that term is defined in subdivision (3). Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

Tips are not to be included in the calculation of disposable wages for garnishment purposes under T.C.A. §§ 26-2-102 and 26-2-106(a). Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 2012 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 26, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 558 (Tenn. Aug. 15, 2012).

Ruling that tips were to be treated as wages for garnishment purposes under T.C.A. §§ 26-2-102 and 26-2-106(a) was reversed as the U.S. Department of Labor (DOL) Field Operations Handbook was accorded some deference as DOL had delegated authority to administer the Federal Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq., and the views were made in pursuance of official duty, based upon more specialized experience and broader investigations and information than was likely to come before a judge; the Handbook provided that tips were not to be included in the calculation of disposable wages for garnishment purposes. Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 2012 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 26, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 558 (Tenn. Aug. 15, 2012).

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

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

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

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

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

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

Law Reviews.

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

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

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

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

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

NOTES TO DECISIONS

1. Construction.

Debtor exemption statute did not make the prisoner's inmate trust account exempt from seizure to satisfy court costs where he did not timely exercise it and, even if he had, it was unavailable to avoid court costs assessed to him as an unsuccessful plaintiff. Montague v. Tenn. Dep't of Corr., 109 S.W.3d 735, 2003 Tenn. App. LEXIS 22 (Tenn. Ct. App. 2003).

2. Debtor's Equity Interest.

By adding the words “debtor's equity interest,” the general assembly made no change in the law as to exemptions in mortgaged personal property. In re Farris, 8 B.R. 186, 1981 Bankr. LEXIS 5131 (Bankr. E.D. Tenn. 1981).

Where a divorce decree left a bankruptcy debtor with a right to one-half the equity in real property, the debtor's interest was converted from real property to personal property, and she was entitled to an exemption subject to the $4,000 [now $10.000] limit of this section. In re Bumpass, 196 B.R. 780, 1996 Bankr. LEXIS 625 (Bankr. E.D. Tenn. 1996).

3. “Value” Defined.

“Value,” as used in this section, should be given the same meaning as “fair market value” in § 522(a)(2) of the Bankruptcy Code; this can be stated as the price which a willing seller under no compulsion to sell and a willing buyer under no compulsion to buy would agree to after the property has been exposed to the market for a reasonable amount of time. In re Sumerell, 194 B.R. 818, 1996 Bankr. LEXIS 407 (Bankr. E.D. Tenn. 1996).

In determining “value” under this section, there is no deduction for the transaction costs of a hypothetical sale of exempted property, since the debtors actually keep the property exempted under this section and there is no sale. In re Sumerell, 194 B.R. 818, 1996 Bankr. LEXIS 407 (Bankr. E.D. Tenn. 1996).

4. Nonpossessory, Nonpurchase Money Security Interest.

The state may circumvent the federal avoidance statute by excluding encumbered property from the state's list of exemptions, may specify the type of property interest which qualifies for the exemption and not just specify particular items of property and their amounts, and creditor in Chapter 7 case was entitled to retain nonpossessory, nonpurchase money security interest in debtor's household goods. In re Pine, 717 F.2d 281, 1983 U.S. App. LEXIS 24182 (6th Cir. Tenn. 1983), cert. denied, Pine v. Credithrift of Am., Inc., 466 U.S. 928, 104 S. Ct. 1711, 80 L. Ed. 2d 183, 1984 U.S. LEXIS 1724 (1984).

5. Tools of Trade.

The general assembly denominated the tools of trade exemption of § 26-2-111(4) as an “additional exemption” to be used in conjunction with and as a supplement to the $4,000 [now $10.000] personal property exemption provided by this section; the language of the two sections contains no indication of mutual exclusivity and no such interpretation should be provided by judicial gloss. Under the Tennessee exemptions, debtors may effectively exempt up to $4,750 [now $11,900] in “tools of the trade” if they elect to forego exemptions in other personal property. American Bank & Trust v. Miller, 30 B.R. 819 (M.D. Tenn. 1983).

6. Third Party Liens.

The debtor may exempt only that interest in property which is owned by him and unencumbered by third party liens. In re Pine, 717 F.2d 281, 1983 U.S. App. LEXIS 24182 (6th Cir. Tenn. 1983), cert. denied, Pine v. Credithrift of Am., Inc., 466 U.S. 928, 104 S. Ct. 1711, 80 L. Ed. 2d 183, 1984 U.S. LEXIS 1724 (1984).

7. Federal Tax Liens.

Federal tax lien which attached to depositor's funds in savings account was not extinguished by bank's subsequent exercise of setoff. United States v. Third Nat'l Bank, 589 F. Supp. 155, 1984 U.S. Dist. LEXIS 17136 (M.D. Tenn. 1984).

8. Chose in Action.

A chose in action is property in Tennessee. United States v. Third Nat'l Bank, 589 F. Supp. 155, 1984 U.S. Dist. LEXIS 17136 (M.D. Tenn. 1984).

Employee's age-discrimination claim became the property of her bankruptcy estate when she filed for bankruptcy four days after it accrued, and it did not amount to exempt property that could pass to her through bankruptcy; the employee did not list the claim among the exemptions in her petition, and even if she had, a $500,000 claim was too large for a debtor to retain. Auday v. Wet Seal Retail, Inc., 698 F.3d 902, 2012 FED App. 370P, 2012 U.S. App. LEXIS 22180 (6th Cir. Oct. 25, 2012).

9. Pension Plans.

Debtor was entitled to claim $2,200 of his vested interest in pension plan as exempt under this section. In re Faulkner, 79 B.R. 362, 1987 Bankr. LEXIS 1758 (Bankr. E.D. Tenn. 1987), overruled, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990), overruled on other grounds, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990).

10. Life Insurance Policy.

The parties' joint stipulations did not support a conclusion that the debtor's exemption in life insurance policy claimed as exempt in bankruptcy under this section was ineffective as to executions which may have been issued by the judgment creditor. In re Clemmer, 184 B.R. 935, 1995 Bankr. LEXIS 1077 (Bankr. E.D. Tenn. 1995).

11. Bankruptcy Filing Fees.

A debtor whose personal property did not reach the $4,000 [now $10.000] exemption level established in this section was permitted to have the Chapter 7 bankruptcy filing fee waived. In re Clark, 173 B.R. 142, 1994 Bankr. LEXIS 1908 (Bankr. W.D. Tenn. 1994).

12. Personal Property.

This section expressly requires that personal property claimed as exempt be “owned and possessed” by the debtor; thus debtor's diamond ring, which has been lost, did not qualify for this exemption. In re French, 177 B.R. 568, 1995 Bankr. LEXIS 103 (Bankr. E.D. Tenn. 1995).

Bankruptcy court rejected a creditor's argument that a nonpossessory, nonpurchase-money security interest in a big-screen television could not be avoided because such a television was a “luxury” item, because “luxury” was not mentioned as a factor limiting the exemptions for household goods under 11 U.S.C. § 522(f)(1)(B)(i); this fact was supported by the television's low value of $450, and T.C.A. § 26-2-103 exempts personal property valued at less than $4,000 [now $10.000]. In re Doss, 298 B.R. 866, 2003 Bankr. LEXIS 1367 (Bankr. W.D. Tenn. 2003).

Debtor was entitled to a personal property exemption, pursuant to T.C.A. § 26-2-103, for proceeds of his share of inherited real property that was sold prior to the petition date because under Tennessee law the real property was converted to personal property as of the sale date. In re Latham, 317 B.R. 733, 2004 Bankr. LEXIS 1822 (Bankr. E.D. Tenn. 2004).

Each debtor could claim a personal property exemption in vehicles pursuant to T.C.A. § 26-2-103 which were owned as tenants by the entireties by debtor husband and debtor wife even though certificates of title reflected only that wife was the registered owner. In re Hensley, 393 B.R. 186, 2008 Bankr. LEXIS 2493 (Bankr. E.D. Tenn. Aug. 12, 2008).

Debtors could not exempt more than one-half the value of jointly owned personal property and were required to amend their Schedule C to provide for an equal, one-half division of all jointly owned entireties personal property to the maximum $4,000 [now $10.000] in T.C.A. § 26-2-103. In re Hensley, 393 B.R. 186, 2008 Bankr. LEXIS 2493 (Bankr. E.D. Tenn. Aug. 12, 2008).

Where debtor breached a contract for sale before his petition date, his sole right in the defaulted contract as of the commencement of his Chapter 7 case was possessory. He could not claim a personal property exemption under Tennessee law in the amount that the trustee received from the sellers for trustee's abandonment of any interest that the estate had in the contract, as debtor's possessory interest was not a personal property interest but was a real property right. In re Dunn, — B.R. —, 2015 Bankr. LEXIS 1044 (Bankr. E.D. Tenn. Apr. 1, 2015).

While debtor and her husband were engaged in exemption planning, husband's transfer of half of proceeds of real property sale into his wife's account was not done with intent to defraud creditors; therefore, Trustee did not show that funds debtor wife sought to claim as exempt under Tennessee law were fraudulently obtained and subject to turnover. In re Hurt, 542 B.R. 798, 2015 Bankr. LEXIS 4397 (Bankr. E.D. Tenn. Dec. 31, 2015).

Debtor who was allowed to reopen his Chapter 7 bankruptcy case to disclose a pre-petition personal injury cause of action based on injuries he suffered after using a diabetes drug was allowed to claim portions of a postpetition personal injury settlement he received as exempt under both T.C.A. § 26-2-111 and T.C.A. § 26-2-103; the $7,500 personal injury exemption set forth in § 26-2-111 was a guideline for what could be claimed as a personal injury award, not a cap on all possible exemptions arising out of the same award, and because personal injury awards were personal property, they could, under the plain language of § 26-2-103, also be exempted up to $10,000 under that section's “wild-card” exemption. In re Smith, — B.R. —, 2019 Bankr. LEXIS 50 (Bankr. W.D. Tenn. Jan. 7, 2019).

13. Tax Refunds.

Even though exempt under state law, a tax refund was not exempt from distribution to creditors under a Chapter 13 bankruptcy plan where the debtor made no argument that the amount was necessary for the debtor's maintenance or support and where she had agreed that all tax refunds would go to the plan to repay creditors. Freeman v. Schulman (In re Freeman), 86 F.3d 478, 1996 FED App. 186P, 1996 U.S. App. LEXIS 15321 (6th Cir. Tenn. 1996).

Bankruptcy debtors who were spouses were each entitled to exempt one half of a tax refund, even though one spouse had no tax withheld from minimal earnings, since the debtors intermingled their income, deductions, exemptions, credits, and taxes and held the refund as tenants by the entireties, which refund was thus equally divided between them. In re Garbett, 410 B.R. 280, 2009 Bankr. LEXIS 2194 (Bankr. E.D. Tenn. Aug. 14, 2009).

14. Disposable Earnings.

Once disposable earnings are received and possessed by the debtor and the earnings are no longer governed by the exemption from garnishment of § 26-2-106, then the earnings possessed by the debtor become subject to the exemption in this section. Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

15. Checking Account Funds.

T.C.A. § 26-2-103 is the proper source of exemption for checking account funds. In re Vandeberg, 276 B.R. 581, 2001 Bankr. LEXIS 1870 (Bankr. E.D. Tenn. 2001).

Because funds in the Account were solely an asset of debtor husband, only he could claim the funds as exempt under T.C.A. § 26-2-103 and the exemptions claimed by him exceeded the allowable amount under § 26-2-103. In re Adams, 551 B.R. 828, 2016 Bankr. LEXIS 1830 (Bankr. E.D. Tenn. Apr. 25, 2016).

16. Annuity.

While debtor was entitled to exempt $8,340 in annuity payments resulting from settlement of personal injury lawsuit, debtor was not entitled to additional exemptions for actual bodily injury, wrongful death, or lost earnings as those were not encompassed in settlement; thus, Trustee could sell annuity payments above debtor's exemption amount because sale did not alter debtor's right to receive payments of her exemption amount in full, and proposed sale met standards for nonordinary course sales. In re Kennedy, 552 B.R. 183, 2016 Bankr. LEXIS 2199 (Bankr. E.D. Tenn. June 2, 2016).

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

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

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

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

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

Law Reviews.

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

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

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

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

NOTES TO DECISIONS

1. Wearing Apparel.

This section's requirement that the wearing apparel, which may include jewelry, be for the actual use of the debtor implies that it must at least be in the debtor's possession; thus debtor's diamond ring, which had been lost, did not qualify for this exemption. In re French, 177 B.R. 568, 1995 Bankr. LEXIS 103 (Bankr. E.D. Tenn. 1995).

Criteria to be considered in determining whether particular jewelry is “necessary and proper” wearing apparel include: (1) the nature of the items, i.e., are they commonly worn articles such as rings, earrings, bracelets, watches and necklaces; (2) how often are they worn by the debtor; (3) what occasions, if any, dictate the wearing of the jewelry; and (4) value. In re Hazelhurst, 228 B.R. 199, 1998 Bankr. LEXIS 1692 (Bankr. E.D. Tenn. 1998).

Where debtor testified that she no longer wore the costume jewelry and engagement ring given to her by her former husband, they could not be deemed “necessary and proper” wearing apparel. In re Hazelhurst, 228 B.R. 199, 1998 Bankr. LEXIS 1692 (Bankr. E.D. Tenn. 1998).

Diamond wedding band and jewelry did not constitute necessary and proper wearing apparel under the wearing apparel exemption, T.C.A. § 26-2-104, because they were not appropriate to the debtor's work of taking care of her children at home and were luxury items, considering their fifteen-thousand-dollar value; 11 U.S.C. § 523(a)(2)(C)(i), (ii), which excepted from discharge debts aggregating more than five hundred dollars for luxury goods; the one-thousand-two-hundred-twenty-five-dollar limitation in the federal bankruptcy exemption for jewelry; and the fact that Tennessee does not provide a specific exemption for jewelry. In re Lebovitz, 344 B.R. 556, 2006 Bankr. LEXIS 1044 (Bankr. W.D. Tenn. 2006), aff'd, Lebovitz v. Hagemeyer (In re Lebovitz), 360 B.R. 612, 2007 Bankr. LEXIS 971 (B.A.P. 6th Cir. 2007).

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

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

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

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

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

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

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

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

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

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

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

Law Reviews.

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

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

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

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

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

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

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

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

NOTES TO DECISIONS

1. In General.

A municipal power utility pension fund clearly fell within the exempt classification of this section. Coke v. Coke, 560 S.W.2d 631, 1977 Tenn. App. LEXIS 300 (Tenn. Ct. App. 1977).

Subsection (b) should be construed in accordance with the obvious intention of the drafters — IRC §§ 401(a), 403(a), 403(b), and 408 will be deemed joined in the disjunctive rather than the conjunctive. Therefore, each section stands independent of the other. In re Martin, 102 B.R. 639, 1989 Bankr. LEXIS 1049 (Bankr. E.D. Tenn. 1989).

A spendthrift clause in a debtor's pension plan was not enforceable by the debtor, as sole beneficiary and fiduciary, under nonbankruptcy law as used in 11 U.S.C. § 541(c)(2), and bankruptcy trustee could recapture contribution made on eve of filing. Hendon v. Raymond B. Yates, M.D., P.C. Profit Sharing Plan (In re Yates), 287 F.3d 521, 2002 FED App. 137P, 2002 U.S. App. LEXIS 7192 (6th Cir. Tenn. 2002), rev'd, Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 124 S. Ct. 1330, 158 L. Ed. 2d 40, 2004 U.S. LEXIS 1836 (2004).

Bankruptcy court disallowed a Chapter 7 debtor's claim that $61,646 he had in an individual retirement account (“IRA”) was exempt from creditors'  claims under T.C.A. § 26-2-105(b) and 11 U.S.C. § 522(b)(3)(C). Although the debtor offered a letter the Internal Revenue Service issued pursuant to I.R.C. § 7805 before he declared bankruptcy, which stated that his IRA satisfied the requirements of I.R.C. § 408(a), the Chapter 7 trustee rebutted the presumption set forth in 11 U.S.C. § 522(b)(4)(A) that the debtor's IRA was exempt from creditors'  claims by showing that the debtor engaged in a prohibited transaction under I.R.C. § 4975(c)(1)(B) when he gave a broker who held the funds in his IRA a lien on all of his accounts. In re Daley, 459 B.R. 270, 2011 Bankr. LEXIS 3945 (Bankr. E.D. Tenn. Oct. 11, 2011).

Where debtor, above the age of 59 1/2, used money from his IRA for interim funding for the purchase of a house before the home mortgage was put in place and deposited money back into the IRA within 60 days, the transactions did not destroy the exempt status of the IRA under T.C.A. § 26-2-111(1)(D) and § 26-2-105(b) because the 60-day rollover rule was not dependent on how the money was used in the interim and did not require that the exact same funds went back into the IRA when the rollover occurred. In re Chaudury, — B.R. —, 2018 Bankr. LEXIS 267 (Bankr. M.D. Tenn. Feb. 1, 2018).

2. Applicability.

Subsection (b) applies to any “retirement plan,” public or private, qualified under the designated sections of the Internal Revenue Code; thus, it has application to the TVA Retirement System plans in which the debtors claim an exemption. In re Bowman, 109 B.R. 789, 1990 Bankr. LEXIS 42 (Bankr. E.D. Tenn. 1990).

Roth Individual Retirement Accounts (IRAs) were not expressly included in the language of T.C.A. § 26-2-105 merely because they had not yet been created at the time of the enactment of the state statute; the structure and purpose of traditional and Roth IRAs are analogous and it is inconceivable that the Tennessee legislature would consciously choose to protect one and not the other. The recent amendment clarifying the exemption of Roth IRAs only serves to bolster this conclusion. In re Vandeberg, 276 B.R. 581, 2001 Bankr. LEXIS 1870 (Bankr. E.D. Tenn. 2001).

3. Residence.

The word “resident” as used in this section refers to legal residence or domicile, rather than actual residence. Coke v. Coke, 560 S.W.2d 631, 1977 Tenn. App. LEXIS 300 (Tenn. Ct. App. 1977).

Where the trial court failed to rule on defendant's domicile, and therefor it was unclear whether this section barred the garnishment of his pension payments, the court was powerless to achieve the same effect by issuing an injunction barring the garnishee from making any future pension payments to the defendant until further orders of the court. Coke v. Coke, 560 S.W.2d 631, 1977 Tenn. App. LEXIS 300 (Tenn. Ct. App. 1977).

4. Federal Preemption.

Subsection (b) is not preempted by the federal Employee Retirement Income Security Act of 1974 insofar as it permits a debtor to exempt from claims of creditors, other than the State of Tennessee, an individual retirement account qualified under the federal Internal Revenue Code. In re Martin, 102 B.R. 639, 1989 Bankr. LEXIS 1049 (Bankr. E.D. Tenn. 1989).

Subsection (b) is preempted by the Employee Retirement Income Security Act (ERISA) to the extent it purports to allow an exemption in an ERISA title I “retirement plan” qualified under IRC § 401(a). In re Messing, 114 B.R. 541, 1990 Bankr. LEXIS 1051 (Bankr. E.D. Tenn. 1990), aff'd, 1991 U.S. App. LEXIS 19755 (6th Cir. Aug. 22, 1991).

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

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

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

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

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

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

Law Reviews.

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

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

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

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

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

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

NOTES TO DECISIONS

1. Legislative Intent.

Since the Tennessee legislature closely modeled this section after 15 U.S.C. § 1673, using almost verabatim language, Tennessee has shown that it intends to have this section interpreted and applied consistently with 15 U.S.C. § 1673 and pre-existing case law interpreting that section. Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

2. Disposable Earnings.

A former insurance agent's renewal commissions are compensation for personal services, and as such, they are subject to this section. In re Duncan, 140 B.R. 210, 1992 Bankr. LEXIS 675 (Bankr. E.D. Tenn. 1992).

Once earnings come into the debtor's possession, creditors have the right to attach and execute on the earnings to collect debts except to the extent that another statutory exemption may apply. Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

Once disposable earnings are received and possessed by the debtor and the earnings are no longer governed by the exemption from garnishment in this section, then the earnings possessed by the debtor become subject to the exemption in § 26-2-102 [26-2-103]. Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

3. Exemption from Garnishment.

The exemption from garnishment under this section is available to independent contractors, as well as employees, to the extent that the compensation sought to be garnished is for personal services. In re Duncan, 140 B.R. 210, 1992 Bankr. LEXIS 675 (Bankr. E.D. Tenn. 1992).

The garnishment statute is not a general wage exemption statute; thus, the provision limiting to 25% the amount of disposable earnings that may be subject to garnishment did not create an exemption recognizable in bankruptcy. In re Lawrence, 205 B.R. 115, 1997 Bankr. LEXIS 102 (Bankr. E.D. Tenn. 1997), appeal dismissed, Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

Tips are not to be included in the calculation of disposable wages for garnishment purposes under T.C.A. §§ 26-2-102 and 26-2-106(a). Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 2012 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 26, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 558 (Tenn. Aug. 15, 2012)

Ruling that tips were to be treated as wages for garnishment purposes under T.C.A. §§ 26-2-102 and 26-2-106(a) was reversed as the U.S. Department of Labor (DOL) Field Operations Handbook was accorded some deference as DOL had delegated authority to administer the Federal Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq., and the views were made in pursuance of official duty, based upon more specialized experience and broader investigations and information than was likely to come before a judge; the Handbook provided that tips were not to be included in the calculation of disposable wages for garnishment purposes. Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 2012 Tenn. App. LEXIS 192 (Tenn. Ct. App. Mar. 26, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 558 (Tenn. Aug. 15, 2012)

4. Bankruptcy.

This section does not provide a bankruptcy exemption for a debtor's disposable earnings. Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

Where the debtor's fixed-term annuity was found to be on account of death, age or length of service as required by T.C.A. § 26-2-111(1)(D), and the monthly payment amounts would have been exempt from garnishment under T.C.A. § 26-2-106, the payments were exempt from the bankruptcy estate. In re Vickers, 408 B.R. 131, 2009 Bankr. LEXIS 1483 (Bankr. E.D. Tenn. June 2, 2009).

5. Duty of Employer.

Neither T.C.A. §§ 26-2-204, 26-2-106 nor any other provisions in that statutory scheme impose a duty on a garnishee employer to consider the effect of wage assignments or garnishments on the obligor's other employers, and no such duty exists; the trial court thus properly determined that the company did not have a legal reason for failing to withhold 25 percent of the father's net wages. Kendle v. Kendle, — S.W.3d —, 2018 Tenn. App. LEXIS 610 (Tenn. Ct. App. Oct. 18, 2018).

26-2-107. Exemptions for dependent children.

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

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

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

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

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

Law Reviews.

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

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

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

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

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

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

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

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

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

NOTES TO DECISIONS

Decisions Under Prior Law

1. “Exempted Property.”

The words “the exempted property,” include both personalty and the homestead. Lusk v. Hitt, 7 Tenn. App. 389, — S.W.2d —, 1928 Tenn. App. LEXIS 58 (Tenn. Ct. App. 1928).

2. “Leaving” Covered.

The statute covers a “leaving” that is not absconding. Ryther v. Blackwell, 113 Tenn. 182, 87 S.W. 260, 1904 Tenn. LEXIS 14 (1904).

26-2-110. Insurance benefits exempt.

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

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

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

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

Law Reviews.

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

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

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

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

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

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

NOTES TO DECISIONS

1. In General.

Proceeds recovered by personal representative under medical payment clause of liability insurance policy were free from claims of creditors including claim of hospital for services rendered to deceased following automobile accident prior to his death. In re Estate of Jennings, 212 Tenn. 107, 368 S.W.2d 289, 1963 Tenn. LEXIS 402 (1963).

2. Construction.

The accident insurance exemption allowed to Tennessee residents by T.C.A. § 26-2-110 may be in addition to the personal bodily injury exemption allowed by T.C.A. § 26-2-111. In re Thompkins, 263 B.R. 223, 2001 Bankr. LEXIS 707 (Bankr. W.D. Tenn. 2001).

Chapter 7 debtors were not precluded from amending their schedules to claim an exemption under T.C.A. § 26-2-110 in a portion of a payment their insurer made under the uninsured motorist provision of their automobile insurance policy because the court had already approved a $15,000 exemption they claimed under T.C.A. § 26-2-111 for bodily injury; although § 26-2-111 allowed each debtor to exempt up to $7,500 and only the male debtor was injured in an automobile accident, the trustee was precluded under Fed. R. Bankr. P. 4003 from contesting the debtors' claim that the female debtor was also entitled to a $7,500 exemption under § 26-2-111 because he did not file a timely objection to that claim. In re Reeves, 521 B.R. 827, 2014 Bankr. LEXIS 4872 (Bankr. E.D. Tenn. Nov. 26, 2014).

3. Nonexempt Accounts.

Where the debtor had the right to receive payments from his IRA at any time before reaching age 58 merely by paying the prescribed penalty, and could receive the funds as a lump sum payment, the IRA was not an exemptible annuity. In re Peeler, 37 B.R. 517, 1984 Bankr. LEXIS 6196 (Bankr. M.D. Tenn. 1984).

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

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

  1. The debtor's right to receive:
    1. A social security benefit, unemployment compensation, a Families First program benefit or a local public assistance benefit;
    2. A veterans' benefit;
    3. A disability, illness, or unemployment benefit, or a pension that vests as a result of disability;
      1. To the same extent that earnings are exempt pursuant to § 26-2-106, a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of death, age or length of service, unless:
  1. Such plan or contract was established by or under the auspices of an insider that employed the debtor at the time that the debtor's rights under such plan or contract arose;
  2. Such payment is on account of age or length of service; and
  3. Such plan or contract does not qualify under §§ 401(a), 403(a), 403(b), 408, 408A, or 409 of the Internal Revenue Code of 1954 (26 U.S.C. §§ 401(a), 403(a), 403(b), 408, 408A or 409);

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law Reviews.

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

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

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

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

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

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

NOTES TO DECISIONS

1. Construction.

Because the interpretation of this section arguably will affect the exemption rights of all citizens who permanently reside in Tennessee and receive alimony, the courts of Tennessee should first be given the opportunity to interpret the section and, pursuant to Rule 23 of the rules of the supreme court of Tennessee, the question should be certified by the bankruptcy court to the supreme court of Tennessee. Bradford Furniture Co. v. Storey (In re Storey), 172 B.R. 872, 1994 Bankr. LEXIS 1534 (Bankr. M.D. Tenn. 1994).

If the debtor's “right to receive” meant right to receive from a divorce settlement or litigation settlement or other contract right, then any debtor could shelter that income from creditors. Clearly, this is not what the legislature intended. In re Thurman, 255 B.R. 730, 2000 Bankr. LEXIS 1509 (Bankr. M.D. Tenn. 2000).

T.C.A. § 26-2-111 does not preclude a separate exemption by Tennessee residents for insurance benefits. In re Thompkins, 263 B.R. 223, 2001 Bankr. LEXIS 707 (Bankr. W.D. Tenn. 2001).

The accident insurance exemption allowed to Tennessee residents by T.C.A. § 26-2-110 may be in addition to the personal bodily injury exemption allowed by T.C.A. § 26-2-111. In re Thompkins, 263 B.R. 223, 2001 Bankr. LEXIS 707 (Bankr. W.D. Tenn. 2001).

2. Similarity with Federal Exemptions.

The Tennessee exemption under subdivision (2)(B) is virtually identical to the federal exemption set forth in 11 U.S.C. § 522(d)(11)(D). The legislative history to the federal exemption indicates that the provision is designed to cover payments in compensation of actual bodily injury, such as the loss of a limb, and is not intended to include the attendant costs that accompany such a loss, such as medical payments, pain and suffering, or loss of earnings. In re Haga, 48 B.R. 492, 1985 Bankr. LEXIS 6383 (Bankr. E.D. Tenn. 1985).

The Tennessee exemption under subdivision (3) is identical to the federal exemption set forth in 11 U.S.C.A. § 522(d)(11)(E). In re Haga, 48 B.R. 492, 1985 Bankr. LEXIS 6383 (Bankr. E.D. Tenn. 1985).

3. Federal Preemption.

This section is preempted by the Employee Retirement Income Security Act of 1974 (ERISA) and bankruptcy debtor could not exempt his interest in ERISA qualified pension and profit sharing plans. In re Sellers, 107 B.R. 152, 1989 Bankr. LEXIS 1877 (Bankr. E.D. Tenn. 1989).

While Employee Retirement Income Security Act-required anti-alienation clauses may preempt state law and preclude the use of judgment enforcement devices provided thereunder, they do not preclude inclusion of pension benefits in a debtor's bankruptcy estate by operation of federal law. In re Ridenour, 45 B.R. 72, 1984 Bankr. LEXIS 4617 (Bankr. E.D. Tenn. 1984), overruled, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990), overruled on other grounds, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990).

4. Retirement or Disability Income.

The rationale of the general assembly in enacting subdivision (1)(D) was to protect an individual's continued right to periodic income upon disability or retirement to the same extent such income was protected while that individual was an income-producing member of society. In re Clark, 18 B.R. 824, 1982 Bankr. LEXIS 4645 (Bankr. E.D. Tenn. 1982).

Subdivision (1)(D) is a recognition by the general assembly that there is a distinction between the payments made or to be made under a trust which forms the basis for a Keogh Plan and the assets which constitute the corpus of that trust. In re Clark, 18 B.R. 824, 1982 Bankr. LEXIS 4645 (Bankr. E.D. Tenn. 1982).

Where the debtor had the right to receive payments from his IRA at any time before reaching age 58 merely by paying the prescribed penalty, and could receive the funds as a lump sum payment, the IRA was not an exemptible annuity. In re Peeler, 37 B.R. 517, 1984 Bankr. LEXIS 6196 (Bankr. M.D. Tenn. 1984).

Proviso to subdivision (1)(D) barred debtor from exempting vested portion of his interest in pension plan. In re Faulkner, 79 B.R. 362, 1987 Bankr. LEXIS 1758 (Bankr. E.D. Tenn. 1987), overruled, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990), overruled on other grounds, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990); In re Cassada, 86 B.R. 541, 1988 Bankr. LEXIS 679 (Bankr. E.D. Tenn. 1988).

Amount received by chapter 7 debtor under the Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq., as surviving spouse of a U.S. department of energy employee, was fully exempt under T.C.A. § 26-2-111(1); the act fully vested in a surviving spouse the right to receive payment of the benefits if the covered employee was deceased, as if the surviving spouse was actually the covered employee. In re Luttrell, 313 B.R. 751, 2004 Bankr. LEXIS 1228 (Bankr. E.D. Tenn. 2004).

Pre-petition deposit of debtors'  social security disability funds into savings account in the name of debtor husband's mother for two months did not cause the funds to lose their exempt status because under the “first-in, first-out” approach, the funds were easily traceable both into and out of account, and the funds were commingled with only a minimal amount of the mother's money; therefore, the balance of those funds that were on deposit in debtors'  account when they commenced the bankruptcy was fully exempt under T.C.A. § 26-2-111(1)(A) and 42 U.S.C. § 407. In re Hensley, 393 B.R. 186, 2008 Bankr. LEXIS 2493 (Bankr. E.D. Tenn. Aug. 12, 2008).

5. —Individual Retirement Accounts.

The proceeds of an IRA are not exempt from the decedent's estate for the lawful claim of the ex-wife for alimony payments. Edwards v. Edwards, 713 S.W.2d 642, 1986 Tenn. LEXIS 834 (Tenn. 1986), cert. denied, 479 U.S. 1024, 107 S. Ct. 863, 93 L. Ed. 2d 819, 1987 U.S. LEXIS 3 (1987).

Where debtor, above the age of 59 1/2, used money from his IRA for interim funding for the purchase of a house before the home mortgage was put in place and deposited money back into the IRA within 60 days, the transactions did not destroy the exempt status of the IRA under T.C.A. § 26-2-111(1)(D) and § 26-2-105(b) because the 60-day rollover rule was not dependent on how the money was used in the interim and did not require that the exact same funds went back into the IRA when the rollover occurred. In re Chaudury, — B.R. —, 2018 Bankr. LEXIS 267 (Bankr. M.D. Tenn. Feb. 1, 2018).

6. Tools of Trade.

The specific $750 “tools of trade” exemption provided in this section does not preclude a debtor from claiming tools of trade as exempt under the general $4,000 [now $10,000] personal property exemption provisions of § 26-2-102 [26-2-103]. American Bank & Trust v. Miller, 30 B.R. 819 (M.D. Tenn. 1983).

Debtors' truck and trailer were not “tools” that fell within the ambit of subdivision (4). In re Nipper, 243 B.R. 33, 1999 Bankr. LEXIS 1687 (Bankr. E.D. Tenn. 1999).

7. Bankruptcy.

A debtor's exemptions are determined as of the date of the filing of the bankruptcy petition. Subdivision (1)(C) is intended to exempt only payments of disability benefits actually being paid at the time of commencement of the bankruptcy. In re Ridenour, 45 B.R. 72, 1984 Bankr. LEXIS 4617 (Bankr. E.D. Tenn. 1984), overruled, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990), overruled on other grounds, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990).

This section does not indicate a legislative intent to make § 26-2-106 an exemption for a debtor's disposable earnings in bankruptcy. Lawrence v. Jahn (In re Lawrence), 219 B.R. 786, 1998 U.S. Dist. LEXIS 4308 (E.D. Tenn. 1998).

Payments to be received by the debtor were not payments established “by the debtor” but were merely proceeds of a divorce settlement. The trustee did not object to the debtor's exemption of a portion of these funds to the extent that the exemption is claimed and limited pursuant to T.C.A. § 26-2-102. In re Thurman, 255 B.R. 730, 2000 Bankr. LEXIS 1509 (Bankr. M.D. Tenn. 2000).

Creditor was entitled to setoff any potential monetary judgment amounts awarded in favor of the debtor in a pending tort lawsuit against its judgment lien; although the debtor claimed that she was entitled to an exemption in proceeds awarded in a personal injury lawsuit, citing T.C.A. § 26-2-111, the debtor did not claim an exemption in any of the proceeds from the pending personal injury lawsuit against the creditor. In re Gregg, 371 B.R. 817,  2007 Bankr. LEXIS 3188 (Bankr. E.D. Tenn. July 2, 2007).

Where the debtor's fixed-term annuity was found to be on account of death, age or length of service as required by T.C.A. § 26-2-111(1)(D), and the monthly payment amounts would have been exempt from garnishment under T.C.A. § 26-2-106, the payments were exempt from the bankruptcy estate. In re Vickers, 408 B.R. 131, 2009 Bankr. LEXIS 1483 (Bankr. E.D. Tenn. June 2, 2009).

Because Tennessee opted out of the federal exemptions, under T.C.A. § 26-2-112, the terms of T.C.A. § 26-2-111(1)(D) were controlling as to whether debtor's deferred compensation plan could be exempted from his bankruptcy estate. As the plan allowed accelerated payments, it was not exempt. In re Lawless, — B.R. —, 2012 Bankr. LEXIS 3345 (Bankr. E.D. Tenn. July 20, 2012), aff'd, Lawless v. Newton (In re Lawless), — F.3d —, — ## FED App. ## (6th Cir.) —, 591 Fed. Appx. 415, 2014 U.S. App. LEXIS 24073 (6th Cir. Tenn. 2014).

Chapter 7 debtors were not precluded from amending their schedules to claim an exemption under T.C.A. § 26-2-110 in a portion of a payment their insurer made under the uninsured motorist provision of their automobile insurance policy because the court had already approved a $15,000 exemption they claimed under T.C.A. § 26-2-111 for bodily injury; although § 26-2-111 allowed each debtor to exempt up to $7,500 and only the male debtor was injured in an automobile accident, the trustee was precluded under Fed. R. Bankr. P. 4003 from contesting the debtors' claim that the female debtor was also entitled to a $7,500 exemption under § 26-2-111 because he did not file a timely objection to that claim. In re Reeves, 521 B.R. 827, 2014 Bankr. LEXIS 4872 (Bankr. E.D. Tenn. Nov. 26, 2014).

Debtor who was allowed to reopen his Chapter 7 bankruptcy case to disclose a pre-petition personal injury cause of action based on injuries he suffered after using a diabetes drug was allowed to claim portions of a postpetition personal injury settlement he received as exempt under both T.C.A. § 26-2-111 and T.C.A. § 26-2-103; the $7,500 personal injury exemption set forth in § 26-2-111 was a guideline for what could be claimed as a personal injury award, not a cap on all possible exemptions arising out of the same award, and because personal injury awards were personal property, they could, under the plain language of § 26-2-103, also be exempted up to $10,000 under that section's “wild-card” exemption. In re Smith, — B.R. —, 2019 Bankr. LEXIS 50 (Bankr. W.D. Tenn. Jan. 7, 2019).

8. Life Insurance.

A debtor may not exempt life insurance proceeds as payments for future earnings pursuant to subdivision (3). In re Crowell, 53 B.R. 555, 1985 Bankr. LEXIS 5530 (Bankr. M.D. Tenn. 1985).

Life insurance cannot be construed as any of the specific items covered by this statute. McLemore v. Huffines, 57 B.R. 740, 1985 U.S. Dist. LEXIS 23148, 1985 Bankr. LEXIS 6847 (M.D. Tenn. 1985).

9. Compensation for Loss of Future Earnings.

Debtor, who was seriously injured in an automobile accident, was entitled to exempt all of the annuity contract proceeds resulting from a settlement of that accident, since the entire annuity was reasonably necessary for the support of the debtor and the annuity, in excess of the $7,500.00 previously allowed as exempt under subdivision (2)(B), represented compensation of loss of future earnings of the debtor. In re Chaney, 151 B.R. 147, 1993 Bankr. LEXIS 401 (Bankr. W.D. Tenn. 1993).

While debtor was entitled to exempt $8,340 in annuity payments resulting from settlement of personal injury lawsuit, debtor was not entitled to additional exemptions for actual bodily injury, wrongful death, or lost earnings as those were not encompassed in settlement; thus, Trustee could sell annuity payments above debtor's exemption amount because sale did not alter debtor's right to receive payments of her exemption amount in full, and proposed sale met standards for nonordinary course sales. In re Kennedy, 552 B.R. 183, 2016 Bankr. LEXIS 2199 (Bankr. E.D. Tenn. June 2, 2016).

10. —Alimony.

The alimony exemption provided in this section is effective only if claimed in each judicial proceeding in which execution, seizure, or attachment of alimony is sought. Storey v. Bradford Furniture Co., 910 S.W.2d 857, 1995 Tenn. LEXIS 733 (Tenn. 1995).

11. Loss of Consortium.

Debtor-husband was not entitled to claim a $ 7,500 exemption, separate from the $ 7,500 bodily injury exemption claim by debtor-wife under T.C.A. § 26-2-111(2)(B), for his loss of consortium claim arising from a car accident involving the debtor-wife because the claim was compensation for pecuniary loss and excluded from the exemption. In re Chapman, 424 B.R. 823, 2010 Bankr. LEXIS 346 (Bankr. E.D. Tenn. Feb. 3, 2010).

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

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

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

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

Law Reviews.

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

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

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

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

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

NOTES TO DECISIONS

1. Constitutionality.

The “opt-out” statute is not unconstitutional even though § 26-2-301 is more restrictive than the federal bankruptcy exemption provisions. Rhodes v. Stewart, 705 F.2d 159, 1983 U.S. App. LEXIS 28941 (6th Cir. Tenn. Apr. 11, 1983), cert. denied, 464 U.S. 983, 104 S. Ct. 427, 78 L. Ed. 2d 361, 1983 U.S. LEXIS 2381 (1983).

2. Application of 11 U.S.C. § 522.

This “opt-out” statute prohibits Tennessee citizens from choosing the exemptions enumerated in 11 U.S.C. § 522(d). Consequently, in Tennessee, the exemptions available to a debtor in bankruptcy are those prescribed by state law and those nonsection 522(d) exemptions allowable under federal law. In re Norton, 30 B.R. 712, 1983 Bankr. LEXIS 6024 (Bankr. E.D. Tenn. 1983).

Tennessee debtors in bankruptcy are limited to state exemptions. In re Hackler, 35 B.R. 326, 1983 Bankr. LEXIS 4794 (Bankr. E.D. Tenn. 1983).

Pursuant to T.C.A. § 26-2-112, Tennessee has “opted out” of the federal exemptions enumerated in 11 U.S.C. § 522(d). In re Luttrell, 313 B.R. 751, 2004 Bankr. LEXIS 1228 (Bankr. E.D. Tenn. 2004).

Under T.C.A. § 26-2-112, debtors were bound by the bankruptcy exemptions under state law and could not claim the exemptions provided by 11 U.S.C. § 522. In re Chapman, 424 B.R. 823, 2010 Bankr. LEXIS 346 (Bankr. E.D. Tenn. Feb. 3, 2010).

3. Nonpossessory, Nonpurchase Money Security Interests.

Since the state “opt-out” statute (this section), on its face, declares that only the exemptions specified in 11 U.S.C. § 522(d) are superseded, this state exemption law cannot and should not be interpreted as an attempt to deny Tennessee residents the benefits of 11 U.S.C. § 522(f) which provides for the avoidance of nonpossessory, nonpurchase money security liens; the clear intent of the Tennessee legislature was to supersede only the specific monetary limits provided in § 522(d). American Bank & Trust v. Miller, 30 B.R. 819 (M.D. Tenn. 1983).

The state may circumvent the federal avoidance statute by excluding encumbered property from the state's list of exemptions, may specify the type of property interest which qualifies for the exemption and not just specify particular items of property and their amounts, and creditor in chapter 7 case was entitled to retain nonpossessory, nonpurchase money security interest in debtor's household goods. In re Pine, 717 F.2d 281, 1983 U.S. App. LEXIS 24182 (6th Cir. Tenn. 1983), cert. denied, Pine v. Credithrift of Am., Inc., 466 U.S. 928, 104 S. Ct. 1711, 80 L. Ed. 2d 183, 1984 U.S. LEXIS 1724 (1984).

4. Pending Cases.

This section applies to all pending bankruptcy cases in which timely objections to the application of federal exemptions has been made. In re Matheney, 35 B.R. 62, 1983 Bankr. LEXIS 5011 (Bankr. M.D. Tenn. 1983).

In holding this section valid and as successfully opting out of federal exemption scheme, the decision was applied to pending cases where objections had been raised, as well as future cases, because the change in decision was not unforeseeable, it enabled debtors to receive the benefits the legislature intended them to get, and there was no substantial hardship because the objections to the exemptions election were timely, and the debtors exemption election never finalized. In re Frye, 33 B.R. 653, 1983 Bankr. LEXIS 5305 (Bankr. M.D. Tenn. 1983).

5. Pension Benefits.

While Employee Retirement Income Security Act-required anti-alienation clauses may preempt state law and preclude the use of judgment enforcement devices provided thereunder, they do not preclude inclusion of pension benefits in a debtor's bankruptcy estate of operation of federal law. In re Ridenour, 45 B.R. 72, 1984 Bankr. LEXIS 4617 (Bankr. E.D. Tenn. 1984), overruled, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990), overruled on other grounds, In re Leamon, 121 B.R. 974, 1990 Bankr. LEXIS 2611 (Bankr. E.D. Tenn. 1990).

Because Tennessee opted out of the federal exemptions, under T.C.A. § 26-2-112, the terms of T.C.A. § 26-2-111(1)(D) were controlling as to whether debtor's deferred compensation plan could be exempted from his bankruptcy estate. As the plan allowed accelerated payments, it was not exempt. In re Lawless, — B.R. —, 2012 Bankr. LEXIS 3345 (Bankr. E.D. Tenn. July 20, 2012), aff'd, Lawless v. Newton (In re Lawless), — F.3d —, — ## FED App. ## (6th Cir.) —, 591 Fed. Appx. 415, 2014 U.S. App. LEXIS 24073 (6th Cir. Tenn. 2014).

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

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

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

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

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

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

    NOTICETO THE DEFENDANT OR DEFENDANTS:

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

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

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

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

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

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

NOTES TO DECISIONS

1. Failure to Exercise Exemption.

A debtor cannot exempt property under 11 U.S.C. § 522(b) that would not be exempt under state law because of a failure of the debtor to exercise his exemption as required by subsection (b) of this section. In re Norton, 30 B.R. 712, 1983 Bankr. LEXIS 6024 (Bankr. E.D. Tenn. 1983).

2. Prior Executions.

The parties' joint stipulations did not support a conclusion that the debtor's exemption in life insurance policy claimed as exempt in bankruptcy under § 26-2-102 [26-2-103] was ineffective as to executions which may have been issued by the judgment creditor. In re Clemmer, 184 B.R. 935, 1995 Bankr. LEXIS 1077 (Bankr. E.D. Tenn. 1995).

3. Liens.

The bankruptcy court overruled the creditor's objection to the debtor's claimed exemption under Tennessee state law where it found that the creditor's case law was no longer good law and the garnishment lien impaired an exemption that the debtor was entitled to under the Bankruptcy Code; the creditor's judicial lien could be avoided. In re Lafoon, 278 B.R. 767, 2002 Bankr. LEXIS 573 (Bankr. E.D. Tenn. 2002), aff'd, — F. Supp. 2d —, 2002 U.S. Dist. LEXIS 27405 (E.D. Tenn. June 13, 2002).

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

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

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

NOTES TO DECISIONS

1. Scope of Subsection (b).

Subsection (b) only pertains to the truth and sufficiency of a debtor's claim of exemption of personal property under §§ 26-2-102 [26-2-103] and 26-2-114, rather than a debtor's bad faith actions that occurred prior to claiming the exemption. In re Clemmer, 184 B.R. 935, 1995 Bankr. LEXIS 1077 (Bankr. E.D. Tenn. 1995); In re Sumerell, 194 B.R. 818, 1996 Bankr. LEXIS 407 (Bankr. E.D. Tenn. 1996).

In accord with In re Clemmer. SeeIn re Sumerell, 194 B.R. 818, 1996 Bankr. LEXIS 407 (Bankr. E.D. Tenn. 1996).

2. Rights After Notice.

The service of the garnishment notice created a lien upon the funds of the debtor in the hands of the garnishee and virtually made him a trustee of those funds, which, from the time of the service of notice, were in custodia legis, so that the garnishee had no right to deal with them except under the direction of the court. Cumberland Tel. & Tel. Co. v. Jenkins, 1 Tenn. Civ. App. (1 Higgins) 203 (1910) (decisions under prior law).

Part 2
Garnishment

26-2-201. Part definitions.

As used in this part:

  1. “Clerk” means a clerk of a court of general sessions, the courts of record or any other courts duly established under the laws of Tennessee;
  2. “Court” means the court of general sessions, the courts of record or any other courts duly established under the law of Tennessee;
  3. “Property, debts, and effects” includes real estate and choses in action, whether due or not, and judgments before a court; also money or stocks in an incorporated company.

Acts 1978, ch. 915, § 21; modified; T.C.A., § 26-231.

Cross-References. Short title of chapter, § 26-2-101.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment § 172; 12 Tenn. Juris., Executions, § 51.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

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

Issuance of execution in the form of fieri facias together with garnishment, OAG 84-187, 1984 Tenn. AG LEXIS 160 (6/22/84).

NOTES TO DECISIONS

1. Clerks of Court.

The legislature's revision of the garnishment statutes, which redefined “property, debts, and effects” to include judgments before all Tennessee courts, rather than merely judgments before (former) justice of the peace courts, did not change the common law rule that clerks of court are exempt from garnishment. Voyles v. State Farm Ins. Co., 743 S.W.2d 165, 1987 Tenn. App. LEXIS 2766 (Tenn. Ct. App. 1987).

2. Duty of Employer.

Neither T.C.A. §§ 26-2-204, 26-2-106 nor any other provisions in that statutory scheme impose a duty on a garnishee employer to consider the effect of wage assignments or garnishments on the obligor's other employers, and no such duty exists; the trial court thus properly determined that the company did not have a legal reason for failing to withhold 25 percent of the father's net wages. Kendle v. Kendle, — S.W.3d —, 2018 Tenn. App. LEXIS 610 (Tenn. Ct. App. Oct. 18, 2018).

26-2-202. Property, debts and effects liable to satisfy judgment.

All property, debts and effects of the defendant in the possession or under the control of the garnishee shall be liable to satisfy the plaintiff's judgment, from the service of the notice, or from the time they came into the plaintiff's hands, if acquired subsequent to the service of notice, and before judgment.

Acts 1978, ch. 915, § 21; T.C.A., § 26-231.

Cross-References. Action commenced by garnishment, title 29, ch. 7.

Garnishment on distress warrant, § 67-1-1203.

Property exempt, title 26, ch. 2, part 1.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 338.

Law Reviews.

Creditor's Rights — Garnishment of Claim for Personal Injury — Property Vesting in the Bankruptcy Trustee, 40 Tenn. L. Rev. 508.

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

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

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

The Collection of Debts from Insolvent and Fully Mortgaged Debtors (John A. Walker, Jr.), 43 Tenn. L. Rev. 399.

Attorney General Opinions. Single garnishment based on multiple judgments not authorized, OAG 98-018, 1998 Tenn. AG LEXIS 18(1/15/98).

NOTES TO DECISIONS

1. In General.

The Tennessee garnishment statute must be viewed as creating a supplementary action. Overman v. Overman, 412 F. Supp. 411, 1976 U.S. Dist. LEXIS 16480 (E.D. Tenn. 1976).

A garnishment proceeding in a federal removal case must be viewed as a supplemental and not independent civil action since it is an ancillary proceeding based on a valid, unsatisfied judgment and execution. Overman v. Overman, 412 F. Supp. 411, 1976 U.S. Dist. LEXIS 16480 (E.D. Tenn. 1976).

Original judgment constituted an ordinary personal money judgment in favor of the father against the daughter in the amount of $ 193,000, with no prohibition against garnishment or other means of execution or enforcement of the judgment, and therefore the father could enforce the original judgment by garnishment or any other means allowed by law. Ammons v. Longworth, — S.W.3d —, 2019 Tenn. App. LEXIS 559 (Tenn. Ct. App. Nov. 14, 2019).

2. Rights Statutory and Summary.

Garnishment is purely a statutory proceeding and is in derogation of the common law. General Truck Sales, Inc. v. Simmons, 208 Tenn. 51, 343 S.W.2d 884, 1961 Tenn. LEXIS 393 (1961).

3. Purpose.

Sole purpose of this section was to refer to those types of contract actions which are garnishable under state law, and had no application when read in light of actions based in tort. In re Anderson, 345 F. Supp. 840, 1972 U.S. Dist. LEXIS 12821 (E.D. Tenn. 1972), aff'd, Anderson v. University of Tennessee, 474 F.2d 1398, 1973 U.S. App. LEXIS 10713 (6th Cir. 1973).

4. Alternative Methods of Enforcement.

The holder of a judgment in Tennessee may seek enforcement either through execution under chapter 1 of this title or through garnishment, but there is no provision for supplementary proceedings for the collection of judgments aside from the supplementary procedure for examination. Nelson v. Maiden, 402 F. Supp. 1307, 1975 U.S. Dist. LEXIS 12131 (E.D. Tenn. 1975).

5. Property Subject to Garnishment.

Obligation of insurer, under settlement option elected by life insurance beneficiary to make installment 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).

6. Property Not Subject to Garnishment.

Rights to change maturity dates of annuity policies or to change the designated beneficiaries under the death benefit provisions, while they may be property, were not property in the possession of the issuers of the policies and therefore could not be reached by writs of garnishment directed at the issuers. Overman v. Overman, 570 S.W.2d 857, 1978 Tenn. LEXIS 637 (Tenn. 1978).

Although the issuers of annuity policies had an existing obligation to the issuee to make payments to him according to the terms of the annuities should he live until their dates of maturity, this obligation, whether it was characterized as a debt or as a chose in action, was not subject to garnishment because it is contingent on a future event — the issuee's survival until the dates of maturity. If he should die before the contracts mature, the issuers will never be indebted to the issuee in any amount. Overman v. Overman, 570 S.W.2d 857, 1978 Tenn. LEXIS 637 (Tenn. 1978).

While obligations that are certain, although not presently due, are subject to garnishment, obligations that are contingent, in that they may never become due, are not. Overman v. Overman, 570 S.W.2d 857, 1978 Tenn. LEXIS 637 (Tenn. 1978).

7. Clerks of Court.

Funds in the custody of clerks of the courts are funds in custodia legis, in the custody of the law, are not subject to execution at law and cannot therefore be reached by garnishment. Voyles v. State Farm Ins. Co., 743 S.W.2d 165, 1987 Tenn. App. LEXIS 2766 (Tenn. Ct. App. 1987).

The general assembly's revision of the garnishment statutes, which redefined “property, debts, and effects” to include judgments before all Tennessee courts, rather than merely judgments before (former) justice of the peace courts did not change the common law rule that clerks of court are exempt from garnishment. Voyles v. State Farm Ins. Co., 743 S.W.2d 165, 1987 Tenn. App. LEXIS 2766 (Tenn. Ct. App. 1987).

26-2-203. Summons of garnishee.

  1. The officer may summon, in writing, any person as garnishee, to appear at the court from which the execution is issued, or before any other court to whom the execution is returnable, as the case may be and answer the garnishment, at a time set by the clerk of the court not less than ten (10) business days after date of service, except that such ten-day requirement shall not apply when the execution was issued from a court and either the officer or the clerk of the court shall set the time when such garnishee shall appear.
  2. The summons to the garnishee shall notify the garnishee as follows:

    NOTICE — Although you have a longer time in which to answer the court concerning this garnishment, you must do the following on the same day you receive the garnishment, or on the next working day.  Determine if you possess or control money or property of the judgment debtor. If so, within that same time period, you shall furnish a copy of the garnishment summons and Notice to Judgment Debtor by mailing them first class, postage prepaid, to the judgment debtor's last known address as shown by your records, or by actual delivery to the judgment debtor. If the address shown by your records differs from that shown on this execution form, you shall also mail a copy of the garnishment and notice to the latter address.

  3. As used in this section, unless the context otherwise requires, “business day” means any day other than a Saturday, Sunday, legal holiday, or a day when the clerk's office is closed.
  4. If the service of the summons is made upon an employee of the garnishee rather than the garnishee, and such employee is also the judgment debtor, such summons is voidable by the court by reason of improper service. If the court so voids the summons for this reason, it shall not be effective as to the garnishee.

Acts 1978, ch. 915, § 22; T.C.A., § 26-232; Acts 1988, ch. 934, § 13; 2008, ch. 642, §§ 1, 2; 2009, ch. 393, §§ 1, 2; 2010, ch. 761, § 1.

Compiler's Notes. Acts 2009, ch. 393, § 3 provided that court clerks shall not be required to print new garnishment forms, but may, within their discretion, make any necessary changes to existing forms, without incurring costs, and only print new forms at their discretion.

Cross-References. Action commenced by garnishment, title 29, ch. 7.

Garnishment on distress warrant, § 67-1-1203.

Privilege of witness against process, § 24-2-106.

Service of garnishment summons, § 26-2-216.

Law Reviews.

Commencing an Action by Garnishment, 23 Tenn. L. Rev. 211.

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

Attorney General Opinions. Single garnishment based on multiple judgments not authorized, OAG 98-018, 1998 Tenn. AG LEXIS 18 (1/15/98).

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

Decisions Under Prior Law

1. In General.

The process of garnishment is a means to be resorted to for sequestering and appropriating the effects of a debtor, where property liable to execution, sufficient to satisfy the execution, cannot be found. It is a process additional to an execution, different from an execution, for, if the same thing, the execution alone would serve the purpose. English v. King, 57 Tenn. 666, 1873 Tenn. LEXIS 285 (1873).

As a condition precedent to garnishment on a judgment, an execution must have issued on the judgment. General Truck Sales, Inc. v. Simmons, 208 Tenn. 51, 343 S.W.2d 884, 1961 Tenn. LEXIS 393 (1961).

2. Accrual of Lien.

3. —Generally.

Garnishment fastens on any debt, whether due or not, owing by the garnishee, or any property of the debtor in his hands, either at the time of service of the notice in garnishment or at the time of answer or in the meantime. Lockett v. Beaver, 97 Tenn. 396, 37 S.W. 140, 1896 Tenn. LEXIS 158 (1896); Timothy Dry Goods Co. v. Hyde, 5 Tenn. App. 491, — S.W. —, 1927 Tenn. App. LEXIS 80 (Tenn. Ct. App. 1927).

4. —Priority of Lien.

The service of notice of garnishment does not have the retroactive effect of fixing a lien upon the effects of the judgment debtor, in the hands of the garnishee, from the teste of the execution. Therefore, an attachment, levied upon such effects, has priority over a garnishment subsequently served under an execution, although the teste of the execution antedated the levy of the attachment. English v. King, 57 Tenn. 666, 1873 Tenn. LEXIS 285 (1873).

5. —Second Garnishment.

Where an execution was alive, and a second garnishment was procured, and it and the judgment are still unsatisfied by the first garnishment, the second garnishment was valid. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

6. Bill of Discovery.

A garnishee has a right to file his bill of discovery against a plaintiff in an action at law and compel him to say whether his judgment against the debtor has not been satisfied in whole or in part, and to use the answer so obtained as evidence in the motion against himself. Hinkle v. Currin, 20 Tenn. 74, 1839 Tenn. LEXIS 17 (1839).

The right of a party to hold a garnishee liable to answer depends upon the existence in his favor of an unsatisfied judgment against his debtor, for, if it be satisfied, or if the debtor have property out of which it may be satisfied, he has no right to summon a garnishee. Hinkle v. Currin, 20 Tenn. 74, 1839 Tenn. LEXIS 17 (1839).

7. Corporation as Garnishee.

A bank corporation is subject to the process of garnishment, as the word “person” includes a “corporation.” Adams v. City of Memphis, 3 Shan. 392 (1875).

8. Governmental Immunity.

The same immunity against proceedings by garnishment which is extended to agencies of the government of this state extends to agencies of other governments, so that the salary of an employee of a railroad operated by the United States government was not subject to garnishment. Dickens v. Bransford Realty Co., 141 Tenn. 387, 210 S.W. 644, 1918 Tenn. LEXIS 100 (1919).

It is the policy of the state to hold immune from garnishment all governmental agencies. Home Owners' Loan Corp. v. Hardie & Caudle, 171 Tenn. 43, 100 S.W.2d 238, 1936 Tenn. LEXIS 58, 108 A.L.R. 702 (1936).

Home Owners Loan Corporation is a governmental agency immune from the provisions of this section with reference to garnishment as the act creating such agency discloses neither an express or implied intention to subject such agency to garnishment and since such agency has no property subject to execution, attachment or garnishment for the reason that all its funds are in custody of and under control of the treasurer of the United States so that process could not reach them. Home Owners' Loan Corp. v. Hardie & Caudle, 171 Tenn. 43, 100 S.W.2d 238, 1936 Tenn. LEXIS 58, 108 A.L.R. 702 (1936).

9. Judgment and Execution.

In order to sustain the garnishment and to obtain a judgment against the garnishee, there must be a valid, subsisting, and unsatisfied judgment against the defendant, and there must also be an execution shown by the record to exist. Seawell v. Murphy, 3 Tenn. 478, 1814 Tenn. LEXIS 38 (1814); Kaylor v. Brunswick & Bro., 53 Tenn. 235, 1871 Tenn. LEXIS 348 (1871); Nashville & C.R.R. v. Todd, 58 Tenn. 549, 1872 Tenn. LEXIS 298 (1872); Karr v. Schade, 75 Tenn. 294, 1881 Tenn. LEXIS 118 (1881); Bryant v. Bigelow, 77 Tenn. 135, 1882 Tenn. LEXIS 22 (1882); Walton v. Sharp, 79 Tenn. 578, 1883 Tenn. LEXIS 110 (1883).

Under this section the garnishment is in the nature of a sequestration of the judgment debtor, and not a distinct suit. It is an incidental proceeding in the main or original cause. It must be based on a valid, subsisting, unsatisfied judgment and execution against the judgment debtor. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

A valid, existing execution is essential to the validity of a garnishment. Saunders v. Moore, 21 Tenn. App. 375, 110 S.W.2d 1046, 1937 Tenn. App. LEXIS 40 (Tenn. Ct. App. 1937).

10. Jurisdiction to Try Garnishment.

A proceeding on execution by garnishment is in the nature of a sequestration of the effects of a debtor in the hands of his debtor for the payment of his debts, and may be tried by any tribunal, including a justice (now general sessions court), to the extent of its execution process; as, where a justice rendered judgment upon a note, within his jurisdiction but beyond his jurisdiction on an open account, he may render judgment against the garnishee indebted to the defendant by open account, for an amount sufficient to satisfy the execution, although he would not have jurisdiction of a direct suit upon the account because the amount thereof exceeded his jurisdiction. Cheairs v. Slaten, 22 Tenn. 101, 1842 Tenn. LEXIS 38 (1842).

11. —Place Where Garnishee to Appear.

The law contemplates a person's being summoned to appear at the place where the judgment on which the execution issued was entered; and so, the judgment being one of the Supreme Court, and having been entered and execution having been issued, while it was in session at Nashville, the garnishee is to be summoned to appear there. In re Mechanics' Bank & Trust Co., 144 Tenn. 495, 234 S.W. 332, 1921 Tenn. LEXIS 51 (1921).

12. Notice Requirements.

Garnishment notice must be issued by the execution officer, and not by the clerk of the court or the justice of the peace (now general sessions court) issuing the execution, and such notice issued by the clerk or justice may be avoided by demurrer to it. Hogshead v. Carruth, 13 Tenn. 226, 13 Tenn. 227, 1833 Tenn. LEXIS 147 (1833); Moody & Bigelow v. Alter, Winston & Co., 59 Tenn. 142, 1873 Tenn. LEXIS 36 (1873); Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880).

A judgment against a garnishee rendered without service of written notice, waiver thereof, or appearance is void. Verbal notice alone does not suffice. Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

13. Property Subject to Garnishment.

Funds of a levee district board were not subject to garnishment. Board of Directors v. Bodkin, 108 Tenn. 700, 69 S.W. 270, 1902 Tenn. LEXIS 18 (1902).

14. —Infant's Effects.

Where a judgment is properly rendered against an infant, one who became his surety for payment and satisfied the judgment may have resort by garnishment of infant's funds in the hands of his guardian, the garnishee. Dial v. Wood, 68 Tenn. 296, 1878 Tenn. LEXIS 12 (1878).

15. —Intangible Right.

Where an insurance company was garnishee and notice of garnishment was not served on it but service was accepted by the insurance commissioner, it was not effective to impound the intangible right under a policy, there being no manucaption or seizure of the policy or its proceeds. 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).

The voluntary appearance by answer of an insurance company as garnishee, which did not admit liability, could not operate to transfer to the custody of the court the intangible right alleged to exist in favor of the principal defendant against such company. 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).

16. —Salary Paid in Advance.

Where an employee is paid in advance the payments cannot be garnisheed since the garnishment process reaches only debts absolutely existing. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

17. Response of Officer.

Where on the day execution was issued the officer summoned the garnishee, without attempting to find personal property of the debtor but would have found no personal property if he had looked, made sufficient response on the back of the execution but did not return it to the justice (now general sessions court) and then again summoned the garnishee by use of the same execution within the 30 day limit and again made response and this time returned it to the justice the second garnishment was valid. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

18. Rights Statutory and Summary.

A garnishment proceeding predicated upon an execution in the hands of the sheriff is in the nature of a sequestration of the effects of the debtor for the payment of the judgment against him. It is purely statutory and summary in character. Rucker v. Aymett, 186 Tenn. 672, 212 S.W.2d 659, 1948 Tenn. LEXIS 597 (1948).

19. Suit by Principal Defendant Against Garnishee Pending Garnishment Proceedings.

The fact that proceedings are pending against garnishee does not preclude right of action by principal defendant against the garnishee. 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).

20. Waiver.

The appearance and answer of the garnishee will operate as a waiver of any objection to the garnishment summons or notice, or its service. Hearn v. Crutcher, 12 Tenn. 461, 1833 Tenn. LEXIS 79 (1833); Moody & Bigelow v. Alter, Winston & Co., 59 Tenn. 142, 1873 Tenn. LEXIS 36 (1873); Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880); Miller v. Wilson, 86 Tenn. 495, 7 S.W. 638, 1888 Tenn. LEXIS 1 (1888); Illinois Cent. R.R. v. Brooks, 90 Tenn. 161, 16 S.W. 77, 1891 Tenn. LEXIS 7, 25 Am. St. Rep. 673 (1891).

Though exemption of emoluments of municipal employees from garnishment on grounds of public policy may be invoked by either the employer or the employee and may not be waived by either, a creditor may reach a judgment against a municipality for fees due a former employee, where the municipality elects to submit to garnishment. Baird v. Rogers, 95 Tenn. 492, 32 S.W. 630, 1895 Tenn. LEXIS 121 (1895).

Although the justice's judgment against garnishee did not purport to be conditional and was incomplete and uncertain as respects the party against whom rendered, the defects were waived where garnishee appeared and took part in hearing on the merits without questioning its form. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

Appearance and answer by construction company operated as a waiver of debtor's objections to summons or garnishment. General Truck Sales, Inc. v. Simmons, 208 Tenn. 51, 343 S.W.2d 884, 1961 Tenn. LEXIS 393 (1961).

26-2-204. Examination of garnishee — Answer.

  1. The garnishee may be required to answer under oath:
    1. Whether such garnishee is, or was at the time of the garnishment, indebted to the defendant; if so, how and to what amount;
    2. Whether such garnishee had in possession or under such garnishee's control any property, debts, or effects belonging to the defendant, at the time of serving the notice, or has at the time of answering, or has had at any time between the date of service and the time of answering; if so, the kind and amount;
    3. Whether there are, to such garnishee's knowledge and belief, any and what property, debts, and effects in the possession or under control of any other, and what, person;
    4. Such other questions appearing on or attached to the original execution put to the garnishee by the court of the judgment creditor as may tend to elicit the information sought.
  2. The garnishee may appear and make an answer initially either in person or by filing a written answer.

Acts 1978, ch. 915, § 23; T.C.A., § 26-233; Acts 1986, ch. 761, § 1.

Cross-References. Appearance and answer by garnishee, § 29-7-103.

Law Reviews.

The Collection of Debts from Insolvent and Fully Mortgaged Debtors (John A. Walker, Jr.), 43 Tenn. L. Rev. 399.

Attorney General Opinions. Issuance of execution in the form of fieri facias together with garnishment, OAG 84-187, 1984 Tenn. AG LEXIS 160 (6/22/84).

NOTES TO DECISIONS

22. Rights And Obligations of Garnishee.

Neither T.C.A. §§ 26-2-204, 26-2-106 nor any other provisions in that statutory scheme impose a duty on a garnishee employer to consider the effect of wage assignments or garnishments on the obligor's other employers, and no such duty exists; the trial court thus properly determined that the company did not have a legal reason for failing to withhold 25 percent of the father's net wages. Kendle v. Kendle, — S.W.3d —, 2018 Tenn. App. LEXIS 610 (Tenn. Ct. App. Oct. 18, 2018).

Decisions Under Prior Law

1. Property Subject.

2. —Advance Payments.

Where an employee is paid in advance the payments cannot be garnisheed since the garnishment process reaches only debts absolutely existing. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

3. —“Debts” — Scope of Term.

The word “debts” does not include an intangible expectancy dependent on the will of the debtor, but a chose in action existent at time of levy. Van Vleet v. Stratton, 91 Tenn. 473, 19 S.W. 428, 1892 Tenn. LEXIS 17 (1892).

4. —Rents Payable to Mortgagee.

Where the garnishee answered that rents collected by him were payable to a mortgagee of the judgment debtor, the test of plaintiff's right to judgment against the garnishee is whether the judgment debtor might by suit against the garnishee recover such rents. Grannis-Blair Audit Co. v. Maddux, 167 Tenn. 297, 69 S.W.2d 238, 1933 Tenn. LEXIS 40 (1934).

5. Lien of Garnishment.

6. —Accrual.

The service of notice of garnishment does not have the retroactive effect of fixing a lien upon the effects of the judgment debtor, in the hands of the garnishee, from the teste of the execution. Therefore, an attachment, levied upon such effects, has priority over a garnishment subsequently served under an execution, although the teste of the execution antedated the levy of the attachment. English v. King, 57 Tenn. 666, 1873 Tenn. LEXIS 285 (1873).

Garnishment fastens on any debt, whether due or not, owing by the garnishee, or any property of the debtor in his hands, either at the time of service of the notice in garnishment or at the time of answer, or in the meantime. Lockett v. Beaver, 97 Tenn. 396, 37 S.W. 140, 1896 Tenn. LEXIS 158 (1896).

7. —Effect of Appeal.

Where, at time of service of garnishment, the garnishee's answer showed indebtedness by judgment, but later an appeal was prayed by the garnishee, there was a lien acquired by such service which was not displaced by the appeal which resulted in an affirmance. Davis v. King, 56 S.W. 1041, 1899 Tenn. Ch. App. LEXIS 150 (1899).

8. Formalities of Answer.

9. —Answer in Writing.

The answer of the garnishee should be clearly ascertained, and his approval of it distinctly shown, and it should be reduced to writing, and signed by him, as the most satisfactory mode of attesting his approval. When this is done, he is bound by it; but when this is not done, and the justice (now general sessions court) renders the judgment upon a mere verbal statement, the garnishee is not precluded from disputing the facts recited in the justice's judgment, upon appeal or certiorari and supersedeas from the justice. Foster v. Saffell, 31 Tenn. 90, 1851 Tenn. LEXIS 24 (1851); Moses v. McMullen, 44 Tenn. 242, 1867 Tenn. LEXIS 39 (1867); Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871); Nashville v. Potomac Ins. Co., 61 Tenn. 296, 1872 Tenn. LEXIS 375 (1872); Jones & Co. v. Pearce, Park & Co., 59 Tenn. 281, 1873 Tenn. LEXIS 59 (1873); Taylor v. Kain, 67 Tenn. 35, 1874 Tenn. LEXIS 323 (1874); Wyler, Ackerland & Co. v. Blevins, 113 Tenn. 528, 82 S.W. 829, 1904 Tenn. LEXIS 45 (1904).

10. —Oath Requirement.

Where plaintiff fails to object because garnishee's answer is not under oath, the requirement may be considered waived. Fleshman v. Trolinger, 18 Tenn. App. 208, 74 S.W.2d 1069, 1934 Tenn. App. LEXIS 22 (Tenn. Ct. App. 1934).

The answer of the garnishee does not have to be by oath unless it is demanded. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

11. Questions to be Asked.

Great latitude is properly given to the creditor as to what questions he may ask the garnishee, like a bill of discovery, which may help him in his search for assets. Van Vleet v. Stratton, 91 Tenn. 473, 19 S.W. 428, 1892 Tenn. LEXIS 17 (1892).

12. —Who May Put Questions.

Questions may be put to the garnishee by the court or the judgment creditor. Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871).

13. —Oral Examination.

Answers of garnishees which admitted debts of less than $1,000 owed by each of them to judgment debtor on bearer notes but that they did not know the true owners of the notes were not conclusive on garnisher since each answer involved amount of less than $1,000, hence garnisher was entitled to orally examine the individual garnishees. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

14. Contents of Answer.

15. —Purpose of Answer.

This obligation to answer is intended for the benefit of the judgment creditor, and for the purpose of eliciting the truth. Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871).

16. —Full Answer Requisite.

The garnishee cannot be permitted to answer so much as he may choose, and refuse to answer such questions as show a state of facts establishing his liability. If the answer is not full, or is otherwise imperfect, it may be amended, upon interrogatories which the court will compel the garnishee to answer. Moore v. Green, 23 Tenn. 299, 1843 Tenn. LEXIS 87 (1843); Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871); Wyler, Ackerland & Co. v. Blevins, 113 Tenn. 528, 82 S.W. 829, 1904 Tenn. LEXIS 45 (1904).

17. —Presumptions in Favor of Garnishee.

Where the garnishee was a corporation of which the judgment defendant was an officer, and the garnishee claimed that such defendant owed it the amount of a demand note introduced, it was incumbent on the garnishee to show why its check, equivalent to the amount of the note and claimed to be consideration therefor, bore the endorsement of its cashier after being endorsed by defendant. Talley v. Tigrett, 17 Tenn. App. 562, 69 S.W.2d 243, 1933 Tenn. App. LEXIS 90 (Tenn. Ct. App. 1933).

As a general rule, doubt must be resolved in favor of the garnishee in adjudging whether there is an indebtedness owing by him to the judgment debtor. Grannis-Blair Audit Co. v. Maddux, 167 Tenn. 297, 69 S.W.2d 238, 1933 Tenn. LEXIS 40 (1934).

18. —Ex Parte Answer — Sufficiency.

It is notorious that the common practice is for the garnishee to make an ex parte answer to the questions propounded. If this be defective or evasive, the plaintiff has the right to a public examination of the garnishee, who should then be called into court for that purpose. Foster v. Saffell, 31 Tenn. 90, 1851 Tenn. LEXIS 24 (1851); Jones & Co. v. Pearce, Park & Co., 59 Tenn. 281, 1873 Tenn. LEXIS 59 (1873).

The garnishee must appear in court and be examined. An ex parte statement prepared in the absence of the plaintiff and filed as an answer is not a compliance with the statutes regulating the practice upon this subject. Foster v. Saffell, 31 Tenn. 90, 1851 Tenn. LEXIS 24 (1851).

19. —Reexamination.

This section does not authorize a garnishee, once examined, who has had a full opportunity to discharge himself, to insist by motion on a reexamination. Pickler v. Rainey, 51 Tenn. 335, 1871 Tenn. LEXIS 171 (1871).

20. —When Answer Conclusive.

Answer of individual garnishee involving alleged debt of $1,610 to judgment creditor was conclusive on garnisher since amount in controversy was in excess of $1,000 and barred oral examination of garnishee. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

21. —Failure to Make Complete Answer.

Complainant, suing for failure of defendant, to which draft had been sent for collection, to remit proceeds, is not estopped, for failure to respond to defendant's request for advice as to defense to be made to garnishment proceedings against latter, where defendant failed to make a complete answer. Groveland Banking Co. v. City Nat'l Bank, 144 Tenn. 520, 234 S.W. 643, 1921 Tenn. LEXIS 54 (1921).

22. Rights and Obligations of Garnishee.

23. —Retain Possession of Property.

The Tennessee statute as developed in the form of a writ of garnishment requires the garnishee to retain possession of all property and effects of the defendant which are now or may hereafter come under control or into possession until he has made full answer to the garnishment. Lowenstein v. Levy, 212 F. 383, 1914 U.S. App. LEXIS 2088 (6th Cir. Tenn. 1914).

24. —Waiver of Objections.

The appearance and answer of the garnishee will operate as a waiver of any objections to the garnishment summons or notice, or its service. Hearn v. Crutcher, 12 Tenn. 461, 1833 Tenn. LEXIS 79 (1833); Moody & Bigelow v. Alter, Winston & Co., 59 Tenn. 142, 1873 Tenn. LEXIS 36 (1873); Miller, Stewart & Co. v. O'Bannon, 72 Tenn. 398, 1880 Tenn. LEXIS 33 (1880); Miller v. Wilson, 86 Tenn. 495, 7 S.W. 638, 1888 Tenn. LEXIS 1 (1888).

The appearance and answer of a garnishee, in the absence of a direct admission, is no waiver of the production in evidence of the original execution and the judgment, or certified execution on which it was issued. Miller v. Wilson, 86 Tenn. 495, 7 S.W. 638, 1888 Tenn. LEXIS 1 (1888).

25. —Notice.

Garnishee has sufficient notice of oral examination if served with subpoena duces tecum. Rucker v. Aymett, 186 Tenn. 672, 212 S.W.2d 659, 1948 Tenn. LEXIS 597 (1948).

Where the garnishees were served with a subpoena duces tecum to bring with them certain notes and papers relating to transactions with the judgment debtor, there was sufficient notice, and oral examination of the garnishees was authorized by this section. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

26. Examination by Supreme Court.

The supreme court has jurisdiction to conduct an examination of a garnishee, in aid of its final process, and the examination will be had before the clerk of the court, in the presence of counsel for the parties, and also of the defendant debtor, if he desires to intervene. Wyler, Ackerland & Co. v. Blevins, 113 Tenn. 528, 82 S.W. 829, 1904 Tenn. LEXIS 45 (1904).

26-2-205. Garnishee's answer — Effect.

The answer of the garnishee is not conclusive.

Acts 1978, ch. 915, § 24; T.C.A., § 26-234; Acts 1991, ch. 273, § 38.

NOTES TO DECISIONS

Decisions Under Prior Law

1. “Sum in Controversy” — Meaning.

“Sum in controversy” is the amount of alleged debt owed by garnishee and not the amount of judgment held by garnisher. Rucker v. Aymett, 186 Tenn. 672, 212 S.W.2d 659, 1948 Tenn. LEXIS 597 (1948).

In construing the words “sum in controversy,” we must consider that the statute never contemplated allowing a judgment creditor to litigate with a garnishee as to the amount of his debt to the judgment debtor where he admits in his answer that he owes in excess of $1,000. On the other hand, where the garnishee by his answer admits owing less than $1,000, the trial court, at the instance of the garnisher, will not be precluded from making a full investigation of the claim on the ground that the judgment to be satisfied is in excess of $1,000. Rucker v. Aymett, 186 Tenn. 672, 212 S.W.2d 659, 1948 Tenn. LEXIS 597 (1948).

2. Rights and Obligations of Garnishee.

3. —Showing to Warrant Judgment.

To authorize a judgment against the garnishee, his indebtedness must clearly appear in so many words, or from admitted facts which show his liability as a legal consequence. If the answer does not contain admissions sufficient to charge him, the garnishee must be discharged; and if the garnishee answers that he does not know whether he is indebted or not, or if his answer is not sufficiently specific to charge him, he must be discharged. Moore v. Green, 23 Tenn. 299, 1843 Tenn. LEXIS 87 (1843); Holland v. Mobile & O. R. Co., 84 Tenn. 414, 1886 Tenn. LEXIS 116 (1886); Groveland Banking Co. v. City Nat'l Bank, 144 Tenn. 520, 234 S.W. 643, 1921 Tenn. LEXIS 54 (1921).

4. —Burden of Proof.

In a garnishment proceeding a garnishee is not required to carry the burden of showing that he is not indebted to the judgment debtor, or that he is not conspiring with the debtor to conceal property of the latter from the claims of creditors. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

5. —Bill of Discovery by Garnishee.

The garnishee may file a bill of discovery against the execution creditor, when necessary for his defense, to ascertain whether the judgment had been paid, for it is a good defense to a garnishee summons based on an execution that the judgment upon which the execution issued had been paid. Hinkle v. Currin, 20 Tenn. 74, 1839 Tenn. LEXIS 17 (1839).

6. —Statements by Garnishee for His Protection.

It is the duty of the garnishee to state, in his answer, every fact within his knowledge, which destroyed the relation of debtor and creditor, previously existing between him and the defendant. If he fail to disclose a fact which would have prevented a judgment against him, he cannot afterwards set up that judgment in bar of a recovery on the debt he owed the defendant, and which he knew had passed into the hands of a third person, before he answered as garnishee. Conner v. Allen, 40 Tenn. 418, 1859 Tenn. LEXIS 117 (1859).

7. —Appeal by Garnishee — Affirmance.

Where a judgment debtor held judgment against the garnishee at time garnishment was served, but the garnishee, before answer, appealed from the judgment against him, the garnishment lien was still available to the garnishing creditor when the judgment appealed from was affirmed. Davis v. King, 56 S.W. 1041, 1899 Tenn. Ch. App. LEXIS 150 (1899).

8. —Protection of Garnishee by Judgment.

The principle protecting a garnishee who has been compelled to pay a debt to another can have no application, where the owner of the property attached is not before the court. Groveland Banking Co. v. City Nat'l Bank, 144 Tenn. 520, 234 S.W. 643, 1921 Tenn. LEXIS 54 (1921).

9. Effect of Answer.

10. —Controverting Answer — Extent of Right.

In cases involving less than $1,000, the garnishee's answer may be controverted and the true facts shown by the garnishment creditor. Carson v. Memphis & C. R. Co., 88 Tenn. 646, 13 S.W. 588, 1890 Tenn. LEXIS 2, 17 Am. St. Rep. 921, 8 L.R.A. 412 (1890); Wyler, Ackerland & Co. v. Blevins, 113 Tenn. 528, 82 S.W. 829, 1904 Tenn. LEXIS 45 (1904); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

11. —When Answer Conclusive.

Where the garnishee answers that he executed his individual negotiable note or bill, payable to defendant debtor, which he gave to another person to be delivered to such payee, but that he does not know where it is or who holds it, he does not show that he is indebted to the payee, the debtor of the garnishment creditor, and should be discharged. Turner v. Armstrong, 17 Tenn. 412, 1836 Tenn. LEXIS 72 (1836); Moore v. Green, 23 Tenn. 299, 1843 Tenn. LEXIS 87 (1843); Kimbrough v. Hornsby, 113 Tenn. 605, 84 S.W. 613, 1904 Tenn. LEXIS 54 (1904).

In cases where the amount in controversy is less than $50.00, the answer of the garnishee is not conclusive, but the plaintiff may controvert any of the facts contained therein. Smith v. Leonard, 1 Shan. 604 (1876).

Answer of individual garnishee involving alleged debt of $1,610 to judgment creditor was conclusive on garnisher since amount in controversy was in excess of $1,000 and barred oral examination of garnishee. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

12. —Failure to Make Complete Answer.

In a suit by a bank, owning and forwarding a draft for collection, for the failure of defendant collecting bank to remit proceeds, payment of such proceeds to another, by defendant as garnishee in proceedings to which the complainant was not a party, could not be justified on the ground that the complainant was estopped because defendant notified complainant of the garnishment proceedings and asked for advice as to what defense should be made, and received no response, where the defendant failed to make a complete answer to the garnishment proceedings, as by showing that the draft had been sent to it directly by complainant, and was, on its face, payable to the complainant. The defendant owed the complainant the duty of setting up such facts, even without specific directions as to what answer to make. Groveland Banking Co. v. City Nat'l Bank, 144 Tenn. 520, 234 S.W. 643, 1921 Tenn. LEXIS 54 (1921).

13. —Money Received on Title Bond.

No judgment can be rendered against a garnishee on a statement in his answer that he had given bond to convey land to the execution debtor, to which he had no title, and had received $200 on such contract, for the contract cannot be treated as absolutely void. Grace v. Maxfield, 25 Tenn. 328, 1845 Tenn. LEXIS 97 (1845).

14. —Remedy Where Answer Is False.

Where the “sum in controversy” is more than $1,000 the answer of the garnishee is conclusive. That is, the garnisher is not allowed to question it by any countervailing evidence. If the answer is false the remedy is a criminal prosecution for perjury. Rucker v. Aymett, 186 Tenn. 672, 212 S.W.2d 659, 1948 Tenn. LEXIS 597 (1948).

15. —Answer of Cogarnishee.

The liability of the garnishee is not to be established by coupling his answer with the answer of other garnishees, for the liability of each must rest upon his own answer. Moore v. Green, 23 Tenn. 299, 1843 Tenn. LEXIS 87 (1843); In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

16. Oral Examination.

17. —Practice.

Where the amount in controversy is less than $1,000, and the answer of the garnishee is indeterminate, the proper practice is, not to strike the answer, which is not conclusive, from the files, but to summon the garnishee before the court for further examination, and additional evidence may be heard, if necessary to a full determination of the matter. Wyler, Ackerland & Co. v. Blevins, 113 Tenn. 528, 82 S.W. 829, 1904 Tenn. LEXIS 45 (1904).

The answer of the garnishee not being conclusive when the amount in controversy is less than $1,000, the recognized practice is to summons the garnishee before the court for examination for development and consideration of the facts. J. C. Mahan Motor Co. v. Lyle, 167 Tenn. 193, 67 S.W.2d 745, 1933 Tenn. LEXIS 25 (1934).

18. —Amount Less than $1,000.

Answers of garnishees which admitted debts of less than $1,000 owed by each of them to judgment debtor on bearer notes but that they did not know the true owners of the notes were not conclusive on garnisher since each answer involved amount of less than $1,000, hence garnisher was entitled to orally examine the individual garnishees. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

The amount in controversy came to a total of $1610, and therefore the chancellor was without authority to conduct an oral examination. In re Jefferson's Appeal, 188 Tenn. 294, 219 S.W.2d 181, 1949 Tenn. LEXIS 341 (1949).

19. Chancery Jurisdiction.

20. —Relief Against Answer.

While the answer of the garnishee at law may be conclusive and not disputable in certain cases, in chancery the garnishee's answer to an attachment or garnishment bill is not conclusive on the complainant, and proof may be made and relief had against his answer in all such cases. Nashville v. Potomac Ins. Co., 61 Tenn. 296, 1872 Tenn. LEXIS 375 (1872).

21. —Exclusiveness of Garnishment Remedy.

Where no discovery is sought or needed, a bill by a judgment creditor, with execution return nulla bona and unsatisfied, will not lie in chancery to reach an asset or a debt which was leviable at law, where no obstacle or impediment was in the way of the enforcement of an execution by garnishment, and there was no lien, fraud, trust, nor equitable interest in the property. Bryan v. Zarecor, 112 Tenn. 503, 81 S.W. 1252, 1903 Tenn. LEXIS 118 (1904).

26-2-206. Execution awarded for property in garnishee's hands.

If, upon the answer and the examination of the garnishee, it appears that the garnishee has property, debts, or effects in the garnishee's hands or under the garnishee's control, liable for the plaintiff's debt, judgment may be entered, and execution awarded for the property, money, or effects, as the case may be, or so much thereof as will be sufficient to satisfy the plaintiff's debt and costs and all charges incident to the proceedings.

Acts 1978, ch. 915, § 25; T.C.A., § 26-235.

Decisions Under Prior Law

1. Appeal by Debtor.

The original debtor may appeal from a judgment rendered against the garnishee, though the latter does not complain. Kalisky v. Currey, 68 Tenn. 214, 1877 Tenn. LEXIS 20 (1877).

2. Attorney's Fees.

Although a garnishee is entitled to compensation and privileges of a witness for his attendance and answer under § 29-7-108, 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).

3. Defects in Form of Judgment.

Where garnishee appeared and took part in the hearing on the merits, without raising the question, he is deemed to have waive right to contend that judgment was not in proper form, where that judgment was incomplete and uncertain as to party against whom, it was rendered. Rowland v. Quarles, 20 Tenn. App. 470, 100 S.W.2d 991, 1936 Tenn. App. LEXIS 38 (Tenn. Ct. App. 1936).

4. Garnishee When Maker of Bearer Notes.

The chancellor was in error in directing the several garnishees, makers of bearer notes, to make all future payments on the notes to the clerk and master, upon the judgment creditor's giving an indemnity bond, where it did not appear who was the holder of the notes. In re Rice's Appeal, 188 Tenn. 284, 219 S.W.2d 177, 1949 Tenn. LEXIS 340 (1949).

5. “Liable for the Plaintiff's Debt” — Application of Phrase.

Unless it shall appear to the court that the effects or moneys discovered by the answer of the garnishee are “liable for the plaintiff's debt,” the garnishee will be discharged, for the money or property of a third party will not be impounded to pay the plaintiff's debt, and if the garnishee is mistaken as to the ownership thereof, he will be discharged. Smith v. Leonard, 1 Shan. 604 (1876).

6. Money Judgment Against Garnishee.

Where the garnishee has in his hands property or effects other than money dues belonging to a debtor, a personal money judgment against the garnishee for value of the property is void. The judgment should order the property to be delivered up for sale. Barrett v. Thomas, 1 Shan. 43 (1850); Byrn v. Blackman, 94 Tenn. 569, 29 S.W. 961, 1894 Tenn. LEXIS 70 (1895).

Where the garnishee only has in his possession certain specific notes or other effects of the execution debtor, and is in no way indebted to such execution debtor, no money judgment should be rendered against such garnishee in the first instance, but a judgment should be entered and execution awarded for such specific notes or effects only, or for so much thereof as may be sufficient to satisfy plaintiff's debt; and if the garnishee fails to deliver such notes or effects to the officer serving the garnishment, on demand, and return is made on the execution of that fact, then a money judgment shall be rendered against such garnishee; but such judgment rendered in the first instance is void as against creditors who by subsequent valid proceedings, successfully impounded the debtor's notes or effects in the hands of such garnishee. Byrn v. Blackman, 94 Tenn. 569, 29 S.W. 961, 1894 Tenn. LEXIS 70 (1895).

26-2-207. Notice to other persons holding defendant's property.

So, also, if the garnishee's examination shows that any property, debts, or effects of the defendant are probably in the hands of other persons, the court shall, on the application of the plaintiff, issue notice to such persons to come forward and answer as garnishees, and the same proceedings may be had as in other cases.

Acts 1978, ch. 915, § 26; T.C.A., § 26-236.

26-2-208. Delivery of garnisheed property — Judgment for nondelivery.

As soon as the property is declared to be the property of the defendant, under §§ 26-2-206 and 26-2-207, it shall be delivered up to the officer serving the garnishment, on demand. On failure to deliver such property, and a return made on the execution of that fact, judgment shall be entered immediately against the garnishee, for the debt and costs.

Acts 1978, ch. 915, § 27; T.C.A., § 26-237.

Attorney General Opinions. Permissibility of multiple garnishments based on single execution, of directing garnishment summonses to “all banks in the county” and of serving executions on garnishees who answer immediately that they have property of judgment debtor, OAG 92-09, 1992 Tenn. AG LEXIS 9 (2/19/92).

26-2-209. Failure to appear or answer.

The date garnishee's answer is received by the court clerk shall be noted on the docket book in the proper manner, whether or not the answer discloses any property subject to garnishment. If the garnishee fails to appear or answer, a conditional judgment may be entered against the garnishee for the plaintiff's debt, upon which a notice shall issue to the garnishee returnable at such time as the court may require, to show cause why judgment final should not be rendered against the garnishee. On failure of the garnishee to appear and show cause, the conditional judgment shall be made final, and execution awarded for the plaintiff's entire debt and costs.

Acts 1978, ch. 915, § 28; T.C.A., § 26-238.

Law Reviews.

The Collection of Debts from Insolvent and Fully Mortgaged Debtors (John A. Walker, Jr.), 43 Tenn. L. Rev. 399.

NOTES TO DECISIONS

1. Purpose of Section.

The obvious purpose underlying this section is to induce satisfaction of garnishments by threatening potentially recalcitrant employers with a penalty in excess of the amount of the garnishment. Young v. Young, 547 F. Supp. 1, 1980 U.S. Dist. LEXIS 10074 (W.D. Tenn. 1980), superseded by statute as stated in, Jacobson v. United States, 422 N.J. Super. 561, 2011 N.J. Super. LEXIS 187 (App.Div. 2011).

2. Pre-Conditions to Final Judgment.

The only pre-condition under this section to entry of a final judgment against a garnishee is the garnishee's failure to answer the garnishment and appear at the show cause hearing. NCNB Nat'l Bank v. Thrailkill, 856 S.W.2d 150, 1993 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1993).

The fact that the garnishee may not owe any money to or hold any property of the judgment debtor is irrelevant to entry of a final judgment under this section. NCNB Nat'l Bank v. Thrailkill, 856 S.W.2d 150, 1993 Tenn. App. LEXIS 106 (Tenn. Ct. App. 1993).

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).

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).

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).

Both T.C.A. § 26-2-209 and T.C.A. § 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).

26-2-210. Levy of execution on land.

If an execution is issued by a court that is not a court of record and a levy is made upon land or an interest in land, then the execution and other papers in connection therewith shall be returned to the circuit court of the county for condemnation as in other cases of the levy of a court's execution on land.

Acts 1978, ch. 915, § 29; T.C.A., § 26-239.

Cross-References. Execution on real property, § 16-15-804.

26-2-211. Execution stayed until choses in action become due.

Execution of the garnishment judgment may be stayed until the choses in action fall due, and the court may order them to be collected, or if necessary, sold, as may be deemed just and proper.

Acts 1978, ch. 915, § 30; T.C.A., § 26-240.

Cross-References. Right of garnishee to stay, § 29-7-118.

26-2-212. Certificate given to garnishee stating date and amount of judgment.

The garnishee against whom judgment has been rendered is entitled to a certificate from the clerk stating the date and amount of the garnishment judgment, in whose favor and in what case rendered. Such certificate shall have all the force and effect of a receipt against the original debt, and entitle the garnishee to a credit to the amount thereof on the original judgment, or on the execution if already issued, to be entered by the officer.

Acts 1978, ch. 915, § 31; T.C.A., § 26-241.

26-2-213. Lien upon debts due and payable in future.

If upon disclosure made on oath by the debtor it appears that the garnishee is indebted to the defendant, but that the debt is not payable and will not become due until some future time, then such judgment as the plaintiff may recover shall constitute a lien upon the debt until and at the time it becomes due and payable.

Acts 1978, ch. 915, § 32; T.C.A., § 26-242.

26-2-214. Garnishment of compensation due from garnishee.

  1. Upon the garnishment of earnings due from a garnishee, the garnishee shall:
    1. Pay the judgment debtor the amount of such debtor’s exempt earnings;
    2. Submit as a part of the judgment debtor’s answer to the garnishment a statement of the judgment debtor’s dependent children under sixteen (16) years of age who are residents of this state; and
    3. Furnish the judgment debtor with a copy of the garnishment summons containing the notice of the judgment debtor’s right to the exemptions from wage garnishment specified in federal law and in §§ 26-2-106 and 26-2-107 of the right to apply to the court for an order staying further garnishment and allowing the judgment debtor to pay the judgment in installments, and of procedures the judgment debtor can follow to contest the garnishment.
    1. To the extent of the amount due upon the judgment and costs, the garnishee shall hold, subject to the order of the court, any nonexempt earnings due or that subsequently become due. The judgment or balance due is a lien on earnings due at the time of the service of the execution. The lien shall continue as to subsequent earnings until the total amount due upon the judgment and costs is paid or satisfied, or until the expiration of the payment period immediately prior to six (6) calendar months after service of the execution, whichever occurs first. The lien on subsequent earnings shall terminate sooner if the relationship between judgment debtor and garnishee is terminated or if the underlying judgment is vacated or modified.
    2. A lien obtained under this section shall have priority over any subsequent liens obtained under this section.
  2. Nothing in this section with respect to the relationship between the judgment debtor and the garnishee shall be construed to affect the underlying relationship of the parties, including, but not limited to, the relationship of employer-employee or the independent contractor relationship as otherwise provided by law.

Acts 1978, ch. 915, § 33; T.C.A., § 26-243; Acts 1988, ch. 934, § 14; 1993, ch. 258, §§ 1, 2; 1994, ch. 827, § 1; 2016, ch. 851, § 1.

Code Commission Notes.

Acts 1993, ch. 258, § 1, which purported to amend subdivision (b)(1) of this section, is not codified. Section 1, which states, in relevant part, that subdivision (b)(1) is amended by deleting “or until the expiration of the employer's payroll period immediately prior to six (6) calendar months after service of the execution, whichever occurs first,” attempts to delete language which is not in the section. The attorney general and reporter stated in Opinion No. 93-50, dated July 23, 1993, that this amendment is subject to three possible interpretations and that “due to irregularities in the enactment of Public Chapter 258, however, this Office cannot definitively state which interpretation should be followed and such determination can only be made either through further legislative or judicial action.”

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

Attorney General Opinions. Garnishment of employee tips, OAG 85-215, 1985 Tenn. AG LEXIS 75 (7/24/85).

Effect of public chapter 258 on T.C.A. § 26-2-214, OAG 93-50, 1993 Tenn. AG LEXIS 48 (7/23/93).

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

NOTES TO DECISIONS

1. Property Levied Upon.

The property of the debtor which is levied upon pursuant to a wage garnishment is the debt between the debtor and his or her employer and that debt does not come into existence until wages are earned by the debtor. In re Perry, 48 B.R. 591, 1985 Bankr. LEXIS 6279 (Bankr. M.D. Tenn. 1985).

2. Applicability.

Realty company was not subject to a six-month, continuous garnishment, when a bank served a writ of garnishment on the company for the wages of the bank's debtor, because it was undisputed that the debtor, to whom the company paid commissions, was not an employee of the company. Suntrust Bank v. Burke, 491 S.W.3d 693, 2015 Tenn. App. LEXIS 48 (Tenn. Ct. App. Feb. 2, 2015), appeal denied, SunTrust Bank v. Burke, — S.W.3d —, 2015 Tenn. LEXIS 537 (Tenn. June 15, 2015).

26-2-215. Employer to remit withheld moneys to court.

The employer garnishee shall remit to the court all moneys withheld as provided under § 26-2-214 not less than one (1) time each calendar thirty (30) days.

Acts 1978, ch. 915, § 34; T.C.A., § 26-244.

Textbooks. Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 139; 4 Tenn. Juris., Bankruptcy, § 8.

NOTES TO DECISIONS

1. Debtor's Interest.

This section does not permit garnishee to pay garnished wages directly to creditor; the debtor retains an interest in his wages until such interest is terminated by court's payment of garnished wages to creditor. In re Eggleston, 19 B.R. 280, 1982 Bankr. LEXIS 4473 (Bankr. M.D. Tenn. 1982).

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).

26-2-216. Installment payments to obtain stay of garnishment — Service of garnishment summons.

    1. After any judgment has been rendered in any court and the time to appeal therefrom has elapsed without such an appeal having been made, the judge of the court which rendered the judgment may, either before or after the issuance and service of garnishment, upon written consent of the parties or upon written motion of the judgment debtor, after due notice and after full hearing of such motion, enter an order requiring such judgment debtor to pay to the clerk of the court a certain sum of money weekly, biweekly or monthly to apply upon such judgment. The filing of such motion by the debtor shall stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor or any other funds belonging to the judgment debtor sought to be substituted to the satisfaction or payment of or upon such judgment during the period that such judgment debtor complies with the order of the court. Such motion of the judgment debtor shall be supported by an affidavit stating the debtor's inability to pay such debt with funds other than those earned by the debtor as wages or salary, or received from other sources in such amounts as to necessitate or make equitable installment payments, the name and address of the debtor's employer, or other source of funds and amount of such wages or salary, and the date of payment thereof.
    2. Notwithstanding subdivision (a)(1), upon written consent of the parties, the hearing of the judgment debtor's motion to pay the judgment in installments may be held on the same date that such judgment is entered.
    3. The judgment debtor may file only one (1) motion to establish payments for each judgment; however, if the motion is denied, or the order establishing payments is not complied with, at the court's discretion for good cause shown, the stay order may be reinstated as provided in § 26-2-217, with the reinstated stay order to affect only pay periods subsequent to the reinstatement.
    4. Notwithstanding subdivision (a)(1), the filing of a motion by a judgment debtor who has admitted the debt and is paying the judgment by agreed installment payments shall not stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor or any satisfaction or payment of or upon such judgment.
    1. It is the duty of the sheriff or other officer serving the garnishment summons upon the employer garnishee to:
      1. Obtain a receipt acknowledging service of such summons signed by the employer garnishee, if a person, or signed by an officer, managing agent or designated agent for service of the employer garnishee, if a corporation, company or business entity; or
      2. Sign and return to the court a sworn statement to the effect that the summons was duly served but such employer garnishee or such officer, managing agent or designated agent of the employer garnishee refused to sign a receipt acknowledging service; and
      3. The garnishment summons served by the sheriff shall have attached a notice to the employer that the employer is required to withhold the garnishment amount from the employee's wages, that the employer is required to pay these moneys to the court, and that the employer is liable for failure to withhold from the garnishee's wages and for failure to pay these moneys to the court.
    2. The sheriff or other officer shall serve three (3) copies of the garnishment summons upon the employer garnishee, all of which shall contain a conspicuously typed or printed notice which shall read as follows:

      IN THE  COURT FOR  COUNTY, TENNESSEE   Plaintiff,  )   vs.   )              CASE NO.  Defendant. )

      NOTICE OF JUDGMENT DEBTOR (AND NOTICE TO GARNISHEE) NOTICE TO THE DEBTOR (EMPLOYEE):  Your earnings have been subjected to a garnishment which has been served upon your employer. The garnishment creates a lien on a portion of your earnings until the judgment is satisfied, or for six (6) months, whichever occurs first. You have the following rights:

      Some of your wages are protected by state and federal law from garnishment.  See the notice below to the employer to find out how much of your wages are protected from garnishment.

      IF YOUR EMPLOYER IS TAKING TOO MUCH MONEY FROM YOUR WAGES:

      You may apply to the court at the clerk's office shown below within twenty (20) days from any improper withholding of your wages for a motion to stop the garnishment. The court clerk identified below shall provide you with a form for making such a motion, or may have supplied a form motion on the back of this notice. You may wish to seek the counsel of a lawyer. If you are unable to afford an attorney, you may be eligible for free legal services to assist you.

      PLEASE NOTE:  If you file a motion, the court must hear and decide your motion promptly, and in no event later than fourteen (14) days from filing. The clerk will notify you of the time, date, and place of hearing. The court clerk's office can provide you with forms and with information about legal services in your area, but the clerk cannot give you legal advice.

      IF THE RIGHT AMOUNT OF MONEY IS BEING TAKEN FROM YOUR WAGES BUT YOU WANT TO GET THE GARNISHMENT STOPPED THROUGH A PAYMENT PLAN:

      You may apply to the court for an order suspending further garnishments by the same creditor upon your paying a certain sum of money weekly, biweekly, or monthly, to pay the judgment. If you file this motion, the garnishment of your wages will stop for as long as you make the payments ordered by the court.

      The court clerk shall provide you with the necessary forms to make this application, or you may seek the counsel of an attorney. If you are unable to afford an attorney, you may be eligible for free legal services to assist you.

      NOTICE TO THE GARNISHEE (EMPLOYER): THE MAXIMUM PART OF THE AGGREGATE DISPOSABLE EARNINGS OF AN INDIVIDUAL FOR ANY WORK WEEK WHICH IS SUBJECTED TO GARNISHMENT MAY NOT EXCEED:

      1. Twenty-five percent (25%) of the garnishee's disposable earnings for that week, minus two dollars and fifty cents ($2.50) for each of the garnishee's dependent children under sixteen (16) years of age who resides in the state as provided in § 26-2-107; or
      2. The amount by which the garnishee's disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage at the time the earnings for any pay period become due and payable, minus two dollars and fifty cents ($2.50) for each of the garnishee's dependent children under sixteen (16) years of age who resides in the state, whichever is less.

        “Disposable earnings” means that part of the earnings of an individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

        In the case of earnings for a pay period other than a week, the weekly formula must be changed to apply to that pay period so as to exempt an equivalent percentage of disposable earnings. For example, the calculation concerning the federal minimum wage in subsection (b) should be computed as follows: WEEKLY: 30 times the federal minimum hourly wage (fmw) at the time the earnings for any pay period become due and payable; BI-WEEKLY: two (2) times thirty (30) fmw; SEMI-MONTHLY: two and one-sixth (2 1/6) times thirty (30) fmw; and MONTHLY: four and one-third (41/3) times thirty (30) fmw equals the amount to be subtracted from disposable earnings for that pay period.

        If the judgment orders alimony and the person in whose favor the judgment was rendered has remarried, the above exemption applies. If the judgment orders the debtor to pay support for the debtor's minor child or children, or alimony and the person in whose favor the alimony judgment was rendered has not remarried, different standards apply under 15 U.S.C. § 1672(b). If the debtor is supporting a spouse or dependent child other than those for whom the order was entered, then fifty percent (50%) of the debtor's disposable earnings may be garnished. If the debtor is not supporting such additional dependents, a maximum of sixty percent (60%) may be garnished. These figures rise to fifty-five percent (55%) and sixty-five percent (65%), respectively, if the support order is for a period more than twelve (12) weeks before the pay period to be garnished.

        If the judgment is for state or federal taxes, no disposable earnings are exempt under 15 U.S.C. § 1673(b).

        NAME:             (Clerk of Court)       (Judgment Debtor)ADDRESS:     (Provided by Creditor)    TELEPHONE:

Acts 1978, ch. 915, § 35; 1980, ch. 519, § 1; 1980, ch. 596, § 1; T.C.A., § 26-245; Acts 1981, ch. 179, § 1; 1985, ch. 52, §§ 1, 2; 1988, ch. 934, § 15; 1989, ch. 95, § 1; 1989, ch. 404, §§ 1, 2; 1989, ch. 538, § 2; 1990, ch. 789, § 4; 2004, ch. 828, § 1; 2018, ch. 597, § 1.

Compiler's Notes. For the Preamble to the act concerning form garnishment notice to the debtor, please refer to Acts 2018, ch. 597.

Amendments. The 2018 amendment rewrote the second sentence in the introductory paragraph of the notice in (b)(2) which read: “The garnishment creates a lien on a portion of your wages until the judgment is satisfied, or for three (3) months, whichever occurs first.”

Effective Dates. Acts 2018, ch. 597, § 2. March 23, 2018.

Cross-References. Executions and garnishments in aid of executions, title 26, ch. 2, part 4.

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

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

Notice to judgment debtor, § 26-2-404.

Personal earnings exempt, §§ 26-2-102, 26-2-106, 26-2-108.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-69-2.

Law Reviews.

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

Attorney General Opinions. Stay of execution, OAG 84-226, 1984 Tenn. AG LEXIS 121 (7/19/84).

Installment payments to stay tax garnishment, OAG 89-04, 1989 Tenn. AG LEXIS 4 (1/18/89).

Assertion of exemption rights, OAG 89-10, 1989 Tenn. AG LEXIS 4 (1/31/89).

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

NOTES TO DECISIONS

1. Due Process.

Due process requires that the judgment debtor be informed of the garnishment, of the existence of exemptions, and of procedures to assert those exemptions or challenge the garnishment. Burris v. Mahaney, 716 F. Supp. 1051, 1989 U.S. Dist. LEXIS 7847 (M.D. Tenn. 1989).

Where private defendants' failure to give any additional notice was in complete good faith reliance upon government instructions, they would not be liable even if there had been a due process violation. Burris v. Mahaney, 716 F. Supp. 1051, 1989 U.S. Dist. LEXIS 7847 (M.D. Tenn. 1989).

2. Minimum Payment.

A requirement that the minimum payment must at least defray interest on the principal has not been included in this section since it was first enacted in 1939, and does not inherently exist as a matter of statutory construction. Harrington v. Harrington, 759 S.W.2d 664, 1988 Tenn. LEXIS 189 (Tenn. 1988).

The court will be reluctant to affirm a judgment order which appears to be patently too low in view of the admitted earnings of the debtor. Harrington v. Harrington, 759 S.W.2d 664, 1988 Tenn. LEXIS 189 (Tenn. 1988).

3. Procedure.

Debtor's conduct in causing his wholly-owned LLC to file a motion to pay a judgment in installments as permitted by T.C.A. § 26-2-408 and T.C.A. § 26-2-216(a)(1), thereby staying execution until the motion was resolved, was not conduct for which debtor was reasonably subjected to personal liability for the debts of the LLC. Hulsing Hotels Tenn., Inc. v. Steffner (In re Steffner), 479 B.R. 746, 2012 Bankr. LEXIS 3805 (Bankr. E.D. Tenn. Aug. 17, 2012).

4. Motion Denied.

In post-judgment proceedings following a final judgment in favor of the city that the property owners pay for unpaid maintenance fees on their commercial real property, the owners'  motion to pay the judgment by installments was properly overruled under the so-called “slow-pay” statute because the owners were less than forthcoming in their affidavit stating their inability to pay the debt; there were clearly other assets available as the owners owned additional real estate; and their failure to disclose their ownership of properties in Ohio and Florida, much less to account for how they maintained such properties, would justify the trial court's decision to deny the “slow pay” motion. City of Gatlinburg v. Greenstein, — S.W.3d —, 2017 Tenn. App. LEXIS 440 (Tenn. Ct. App. June 29, 2017).

26-2-217. Payments — Records — Delinquency — Notice of balance or of satisfaction.

  1. The clerk shall keep a record in such cause of all payments to and disbursements by the clerk.
    1. Upon failure of such judgment debtor to comply with such order, the clerk shall make notation thereof on the record in such cause, and thereupon the stay of execution by garnishment shall immediately and without further act by any party become null and void.
    2. The judge in whose court judgment was rendered may, upon proper showing by affidavit of the judgment debtor and after full hearing thereof, reinstate the order and stay of garnishment, or may amend the order so as to alter the terms and the amount of payment, if it shall appear that such default was due to the lack of employment or other justifiable cause beyond the control of the judgment debtor.
    1. In any case in which a garnishment has been answered by an employer garnishee and while the lien of garnishment created thereby is in effect the underlying judgment is paid in full or otherwise satisfied of record in the clerk's office, it shall be the duty of the court clerk promptly to notify the garnishee of the satisfaction of the judgment and the expiration of the lien of garnishment.
    2. The judgment creditor shall notify the court clerk of the balance due upon a judgment whenever the creditor causes the issuance or revival of a garnishment thereon. Furthermore, the judgment creditor shall notify the court clerk when the judgment has been satisfied.

Acts 1978, ch. 915, § 36; T.C.A., § 26-246.

Law Reviews.

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

Attorney General Opinions. Stay of execution, OAG 84-226, 1984 Tenn. AG LEXIS 121 (7/19/84).

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

NOTES TO DECISIONS

1. Modification of Order.

Since this section expressly authorizes the judgment debtor to seek reconsideration or modification of an order, it would seem to follow as a matter of course that a creditor may also seek reconsideration of such a continuing order. Harrington v. Harrington, 759 S.W.2d 664, 1988 Tenn. LEXIS 189 (Tenn. 1988).

26-2-218. Written agreement for installment payments.

A written agreement for the payment of a judgment in installments, signed by the parties, their attorneys, or authorized agents acting in their behalf, and filed with the clerk of the court, shall have the same force and effect as an order made by the judge to stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor during the period that such judgment debtor complies with the agreement.

Acts 1978, ch. 915, § 37; T.C.A., § 26-247.

26-2-219. Failure to comply with agreement.

  1. Should the judgment debtor fail to strictly comply with the terms of an agreement as provided by § 26-2-218, the stay of execution by garnishment shall immediately become null and void.
  2. Upon the stay of execution by garnishment becoming void and the issuance and service of garnishment having taken place prior to the proceeding to obtain a stay of garnishment, the lien on wages provided by this section shall have priority over all liens executed subsequent to the original date of issuance.

Acts 1978, ch. 915, § 38; T.C.A., § 26-248.

26-2-220. Applicability of provisions for garnishment on attachments.

The provisions of Tennessee Code Annotated in regard to garnishment on attachments also regulate proceedings under this part whenever applicable.

Acts 1978, ch. 915, § 39; modified; T.C.A., § 26-249.

Cross-References. Attachment, title 29, ch. 6.

Attachment by garnishment, title 27, ch. 7.

26-2-221. Garnishment of compensation due from state — Amount exempted.

Garnishment of salaries, wages or other compensation due from the state, or from any county or municipality, to any officer or employee thereof, is permissible. Garnishment of compensation due from the state to contractors or vendors of the state is permissible. No such officer, employee, contractor, or vendor may validly claim any privilege or immunity in that regard. Such officer, employee, contractor, or vendor shall be entitled to an exemption of the amount of wages, salary, or compensation so due as is exempt from levy or garnishment in favor of officers, employees, contractors, or vendors of private corporations in like circumstances. However, notwithstanding any other provision of law to the contrary, nothing set forth in this section shall be construed to apply to or to allow garnishments of state compensation to contractors or vendors of the state where the state determines that payment of such garnishment would result in an interruption of essential state services.

Acts 1978, ch. 915, § 40; T.C.A., § 26-250; Acts 2001, ch. 412, § 1.

Cross-References. Amount of earnings exempt from garnishment, § 26-2-106.

Law Reviews.

Garnishment — Municipal Corporations, 17 Tenn. L. Rev. 880.

Rights of Creditors in Insurance — The Tennessee Exemption Statutes (Paul J. Hartman), 5 Vand. L. Rev. 760.

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

NOTES TO DECISIONS

Decisions Under Prior Law

1. In General.

This section applies to a purely garnishment situation whereby a judgment creditor is permitted to garnishee wages due an employee of the state and does not authorize the commencement of a suit against a state employee by attachment or attachment by garnishment against wages due state employee. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

2. Constitutionality.

The former similar statute was held not unconstitutional or violative of public policy, and was upheld as against all grounds of attack. Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 1921 Tenn. LEXIS 89, 22 A.L.R. 755 (1922).

3. Scope of Statute.

The old rule exempting counties and municipalities from garnishment has not been entirely abrogated. It is still upheld as a sound rule where “the seizure by garnishment of a contractor's funds might prove an embarrassment to the public.” Holston Union Nat'l Bank v. Knox County, 179 Tenn. 259, 165 S.W.2d 382, 1942 Tenn. LEXIS 20 (1942).

Before a creditor can utilize the garnishment provisions of this section he must have secured a final judgment against the state employee which has not been satisfied by execution. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

Wife of state employee was not entitled to reach wages due employee at commencement of divorce suit. Brewington v. Brewington, 215 Tenn. 475, 387 S.W.2d 777, 1965 Tenn. LEXIS 666 (1965).

4. —Limited to Sums “Due.”

The legislature in departing from the old established rule of exemption of public salaries and wages from garnishment limited the right of garnishment to sums “due” thus leaving in force the prohibition against subjecting future, unearned compensation of this of this type to such process. Fox v. Miller, 173 Tenn. 453, 121 S.W.2d 527, 1938 Tenn. LEXIS 27 (1938).

5. —Condemnation Funds.

A judgment creditor cannot garnishee a county on funds it owes a debtor arising out of condemnation or right-of-way proceedings. Walker v. Turner, 22 Tenn. App. 280, 122 S.W.2d 804, 1938 Tenn. App. LEXIS 27 (Tenn. Ct. App. 1938).

6. —Contractor for Government.

The removal of immunity of a county or municipality from garnishment as to employees proper, removes same as to a contractor engaged in construction work for such public corporation. Wheeler v. Walter J. Bryson Co., 162 Tenn. 163, 35 S.W.2d 391, 1930 Tenn. LEXIS 74 (1931).

7. —Policeman.

A policeman employed by a municipality was an officer or employee within this section, and not an officer of the state. Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 1921 Tenn. LEXIS 89, 22 A.L.R. 755 (1922).

8. Prior Judgments — Application of Act.

The statute deals with enforcement of remedy and not rights and is applicable to judgments that antedated its enactment. Cavender v. Hewitt, 145 Tenn. 471, 239 S.W. 767, 1921 Tenn. LEXIS 89, 22 A.L.R. 755 (1922).

26-2-222. Garnishment procedure for state officers or employees.

  1. In case of garnishment of officers, employees, contractors, or vendors of the state, garnishment notice may issue from any court or any court of record and shall be served upon the commissioner of that department in which such officer, employee, contractor, or vendor shall be engaged, or with which the garnishee is connected. The date of service shall be the date upon which service upon the commissioner has been accomplished. If such garnishment is not served as set forth above, such service shall be considered ineffective, and the state shall not be liable for any sums due thereunder. Such commissioner, or the commissioner's designee, is directed to make answer to such garnishment notice or summons, stating the compensation, if any, due any state officer, employee, contractor, or vendor so garnisheed. Such commissioner is directed to withhold any amounts then due the state officer, employee, contractor, or vendor up to and including the amount of the judgment and costs on which the garnishment proceedings were predicated, until the garnishment is released by the issuing court or such funds are paid into that court, as provided by law, and is directed to pay to such officer, employee, contractor, or vendor any amount or sum which may be due such officer, employee, contractor, or vendor above the amount of such judgment and costs, or if applicable, above the amount of each periodic payment made from successive pay periods.
  2. In addition to the amount of the disposable earnings subject to garnishment, the state department of finance and administration shall be entitled to retain an administrative fee of five dollars ($5.00) due from the judgment debtor at the time of each payment made to the court as a result of the garnishment. The five dollar ($5.00) fee will be retained from the balance of the judgment debtor's earnings remaining after deducting the payment made to the garnishing court. If the maximum garnishable amount has been reached prior to retaining the five dollar ($5.00) fee, then such amount due shall remain owing to the state until paid.
  3. The time at which the garnishment lien attaches to the amounts due the state officer, employee, contractor, or vendor shall be seven (7) business days from the date of service of the garnishment.
  4. If the commissioner in the department in which the officer, employee, contractor, or vendor works, or the commissioner's duly authorized agent or attorney, fails to appear and answer such garnishment, it shall be presumed that the state is indebted to the officer, employee, contractor, or vendor to the full amount of the judgment creditor's demand, and thereupon a conditional judgment may be entered against the state for the judgment to the extent of the garnishable funds paid out by the state which were due the debtor during the period the garnishment was effective.
  5. After the entry of such conditional judgment a scire facias shall issue to the commissioner of the department in which the garnisheed officer, employee, contractor, or vendor works, returnable to the next term of the court or to a day and place fixed by the court, to show cause why final judgment should not be entered against the state.
  6. Upon the return of such scire facias, fully served upon the commissioner of the department in which the garnisheed officer, employee, contractor, or vendor works, and upon the failure of the state to appear and show cause, the conditional judgment against the state shall be made final. In such event, the commissioner is directed to pay any such judgment and deduct the amount thereof from wages, salaries, or other compensation owing to such officer, employee, contractor, or vendor garnisheed under this part. Notwithstanding the foregoing, in any case in which judgment is obtained under this section, if there is no compensation due such officer, employee, contractor, or vendor so garnisheed during the period such garnishment was effective, such judgment against the state shall be void and unenforceable.
  7. Any process required to be served under this section may be served, pursuant to the Tennessee Rules of Civil Procedure, by a private process server.

Acts 1978, ch. 915, §§ 41-44; T.C.A., §§ 26-251 — 26-254; Acts 2001, ch. 412, § 2.

26-2-223. No wages due garnisheed employee — Judgment null and void.

In any case where judgment is obtained under §§ 26-2-20526-2-208, if there are no wages due such employee so garnished, such judgment shall be void and unenforceable.

Acts 1978, ch. 915, § 45; T.C.A., § 26-255.

26-2-224. Time for execution when multiple writs exist.

  1. Notwithstanding any other provision of law or rule to the contrary, a writ of garnishment that is filed later in time than another such writ, and which deducts the maximum amount allowable by law from the debtor's wages, shall not run concurrently with the earlier filed writ with regard to the six-month time limit prescribed in § 26-2-214. Such later filed writ of garnishment shall not begin to run until the earlier filed writ's judgment has been satisfied, such earlier filed writ has expired, or such earlier filed writ has been stayed by installment motion as prescribed in § 26-2-216.
  2. The time limit prescribed in § 26-2-214 shall not be extended beyond six (6) months from the date of filing if the garnishee has failed to answer or remit funds for such later filed writ.
  3. Nothing in this section shall be construed to affect the date of attachment or the status of any underlying statutory or common law lien rights of any later filed writ of garnishment.

Acts 2000, ch. 856, § 1.

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

26-2-225. Notifying judgment creditor of new employment.

  1. A judgment debtor whose salaries, wages or other compensation are subject to a garnishment shall notify the judgment creditor who filed the writ of garnishment within ten (10) days, as computed in § 1-3-102, of obtaining any new employment. Notice to the judgment creditor shall be by certified mail and shall include the name, address and telephone number of the new employer. A judgment debtor who fails to provide notice of new employment in compliance with this section is in contempt of court and, upon the court making a determination of contempt, may be punished the same as contempt of court in a judicial proceeding. For purposes of a determination of contempt the debtor's notification of new employment to the judgment creditor shall be considered timely sent if mailed less than ten (10) days from the date of obtaining new employment.
  2. Any fees imposed by the clerk or any other party on the transfer of garnishment to the debtor's new employment shall be imposed on the debtor by adding the amount to the debt to be collected.

Acts 2013, ch. 187, § 1.

Compiler's Notes. Acts 2013, ch. 187, § 2 provided that the act, which enacted this section, shall apply to all garnishments filed after July 1, 2013.

Part 3
Homestead Exemptions

26-2-301. Basic exemption.

  1. An individual, whether a head of family or not, shall be entitled to a homestead exemption upon real property which is owned by the individual and used by the individual or the individual's spouse or dependent, as a principal place of residence. The aggregate value of such homestead exemption shall not exceed five thousand dollars ($5,000); provided, individuals who jointly own and use real property as their principal place of residence shall be entitled to homestead exemptions, the aggregate value of which exemptions combined shall not exceed seven thousand five hundred dollars ($7,500), which shall be divided equally among them in the event the homestead exemptions are claimed in the same proceeding; provided, if only one (1) of the joint owners of real property used as their principal place of residence is involved in the proceeding wherein homestead exemption is claimed, then the individual's homestead exemption shall be five thousand dollars ($5,000). The homestead exemption shall not be subject to execution, attachment, or sale under legal proceedings during the life of the individual. Upon the death of an individual who is head of a family, any such exemption shall inure to the benefit of the surviving spouse and their minor children for as long as the spouse or the minor children use such property as a principal place of residence.
  2. If a marital relationship exists, a homestead exemption shall not be alienated or waived without the joint consent of the spouses.
  3. The homestead exemption shall not operate against public taxes nor shall it operate against debts contracted for the purchase money of such homestead or improvements thereon nor shall it operate against any debt secured by the homestead when the exemption has been waived by written contract.
  4. A deed, installment deed, mortgage, deed of trust, or any other deed or instrument by any other name whatsoever conveying property in which there may be a homestead exemption, duly executed, conveys the property free of homestead exemption, but the homestead exemption may not be waived in a note, other instrument evidencing debt, or any other instrument not conveying property in which homestead exemption may be claimed.
  5. Notwithstanding subsection (a) to the contrary, an unmarried individual who is sixty-two (62) years of age or older shall be entitled to a homestead exemption not exceeding twelve thousand five hundred dollars ($12,500) upon real property that is owned by the individual and used by the individual as a principal place of residence; a married couple, one (1) of whom is sixty-two (62) years of age or older and the other of whom is younger than sixty-two (62) years of age, shall be entitled to a homestead exemption not exceeding twenty thousand dollars ($20,000) upon real property that is owned by one (1) or both of the members of the couple and used by the couple as their principal place of residence; and a married couple, both of whom are sixty-two (62) years of age or older, shall be entitled to a homestead exemption not exceeding twenty-five thousand dollars ($25,000) upon real property that is owned by one (1) or both of the members of the couple and used by the couple as their principal place of residence.
  6. Notwithstanding subsection (a) to the contrary, an individual who has one (1) or more minor children in the individual's custody shall be entitled to a homestead exemption not exceeding twenty-five thousand dollars ($25,000) on real property that is owned by the individual and used by the individual as a principal place of residence.

Acts 1870, ch. 80, § 1; 1870-1871, ch. 71, § 4; 1879, ch. 171, §§ 1, 2; Shan., § 3798; mod. Code 1932, § 7719; Acts 1933, ch. 72, § 1; 1943, ch. 131, § 1; C. Supp. 1950, § 7719; Acts 1975, ch. 285, § 1; 1979, ch. 61, § 1; 1980, ch. 919, § 1; T.C.A., § 26-301; Acts 2004, ch. 659, § 1; 2007, ch. 560, § 1.

Compiler's Notes. The Tennessee advisory commission on intergovernmental relations shall study the current homestead exemption amounts allowed pursuant to this section to determine whether the exemptions should be increased to accurately reflect the cost of living and shall submit a written report to the members of the general assembly no later than January 1, 2016. The report shall detail the various categories of homestead exemptions and compare each category to the exemptions of other states.

Cross-References. Homestead Act, title 7, ch. 66.

Homestead and personal property exemptions, Tenn. Const., art. XI, § 11.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 307, 475.

Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 425, 648-650, 654, 657, 816.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-224.

Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, §§ 21, 24, 30; 12 Tenn. Juris., Executions, § 13; 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 2, 5, 6, 8-10; 18 Tenn. Juris., Liens, § 7.

Law Reviews.

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

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

Bankruptcy Issues Arising in Divorce Practice (Ellen B. Vergos), 24 Mem. St. U.L. Rev. 697 (1994).

Bankruptcy Law — Nobelman v. American Savings Bank: Permissibility of Bifurcating and Modifying Homestead Mortgages, 24 Mem. St. U.L. Rev. 805 (1994).

Davis v. Davis: The End of Interspousal Tort Immunity Tips the Scales on the Last Intrafamilial Immunity Stronghold, 14 Mem. St. U.L. Rev. 270 (1984).

Domestic Relations — 1957 Tennessee Survey (William J. Harbison), 10 Vand. L. Rev. 1082.

Domestic Relations — 1961 Tennessee Survey (II) (William J. Harbison), 15 Vand. L. Rev. 892.

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

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

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

Exemption Statutes — Retrospective Operation of Laws, 11 Tenn. L. Rev. 128.

Homestead in Tennessee (Mark J. Mayfield), 25 Tenn. L. Rev. 261.

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

Privy Examination, 3 Tenn. L. Rev. 126.

Protection Against Spousal Disinheritance: A Critical Analysis of Tennessee's New Forced Share System, 28 U. Mem. L. Rev. 561 (1998).

Real Property — 1962 Tennessee Survey (Thomas G. Roady, Jr.), 16 Vand. L. Rev. 839.

Restitution — 1963 Tennessee Survey (J. Brad Reed), 17 Vand. L. Rev. 1139.

Rights of Creditors in Insurance — The Tennessee Exemption Statutes (Paul J. Hartman), 5 Vand. L. Rev. 760.

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries (Sara Kaltenborn), 3 Mem. St. U.L. Rev. 327.

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

The New Tennessee Code (Charles C. Trabue), 10 Tenn. L. Rev. 155.

Attorney General Opinions. Legislation which grants a greater homestead exemption to individuals and married couples sixty-two years of age and older is constitutional, OAG 04-076, 2004 Tenn. AG LEXIS 66 (4/23/04).

NOTES TO DECISIONS

1. Constitutionality.

The distinction drawn for homestead exemption purposes between leasehold estates of more than two years and those of less than two years is reasonable, not arbitrary, bears a rational relationship to a legitimate state objective and does not violate the debtors' right to the equal protection of the laws guaranteed by the fourteenth amendment. In re Phillips, 60 B.R. 166, 1986 Bankr. LEXIS 6383 (Bankr. E.D. Tenn. 1986).

2. Legislative Intent.

The manifest intention of this section was to afford to an individual a $5,000 exemption in his interest in real estate used as his principal place of residence or, alternatively, to afford the individual his proportionate share of a $7,500 exemption where both he and a co-owner (or co-owners) use the real estate as their principal place of residence and assert the exemption in a single proceeding. The logical and relevant inquiry is thus only whether the individual or individuals actually claiming the exemption utilize the property as their principal place of residence. In re Young, 42 B.R. 892, 1984 Bankr. LEXIS 5019 (Bankr. E.D. Tenn. 1984).

Terms fixing eligibility of individuals and qualification of property for the homestead exemption have been prescribed by the general assembly: (1) The property must be “owned” by the individual; and (2) The property must be used by the individual, the individual's spouse, or a dependent, as a principal place of residence. In re Miller, 246 B.R. 564, 2000 Bankr. LEXIS 303 (Bankr. E.D. Tenn. 2000).

In a bankruptcy case in which the debtors, who were husband and wife, sought a $ 50,000.00 homestead exemption pursuant to T.C.A. § 26-2-301(f) and the bankruptcy court limited their homestead exemption to $ 7,500.00, the bankruptcy court incorrectly determined that the Tennessee legislature's use of the word individual in § 26-2-301(f) restricted application of that provision to unmarried persons only. Butturini v. Farmer (In re Butturini), — F. Supp. 2d —, 411 B.R. 553, 2009 U.S. Dist. LEXIS 509 (E.D. Tenn. Jan. 6, 2009).

3. Tenancies by the Entirety.

The right to claim the homestead exemption in property owned as tenancies by the entirety vests in the survivor. In re Shaw, 5 B.R. 107, 1980 Bankr. LEXIS 4955 (Bankr. M.D. Tenn. 1980).

A debtor's homestead exemption claim in property owned as tenancies by the entirety will have no effect unless he or she survives his or her spouse. In re Shaw, 5 B.R. 107, 1980 Bankr. LEXIS 4955 (Bankr. M.D. Tenn. 1980).

Where bankrupt claimed homestead exemption in property held by him and his wife as tenants by the entireties, the result was that the bankruptcy trustee could offer for sale only the bankrupt's survivorship interest in the property and the bankrupt was not entitled to an exemption from the proceeds. In re Dawson, 10 B.R. 680, 1981 Bankr. LEXIS 3900 (Bankr. E.D. Tenn. 1981), aff'd, 14 B.R. 822, 1981 U.S. Dist. LEXIS 16787 (E.D. Tenn. 1981).

Under this section and 11 U.S.C. §§ 363(h), 522(b)(2)(B), where each spouse was not in bankruptcy, bankruptcy trustees could sell only the debtors' rights of survivorship in real property owned by each debtor and his spouse as tenants by the entirety because under this section property owned as tenants by the entirety is exempt from process by creditors of an individual spouse. In re Redmond, 15 B.R. 437, 1981 Bankr. LEXIS 2616 (Bankr. E.D. Tenn. 1981).

A defeasible future or survivorship interest of a tenant by the entirety may be sold subject to a homestead exemption claim which is also defeasible. In re Walls, 45 B.R. 145, 1984 Bankr. LEXIS 4445 (Bankr. E.D. Tenn. 1984).

This section does not in any way preempt a trustee's sale of a debtor's survivorship interest in entireties property. The purpose of the homestead statute is fulfilled through sale of the survivorship interest subject to the debtor's defeasible homestead right. The debtor and his wife may continue to occupy the entireties property during their joint lives. The purchaser at the trustee's sale of the debtor's survivorship interest cannot obtain possession of the entireties property, nor is he entitled to profits or rents during the joint lives of the debtor and his wife. If the debtor predeceases his wife, the purchaser's interest will be extinguished. On the other hand, if the debtor survives his wife, the purchaser will succeed to the fee interest subject to the debtor's homestead right. In re Walls, 45 B.R. 145, 1984 Bankr. LEXIS 4445 (Bankr. E.D. Tenn. 1984).

When a trustee in bankruptcy is allowed to sell the debtor's right of survivorship in property owned as tenants by the entirety, the debtor is not entitled to recover the dollar amount of the homestead exemption from the proceeds of the sale; however, the better approach is to sell the survivorship interest subject to the debtor's right to a homestead exemption if and when he is the survivor. In re Elsea, 47 B.R. 142, 1985 Bankr. LEXIS 6643 (Bankr. E.D. Tenn. 1985).

Debtor's survivorship interest in real property, owned as a tenancy by the entirety and claimed as the debtor's residence, passed into the bankruptcy estate; the debtor's present right to use, possession, and enjoyment of the property passed out of the bankruptcy estate because it was exempt from process under applicable nonbankruptcy law. In re Dick, 136 B.R. 1000, 1992 Bankr. LEXIS 301 (Bankr. W.D. Tenn. 1992).

Debtor who was a tenant by the entirety had a homestead exemption in his survivorship right, which was part of the bankruptcy estate; however, he would not receive the cash value of that exemption from the proceeds of any sale of that survivorship right. Rather, the survivorship right, if sold by the bankruptcy trustee, would have been encumbered by the debtor's homestead exemption and the debtor would have received the cash value of his exemption if and when he survived his spouse. In re Dick, 136 B.R. 1000, 1992 Bankr. LEXIS 301 (Bankr. W.D. Tenn. 1992).

Under Tennessee law, a debtor in bankruptcy who owned real property jointly with his non-filing spouse as tenants by the entireties was not entitled to the homestead exemption pursuant to T.C.A. § 26-2-301 because the debtor did not have a vested homestead exemption in his survivorship interest in the real property; only on the spouse's death would the debtor have become fully vested in the real property and realized the exemption in the amount of $5,000.00. In re Arwood, 289 B.R. 889, 2003 Bankr. LEXIS 126 (Bankr. E.D. Tenn. 2003).

4. —Consecutive Bankruptcy Petitions.

Individual debtors were not permitted to insulate nonexempt entireties property from the claims of creditors by means of filing two separate bankruptcy petitions, the second petition being filed proximately to the closing of the first case. In re Penland, 34 B.R. 536, 1983 Bankr. LEXIS 5092 (Bankr. E.D. Tenn. 1983).

5. Tenants in Common and Joint Tenancy.

The language “jointly own” evidenced a legislative intent to include within the purview of this section property held by tenants in common and joint tenancy, as well as tenancy by the entireties. In re Young, 42 B.R. 892, 1984 Bankr. LEXIS 5019 (Bankr. E.D. Tenn. 1984).

Chapter 7 debtor, who owned property as tenants in common for life, with the remainder to the survivor in fee, was entitled to a $ 25,000 homestead exemption since: (1) Tennessee's highest court had held that a joint tenant had a unilateral right to sever a joint tenancy with an express right of survivorship; (2) to the extent that a joint tenant interest was exempt from process under applicable nonbankruptcy law, the debtor's homestead exemption claim was good in bankruptcy; (3) Tennessee allowed levy on the whole interest of one co-tenant of a tenancy in common; and (4) the Tennessee homestead exemption applied to jointly owned property. In re Roos, — B.R. —, 2018 Bankr. LEXIS 2800 (Bankr. E.D. Tenn. Sept. 14, 2018).

6. Remaindermen.

Tennessee law does not permit a remainderman to claim a homestead exception in the property to which his or her remainder interest attaches, even though the remainderman may reside on it with the permission of the life tenant. In re Lingerfelt, 180 B.R. 502, 1995 Bankr. LEXIS 467 (Bankr. E.D. Tenn. 1995).

7. Principal Residence.

What is the debtor's principal residence depends both on the debtor's use and intent. In re Sivley, 14 B.R. 905, 1981 Bankr. LEXIS 2688 (Bankr. E.D. Tenn. 1981).

The $5,000.00 homestead exemption claimed by debtor under T.C.A. § 26-2-301(a) was limited to the debtor's equity interest in the residence on the date the debtor commenced the Chapter 7 case, i.e., the value of the property in excess of the amounts on their respective first and second mortgages. In re Butler, 271 B.R. 807, 2001 Bankr. LEXIS 1723 (Bankr. E.D. Tenn. 2001).

In calculating the value of real property for purposes of 11 U.S.C. § 522, the bankruptcy court determined that a mobile home was included in the value of the real property because, under Tennessee law, it had become a fixture: the debtors had maintained the mobile home as their primary residence, they connected the mobile home to the necessary utility services, they landscaped the property, and any attempt to remove the mobile home would have damaged it and the real property. In re Northern, 294 B.R. 821, 2003 Bankr. LEXIS 711 (Bankr. E.D. Tenn. 2003).

Where debtors attempted to claim their residence and an adjoining tract of land under the homestead exemption of T.C.A. § 26-2-301, the adjoining land, which was identified as a different tract from the residence on a plat map, had a property description separate from that of the residence, and was purchased separately from the residence, did not qualify for the exemption because it was not debtors'  principal place of residence. In re Wilson, 347 B.R. 880, 2006 Bankr. LEXIS 1766 (Bankr. E.D. Tenn. 2006).

Chapter 7 debtors were allowed to claim a homestead exemption under T.C.A. § 26-2-301(f) in a house they owned, even though they lived in another house at the time they first declared bankruptcy, because they lost title to the first house in a foreclosure action and intended to move to the house that was the subject of their claim. Even assuming the debtors claimed the exemption in bad faith, as the bankruptcy trustee argued, that was not a sufficient reason to deny the exemption because of the strong public policy favoring homestead exemptions. In re Patterson, 487 B.R. 485, 2013 Bankr. LEXIS 1099 (Bankr. W.D. Tenn. Feb. 27, 2013).

8. Effect of Divorce.

The divorce court did not have to award a divorced person who had filed for bankruptcy the homestead exemption in order for her to have it after the divorce. In re Sivley, 14 B.R. 905, 1981 Bankr. LEXIS 2688 (Bankr. E.D. Tenn. 1981).

A divorced person's right to a homestead exemption was fixed at the time of filing for bankruptcy and was not affected by the change from a tenancy in the entirety to a tenancy in common brought about by a subsequent divorce. In re Sivley, 14 B.R. 905, 1981 Bankr. LEXIS 2688 (Bankr. E.D. Tenn. 1981).

9. Scope of Exemption.

The homestead exemption, unlike the personal property exemption in § 26-2-102 [26-2-103], makes no reference to the “debtor's equity interest.” In re Farley, 19 B.R. 868, 1982 Bankr. LEXIS 4230 (Bankr. E.D. Tenn. 1982).

Tennessee's homestead exemption is less beneficial to a debtor than its federal counterpart in terms of the value of the exemption ($5,000 versus $7,500) and in terms of restrictions. Rhodes v. Stewart, 705 F.2d 159, 1983 U.S. App. LEXIS 28941 (6th Cir. Tenn. Apr. 11, 1983), cert. denied, 464 U.S. 983, 104 S. Ct. 427, 78 L. Ed. 2d 361, 1983 U.S. LEXIS 2381 (1983).

Chapter 7 debtors were entitled to occupy their residence without paying rent until the residence was sold and they were paid their homestead exemption; the homestead exemption included the right to occupancy without paying rent. In re Rolfes, 307 B.R. 59, 2004 Bankr. LEXIS 310 (Bankr. E.D. Tenn. 2004).

Homestead statute, T.C.A. § 26-2-301, simply recognized that as long as debtor owned the residence, his wife shared his possessory rights, subject to his homestead exemption; her interest could not, however, preclude the chapter 7 trustee from proceeding with the sale of the residence. Furthermore, she did not possess an interest that attached to the proceeds of the sale; she simply shared her husband's right to receive the five-thousand-dollar homestead exemption authorized by the homestead statute. In re Whaley, 353 B.R. 209, 2006 Bankr. LEXIS 2730 (Bankr. E.D. Tenn. 2006).

Chapter 13 debtors could both take a $25,000 homestead exemption of T.C.A. § 26-2-301(f), for a total of $50,000, because the plain meaning of the statute allowed for both of the debtors to take the exemption; to construe T.C.A. § 26-2-301(f) to mean that the debtors could only take an exemption totaling $25,000 would effectively deprive one of the debtors of his or her exemption as guaranteed under Tenn. Const. art. XI, § 11. In re Staggs, 381 B.R. 230, 2008 Bankr. LEXIS 84 (Bankr. M.D. Tenn. Jan. 16, 2008).

Debtors could not each claim a $25,000 exemption under T.C.A. § 26-2-301(f) when they were both under the age of 55, owned a home jointly, and had a minor child because T.C.A. § 26-2-301(f) applied only to an individual debtor with a home and a minor child; the debtors homestead exemption was limited to $7,500 under T.C.A. § 26-2-301(a). In re Butturini, 384 B.R. 491, 2008 Bankr. LEXIS 1231 (Bankr. E.D. Tenn. Feb. 8, 2008), rev'd, Butturini v. Farmer (In re Butturini), — F. Supp. 2d —, 411 B.R. 553, 2009 U.S. Dist. LEXIS 509 (E.D. Tenn. Jan. 6, 2009).

In a bankruptcy case in which the debtors, who were husband and wife, sought a $ 50,000.00 homestead exemption pursuant to T.C.A. § 26-2-301(f) and the bankruptcy court improperly limited their homestead exemption to $ 7,500.00 because it incorrectly determined that the Tennessee legislature's use of the word individual in § 26-2-301(f) restricted application of that provision to unmarried persons only, the debtors, who otherwise complied with the requirements of the statute, could each claim a $ 25,000.00 homestead exemption. Butturini v. Farmer (In re Butturini), — F. Supp. 2d —, 411 B.R. 553, 2009 U.S. Dist. LEXIS 509 (E.D. Tenn. Jan. 6, 2009).

Where a creditor held a judicial lien on the debtors'  real property under T.C.A. § 25-5-101(b) and Tenn. R. Civ. P. 69.07(2), and where the real property was improved with the debtors'  residence and with an unoccupied farmhouse, the debtors could avoid the judicial lien under 11 U.S.C. § 522(f) as against the entire property, including the farmhouse, as they were entitled to claim a homestead exemption under T.C.A. § 26-2-301 against their property as a whole, including any improvements on the real property on which their residence was located. In making this determination, the court noted that T.C.A. § 26-2-301(f) provided that the debtors were entitled to a homestead exemption on real property used as a principal place of residence and that T.C.A. § 67-5-501(9)(A) defined real property as including structures and improvements. In re Young, 471 B.R. 715, 2012 Bankr. LEXIS 2153 (Bankr. E.D. Tenn. May 15, 2012).

Trustee's objection to the debtor's claimed enhanced homestead exemption was overruled because the debtor was exercising actual physical care of his granddaughter, and had the rights and responsibilities associated with guardianship and custody, which established his custody for purposes of the enhanced exemption. In re Bush, — B.R. —, 2018 Bankr. LEXIS 3095 (Bankr. M.D. Tenn. Oct. 2, 2018).

10. Fraud.

Although courts generally agree that a debtor's conversion of nonexempt property into exempt property on the eve of bankruptcy is not fraudulent per se, extrinsic circumstances may indicate the commission of a fraud on the debtor's creditors; thus, where the evidence clearly showed that the debtor, while insolvent and in contemplation of bankruptcy, established a homestead exemption in property, which was then subject to execution, for the express purpose of defeating the rights of creditors, particularly the rights of his ex-wife, her objection to the homestead exemption would be sustained. In re Hall, 31 B.R. 42, 1983 Bankr. LEXIS 6025 (Bankr. E.D. Tenn. 1983).

11. Liens.

Congress did not intend for the exercise of a debtor's avoidance rights under Bankr. Code § 522(f)(1) to benefit a junior consensual lienor at the expense of the judicial lienor whose interest is partially avoidable by a debtor in bankruptcy. In re Durham, 33 B.R. 23, 1983 Bankr. LEXIS 5543 (Bankr. E.D. Tenn. 1983).

Judicial lienholder in bankruptcy proceeding, had priority against homestead property over first deed of trust holder whose consensual lien was perfected subsequent to the judicial lien. In re Durham, 33 B.R. 23, 1983 Bankr. LEXIS 5543 (Bankr. E.D. Tenn. 1983).

Judicial lien against husband's survivorship interest in joint property was avoided in its entirety where couple's equity in home was less than the amount allowed for homestead exemption. In re Nunley, 109 B.R. 784, 1990 Bankr. LEXIS 56 (Bankr. E.D. Tenn. 1990).

Bankruptcy court held that 11 U.S.C. § 522(f)(2)(A) contains a federal definition of impairment and, in light of its explicit language, prohibits the court from looking to state law to define impairment; thus, the bankruptcy court rejected a creditor's contention that its lien had priority over a later mortgage lien and, thus, should not be avoided as it did not impair the debtors' homestead exemption because 11 U.S.C. § 522(f)(2) requires the bankruptcy court to include the mortgage in the impairment analysis. In re Northern, 294 B.R. 821, 2003 Bankr. LEXIS 711 (Bankr. E.D. Tenn. 2003).

It would be both inequitable and futile to reopen the debtors' chapter 7 bankruptcy case in order to avoid a valid judicial lien; the court denied the motion to reopen and struck the homestead exemption claimed pursuant to T.C.A. § 26-2-301. In re Tarkington, 301 B.R. 502, 2003 Bankr. LEXIS 1518 (Bankr. E.D. Tenn. 2003).

Debtors who declared bankruptcy were allowed under 11 U.S.C.S. § 522 to avoid a second judgment lien which a creditor placed on their home in full, and a first judgment lien which another creditor placed on their home in part, because both liens impaired a homestead exemption the debtors claimed pursuant to T.C.A. § 26-2-301; the formula that appeared in § 522 for determining whether a judgment lien impaired a debtor's exemption was a relatively simple calculation of value minus the sum of other liens, the exemption, and the judicial lien to be avoided, and when that formula was applied in the debtors'  case, it showed that $841 of the first judgment lien impaired the debtors'  exemption. In re Houser, — B.R. —, 2015 Bankr. LEXIS 65 (Bankr. E.D. Tenn. Jan. 6, 2015).

Chapter 7 debtors were allowed under 11 U.S.C.S. § 522 to avoid a judicial lien a creditor placed on their residence, even though they had not claimed a homestead exemption under T.C.A. § 26-2-301, because the amount of the judicial lien plus the amount of a mortgage lien on the property and the amount of the minimum exemption the debtors could have claimed if there were no liens on the property exceeded the property's value; although the debtors were not entitled to claim a homestead exemption because they did not have any equity in the property, the formula found in § 522 had to be applied as written, and the effect of the court's ruling was to convert the creditor's claim from a secured claim into an unsecured claim. In re Washington, — B.R. —, 2016 Bankr. LEXIS 132 (Bankr. W.D. Tenn. Jan. 11, 2016).

12. Interest in Property.

A husband cannot claim a homestead exemption in property titled in his wife's name and in which he owns no interest. In re Hackler, 35 B.R. 326, 1983 Bankr. LEXIS 4794 (Bankr. E.D. Tenn. 1983).

13. Involuntary Sale of Homestead.

If there is an involuntary sale of the homestead, that is, a sale forced upon the owner by judicial action or legal process, the surplus proceeds of the sale remain impressed with the homestead right. In re Miller, 246 B.R. 564, 2000 Bankr. LEXIS 303 (Bankr. E.D. Tenn. 2000).

Debtor's entitlement to the surplus proceeds following an involuntary transfer of the debtor's homestead was preserved by the lien the debtor was awarded against the property, despite the fact that the court deferred payment until the parties' youngest child reached majority. In re Miller, 246 B.R. 564, 2000 Bankr. LEXIS 303 (Bankr. E.D. Tenn. 2000).

26-2-302. Life estates and equitable estates.

Section 26-2-301 shall apply to life estates and equitable estates which are owned by an individual and used by the individual or individual's spouse or dependent as a principal place of residence. The homestead exemption in such estates shall be set apart as the court may prescribe in ordering the sale.

Acts 1870, ch. 80, § 2; Shan., § 3801; Code 1932, § 7722; Acts 1979, ch. 61, § 2; T.C.A., § 26-303.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 654.

Tennessee Jurisprudence, 4 Tenn. Juris., Bankrupcty, § 30; 13 Tenn. Juris., Exemptions From Execution and Attachment, § 6.

NOTES TO DECISIONS

Decisions Under Prior Law

1. In General.

The homestead may exist in equitable as well as legal estates. Nichol v. County of Davidson, 76 Tenn. 389, 1881 Tenn. LEXIS 23 (1881); Ren v. Driskell, 79 Tenn. 642, 1883 Tenn. LEXIS 119 (1883); Fauver v. Fleenor, 81 Tenn. 622, 1884 Tenn. LEXIS 80 (1884); White v. Fulghum, 87 Tenn. 281, 10 S.W. 501, 1888 Tenn. LEXIS 60 (1889).

2. Equity of Redemption.

The extension of the homestead exemption to equitable estates creates a homestead exemption in an equity of redemption. Flannegan v. Stifel, 3 Cooper's Tenn. Ch. 464 (1877).

3. Prior Liens — Status Against Homestead in Equitable Estates.

The right exists in equitable estates, including estates held under title bonds, but all liens acquired or existing against the land before the homestead right accrued must be paid or discharged by the claimant of that right, or the land will be sold to satisfy such liens, and the surplus, if any, not exceeding allowance, will be invested in other land for a homestead. Fauver v. Fleenor, 81 Tenn. 622, 1884 Tenn. LEXIS 80 (1884).

4. Remaindermen.

Tennessee law does not permit a remainderman to claim a homestead exception in the property to which his or her remainder interest attaches, even though the remainderman may reside on it with the permission of the life tenant. In re Lingerfelt, 180 B.R. 502, 1995 Bankr. LEXIS 467 (Bankr. E.D. Tenn. 1995).

26-2-303. Leasehold estates.

Section 26-2-301 shall apply to leasehold real property which is possessed and used by an individual, an individual's spouse, or an individual's dependent, as a principal place of residence, provided such leasehold estate is for more than two (2) and not exceeding fifteen (15) years. The homestead exemption upon leasehold estates shall not be exempt from execution or attachment for rent due thereon.

Acts 1866-1867, ch. 36, §§ 1, 2; Shan., §§ 3802, 3803; Code 1932, §§ 7723, 7724; Acts 1979, ch. 61, § 3; T.C.A., § 26-304.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 650, 654.

Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 6, 8.

26-2-304. Insurance proceeds from homestead.

All moneys arising from insurance on a homestead which is destroyed by fire, or by other disaster, shall be exempt in an amount not to exceed five thousand dollars ($5,000). This insurance exemption shall not operate so as to exclude the interest of any mortgagee at the time of the insurance loss so long as the mortgagee's interest is evidenced by a written contract.

Code 1932, § 7734; Acts 1979, ch. 61, § 4; T.C.A., § 26-305.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), §§ 649, 650, 657.

Tennessee Jurisprudence, 4 Tenn. Juris., Bankruptcy, § 30; 13 Tenn. Juris., Exemptions From Execution and Attachment, § 6.

NOTES TO DECISIONS

1. Bankruptcy.

In a bankruptcy proceeding the debtors may not invoke the state-created exemption for insurance proceeds from the destruction of a homestead to defeat the federal income tax lien on the proceeds. In re Mills, 37 B.R. 832, 1984 Bankr. LEXIS 6216 (Bankr. E.D. Tenn. 1984).

26-2-305. Family cemeteries and burial lots.

Any interest or estate in a family cemetery, not in excess of one (1) acre, or in a burial lot in a cemetery, or a space in a mausoleum, or a certificate of ownership thereof, is exempt from levy of execution or attachment except as in case of homestead.

Code 1932, § 7735; T.C.A. (orig. ed.), § 26-306.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 6.

Law Reviews.

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

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

26-2-306. Exemption inapplicable in certain cases.

The homestead shall not be exempt from sale for the payment of public taxes legally assessed upon it, or from sale for the satisfaction of any debt or liability contracted for its purchase or legally incurred for improvements made thereon. It shall be exempt from seizure in criminal as well as in civil cases, but not exempt from distress or sale for taxes; or for fines and costs for voting out of the civil district, precinct or ward in which the voter lives; or for carrying deadly or concealed weapons contrary to law; or for giving away or selling intoxicating liquors on election days.

Acts 1870, ch. 80, § 1; 1870-1871, ch. 71, § 5; 1879, ch. 171, § 2; impl. am. Acts 1891, ch. 1, § 19; Shan., § 3799; Code 1932, § 7720; T.C.A. (orig. ed.), § 26-307.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 650.

Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 8; 23 Tenn. Juris., Subrogation, § 9.

NOTES TO DECISIONS

1. Homestead Exempt.

2. —Attorney's Lien.

An attorney's lien for compensation for services, rendered in the recovery and protection of the homestead right to which a widower with minor children is entitled, may be enforced by sale of that right where the lien was declared by decree in the case in which the services were rendered upon the written consent of the widower. McLean v. Lerch, 105 Tenn. 693, 58 S.W. 640, 1900 Tenn. LEXIS 123 (1900).

Homestead right of husband and wife is not subject to lien for fees of an attorney for services rendered in an action for its recovery, and cannot be sold for same. McBroom v. Whitefield, 108 Tenn. 422, 67 S.W. 794, 1901 Tenn. LEXIS 43 (1902).

3. —Payor of Purchase Money — Subrogation.

A person who pays the purchase money debt, without originally being bound therefor, is not to be subrogated to the lien satisfied. The equity of subrogation will not be administered as against the homestead in such case. Smith v. Neilson, 81 Tenn. 461, 1884 Tenn. LEXIS 58 (1884); Loftis v. Loftis, 94 Tenn. 232, 28 S.W. 1091, 1894 Tenn. LEXIS 39 (1895).

Where money is borrowed from a third person and used in paying the purchase money owing for land, and the borrower, without his wife joining with him, makes a mortgage or deed of trust on the land paid for with such borrowed money, to secure the same, reciting the facts therein, the homestead exists in such land as against such debt, and may be asserted by the widow or children of such owner after his death. Loftis v. Loftis, 94 Tenn. 232, 28 S.W. 1091, 1894 Tenn. LEXIS 39 (1895); Bradshaw v. Van Valkenburg, 97 Tenn. 316, 37 S.W. 88, 1896 Tenn. LEXIS 146 (1896).

4. —Debts Due Government.

Homestead is exempt as against executions on judgments in favor of the federal government. Rogers v. McKenzie, 48 Tenn. 514, 1870 Tenn. LEXIS 101 (1870); Fink v. O'Neil, 106 U.S. 272, 1 S. Ct. 325, 27 L. Ed. 196, 1882 U.S. LEXIS 1539 (1882).

The homestead right prevails as to debts due the state. They stand to be enforced on parity with debts due to individuals. Ren v. Driskell, 79 Tenn. 642, 1883 Tenn. LEXIS 119 (1883).

5. —Prior Judgment Liens.

A homestead previously acquired in an equity of redemption, prevails over the lien of a judgment rendered before the acquisition, since the lien of the judgment is not created or effective as to such an equitable estate until the subsequent filing of a bill in equity to subject it. Flannegan v. Stifel, 3 Cooper's Tenn. Ch. 464 (1877).

The homestead right is not defeated by a judgment lien existing at the time the land is acquired in which the right is claimed. The exemption and lien attach at the same time, the former as superior prevails. Maples v. Rawlins, 105 Tenn. 457, 58 S.W. 644, 1900 Tenn. LEXIS 92, 80 Am. St. Rep. 903 (1900).

6. —Tort Claim.

The homestead right exists as against an execution issued upon a judgment for a tort, where the action was begun before the right was created and the judgment was rendered afterwards. Parker v. Savage, 74 Tenn. 406, 1880 Tenn. LEXIS 267 (1880).

7. —Liens Not Fixed Before Marriage.

Where the owner of land contracted debts, and then by marriage became the head of a family before his creditor fixed any lien on the land, he is entitled to homestead in the land as against such creditor. Dye v. Cooke, 88 Tenn. 275, 12 S.W. 631, 1889 Tenn. LEXIS 47, 17 Am. St. Rep. 882 (1889).

8. —Sale Under Execution Against Husband.

Where land had been sold under execution against the husband, the wife's right to homestead was not defeated. Beard v. Beard, 10 Tenn. App. 52, — S.W.2d —, 1928 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1928).

9. Homestead Not Exempt.

The homestead land may be levied on and sold under an execution issued on a judgment recovered on a debt for the purchase money or for improvements, or otherwise subjected by legal process to the payment of such debts. Woodlie v. Towles, 68 Tenn. 592, 1877 Tenn. LEXIS 57 (1877); Bentley v. Jordan, 71 Tenn. 353, 1879 Tenn. LEXIS 88 (1879); Miller v. Brown & Forsythe, 79 Tenn. 155, 1883 Tenn. LEXIS 31 (1883).

10. —Purchase Money Debt.

A surety paying the assignee of a purchase money note that originally constituted a vendor's implied or equitable lien cannot be subrogated to such lien, because such assignee had no such lien. He is entitled to subject the homestead to the payment of the purchase money debt, however, and the debtor cannot claim the homestead exemption against such debt, for the homestead is not exempt from sale for the payment of debts contracted for the purchase money of the land. Himes v. Smith, 2 Shan. 431 (1877).

The homestead is not exempt from the payment of purchase money, though the evidence of the debt may have been changed in form, and though all the residue of the land has been taken by a creditor against whom the homestead exemption was effective. Bentley v. Jordan, 71 Tenn. 353, 1879 Tenn. LEXIS 88 (1879).

Although debt contracted for its purchase is not a lien on the homestead, it may be sold for satisfaction thereof. Bentley v. Jordan, 71 Tenn. 353, 1879 Tenn. LEXIS 88 (1879).

Although the vendor may lose all liens on the land, by an absolute conveyance acknowledging payment in full, and by taking a new note with security and a higher rate of interest, or may otherwise lose it, he may subject the land impressed with the homestead right to the satisfaction of such debt, by virtue of the fact that it was contracted for the purchase money of the land and this, though all the other land has been seized and appropriated by other creditors. Bentley v. Jordan, 71 Tenn. 353, 1879 Tenn. LEXIS 88 (1879); Byrns v. Woodward, 78 Tenn. 444, 1882 Tenn. LEXIS 202 (1882).

Even though the debt contracted for purchase of a homestead be assigned, extended or renewed, the homestead may be sold in satisfaction thereof. Loftis v. Loftis, 94 Tenn. 232, 28 S.W. 1091, 1894 Tenn. LEXIS 39 (1895).

The homestead may be subjected to the debt incurred in its purchase. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

11. —Improvement Debt.

The homestead is not exempt from any debt legally incurred for the improvements made thereon. Thompson v. Wickersham, 68 Tenn. 216, 1877 Tenn. LEXIS 21 (1877).

The question whether creditors will have any remedy if the debtor expends upon his allotted homestead extravagant sums of money which ought to be applied to the payment of his debts is reserved. Hardy v. Lane, 74 Tenn. 379, 1880 Tenn. LEXIS 261 (1880).

Under the constitutional and statutory provisions, the homestead is not exempt from sale for the satisfaction of a debt contracted for improvements made thereon, although the creditor may have lost his mechanic's lien for the debt. Miller v. Brown & Forsythe, 79 Tenn. 155, 1883 Tenn. LEXIS 31 (1883).

Where improvements are made on the property by the husband alone by use of borrowed money, that does not defeat the wife's right to homestead in the property as improved. Beard v. Beard, 10 Tenn. App. 52, — S.W.2d —, 1928 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1928).

12. —Street Assessments.

Street assessments against abutting homestead may be enforced as against the homestead. Reed v. Athens, 146 Tenn. 168, 240 S.W. 439, 1921 Tenn. LEXIS 11 (1921).

13. —Drainage Assessments.

Drainage of homestead swamp lands, authorized by statute, constituted an improvement thereon, for which the land was subject to special assessment. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

14. —Mechanics' or Materialmen's Liens.

The right of homestead cannot prevail over the lien of a mechanic or furnisher. Thompson v. Wickersham, 68 Tenn. 216, 1877 Tenn. LEXIS 21 (1877).

15. —Extinguishment of Homestead After Foreclosure.

A creditor who purchased at a foreclosure sale of land taking title subject to the homestead right may acquire purchase money notes secured by an earlier mortgage, foreclose the lien of the latter and buy, thus extinguishing the homestead right. There was no such merger of the legal and equitable titles in him as extinguished the debt or canceled the lien. Irvine v. Shrum, 97 Tenn. 259, 36 S.W. 1089, 1896 Tenn. LEXIS 137 (1896).

16. —Liens Fixed Before Right Attaches.

All liens fixed on the land before the right of homestead arises must be paid by the claimant or the land will be sold for their satisfaction. Fauver v. Fleenor, 81 Tenn. 622, 1884 Tenn. LEXIS 80 (1884).

26-2-307. Right of selection.

Each individual who is entitled to a homestead exemption shall have the right to elect where the homestead shall be set apart.

Acts 1879, ch. 171, § 1; Shan., § 3800; Code 1932, § 7721; Acts 1979, ch. 61, § 5; T.C.A., § 26-308.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 654.

Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 7.

Law Reviews.

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries, 3 Mem. St. U.L. Rev. 327.

NOTES TO DECISIONS

Decisions Under Prior Law

1. Extent of Power Conferred by Section.

This statute was not intended to alter the then existing law further than to give the head of a family owning land the power to locate his homestead upon any part of it, and to enjoy the homestead exemption without actual occupancy. It was not intended to create a homestead right in undivided interests in land. Flatt v. Mack Stadler Co., 84 Tenn. 371, 1886 Tenn. LEXIS 110 (1886); J. I. Case Threshing-Machine Co. v. Joyce, 89 Tenn. 337, 16 S.W. 147, 1890 Tenn. LEXIS 56, 12 L.R.A. 519 (1890).

Under this section, the head of a family may elect to have the homestead exemption set apart upon any land owned by him; but this power of selection does not add any more absolute character of title in the land covered by the homestead than existed before such right was conferred, nor does it empower the husband to convey the homestead without the joinder of the wife. Flatt v. Mack Stadler Co., 84 Tenn. 371, 1886 Tenn. LEXIS 110 (1886); Cottrell v. Rogers, 99 Tenn. 488, 42 S.W. 445, 1897 Tenn. LEXIS 57 (1897).

2. Separate Tracts as Homestead.

Where the head of a family owned a lot on which he lived with his family, and held title bond to another lot across the street, on which there was a lien for purchase money, he was entitled to a homestead in both lots where they were worth less than the allowance. Smith v. Carter Bros. & Co., 84 Tenn. 527, 1886 Tenn. LEXIS 140 (1886), superseded by statute as stated in, In re Wilson, 347 B.R. 880, 2006 Bankr. LEXIS 1766 (Bankr. E.D. Tenn. 2006); Moses v. Groner, 106 Tenn. 121, 60 S.W. 497, 1900 Tenn. LEXIS 139 (1900), superseded by statute as stated in, In re Wilson, 347 B.R. 880, 2006 Bankr. LEXIS 1766 (Bankr. E.D. Tenn. 2006).

Homestead may exist in so much of a tract of land lying apart from the residence lot as together with the residence lot will make up the value, though the two tracts do not adjoin, but are at least a quarter of a mile apart. Moses v. Groner, 106 Tenn. 121, 60 S.W. 497, 1900 Tenn. LEXIS 139 (1900), superseded by statute as stated in, In re Wilson, 347 B.R. 880, 2006 Bankr. LEXIS 1766 (Bankr. E.D. Tenn. 2006).

The head of a family, who is the owner of four unimproved town lots worth less than the allowed sum, situated in as many separate but contiguous blocks, separated by streets, is entitled to claim them all as homestead. Moses v. Groner, 106 Tenn. 121, 60 S.W. 497, 1900 Tenn. LEXIS 139 (1900), superseded by statute as stated in, In re Wilson, 347 B.R. 880, 2006 Bankr. LEXIS 1766 (Bankr. E.D. Tenn. 2006); Jones v. Bradshaw, 2 Tenn. Ch. App. 737 (1902).

Decisions to the effect that separate tracts may together constitute homestead are founded upon the principle that actual occupancy of the land is not essential either to the acquisition or retention of the homestead. Walt v. Walt, 113 Tenn. 189, 81 S.W. 228, 1904 Tenn. LEXIS 15 (1904).

Where the deceased husband had acquired several pieces of land by several purchases, so adjoining as to form one continuous and well connected body of land, on which he lived and treated as one tract, from the time of their acquisition until his death, they will be treated as one tract in assigning homestead to his widow. Nelson v. Theus, 5 Tenn. Civ. App. (5 Higgins) 87 (1915).

3. Wife Bound by Selection.

The husband as the head of the family has the right to select the homestead, and his wife is bound by the selection, though he may elect to claim homestead in a life estate only. Porter v. Porter, 2 Tenn. Civ. App. (2 Higgins) 91 (1911).

The wife is bound by the husband's selection of homestead, made by him in good faith and without any intention of defeating or defrauding the wife. Porter v. Porter, 2 Tenn. Civ. App. (2 Higgins) 91 (1911); Burns v. Ralston, 4 Tenn. Civ. App. (4 Higgins) 451 (1912).

4. —Life Estate as Homestead.

The husband's election to claim homestead in a tract of land in which he holds only a life estate may bind the wife. Porter v. Porter, 2 Tenn. Civ. App. (2 Higgins) 91 (1911).

5. Inferred Election.

Where the head of a family owns only one tract of land worth less than the value allowed as exemption, his homestead right is treated as assigned therein and to vest as an estate in the tract. Beeler v. Nance, 126 Tenn. 589, 150 S.W. 797, 1912 Tenn. LEXIS 79 (1912).

An election may be presumed from retention by the husband of sufficient land to satisfy the homestead requirements. Burns v. Ralston, 4 Tenn. Civ. App. (4 Higgins) 451 (1912).

6. Estoppel by Representations.

A wife may be estopped to claim homestead where she induced one to purchase the land by representing to him that she and her husband had acreage reserved which had been selected as a homestead and was worth more than homestead allowance. Copeland v. Burkett, 45 S.W. 533, 1897 Tenn. Ch. App. LEXIS 107 (1897).

Where in a sworn answer in a prior suit to reach the land, the husband and wife alleged that land retained had a value more than the homestead allowance, both are bound by the allegation. Copeland v. Burkett, 45 S.W. 533, 1897 Tenn. Ch. App. LEXIS 107 (1897).

26-2-308. Procedure to set apart.

Whenever real property of an individual who is entitled to a homestead exemption thereon is levied on by execution or attachment, the individual's homestead shall be set apart in the following manner:

  1. The officer executing the writs shall summon three (3) disinterested freeholders, not connected with the parties, and administer to them an oath to set apart the homestead out of the real estate so levied on;
  2. The freeholders shall examine the premises and upon oath set apart the homestead, if so desired by the individual entitled to the exemption, and set out in writing the boundaries thereof, and certify that such is the homestead set apart by them, and deliver the same to the debtor; and
  3. The remainder only of such lands so levied on or attached shall be subject to sale, which fact shall be returned on the execution.

Acts 1870, ch. 80, § 3; 1879, ch. 171, § 3; Shan., § 3804; Code 1932, § 7725; Acts 1979, ch. 61, § 6; T.C.A., § 26-309.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 652.

Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 7.

Law Reviews.

Bankruptcy Law — Nobelman v. American Savings Bank: Permissibility of Bifurcating and Modifying Homestead Mortgages, 24 Mem. St. U.L. Rev. 805 (1994).

NOTES TO DECISIONS

1. Execution Sale Without Assignment.

The failure of the officer levying upon and selling the land in which the homestead exemption exists to cause the assignment of the homestead to be made before the sale does not deprive the debtor of the homestead right, nor vest in the purchaser any greater right than the officer could sell, even though no demand for such assignment was made by the debtor. The failure of the officer to discharge his duty does not affect the homestead right. Redeeming creditors stand in no better condition than the original purchaser. Gray v. Baird, 72 Tenn. 212, 1879 Tenn. LEXIS 23 (1879); Burnett v. Austin, 78 Tenn. 564, 1882 Tenn. LEXIS 224 (1882); Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899); Beard v. Beard, 10 Tenn. App. 52, — S.W.2d —, 1928 Tenn. App. LEXIS 8 (Tenn. Ct. App. 1928).

The execution sale of land of greater value than the sum allowed and subject to homestead, made without the assignment of homestead therein to the debtor, is voidable at his election, and he is entitled to have the sale vacated and annulled. The statute is so far mandatory as to render the sale made without compliance with the terms of the statute, voidable. However, it is the sale that is voidable and not the levy, if it was valid. Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899); Jones v. Bradshaw, 2 Tenn. Ch. App. 737 (1902).

Where statute is disregarded, the sale is voidable at instance of execution debtor. Huff v. Miller, 58 S.W. 876, 1900 Tenn. Ch. App. LEXIS 55 (1900).

Lien of valid levy may be enforced, though the sale be illegal and avoided. Jones v. Bradshaw, 2 Tenn. Ch. App. 737 (1902).

Sale of land in which the homestead right exists, without assignment of the homestead as required, is illegal, and the illegality may be set up as a defense and such sale may be avoided by answer as well as by cross bill. Jones v. Bradshaw, 2 Tenn. Ch. App. 737 (1902).

2. —Bill for Homestead.

The sheriff who levied an attachment on the land, without causing the homestead to be set apart therein, is not a necessary party to a bill for the recovery and assignment of homestead in the land ordered by the court to be sold under the attachment, nor to a bill enjoining the sheriff from selling the land, as the injunction against the parties is effective as against him. Montgomery v. Whitworth, 1 Cooper's Tenn. Ch. 174 (1873); Bloomstein v. Brien, 2 Cooper's Tenn. Ch. 778 (1877); Buckner v. Abrahams, 3 Cooper's Tenn. Ch. 346 (1877).

Where the sheriff has personal property in his possession under a levy of an execution, which vests title in him, he is the necessary party to a suit for the recovery of the same. Buckner v. Abrahams, 3 Cooper's Tenn. Ch. 346 (1877).

3. —Assignment in Execution Purchaser's Ejectment Suit.

The circuit court may cause homestead to be assigned in the purchaser's action of ejectment against the debtor, and though it is more regular to set apart the homestead before giving plaintiff final judgment for the residue, the Supreme Court will not reverse the case because the circuit court judge gave the plaintiff judgment for the land, excepting the homestead, which was subsequently assigned. If such case is appealed before the assignment of the homestead, the Supreme Court will reverse the case because no final judgment had been rendered. Arnold v. Jones, 77 Tenn. 545, 1882 Tenn. LEXIS 98 (1882); Burnett v. Austin, 78 Tenn. 564, 1882 Tenn. LEXIS 224 (1882); Galyon v. Gilmore, 93 Tenn. 671, 28 S.W. 301, 1894 Tenn. LEXIS 14 (1894); Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899).

Where the land exceeds in value the amount allowed by statute and the sale under levy of execution was made without the previous assignment of homestead as required by this statute, the homestead may be assigned in the action of ejectment by the purchaser against the debtor who was the owner entitled to the homestead. This was done for the protection of the debtor's homestead right against loss through the dereliction of the sheriff, and in disapproval of his failure to observe the requirement of the statute. Burnett v. Austin, 78 Tenn. 564, 1882 Tenn. LEXIS 224 (1882); Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899).

4. —Levy and Sale Operating as Assignment.

The levy of an execution on lands of less than the statutory allowance, reciting that it is made “subject to the homestead rights” of the debtor, and a sale thereof, without the formal assignment of homestead under this statute, operates as an assignment of homestead that invests the debtor with a life estate therein that he may convey by deed. Flatt v. Mack Stadler Co., 84 Tenn. 371, 1886 Tenn. LEXIS 110 (1886); Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899); Carver v. Maxwell, 110 Tenn. 75, 71 S.W. 752, 1902 Tenn. LEXIS 40 (1902), questioned, Anderson v. Anderson, 52 Tenn. App. 241, 372 S.W.2d 452, 1962 Tenn. App. LEXIS 134 (Tenn. Ct. App. 1962); Beeler v. Nance, 126 Tenn. 589, 150 S.W. 797, 1912 Tenn. LEXIS 79 (1912); York & Robinson v. Byars, 131 Tenn. 38, 173 S.W. 435, 1914 Tenn. LEXIS 82 (1915).

5. —Crops on Land Sold Subject to Right.

Where homestead is not assigned but sold subject to the homestead right, the crops on the land at confirmation of sale belong equally to homestead claimant and the purchaser; and this though purchaser not put in possession until after the crops were gathered. O'Bryan v. Brown, 48 S.W. 315, 1898 Tenn. Ch. App. LEXIS 78 (1898).

6. Assignment by Officer.

7. —Nature of Officer's Duty.

The duty of the levying officer to assign homestead is mandatory. Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899).

8. —Compelling Compliance with Section.

Where the officer levies an execution upon land in which a homestead exemption exists, and refuses to have the homestead set aside as required by the statute, he may be compelled to appoint the commissioners to set apart the homestead, upon proper application to the court. Ex parte Brien, 2 Cooper's Tenn. Ch. 33 (1874).

9. Commissioners to Select Homestead.

10. —Order of Appointment.

It is not fatal that an order of appointment does not show that the commissioners were disinterested; their action is valid if they were in fact disinterested. Cooley v. Cooley's Heirs, 37 S.W. 1028, 1896 Tenn. Ch. App. LEXIS 51 (1896).

11. —Notice by Commissioners Unnecessary.

It is not required that the commissioners give notice to the parties of the time of their action. Cooley v. Cooley's Heirs, 37 S.W. 1028, 1896 Tenn. Ch. App. LEXIS 51 (1896).

12. —Nature of Proceedings.

The proceedings of the commissioner appointed to set apart the homestead are in the nature of a judicial proceeding, and may be brought into the circuit court by certiorari to supersede the same when illegal, as where one of the commissioners was disqualified to act because of his relationship to the plaintiff in the execution. Wilson v. Lowe, 47 Tenn. 153, 1869 Tenn. LEXIS 25 (1869).

13. —Finality of Proceedings.

The value and boundaries of the homestead are ascertained and determined when it is set apart by judicial proceedings, and when so done, the homestead is not subject to future valuations by reason of the appreciation of its value. Hardy v. Lane, 74 Tenn. 379, 1880 Tenn. LEXIS 261 (1880).

14. Levy or Conveyance of Fee.

Where the homestead has been assigned under this statute, the husband may sell and convey or mortgage the fee therein subject to the homestead right, without the joinder of his wife in the deed or mortgage. Moore v. Hervey, 2 Shan. 154 (1876); Mash v. Russell, 69 Tenn. 543, 1878 Tenn. LEXIS 136 (1878); Crook v. Lunsford, 70 Tenn. 237, 1879 Tenn. LEXIS 165 (1879); Gilbert v. Cowan, McClung & Co., 71 Tenn. 203, 1879 Tenn. LEXIS 59 (1879); Flatt v. Mack Stadler Co., 84 Tenn. 371, 1886 Tenn. LEXIS 110 (1886); McBroom v. Whitefield, 108 Tenn. 422, 67 S.W. 794, 1901 Tenn. LEXIS 43 (1902).

The reversionary or remainder interest in land assigned as a homestead, that is, the fee encumbered with the homestead exemption, may be levied on and sold for the payment of the owner's debts. Moore v. Hervey, 2 Shan. 154 (1876); Gilbert v. Cowan, McClung & Co., 71 Tenn. 203, 1879 Tenn. LEXIS 59 (1879); Fauver v. Fleenor, 81 Tenn. 622, 1884 Tenn. LEXIS 80 (1884); Carrigan v. Rowell, 96 Tenn. 185, 34 S.W. 4, 1895 Tenn. LEXIS 24 (1896); Delk v. Yelton, 103 Tenn. 476, 53 S.W. 729, 1899 Tenn. LEXIS 129 (1899).

Where the decedent's personal estate is insufficient to pay his debts, the fee is his land encumbered with the homestead may be sold, subject to the homestead right, to pay his debts. Lunsford v. Jarrett, 70 Tenn. 579, 1879 Tenn. LEXIS 200 (1879); Carrigan v. Rowell, 96 Tenn. 185, 34 S.W. 4, 1895 Tenn. LEXIS 24 (1896).

15. Assignment in Foreclosure Suit.

In a suit to foreclose a mortgage on land in which the homestead exemption exists, the court may appoint commissioners to set apart the homestead, if susceptible to division, or if not, to certify the fact to the court. Moore v. Hervey, 2 Shan. 154 (1876).

16. Rights of Widow and Children.

17. —Second Marriage After Homestead Set Apart.

Where the homestead was set apart and assigned to the husband, during the first marriage, it will, upon his death, inure to the benefit of his widow and child of a second marriage, as against a levy procured to be made thereon by his creditors while he was a widower without family. National Bank of Pulaski v. Shelton, 87 Tenn. 393, 11 S.W. 95, 1888 Tenn. LEXIS 71 (1889).

26-2-309. Sale and reinvestment of exempt proceeds.

When the real estate levied on is of greater value than five thousand dollars ($5,000), and is so situated that it cannot be divided so as to set apart the homestead, the freeholders shall certify the fact, and the officer may proceed to sell the whole tract, and out of the proceeds the officer shall pay to the clerk of the court rendering the judgment, or condemning the land for sale, five thousand dollars ($5,000), to be invested under the order of the court, in the purchase of a homestead for the debtor, and only the surplus over and above five thousand dollars ($5,000) shall be applied to the payment of the execution.

Acts 1870, ch. 80, § 4; Shan., § 3805; Code 1932, § 7726; impl. am. Acts 1933, ch. 72, § 1; C. Supp. 1950, § 7726; Acts 1979, ch. 61, § 7; T.C.A., § 26-310.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 7, 9, 10.

Law Reviews.

Tennessee Law and Equal Rights Amendment: Property Law, Employment Relations and Juries, 3 Mem. St. U.L. Rev. 327.

NOTES TO DECISIONS

1. Terms of Sale.

Where the land is of greater value than the homestead allowance, and is so situated that the homestead cannot be set apart, and it becomes necessary for a court of chancery to sell the land for the payment of the debts of the owner, or for other purposes, a sale of the entire land may be ordered for the amount of the allowance in cash, for reinvestment in another homestead, in accordance with this statute, and the residue in installments on time, free from the equity of redemption. Bentley v. Jordan, 71 Tenn. 353, 1879 Tenn. LEXIS 88 (1879); White v. Fulghum, 87 Tenn. 281, 10 S.W. 501, 1888 Tenn. LEXIS 60 (1889).

2. Reinvestment.

3. —Right to Homestead Pending Reinvestment.

Where the land is of greater value than the homestead allowance, and is so situated that the homestead cannot be set apart, and a sale of the land is ordered, from which decree there is an appeal, whether the homestead right is declared or denied by the decree, the appointment of a receiver to take charge of the property and rent it out pending the appeal is improper, and the order of appointment will be superseded by the supreme court. A party entitled to the homestead cannot be lawfully dispossessed of it until another homestead is provided by the reinvestment. Hoge v. Hollister, 67 Tenn. 533, 1876 Tenn. LEXIS 2 (1876); Caruthers v. Caruthers, 70 Tenn. 71, 1878 Tenn. LEXIS 189 (1878); Enochs v. Wilson, 79 Tenn. 228, 1883 Tenn. LEXIS 48 (1883).

If claimant of the homestead exemption is dispossessed thereof either by the appointment of a receiver or by writ of possession executed pending the appeal from decree ordering sale of the land, the supreme court will supersede the appointment of the receiver, and will order writ of restitution to be issued at once to restore him to the possession. Where the proof does not show the extent of the homestead exemption, such claimant will be given the possession of the entire land; but where the proof (especially that of the claimant) shows the probable extent of the homestead exemption, the claimant will be given possession to that extent only. Hoge v. Hollister, 67 Tenn. 533, 1876 Tenn. LEXIS 2 (1876); Caruthers v. Caruthers, 70 Tenn. 71, 1878 Tenn. LEXIS 189 (1878).

4. —Lien of Creditor Following Reinvestment.

Where the land in which the homestead exists is sold, either in foreclosure of a mortgage or because indivisible and worth more than the homestead exemption, the proceeds, to which the homestead right attaches must be invested in another homestead for the debtor; but the creditor's lien will follow the money in the new investment in other lands for another homestead, which lands may be sold by virtue of such lien, subject to the homestead right therein, and the purchaser will be entitled to possession of the land whenever such homestead terminates in any way. Flannegan v. Stifel, 3 Cooper's Tenn. Ch. 464 (1877).

5. —Source of Funds.

Where former homestead of judgment debtor had been levied upon and judgment credited with entire amount from sale of former homestead, and where $1,000 (amount subsequently increased by amendment) had been reinvested in a homestead for the judgment debtor by the judgment creditor out of its own funds, debtor could not complain of vestiture of remainder estate in creditor. Hamilton Nat'l Bank v. Woods, 31 Tenn. App. 501, 217 S.W.2d 14, 1948 Tenn. App. LEXIS 107 (Tenn. Ct. App. 1948).

6. Mortgage Sale.

7. —Surplus Proceeds.

In a suit foreclosing a mortgage which conveyed or waived the homestead right, the homestead right exists in the surplus funds realized from the foreclosure sale. White v. Fulghum, 87 Tenn. 281, 10 S.W. 501, 1888 Tenn. LEXIS 60 (1889).

Surplus proceeds of mortgaged land to the extent of the homestead allowance shall be exempt and reinvested in other land for a homestead. Jackson v. Shelton, 89 Tenn. 82, 16 S.W. 142, 1890 Tenn. LEXIS 24, 12 L.R.A. 514 (1890); Crawford v. Carroll, 93 Tenn. 661, 27 S.W. 1010, 1894 Tenn. LEXIS 12, 42 Am. St. Rep. 943, 26 L.R.A. 415 (1894); Galyon v. Gilmore, 93 Tenn. 671, 28 S.W. 301, 1894 Tenn. LEXIS 14 (1894); Wright v. Brooks, 101 Tenn. 601, 49 S.W. 828, 1898 Tenn. LEXIS 108 (1899).

8. —Foreclosure Suit of Mortgage.

In the foreclosure suit of mortgage on land, the homestead must be assigned under this statute, and the balance of the land and reversionary interest in the homestead may then be sold. Moore v. Hervey, 2 Shan. 154 (1876).

26-2-310. Registration of freeholder's certificate.

The officer shall certify upon the certificate of the freeholders that the same is their act and deed, and the debtor shall have the same registered in the register's office of the county in which the lands lie, and, when so registered, it shall vest in the individual entitled to such homestead exemption, as herein provided, a good and valid title to the land exempt from execution.

Acts 1870, ch. 80, § 5; Shan., § 3806; Code 1932, § 7727; Acts 1979, ch. 61, § 8; T.C.A. (orig. ed.), § 26-311.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, § 7.

26-2-311. Setting apart for deserted family.

When a debtor absconds or abandons the debtor's family, the homestead shall be set apart for the use of the spouse and family, and shall be exempt in the hands of the spouse or children; and such property, on the death of the owner, shall be exempt in the hands of the surviving spouse and children, as prescribed in § 30-2-105.

Acts 1870-1871, ch. 71, § 6; Shan., § 3810al; Code 1932, § 7732; T.C.A. (orig. ed.), § 26-312.

Textbooks. Tennessee Jurisprudence, 13 Tenn. Juris., Exemptions From Execution and Attachment, §§ 4, 7, 10.

26-2-312. Property purchased with or maintained by fraudulently obtained funds ineligible for homestead exemption.

Property shall not be eligible, in whole or in part, for the homestead exemption provided by this part, if the property has been purchased with or maintained by fraudulently obtained funds or if ownership of the property has been maintained using fraudulently obtained funds. A court shall be required to find by a preponderance of the evidence that the property was purchased with or maintained by funds obtained by defrauding another person or that ownership of the property was maintained by funds obtained by defrauding another person in order to disqualify the property from eligibility for the homestead exemption.

Acts 2014, ch. 803, § 2.

Part 4
Executions and Garnishments in Aid of Executions

26-2-401. Applicability.

This part shall apply to executions and garnishments in aid of execution in supplement to other applicable provisions of law; provided, that the contents of the Notice to Judgment Debtor required in connection with a wage garnishment shall be governed by § 26-2-216.

Acts 1988, ch. 934, § 2.

26-2-402. Statement showing address, amount owed.

Upon requesting the issuance of an execution or garnishment, the judgment creditor, or the judgment creditor's agent or attorney, shall file a statement showing the judgment debtor's last known address, the amount owed on the judgment, and the judgment creditor's address for mailing any notice required under this part. If a clerk issues an execution or a garnishment without demand, the clerk shall ascertain such information from the court records. The judgment debtor's last known address as furnished by the judgment creditor or as ascertained by the clerk shall be included on the notice required by § 26-2-204 or by § 26-2-216.

Acts 1988, ch. 934, § 3; 1989, ch. 404, § 3.

26-2-403. Notice required.

  1. No clerk shall issue an execution or garnishment unless it provides the notice required by § 26-2-404 or by § 26-2-216. No clerk shall issue a garnishment unless it also contains the notice required by § 26-2-203.
  2. No sheriff or other officer shall summon a garnishee unless the garnishment provides the notice required by § 26-2-404 or by § 26-2-216, and unless it provides the notice required by § 26-2-203.

Acts 1988, ch. 934, §§ 4, 5.

26-2-404. Contents of notice.

  1. The following notice shall be completed and shall appear in the text of an execution or garnishment or shall be securely attached thereto:

    IN THE  COURT FOR  COUNTY, TENNESSEE   Plaintiff,  )   vs.   )            CASE NO.  Defendant. )

    NOTICE TO JUDGMENT DEBTORTo collect a judgment against you in this lawsuit, your money or other property has been seized by execution or garnishment. An execution allows the sheriff to sell the property levied upon. A garnishment requires your bank (or other person holding your money or property) to transfer your property to the court or to hold it to satisfy the judgment.

    READ THIS CAREFULLY. YOU MAY BE ABLE TO KEEP YOUR MONEY OR PROPERTY OR GET IT BACK.

    State and federal laws prevent certain types of money or property from being used to pay a judgment. Such money or property is “exempt.” Examples of exempt money are: Social security benefits, SSI, unemployment benefits, Veterans' benefits, AFDC, and most government pensions. Examples of exempt property are certain health care aids and “tools of trade.” These examples of exempt money and property constitute only a partial list, and you may have other exemptions.

    If you think you have exempt money or property that has been seized, you have the right to file a motion with the court clerk's office identified below claiming your exemption and asking for the release or return of your money or property.

    You can get a form for filing this motion at the clerk's office below, or the clerk may have supplied such a form on the back of this notice. YOU SHOULD ACT QUICKLY.  If you file a motion within twenty (20) days from the date this notice was mailed to you or was given to you, the court must hear and decide your motion promptly, and in no event later than fourteen (14) days from filing. The clerk will notify you of the time, date, and place of the hearing.

    IF YOU DO NOT UNDERSTAND YOUR RIGHTS OR HOW TO EXERCISE THEM, YOU MAY WISH TO CONSULT WITH A LAWYER. IF YOU CANNOT AFFORD A LAWYER, YOU MAY BE ELIGIBLE FOR FREE LEGAL ASSISTANCE.  The court clerk's office can provide you with forms and with information about legal services in your area, but the clerk cannot give you legal advice.

    NAME:             (Clerk of Court)       (Judgment Debtor)ADDRESS:     (Provided by Creditor)     TELEPHONE:

    GARNISHMENT CALCULATION

  2. The amount of wages withheld in a garnishment depends upon whether the judgment is for child support or alimony or for some other debt. The two (2) ways to calculate the withholding are outlined below. For purposes of these calculations, “fmw” means the federal minimum hourly wage.

    ANSWER OF GARNISHEE (Employer) Docket/Case #

    [GARNISHMENT CALCULATION: TCA 26-2-404(b), as defined in TCA 26-2-216]

    Pay period from  to

    1. IF THE JUDGMENT IS FOR ANY DEBT OTHER  THAN FOR ALIMONY OR CHILD SUPPORT:
      1. What is total gross pay before any  deductions?  $ (b)(1)(A)
      2. How much is deducted from pay for social security and federal income tax?   (b)(1)(B)
      3. Subtract subdivision (b)(1)(B) from  subdivision (b)(1)(A). This is disposable  earnings.   (b)(1)(C)
      4. Are wages paid once every week, once  every two (2) weeks, once a month or two  (2) times per month? (fmw = federal  minimum hourly wage)

        If once every week, enter 30 X fmw.   (b)(1)(D)

        If once every two (2) weeks, enter 30 X  fmw X 2.   (b)(1)(D)

        If two (2) times per month, enter 30 X  fmw X 2.166667.   (b)(1)(D)

        If once per month, enter 30 X fmw X  4.333334.   (b)(1)(D)

      5. Subtract subdivision (b)(1)(D) from  subdivision (b)(1)(C). If subdivision  (b)(1)(E) is $0 or less, STOP. NO WAGES  MAY BE WITHHELD. If subdivision  (b)(1)(E) is more than $0, go on to (F).   (b)(1)(E)
      6. Divide subdivision (b)(1)(C) by 4.   (b)(1)(F)
      7. Enter the lesser of subdivision (b)(1)(E) or  subdivision (b)(1)(F).  (b)(1)(G)
      8. How many children does the debtor have   under sixteen (16) years of age living in  Tennessee?  (b)(1)(H)
      9. Multiply subdivision (b)(1)(H) by $2.50   per week [$5.00 if wages are paid every  two (2) weeks; $5.42 if paid two (2) times  a month; and $10.83 if paid once per  month].  (b)(1)(I)
      10. Subtract subdivision (b)(1)(I) from  subdivision (b)(1)(G). This is the amount  of wages to withhold. If this amount is $0  or less, nothing should be withheld from  wages.  (b)(1)(J)
    2. IF THE JUDGMENT IS FOR  CHILD SUPPORT OR ALIMONY:
      1. If the judgment is for alimony and the  ex-spouse has remarried, withhold the  amount in subdivision (b)(1)(J). $
      2. If the judgment is for child support, or  the judgment is for alimony  and the ex- spouse has not remarried,  multiply  disposable earnings (subdivision (b)(1)(C))  by:

        — .50 if the employee is supporting another  spouse or child and the arrearage is less  than twelve (12) weeks old;

        — .55 if the employee is supporting another  spouse or child and the arrearage is more  than twelve (12) weeks old;

        — .60 if the employee is NOT supporting  another spouse or child and the arrearage  is less than twelve (12) weeks old;

        — .65 if the employee is NOT supporting  another spouse or child and the arrearage  is more than twelve (12) weeks old.

        Withhold this amount (in preceding  blank) from wages, or the amount  actually ordered to be paid for alimony or  child support, whichever is less .

        ♦ Nothing due employee

        ♦ No longer employed

        ♦ Other

        As of the  day of  , 20 ,  , Garnishee, is holding the sum of $ .

        I certify under penalty of perjury that the above information is true and correct. Date:    GARNISHEE/EMPLOYER

Acts 1988, ch. 934, § 6; 1991, ch. 516, § 1; 2008, ch. 695, § 1.

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

26-2-405. Copy of execution furnished judgment debtor.

A sheriff or other officer who levies an execution upon property of a judgment debtor shall immediately thereafter on that same or next working day provide the judgment debtor with a copy of the execution that describes the property levied upon and with a completed copy of the notice set forth in § 26-2-404 by mailing them first class, postage prepaid, to the judgment debtor at the address provided pursuant to § 26-2-402, or by actual delivery to the judgment debtor.

Acts 1988, ch. 934, § 7.

26-2-406. Mailing of garnishment to judgment debtor.

A sheriff or other officer who summons a garnishee shall provide the garnishee with three (3) copies of the garnishment summons providing the completed notice required by § 26-2-404 or by § 26-2-216, whichever is applicable. On that same or the next working day, the garnishee shall determine if such garnishee possesses or controls money or property of the judgment debtor; and if so, within that same time period shall furnish a copy of the garnishment summons and notice by mailing them first class, postage prepaid, to the judgment debtor's last known address as shown by the garnishee's records, or by actual delivery to the judgment debtor. If the address as shown by the garnishee's records differs from that provided by the creditor as shown on the bottom of the completed notice, the garnishee shall also mail a copy of the garnishment and notice to the judgment debtor at the latter address by first class mail, postage prepaid.

Acts 1988, ch. 934, § 8.

26-2-407. Motion to quash execution or garnishment.

A judgment debtor may assert exemption rights after the service of an execution or garnishment by filing a motion to quash the garnishment or execution. The motion to quash must be filed within the following time periods:

  1. Twenty (20) days from the mailing of the notice required by § 26-2-404 in the event of a levy of execution;
  2. Twenty (20) days from the withholding of wages by a garnishee/employer pursuant to a wage garnishment; and
  3. With respect to any other garnishment, twenty (20) days from the mailing of the notice required by § 26-2-404 pursuant to that garnishment.

Acts 1988, ch. 934, § 9.

Attorney General Opinions. Assertion of exemption rights, OAG 89-10, 1989 Tenn. AG LEXIS 10 (1/31/89).

Effect of this section on § 26-2-114, OAG 90-89, 1990 Tenn. AG LEXIS 98 (10/1/90).

26-2-408. Property determined to be exempt.

No sheriff or other officer shall conduct an execution sale, and no clerk shall pay out funds received pursuant to an execution or garnishment until the judgment debtor's time has expired for filing a motion to quash, or until a judicial determination has been made on such motion. Nothing in this section shall be construed to prohibit the ability of the judgment creditor and the judgment debtor to resolve by agreed order the judgment debtor's motion asserting exemption rights. When property has been determined to be exempt by agreement or by judicial determination, the property shall be immediately released to the judgment debtor.

Acts 1988, ch. 934, § 10.

Attorney General Opinions. Assertion of exemption rights, OAG 89-10, 1989 Tenn. AG LEXIS 10 (1/31/89).

NOTES TO DECISIONS

1. Exemption.

Debtor's conduct in causing his wholly-owned LLC to file a motion to pay a judgment in installments as permitted by T.C.A. § 26-2-408 and T.C.A. § 26-2-216(a)(1), thereby staying execution until the motion was resolved, was not conduct for which debtor was reasonably subjected to personal liability for the debts of the LLC. Hulsing Hotels Tenn., Inc. v. Steffner (In re Steffner), 479 B.R. 746, 2012 Bankr. LEXIS 3805 (Bankr. E.D. Tenn. Aug. 17, 2012).

26-2-409. Copies of forms to be furnished.

The University of Tennessee county technical assistance service shall provide clerks of court with forms for judgment debtors to use in filing a motion to quash an execution or garnishment on the ground of exemption rights, in otherwise asserting their exemption rights, or in filing a motion to pay a judgment by installments. Clerks shall provide a copy of these forms to judgment debtors upon request. Nothing herein shall be construed as prohibiting clerks from printing an appropriate form motion to quash on the reverse side of the notices required by §§ 26-2-404 and 26-2-216, so that the judgment debtor may assert applicable exemption rights.

Acts 1988, ch. 934, § 11.

26-2-410. Hearing on exemptions — Notice.

Upon the filing of a motion to quash or other motion claiming exemption rights by the judgment debtor, the clerk shall immediately schedule a hearing on the motion. The court shall conduct the hearing and adjudicate the matter promptly, and in no event later than fourteen (14) days from the filing of the motion. Nothing in this section shall be construed to prohibit the ability of judges to interchange with each other as provided in title 17, chapter 2. The clerk shall provide reasonable notice to the judgment debtor and creditor of the time, date, and place of hearing.

Acts 1988, ch. 934, § 12.

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

Chapter 3
Levy of Execution

26-3-101. Personalty levied on first.

Executions shall be levied on the goods and chattels of the defendant, in the first instance, if any there be; but if, to the best of the officer's knowledge, there be no such goods and chattels, or not sufficient to answer the plaintiff's demands, the same shall be executed upon the lands and tenements.

Code 1858, § 3026 (deriv. Acts 1794, ch. 1, § 23); Shan., § 4754; Code 1932, § 8888; T.C.A. (orig. ed.), § 26-401.

Cross-References. Costs to plaintiff for transportation and storage of property levied upon, § 26-3-117.

Proceedings on distress warrant for collection of taxes, § 67-1-1202.

Real defendant in action against levying officer, §§ 20-1-117, 20-1-118.

Registration of abstract, §§ 25-5-103, 25-5-10725-5-109.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 11, 20.

Law Reviews.

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

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

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

The Collection of Debts from Insolvent and Fully-Mortgaged Debtors (John A. Walker, Jr.), 43 Tenn. L. Rev. 399.

NOTES TO DECISIONS

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

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

2. Levy on Personalty.

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

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

4. —Levy on Both Land and Personalty.

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

5. —Chattels Jointly Owned.

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

6. —Personalty Discovered After Levy on Land.

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

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

7. —Partnership Property.

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

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

8. —Scholarship.

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

9. —Choses in Action.

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

10. —Money.

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

11. —Fixtures.

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

12. Levy on Land.

13. —Sufficiency of Exhaustion of Personalty.

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

14. —Return of No Personal Property Found.

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

15. —Remainder Estates.

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

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

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

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

16. —Equitable Estates.

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

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

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

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

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

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

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

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

17. —Undivided Interests in Land.

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

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

18. —Reserved Use of Land for Life.

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

19. —Land Subject to Vendor's Lien.

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

20. —Land Under Decree Vesting Title.

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

21. —Land Possessed for Seven Years.

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

22. —Fraudulently Conveyed Property.

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

23. —Land Under Title Bond.

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

24. —Naked Legal Title — Without Beneficial Interest.

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

25. Sheriff — Liability.

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

26. Sheriff's Deed.

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

26-3-102. Growing crops.

A levy may be made upon a growing crop, but not until November 15 after such crop is matured, and then only subject to the landlord's lien, if any. If, however, the owner of the crop absconds, conceals their whereabouts, or leaves the country, an attachment or execution may be levied on a standing crop at any time.

Code 1858, § 3036 (deriv. Acts 1833, ch. 20, §§ 1-3); Shan., § 4764; Code 1932, § 8894; T.C.A. (orig. ed.), § 26-402.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 12, 17, 22; 13 Tenn. Juris., Fraudulent and Voluntary Conveyances, § 7.

NOTES TO DECISIONS

1. Possession by Officer — Necessity.

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

2. Nature of Growing Crops — Sale.

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

3. Bankrupt's Crops.

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

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

4. Growing Crops.

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

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

5. Priority of Security Interests.

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

26-3-103. Corporate property.

An execution against a corporation may be levied on its choses in action, as well as on the goods and chattels, lands and tenements, of such corporation; and in case of a levy on choses in action, the court may appoint a receiver to collect or conserve the same.

Code 1858, § 3037 (deriv. Acts 1845-1846, ch. 55, § 4); Shan., § 4765; mod. Code 1932, § 8895; T.C.A. (orig. ed.), § 26-403.

Cross-References. Costs to plaintiff for transportation and storage of property levied upon, § 26-3-117.

Writ against corporation, § 26-1-105.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 16; 21 Tenn. Juris., Receivers, § 7.

NOTES TO DECISIONS

1. Change in Common Law Rule by Section.

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

2. Registration of Memorandum of Judgment Unnecessary.

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

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

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

26-3-104. Indemnity bond of plaintiff.

No sheriff or other officer shall be required to levy an execution on any property the title of which is disputed, or to sell the same after levy, unless the plaintiff will first give bond and security to such officer, to indemnify the sheriff or other officer against all damages and costs in consequence of the levy or sale.

Code 1858, § 3032 (deriv. Acts 1825, ch. 40, § 2); Shan., § 4760; Code 1932, § 8893; T.C.A. (orig. ed.), § 26-404.

Law Reviews.

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

Attorney General Opinions. Requirement of an indemnity bond by a sheriff for the execution of a writ of possession, OAG 07-129, 2007 Tenn. AG LEXIS 129 (8/27/07).

NOTES TO DECISIONS

1. Purpose and Policy.

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

2. Scope of Statute.

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

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

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

3. Indemnity Bond.

4. —Court Ordering Sale.

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

5. —Time for Bond.

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

6. —Stranger Executing Bond.

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

7. —Persons Liable Upon Improper Sale.

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

8. Duty of Sheriff.

9. —Discretion.

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

10. —When No Bond.

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

11. —Release of Levy Though Indemnified.

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

12. —Demand of Indemnity or Notice Unnecessary.

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

26-3-105. Principal's property sold before surety's.

  1. Where the judgment or decree is against a principal and the principal's surety, it shall be the duty of the officer having the collection thereof to exhaust the property of the principal, both real and personal, before proceeding to sell the property of the surety.
  2. “Surety,” in this section, shall embrace accommodation endorsers, stayors, and all other persons whose liability on the debt or contract is posterior to that of another.
  3. The surety shall, if requested by the officer, show the property of the principal, to entitle the surety to the benefit of this section.

Code 1858, §§ 3028, 3029 (deriv. Acts 1820 Private, ch. 120, § 6; 1843-1844, ch. 32, § 1); Shan., §§ 4756, 4757; Code 1932, §§ 8889a, 8890; T.C.A. (orig. ed.), § 26-405.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 20, 29;  22 Tenn. Juris., Replevy and Forthcoming Bonds, § 12; 23 Tenn. Juris., Suretyship, §§ 2, 29.

NOTES TO DECISIONS

1. Construction.

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

2. —Provisions Directory.

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

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

3. —Benefit of Beneficiary.

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

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

4. Rights of Surety.

5. —Return of No Property of Principal.

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

6. —Burden of Showing Suretyship.

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

7. —Stay Proceedings.

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

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

8. —Relief in Chancery.

Relief in chancery granted surety in fact after judgment at law, notwithstanding the provision of §§ 26-3-10526-3-108. Love v. Allison, 2 Cooper's Tenn. Ch. 111 (1874); Winham v. Crutcher, 3 Cooper's Tenn. Ch. 666 (1878); Dodds v. Duncan, 80 Tenn. 731, 1884 Tenn. LEXIS 157 (1884).

9. —Release of Surety.

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

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

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

10. —Surety Contracts — Construction.

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

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

11. —Principal's Estate Not Leviable.

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

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

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

13. —Endorser as Surety.

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

26-3-106. Order of levy on parties secondarily liable.

  1. After exhausting the property of the principal, it shall be the duty of the officer to subject the property of the other parties in the order of their liability on the debt or contract.
  2. The party subsequently liable shall, if requested by the officers, show the property of the prior liable party to secure the benefit of this section.

Code 1858, § 3030 (deriv. Acts 1843-1844, ch. 32, § 1); Shan., § 4758; Code 1932, § 8891; T.C.A. (orig. ed.), § 26-406.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions § 20; 22 Tenn. Juris., Replevy and Forthcoming Bonds, § 12.

26-3-107. Order of liability stated.

  1. All the parties shall be considered as equally liable, in all cases, unless the order of liability is shown to the court, and recited in the judgment or decree.
  2. The clerk issuing execution on the judgment or decree containing such recital shall state the order of liability in the execution.

Code 1858, § 3031 (deriv. Acts 1843-1844, ch. 32, § 2); Shan., § 4759; Code 1932, § 8892; modified; T.C.A. (orig. ed.), § 26-407.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions § 20; 22 Tenn. Juris., Replevy and Forthcoming Bonds, § 12; 23 Tenn. Juris., Suretyship, § 29.

NOTES TO DECISIONS

1. Showing and Recital of Suretyship — Necessity.

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

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

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

26-3-108. Endorsement of description of property.

A description of the property levied on, with the date of the levy, shall be endorsed upon or appended to the execution.

Code 1858, § 3027; Shan., § 4755; Code 1932, § 8889; T.C.A. (orig. ed.), § 26-408.

Law Reviews.

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

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

NOTES TO DECISIONS

1. Levy on Personalty.

2. —Applicability.

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

3. —Description Insufficient.

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

4. —Description Sufficient.

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

5. —Dominion Over Goods.

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

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

6. —Seeing But Not Taking.

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

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

7. —Breaking In.

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

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

8. —Noting on Execution After Levy.

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

9. —Levy of Second Execution.

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

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

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

10. —Sale Under Subsequent Levy.

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

11. —Execution and Attachment Distinguished.

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

12. Execution Lien on Personalty.

13. —Accrual of Lien.

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

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

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

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

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

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

14. —Issuance to Wrong County — Correction.

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

15. —Personalty in County.

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

16. —Loss of Lien.

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

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

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

17. —Priority Between State and Federal.

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

18. —Priority Between State Courts.

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

19. —Priority Between Judgments.

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

20. —Postponement by Replevin Suit.

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

21. —Debtor Dying After Teste.

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

22. —Debtor Dying Before Teste.

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

23. —Plaintiff Dying After Teste.

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

24. —Growing Crops.

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

25. —Garnishment Lien.

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

26. —Time of Sale.

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

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

27. Rights of Other Persons.

28. —Leaving Property with Debtor.

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

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

29. —Lien Against Bona Fide Purchasers.

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

30. Objections to Levy — Waiver.

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

31. Levy on Land.

32. —Description Sufficient.

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

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

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

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

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

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

33. —Insufficient Descriptions — Examples.

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

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

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

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

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

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

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

34. —Sheriff's Deed Aiding Description.

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

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

35. —Incorporating Descriptions by Reference.

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

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

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

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

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

37. Execution Lien on Land.

38. —Adverse Proceedings — Effect.

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

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

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

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

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

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

41. —Effect on Title.

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

42. —Relation of Lien to Levy Date.

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

43. —Proper Use of Execution.

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

26-3-109. Delivery bond of defendant.

When personal property is levied on, if the defendant shall give bond, payable to the creditor, in double the amount of the execution, conditioned to deliver the property levied on to the proper officer by twelve o'clock (12:00) noon of the day of sale, the sheriff may restore the property to the defendant.

Code 1858, § 3044 (deriv. Acts 1801, ch. 13, § 1); Shan., § 4772; Code 1932, § 8902; T.C.A. (orig. ed.), § 26-409.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 26; 22 Tenn. Juris., Replevy and Forthcoming Bonds, §§ 3-5.

NOTES TO DECISIONS

1. Delivery Bond Formalities.

2. —Necessity of Writing.

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

3. —Signing — Sufficiency.

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

4. Delivery Bond — Effect.

5. —Generally.

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

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

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

7. —Effect of Bond on Lien of Levy.

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

8. —Reformation of Bond.

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

9. —Delivery After Return Day Stipulated.

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

10. Stayor's Liability — Estoppel to Deny.

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

11. Liability of Sureties.

12. —Generally.

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

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

13. —Release of Sureties.

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

14. —Subrogation of Surety.

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

15. —Surety's Estoppel to Claim Property.

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

16. —Surety on Original Debt.

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

17. —Several Executions on Same Property.

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

18. Parties Plaintiff to Bill to Protect Bond.

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

26-3-110. Liability on forfeited delivery bond.

The sureties on a forfeited delivery bond shall not be held responsible for more than the value of the property specified in the bond, and not delivered according to its condition; and the value of the property, if not agreed upon, shall be ascertained in a summary way by a jury of five (5) disinterested persons, summoned by the officer making the levy or holding the execution, whose valuation shall be final.

Code 1858, § 3045 (deriv. Acts 1831, ch. 25, § 1); Shan., § 4773; Code 1932, § 8903; modified; T.C.A. (orig. ed.), § 26-410.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Replevy and Forthcoming Bonds, §§ 5, 11, 20.

NOTES TO DECISIONS

1. Extent of Sureties' Liability.

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

26-3-111. Levy on forfeited bond — Alias execution.

The delivery bond, if forfeited, shall be, in the hands of the officer holding it, a sufficient authority to levy upon and sell so much of the property of the sureties as will satisfy the amount for which they have made themselves liable, and shall also be a sufficient authority to the clerk to whom the same may be returned to issue an alias or pluries execution, as the case may be, against the defendant to the judgment, and against the sureties on the bond, without any judgment upon the bond.

Code 1858, § 3046 (deriv. Acts 1831, ch. 25, §§ 2, 3); Shan., § 4774; Code 1932, § 8904; modified; T.C.A. (orig. ed.), § 26-411.

NOTES TO DECISIONS

1. Statutory Remedy — Effect on Common Law Remedy.

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

2. Status of Forfeited Bond.

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

3. Showing to Supersede Execution on Bond.

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

4. Officer — Right to Enforce Bond.

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

26-3-112. Defendants refusing to join in delivery bond.

If there are more defendants than one (1) in the original execution, and any of them do not join in the delivery bond, the sureties on such bond shall be first liable before those defendants who refuse to join, to the extent of the liability incurred by the bond; but in the event the debt, or any portion of it, is paid by the surety on the bond, the surety on the bond shall be substituted to the rights of the defendant for whom that person is surety, as against the other defendants.

Code 1858, § 3047; Shan., § 4775; Code 1932, § 8905; T.C.A. (orig. ed.), § 26-412.

NOTES TO DECISIONS

1. Cause for Enactment of Section.

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

2. Relief Against Defendants Not Joining in Bond.

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

3. Judgment Paid by Surety — Effect.

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

4. Subrogation.

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

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

26-3-113. Order of levy after forfeiture of delivery bond.

Upon forfeiture of the bond, the officer holding the execution shall levy immediately upon the property of the defendants who join in the bond, to satisfy the debt and costs to the plaintiffs and double costs to the officer; and if there shall not be property enough of these defendants found to satisfy the execution, such officer shall levy upon property of the sureties sufficient to satisfy so much of the amount as they had become liable for; and if the execution is still unsatisfied, it shall be the officer's duty to go upon such of the original defendants, if any, as did not join in the delivery bond.

Code 1858, § 3048 (deriv. Acts 1831, ch. 25, §§ 2, 3); Shan., § 4776; Code 1932, § 8906; T.C.A. (orig. ed.), § 26-413.

Textbooks. Tennessee Jurisprudence, 22 Tenn. Juris., Replevy and Forthcoming Bonds, § 10.

26-3-114. Return of unsatisfied execution.

If unable to obtain satisfaction of the debt before the officer is bound by law to return the execution, the officer shall return the execution and bond together, with a proper endorsement of the facts, and thereupon an alias or pluries execution, as the case may be, shall issue against all parties, with endorsements showing the amounts paid upon any former execution, and specifying the amount for which the sureties are bound, if less than the unsatisfied balance.

Code 1858, § 3049 (deriv. Acts 1831, ch. 25, §§ 2, 3); Shan., § 4777; Code 1932, § 8907; T.C.A. (orig. ed.), § 26-414.

26-3-115. Second delivery bond.

No second delivery bond shall be taken after forfeiture of the first.

Code 1858, § 3050 (deriv. Acts 1829, ch. 51, § 1); Shan., § 4778; Code 1932, § 8908; T.C.A. (orig. ed.), § 26-415.

26-3-116. Delivery bonds on official default.

The provisions of §§ 26-3-10926-3-115, allowing delivery bonds, do not apply to executions issued on judgments or decrees against sheriffs, coroners, or other officers of court against whom judgment is obtained for failing to pay over money collected or paid to them in an official capacity, and the clerk shall endorse on all such executions, “No delivery bond to be taken.”

Code 1858, § 3051; Shan., § 4779; Code 1932, § 8909; T.C.A. (orig. ed.), § 26-416.

26-3-117. Costs to be paid by plaintiff — Recovery from defendant.

In addition to any other fees required by law for levy of execution on tangible personal property, the plaintiff in a civil proceeding who causes an execution to be issued for levy of personal property shall pay the cost incurred by the court, sheriff, or other officers for transportation of the attached property to a storage facility, storage fees, advertisement fees, court costs, and any other necessary cost incurred by such officials. The plaintiff shall have a right of recovery from the defendant for all such costs.

Acts 1978, ch. 652, § 1; T.C.A., § 26-417.

Chapter 4
Bill to Subject Property

26-4-101. Grounds for complaint on unsatisfied execution — Discovery.

The creditor whose execution has been returned unsatisfied, in whole or in part, may proceed in the court granting the judgment, or may file a complaint in a court of general jurisdiction against the defendant in the execution and any other person, to compel the discovery of any property, including stocks, choses in action or money due such defendant, or the defendant's interest in property held in a trust for the defendant, except when the trust is exempt from the claims of the defendant's creditors under §§ 35-15-50135-15-509 of the Tennessee Uniform Trust Code.

Code 1858, § 4283 (deriv. Acts 1832, ch. 11, § 1); Shan., § 6092; Code 1932, § 10353; Acts 1943, ch. 108, § 1; mod. C. Supp. 1950, § 10353; T.C.A. (orig. ed.), § 26-601; Acts 1988, ch. 854, § 2; 1989, ch. 364, § 1; 1992, ch. 951, §§ 2, 3; 1993, ch. 259, §§ 1-3; 2002, ch. 735, § 1; 2004, ch. 537, § 96; 2013, ch. 390, § 25.

Compiler's Notes. Acts 2013, ch. 390, § 55 provided that: (b) Except as otherwise provided in the act, on July 1, 2013:

  1. The act applies to all trusts created before, on, or after July 1, 2013;
  2. The act applies to all judicial proceedings concerning trusts commenced on or after July 1, 2013;
  3. The act applies to judicial proceedings concerning trusts commenced before July 1, 2013, unless the court finds that application of a particular provision of the act would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of the act does not apply and the superseded law applies;
  4. Any rule of construction or presumption provided in the act applies to trust instruments executed before July 1, 2013, unless there is a clear and express indication of a contrary intent in the terms of the trust; and

If a right is acquired, extinguished, or barred upon the expiration of a prescribed period that has commenced to run under any other statute before July 1, 2013, that statute continues to apply to the right even if it has been repealed or superseded.

NOTES TO DECISIONS

1. Constitutionality.

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

3. —Retrospective Provisions.

4. Purpose of Enacting Statute.

5. Construction and Interpretation.

6. —Complaint Alleging New Causes of Action.

7. —Corporations.

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

9. —Not Exemption Statute.

10. —Nulla Bona Return in Another State.

11. —“Return Unsatisfied” — Example.

12. —Stocks and Choses in Action.

13. Construction with Other Acts.

14. —Bankruptcy.

15. —Bill in Chancery.

16. Prerequisites to Chancery Jurisdiction.

17. —Generally.

18. —Issue of Execution and Return Nulla Bona.

19. —Return Nulla Bona.

20. Property Subject to Subjection.

21. —Generally.

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

23. —Tracing Assets — Example.

24. —Money in Custody of Police.

25. —Funds in Court.

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

27. —Cost of Commissioner in Partition Suit.

28. —Federal Postal Savings.

29. Trust Assets.

30. —Generally.

31. —Unregistered Decree Creating Trust.

32. —Vested Interest in Beneficiary.

33. —Vesting — Intent of Testator.

34. —Active Trusts.

35. —Grantor as Beneficiary.

36. Contributions by Beneficiary.

37. Procedure and Practice.

38. —Parties.

39. —Answer.

40. Nulla Bona Return as Evidence.

26-4-102. Powers of court to reach property.

The court has power to compel the discovery, and to prevent the transfer, payment, or delivery of the property, and to subject the same to the satisfaction of the judgment or decree, whether such property could, if in the defendant's possession or with the title vested in the defendant, be levied upon by execution or not.

Code 1858, § 4284 (deriv. Acts 1832, ch. 11, § 2); Shan., § 6093; Code 1932, § 10354; T.C.A. (orig. ed.), § 26-602.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 458, 460.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 1-69-4.

Tennessee Jurisprudence, 9 Tenn. Juris., Discovery, § 2; 12 Tenn. Juris., Executions, § 56; 16 Tenn. Juris., Judgments and Decrees, § 74.

NOTES TO DECISIONS

1. Construction.

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

2. Construction with Other Acts.

3. —Bill in Chancery.

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

4. —Bill for Assignment of Homestead.

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

5. —Declaratory Judgment.

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

6. —Federal Postal Savings Law.

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

7. Property Subject — Widow's Dower.

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

8. Unrecorded Chancery Decree — Effect.

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

26-4-103. Implementation of court's powers.

The court is empowered to order all such bonds and other instruments to be executed by either the complainant or defendant, and all such transfers to be made as may be necessary to carry the jurisdiction into complete effect.

Code 1858, § 4285 (deriv. Acts 1832, ch. 11, § 2); Shan., § 6094; Code 1932, § 10355; T.C.A. (orig. ed.), § 26-603.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Banks and Banking, § 13; 12 Tenn. Juris., Executions, § 56.

26-4-104. Lien lis pendens.

The creditor has a lien lis pendens upon the property of the defendant situated in the county of suit, if properly described in the bill of complaint, on the filing of the bill, so far as concerns the pursued defendant; and the creditor may have a lien lis pendens upon all property, so described, as against bona fide purchasers and encumbrancers, for value, upon registration of an abstract of the claimed lien as provided by this Code.

Code 1858, § 4286; Shan., § 6095; mod. Code 1932, § 10356; T.C.A. (orig. ed.), § 26-604.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), §§ 456, 459.

Tennessee Jurisprudence, 3 Tenn. Juris., Attachment and Garnishment, § 71; 8 Tenn. Juris., Cresitors' Suits, § 2; 12 Tenn. Juris., Executions, §§ 17, 56; 13 Tenn. Juris., Fraudulent and Voluntary Conveyances, § 41; 16 Tenn. Juris., Judgments and Decrees, § 74; 18 Tenn. Juris., Lis Pendens, § 5.

Law Reviews.

Creditors' Rights and Security Transactions — 1961 Tennessee Survey (II) (Forrest W. Lacey), 15 Vand. L. Rev. 856.

Preferences, Priorities, and Powers of the State in the Collection of Delinquent Revenue: Tennessee's Tax Enforcement Procedures Act (Donald J. Serkin), 8 Mem. St. U.L. Rev. 707.

NOTES TO DECISIONS

1. Federal Postal Savings.

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

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

2. Creditor's Bill Requisites.

3. —Description of Property.

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

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

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

4. —Lack of Nulla Bona.

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

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

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

5. Lien Lis Pendens.

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

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

6. —Lien on Filing Bill.

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

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

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

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

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

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

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

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

7. —Debtor's Equity of Redemption.

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

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

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

8. —Insolvent Corporations Not Covered.

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

9. —Nature of Attachment.

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

10. Subsequent Bankruptcy — Effect.

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

11. Land in Another County.

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

12. Receiver — Appointment upon Fixing Lien.

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

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

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

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

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

Chapter 5
Sale on Execution

26-5-101. Publication and posting of notice.

    1. The officer making a levy on land shall publish such sale at least three (3) different times in a newspaper published in the county where the sale is to be made.
    2. The first publication shall be at least twenty (20) days prior to the sale, unless the amount of the indebtedness for the payment of which the property is being sold does not amount to more than two hundred dollars ($200), in which event the owner of the property may order that advertisement be made by written notices posted as provided in § 35-5-103, instead of by notices published in a newspaper.
    3. If no newspaper is published in the county in which the land is to be sold, the advertisement in a newspaper, unless ordered by court, is dispensed with and such land shall be sold in accordance with § 35-5-103.
    1. If the sale be of personalty, the officer shall advertise the time and place of the sale in at least five (5) public places in the officer's county, one (1) of which shall be the door of the courthouse, and another, at the most public place in the neighborhood of the defendant.
    2. Constables residing out of the district including the county seat, shall not be required to advertise the sale of personalty at the courthouse door.

Code 1858, § 3039 (deriv. Acts 1813, ch. 103, § 2; 1855-1856, ch. 83, § 3); Shan., § 4767; Code 1932, § 8897; Acts 1943, ch. 123, § 3; C. Supp. 1950, § 8897; Acts 1957, ch. 41, § 2; T.C.A. (orig. ed.), § 26-701.

Cross-References. Authority of judge to secure auctioneer, § 35-5-112.

Sale on distress warrant for privilege taxes, § 67-4-110.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 722.

Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 32, 36, 43.

Law Reviews.

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

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

NOTES TO DECISIONS

1. Return — Effect.

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

26-5-102. Length of posting.

The advertisement of sale by posted written notice shall be at least twenty (20) days for land, and ten (10) days for all other kinds of property, except for the sale of fruits and vegetables, or other perishable articles, when the sale may be made after advertisement by the officer making the levy, on twenty-four (24) hours' written notice thereof being posted in three (3) conspicuous places in the civil district of the place of levy and sale.

Code 1858, § 3041; Acts 1893, ch. 16, § 1; Shan., § 4769; mod. Code 1932, § 8899; modified; T.C.A. (orig. ed.), § 26-702.

Cross-References. Number and location of posting places, § 26-5-101.

26-5-103. Notice to defendant occupying land.

If the defendant is in actual possession and occupation of the land levied on, the officer having the execution shall, at least twenty (20) days prior to such sale, serve the defendant with written notice, stating that the execution is levied on the land, and mentioning the time and place of sale; and sales made without the notice required in this section are voidable.

Code 1858, § 3042 (deriv. Acts 1799, ch. 14, § 1; 1855-1856, ch. 83, § 2); Shan., § 4770; mod. Code 1932, § 8900; T.C.A. (orig. ed.), § 26-703.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 36; 43; 25 Tenn. Juris., Witnesses, § 12.

NOTES TO DECISIONS

1. Liberal Statutory Construction for Debtor.

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

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

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

2. Notice — Necessity.

3. —Occupancy by Defendant as Basis.

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

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

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

4. —Lack of Notice — Effect on Sale.

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

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

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

5. —Who Not Entitled.

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

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

6. —Remainderman's Permissive Possession.

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

7. —General Sessions Court Execution.

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

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

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

9. —Waiver of Notice.

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

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

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

10. —Estoppel.

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

11. Notice — Requisites.

12. —Service of Notice.

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

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

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

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

13. —Description of Land.

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

14. —Time and Place of Sale.

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

15. —Particular Sale.

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

16. Proof of Notice.

17. —Sheriff — Testimony as to Giving Notice.

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

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

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

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

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

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

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

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

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

20. Sufficiency of Notice — Determination.

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

26-5-104. Hour of sale.

Execution sales shall be made between the hours of nine o'clock a.m. (9:00 a.m.) and seven o'clock p.m. (7:00 p.m.).

Code 1858, § 3038 (deriv. Acts 1807, ch. 99, § 1); Shan., § 4766; Code 1932, § 8896; T.C.A. (orig. ed.), § 26-704; Acts 2017, ch. 187, § 1.

Amendments. The 2017 amendment substituted “between the hours of nine o'clock a.m. (9:00 a.m.) and seven o'clock p.m. (7:00 p.m.)” for “between the hours of ten o'clock in the forenoon (10:00 a.m.) and four o'clock in the afternoon (4:00 p.m.)”.

Effective Dates. Acts 2017, ch. 187, § 3. April 19, 2017.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 37.

26-5-105. Plan of division of land.

At any time before ten o'clock a.m. (10:00 a.m.), on the day of sale, the defendant may deliver to the officer a plan of division of the lands levied on, subscribed by the defendant, and it shall, in that case, be the duty of the officer to sell, according to the plan, so much of the land as may be necessary to satisfy the debt and costs, and no more. If no such plan is furnished, the officer may sell without any division.

Code 1858, § 3043 (deriv. Acts 1799, ch. 14, § 3); Shan., § 4771; Code 1932, § 8901; T.C.A. (orig. ed.), § 26-705.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 38.

NOTES TO DECISIONS

1. Trust Deeds.

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

26-5-106. Transfer of corporate stock.

  1. Upon the sale of corporate stock or shares by execution, the officer, on receiving from the purchaser the amount of the purchaser's bid, shall execute and deliver to the purchaser an assignment of the certificate of shares sold.
  2. The officer's return of the sale on the back of the execution shall be notice to all the world of the fact of sale.
  3. On presentation to the proper officer of the company of such assignment, the officer shall transfer the shares on the proper book, to the purchaser or assignee.

Code 1858, § 3053 (deriv. Acts 1857-1858 Private, ch. 163, § 16); Shan., § 4780; mod. Code 1932, § 8910; T.C.A. (orig. ed.), § 26-706.

26-5-107. Sale of intoxicating liquors.

  1. In any suit at law or in equity, whether now pending or hereafter instituted, wherein an attachment is issued and levied upon intoxicating liquors, and/or wherein an execution is awarded and levied upon intoxicating liquors, such liquors may be sold by the levying officer by advertising such liquor for sale in the same way and manner now provided by law for the sale of any other property attached or levied upon by an execution.
  2. The purchaser of such intoxicating liquors at such attachment and/or execution sale shall be authorized to transport such liquors from the place of sale to any place beyond the boundaries of this state, or to any county within the state, only in event the sale of intoxicating liquors is authorized and legalized in such other county.
  3. Before such purchaser shall transport from the place of sale the liquors so purchased, the purchaser shall procure a permit from the officer making the sale, which permit shall state the name or style of the case or suit, the name of the court in which the same is pending, the quantity of liquors so sold, and the price paid by the purchaser, and the permit shall constitute a bill of sale to the purchaser, and shall be carried in person by the purchaser, the purchaser's agent or employee, as such person transports such intoxicating liquors to its destination.
  4. This section shall not authorize the sale of intoxicating liquors, as now defined by the laws in force in this state, in any other way or manner, nor for any other purpose, except as hereinabove provided; provided, however, the judgment creditor, if he be the purchaser, may sell such liquors to any licensed dealer.

Acts 1937, ch. 306, §§ 1-4; mod. C. Supp. 1950, §§ 8964.1-8964.4; T.C.A. (orig. ed.), §§ 26-707 — 26-710.

Textbooks. Tennessee Jurisprudence, 16 Tenn. Juris., Intoxicating Liquors, § 17.

26-5-108. Unpaid taxes.

  1. Whenever real estate is sold under a decree of any court, it shall be the duty of the judge of the court, before the sale is confirmed to the purchaser, while the funds are in court, to have a reference, to the clerk or clerk and master, while the funds are in court, to ascertain if, upon the day of sale, there were any taxes due and unpaid which were a lien upon the real estate; and, if it is found that there were such taxes, a decree shall be entered in the cause stating the amount of taxes, and directing the clerk and master or clerk to pay the taxes out of the first money collected from the sale of the real estate.
  2. In ascertaining the taxes due under a reference as required by subsection (a), the clerk or clerk and master shall issue to each of the officials charged with the collection of any taxes that might or could be a lien on the property, a statement giving the style and number of the cause, a description of the property sold, and the name of the party or parties out of whom the title is or is to be divested; whereupon, each of the officials shall certify to the clerk or clerk and master an itemized statement of the taxes, interest, penalties, and costs that are at that date a lien upon the land in the official's hands for collection, from which statement the clerk or clerk and master shall report to the court the amount of taxes, interest, penalties, and costs that is a lien on the land.

Acts 1871, ch. 68, § 1; Acts 1897, ch. 9, §§ 1, 2; Shan., §§ 969-969a2; Code 1932, §§ 1678-1680; T.C.A. (orig. ed.), §§ 26-711 — 26-713; Acts 2005, ch. 429, § 4.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Executions, § 49; 16 Tenn. Juris., Judicial Sales, § 46; 21 Tenn. Juris., Reference and Commissioners, §§ 3, 7.

Attorney General Opinions. Court clerk's application of delinquent tax sale proceeds to pay taxes for subsequent years.  OAG 12-85, 2012 Tenn. AG LEXIS 86 (9/10/12).

NOTES TO DECISIONS

1. Construction and Interpretation.

2. —Application of Rule Before Statute.

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

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

3. —Object of Statute.

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

4. —State Court Judges Covered.

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

5. —Special Assessment Taxes.

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

6. —Abutting Property Penalties.

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

7. Reference for Taxes.

8. —Time for Reference.

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

9. —Effect of Reference and Order on Lien.

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

10. —Lack of Reference or Order.

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

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

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

12. —Taxes Covered.

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

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

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

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

14. Tax Lien.

15. —Status of Tax Lien.

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

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

16. —Sale of Land Under Decree.

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

17. Liability for Taxes.

18. —Purchaser.

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

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

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

19. —Application of Purchase Money.

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

20. —Master's Liability.

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

21. Limitations — Effect.

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

26-5-109. Certificate to purchaser of land.

On the sale of land by execution, the officer shall give to the purchaser a certificate, if demanded, of the fact, stating the date of sale, the amount of the bid, the execution under which the land is sold, and the description of the land as given in the levy.

Code 1858, § 3054; Shan., § 4781; Code 1932, § 8911; T.C.A. (orig. ed.), § 26-714.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 41.

26-5-110. Delivery of certificate on redemption.

If the land is redeemed, the purchaser or purchaser's assignee shall assign and deliver the sheriff's certificate to the person redeeming.

Code 1858, § 3055; Shan., § 4782; Code 1932, § 8912; T.C.A. (orig. ed.), § 26-715.

Cross-References. Redemption from sale, title 66, ch. 8.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 41, 48.

26-5-111. Purchaser's right to deed.

The purchaser, after payment of the money bid at execution, or the person succeeding to the purchaser's rights, may, at any time, either within or after the expiration of the two (2) years allowed for redemption, demand from the officer or the officer's successor a deed, who shall execute it accordingly.

Code 1858, § 3056; Shan., § 4783; Code 1932, § 8913; T.C.A. (orig. ed.), § 26-716.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 41, 48.

NOTES TO DECISIONS

1. Deed Requisites.

2. —Necessary Recitals.

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

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

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

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

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

4. —Errors Not Vitiating Deed.

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

5. —Deputy Sheriff Making Deed.

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

6. Lapse of Time — Effect.

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

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

7. Estoppel of Purchaser to Deny Recitals.

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

26-5-112. Deed of successor in office.

  1. Any sheriff, coroner, or trustee may execute a deed for lands sold by a former sheriff, coroner, or trustee, which deed shall be valid, as if executed by such former officer; and such deed shall be prima facie evidence of the truth of all the statements and recitals contained therein.
  2. All such deeds, heretofore executed by any successor of such sheriff, coroner, or trustee, shall be as valid as if executed by such former officer, and shall be prima facie evidence of the truth of all the statements and recitals contained in such deeds.

Code 1858, § 3058 (deriv. Acts 1809 (Sept.), ch. 84); Acts 1901, ch. 145, §§ 1, 2; Shan., §§ 4785, 4785a1; mod. Code 1932, §§ 8915, 8916; T.C.A. (orig. ed.), §§ 26-717, 26-718.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, §§ 41, 42.

NOTES TO DECISIONS

1. Recitals in Deed — Effect.

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

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

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

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

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

2. Sheriff's Deed — Necessity.

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

26-5-113. Deed on redemption.

If the officer's deed is made within two (2) years, the person obtaining it, in case the land is redeemed from such person, shall make to the redeeming party, a complete deed, proved or acknowledged for registration, divesting the person acquiring by the officer's deed and vesting the other with the title acquired. In like manner, title shall be made upon each subsequent redemption, but at the cost of the party redeeming.

Code 1858, § 3057 (deriv. Acts 1820, ch. 11, § 2); Shan., § 4784; Code 1932, § 8914; T.C.A. (orig. ed.), § 26-719.

Cross-References. Redemption from sale, title 66, ch. 8.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 48.

26-5-114. Satisfaction set aside for want of title.

  1. Where execution from a court of record or a general sessions court is returned satisfied, in whole or part, by the sale of property of the defendant, and the plaintiff in the judgment shall establish that no title to the property so sold was obtained, the plaintiff may have the satisfaction of the judgment set aside, and the judgment or decree revived by scire facias.
  2. The scire facias may be obtained on affidavit of the plaintiff, the plaintiff's agent or attorney, setting forth the facts of the sale and want of title to the property so sold, and shall be served, returned, and heard together, with proof upon the question of title, as in other cases.
  3. If it shall appear at the trial that the defendant's title to the property at the time of the purchase was good and valid, the proceedings shall be dismissed with costs, as in other cases.
  4. This section shall apply to judgments and decrees for costs, upon affidavit of any party interested in the costs.
  5. In case the sheriff or other officer making the sale shall not have taken any bond of indemnity, and the defendant in the execution shall proceed against the sheriff and other officer and recover judgment, the sheriff and other officer shall be substituted to the rights of the plaintiff under this section.

Code 1858, §§ 2990-2993 (deriv. Acts 1847-1848, ch. 191, §§ 1-3); Acts 1875, ch. 33, §§ 1, 2; Shan., §§ 4719-4723; mod. Code 1932, §§ 8853-8857; impl. am. Acts 1979, ch. 68, §§ 2, 3; T.C.A. (orig. ed.), §§ 26-720 — 26-724.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 239.

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

NOTES TO DECISIONS

1. Jurisdiction in Equity.

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

2. Satisfaction Set Aside.

3. —Bidding Creditor Disappointed.

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

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

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

5. —Debtor's Title Failing.

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

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

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

6. —Sheriff Failing to Give Notice of Sale.

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

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

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

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

8. Scire Facias.

9. —Defects — How Reached.

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

10. —Issuance of Writ as of Right.

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

11. —Judgment by Default on Scire Facias.

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

12. Objection to Affidavit.

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

13. Necessary Parties to Application.

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

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

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

15. Last Redeeming Creditor — Rights.

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

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

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

17. Prerequisites to Officer's Substitution.

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

18. Officer Voluntarily Paying — Limited Rights.

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

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

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

19. Officer Compelled by Judgment to Pay.

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

26-5-115. Minimum acceptable price for property sold.

The sheriff of each county in the state of Tennessee is hereby authorized to set a minimum acceptable price for every item, of property, both personal and real, to be sold at any sheriff's sale in the state provided such price shall be equal to or greater than fifty percent (50%) of the fair market value.

Acts 1978, ch. 808, § 1; T.C.A., § 26-725.

26-5-116. Excess of sale price over debt — Use of property not sold.

  1. The sheriff shall remit any excess of the sale price over the debt to the property owner from whom the property was seized.
  2. The property, if it is not sold, shall not be used for personal or department use.

Acts 1978, ch. 808, § 2; T.C.A., § 26-726.

Textbooks. Tennessee Jurisprudence, 12 Tenn. Juris., Executions, § 32, 49.

Chapter 6
Enforcement of Foreign Judgments

Part 1
Uniform Enforcement of Foreign Judgments Act

26-6-101. Short title.

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

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

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

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

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

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

1. Res Judicata.

Mississippi circuit court had subject matter jurisdiction to award attorney's fees and expenses to appellees and against the Tennessee attorney where the Mississippi supreme court had considered and ruled upon the issues of personal jurisdiction and sufficient service of process, such that the attorney's appeal was barred under the common law doctrine of res judicata. First State Bank v. Wyssbrod, 124 S.W.3d 566, 2003 Tenn. App. LEXIS 511 (Tenn. Ct. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 1285 (Tenn. 2003).

2. Domestication.

Persons seeking to domesticate a foreign judgment may do so using a summary judgment, as long as they satisfy the trial court, as required by Tenn. R. Civ. P. 56.03, that there are no disputes as to any material fact and that they are entitled to a judgment as a matter of law. Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 1992 Tenn. App. LEXIS 751 (Tenn. Ct. App. 1992).

California judgment was properly authenticated and enrolled as a Tennessee judgment because (1) nothing in the record supported an ex-husband's claim of fraud in the California proceedings, and (2) no other reason not to enroll the judgment was shown. Frias v. Frias, — S.W.3d —, 2018 Tenn. App. LEXIS 633 (Tenn. Ct. App. Oct. 29, 2018).

3. Trial on Merits of Defenses Improperly Denied.

In a case in which plaintiff recovered a judgment against the Tennessee defendants in a New York court and sought to enroll and enforce the judgment in accordance with the Uniform Enforcement of Foreign Judgments Act (UEFJA), the trial court erred in denying defendants'  motion to dismiss the proceeding and deny the New York judgment full faith and credit because the trial court only heard defendants'  motion to dismiss before enrolling the New York judgment, however, pursuant to the UEFJA and the Tennessee Rules of Civil Procedure, defendants were entitled to a trial on the merits of the defenses to enrollment and enforcement that were raised in their answer. Capital Partners Network OT, Inc. v. TNG Contrs., LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 534 (Tenn. Ct. App. Sept. 11, 2018).

4. Full Faith And Credit.

Foreign judgment was a money judgment made by a New York court, entered in accordance with Uniform Enforcement of Foreign Judgments Act procedures, and defendants were afforded the opportunity to be heard and did not raise a due process issue; thus, the New York judgment was accorded full faith and credit. Capital v. TNG Contrs., LLC, — S.W.3d —, 2020 Tenn. App. LEXIS 509 (Tenn. Ct. App. Nov. 16, 2020).

26-6-102. Construction for uniformity.

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

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

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

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

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

Law Reviews.

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

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

26-6-103. “Foreign judgment” defined.

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

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

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

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

1. Judgments Entitled to Full Faith and Credit.

Whereas Texas courts do not have the discretion to modify or forgive accrued arrearages for child support, a Texas judgment for child support is final, entitled to full faith and credit and enforceable under the Uniform Enforcement of Foreign Judgments Act. Rasnic v. Wynn, 625 S.W.2d 278, 1981 Tenn. App. LEXIS 578 (Tenn. Ct. App. 1981).

A Colorado judgment entered without any notice to defendant is not entitled to full faith and credit. Nissen v. Miller, 642 S.W.2d 428, 1982 Tenn. App. LEXIS 496 (Tenn. Ct. App. 1982).

As a Texas court had jurisdiction over petitioner's challenge to an acknowledgement of paternity pursuant to Tex. Fam. Code Ann. § 160.308, the Tennessee Juvenile Court erred when it refused to give it full faith and credit under former T.C.A. § 26-6-103(c) and Tenn. R. Civ. P. 60.02 upon finding that the Texas court lacked jurisdiction; as the Texas court had jurisdiction, full faith and credit was warranted. In re K.M., 382 S.W.3d 354, 2012 Tenn. App. LEXIS 242 (Tenn. Ct. App. Apr. 17, 2012).

2. Waiver of Defenses.

Trial court did not err in denying a judgment debtor's motion for summary judgment when a judgment creditor sought to enforce a Pennsylvania default judgment because the judgment debtor waived its personal jurisdiction defense in the Pennsylvania action by seeking to open the Pennsylvania default judgment without raising the issue of personal jurisdiction. Wolf Org., Inc. v. TNG Contrs., LLC, — S.W.3d —, 2019 Tenn. App. LEXIS 338 (Tenn. Ct. App. July 3, 2019).

3. Compliance.

Dismissal without prejudice of parent's petition to enroll a Texas decree was appropriate because the parent failed to provide a complete copy of the foreign decree in the clerk's office. The parent attached what the parent described as a copy of the Texas decree to the parent's petition, but the copy was incomplete, lacking a page of the decree. New v. Dumitrache, — S.W.3d —, 2020 Tenn. LEXIS 264 (Tenn. June 29, 2020).

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

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

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

1. Requirements.

Judgment debtor's contention that summary judgment was improper, because the judgment creditor did not file certified copies of all the papers filed in the Florida courts, was meritless as this section only requires that an authenticated copy of the foreign judgment itself be filed. Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 1992 Tenn. App. LEXIS 751 (Tenn. Ct. App. 1992).

Dismissal without prejudice of parent's petition to enroll a Texas decree was appropriate because the parent failed to provide a complete copy of the foreign decree in the clerk's office. The parent attached what the parent described as a copy of the Texas decree to the parent's petition, but the copy was incomplete, lacking a page of the decree. New v. Dumitrache, — S.W.3d —, 2020 Tenn. LEXIS 264 (Tenn. June 29, 2020).

2. Full Faith and Credit.

There are a limited number of circumstances where a foreign judgment may be denied full faith and credit. The factual issues underlying the foreign judgment may not be a basis of inquiry; however, where the foreign court was without jurisdiction, the judgment is denied full faith and credit. Benham v. Fisher, 650 S.W.2d 759, 1983 Tenn. App. LEXIS 700 (Tenn. Ct. App. 1983).

Under subsection (c), foreign judgments are ordinarily entitled to full faith and credit in Tennessee's courts, however, they are subject to the same defenses as domestic judgments, and may be vacated or reopened on the same grounds and procedures used to vacate or reopen Tennessee judgments. Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 1992 Tenn. App. LEXIS 751 (Tenn. Ct. App. 1992); Remington Invs. v. Obenauf, 1 S.W.3d 666, 1999 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1999).

Trial court properly granted summary judgment in favor of a judgment creditor because, while satisfaction was a defense to the enforcement of a judgment, it was not a defense to the enrollment of a foreign judgment pursuant to the Full Faith and Credit Clause of the United States Constitution and the Uniform Enforcement of Foreign Judgments Act, and the debtor's due process rights were not violated where he had no right to an evidentiary hearing when no material facts were in dispute. Guseinov v. Synergy Ventures, Inc., 467 S.W.3d 920, 2014 Tenn. App. LEXIS 675 (Tenn. Ct. App. Oct. 21, 2014).

Because there was no reason to hold that the Illinois judgment was invalid, it had to be given full faith and credit, and plaintiffs had a right to enroll their Illinois judgment in Tennessee. In re Proceeding to Enforce Judgment Against Nat'l Partitions, Inc., — S.W.3d —, 2017 Tenn. App. LEXIS 198 (Tenn. Ct. App. Mar. 27, 2017).

3. —Conflict of Laws.

The courts of Tennessee must look to the jurisdictional statute of the state in which the judgment sought to be enforced was entered when determining whether that court had obtained personal jurisdiction over the nonresident defendant. Four Seasons Gardening & Landscaping, Inc. v. Crouch, 688 S.W.2d 439, 1984 Tenn. App. LEXIS 3449 (Tenn. Ct. App. 1984).

4. Validity.

Parties seeking to undermine the validity of a foreign judgment have a stern and heavy burden; therefore, if they are seeking to challenge the foreign court's jurisdiction, they must demonstrate that the foreign court did not acquire jurisdiction under the law of the state where the judgment was obtained. Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 1992 Tenn. App. LEXIS 751 (Tenn. Ct. App. 1992).

Defendant's lack of minimum contacts assertions were irrelevant, since he entered a general appearance in a Florida proceeding by filing an answer to plaintiff's complaint without first raising the issue of personal jurisdiction; like Tennessee courts, Florida courts recognize that parties who do not raise the issue of lack of personal jurisdiction in their original pleading or motion to dismiss are deemed to have waived the defense and to have submitted themselves to the court's jurisdiction. Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 1992 Tenn. App. LEXIS 751 (Tenn. Ct. App. 1992); Remington Invs. v. Obenauf, 1 S.W.3d 666, 1999 Tenn. App. LEXIS 227 (Tenn. Ct. App. 1999).

A party seeking to attack the validity of a foreign judgment bears a stern and heavy burden; issues of fact underlying the foreign judgment may not form the basis of such an attack, but the judgment will not be afforded full faith and credit where the foreign court lacked jurisdiction. Hart v. Tourte, 10 S.W.3d 263, 1999 Tenn. App. LEXIS 502 (Tenn. Ct. App. 1999), review or rehearing denied, — S.W.3d —, 1999 Tenn. LEXIS 667 (Tenn. 1999).

When a Texas franchiser sought to enroll a default judgment obtained in a lawsuit in Texas, the Texas summons and complaint were properly served on a franchisee and personal guarantors in Tennessee as the process server's affidavit supporting the franchiser's motion for substitute service complied with the requirements of the Texas Rules of Civil Procedure, the Texas court's order instructing the process server where and how to serve the summons was appropriate, and the method of service was a reasonably effective means of providing notice. Mr. Appliance, LLC v. Appliance Servs. of Tenn., LLC, — S.W.3d —, 2020 Tenn. App. LEXIS 540 (Tenn. Ct. App. Nov. 30, 2020).

5. Subject Matter Jurisdiction.

Because the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not limit other available remedies, the father could seek to enroll the Texas divorce decree under the Uniform Enforcement of Foreign Judgments Act or register the decree under the UCCJEA; the chancery court had subject matter jurisdiction over the father's petition, and the deficiency in the petition, missing one page of the decree, was not a jurisdictional deficiency. New v. Dumitrache, — S.W.3d —, 2019 Tenn. App. LEXIS 174 (Tenn. Ct. App. Apr. 12, 2019).

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

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

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

NOTES TO DECISIONS

1. Unnotarized Affidavits.

In a case in which the judgment creditor obtained a judgment in Minnesota and sought to enforce it in Tennessee, the trial court did not err in entering an order authenticating and enrolling the foreign judgment because the creditor's attorney provided the necessary information in the affidavit she filed with the complaint; the lack of a notary signature and stamp on the affidavit did not deprive the court clerk of the information needed to issue a summons; the judgment debtor was properly served in a timely manner; and the creditor substantially complied with the statutory requirements when she filed her complaint and cured the deficiency when her attorney filed a corrected affidavit containing a notary's signature and stamp. Baglio v. Henyan, — S.W.3d —, 2018 Tenn. App. LEXIS 456 (Tenn. Ct. App. Aug. 10, 2018).

Law Reviews.

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

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

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

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

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

Law Reviews.

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

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

NOTES TO DECISIONS

1. Construction.

Once a foreign judgment has been enrolled, it has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating or staying as a judgment of a court of record in Tennessee and may be enforced or satisfied in a like manner. Bailey v. Sneed, 49 S.W.3d 327, 2001 Tenn. App. LEXIS 98 (Tenn. Ct. App. 2001).

The grounds and procedures for vacating or reopening a final judgment are those contained in Tenn. R. Civ. P. 60.02. Bailey v. Sneed, 49 S.W.3d 327, 2001 Tenn. App. LEXIS 98 (Tenn. Ct. App. 2001).

Since the judgment was a foreign judgment, U.S. Const., art. 4, § 1 required the court to give it full faith and credit; that is, the same effect it would be given where it was rendered. Bailey v. Sneed, 49 S.W.3d 327, 2001 Tenn. App. LEXIS 98 (Tenn. Ct. App. 2001).

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

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

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

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

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

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

Law Reviews.

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

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

26-6-108. Foreign defamation judgments.

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

Acts 2010, ch. 900, § 1.

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

26-6-109. Applicability of part.

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

Acts 2019, ch. 278, § 3.

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

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

Part 2
Uniform Foreign-Country Money Judgments Recognition Act

26-6-201. Short title.

This part shall be known and may be cited as the “Uniform Foreign-Country Money Judgments Recognition Act.”

Acts 2019, ch. 278, § 1.

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

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

26-6-202. Part definitions.

As used in this part:

  1. “Foreign country” means a government other than:
    1. The United States;
    2. A state, district, commonwealth, territory, or insular possession of the United States; or
    3. Any other government with regard to which the decision in this state as to whether to recognize a judgment of that government's courts is initially subject to determination under the Full Faith and Credit Clause of the United States Constitution; and
  2. “Foreign-country judgment” means a judgment of a court of a foreign country.

Acts 2019, ch. 278, § 1.

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

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

26-6-203. Applicability.

  1. Except as otherwise provided in subsection (b), this part applies to a foreign-country judgment to the extent that the judgment:
    1. Grants or denies recovery of a sum of money; and
    2. Under the law of the foreign country where rendered, is final, conclusive, and enforceable.
  2. This part does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent that the judgment is:
    1. A judgment for taxes;
    2. A fine or other penalty; or
    3. A judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.
  3. A party seeking recognition of a foreign-country judgment has the burden of establishing that this part applies to the foreign-country judgment.

Acts 2019, ch. 278, § 1.

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

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

26-6-204. Standards for recognition of foreign-country judgment.

  1. Except as otherwise provided in subsections (b) and (c), a court of this state shall recognize a foreign-country judgment to which this part applies.
  2. A court of this state may not recognize a foreign-country judgment if:
    1. The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
    2. The foreign court did not have personal jurisdiction over the defendant; or
    3. The foreign court did not have jurisdiction over the subject matter.
  3. A court of this state need not recognize a foreign-country judgment if:
    1. The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
    2. The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
    3. The judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;
    4. The judgment conflicts with another final and conclusive judgment;
    5. The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
    6. In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
    7. The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment;
    8. The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law; or
    9. The foreign jurisdiction where the judgment was rendered would not give recognition to a similar judgment rendered in this state.
  4. A party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in subsection (b) or (c) exists.

Acts 2019, ch. 278, § 1.

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

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

26-6-205. Personal jurisdiction.

  1. A foreign-country judgment may not be refused recognition for lack of personal jurisdiction if:
    1. The defendant was served with process personally in the foreign country;
    2. The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant;
    3. The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
    4. The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
    5. The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign country; or
    6. The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action arising out of that operation.
  2. The list of bases for personal jurisdiction in subsection (a) is not exclusive. The courts of this state may recognize bases of personal jurisdiction other than those listed in subsection (a) as sufficient to support a foreign-country judgment.

Acts 2019, ch. 278, § 1.

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

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

26-6-206. Procedure for recognition of foreign-country judgment.

  1. If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition must be raised by filing an action seeking recognition of the foreign-country judgment.
  2. If recognition of a foreign-country judgment is sought in a pending action, the issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense.

Acts 2019, ch. 278, § 1.

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

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

26-6-207. Effect of recognition of foreign-country judgment.

If the court in a proceeding under § 26-6-206 finds that the foreign-country judgment is entitled to recognition under this part, then, to the extent that the foreign-country judgment grants or denies recovery of a sum of money, the foreign-country judgment is:

  1. Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in this state would be conclusive; and
  2. Enforceable in the same manner and to the same extent as a judgment rendered in this state.

Acts 2019, ch. 278, § 1.

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

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

26-6-208. Stay of proceedings pending appeal of foreign-country judgment.

If a party establishes that an appeal from a foreign-country judgment is pending or will be taken, the court may stay any proceedings with regard to the foreign-country judgment until the appeal is concluded, the time for appeal expires, or the appellant has had sufficient time to prosecute the appeal and has failed to do so.

Acts 2019, ch. 278, § 1.

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

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

26-6-209. Statute of limitations.

An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or ten (10) years from the date that the foreign-country judgment became effective in the foreign country.

Acts 2019, ch. 278, § 1.

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

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

26-6-210. Uniformity of interpretation.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Acts 2019, ch. 278, § 1.

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

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

26-6-211. Savings clause.

This part does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this part.

Acts 2019, ch. 278, § 1.

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

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