NOTES TO DECISIONS

1. Conveyances or Devises Without Words of Inheritance — Effect of Statute.

Devises in this state, without words of inheritance or the use of the term “heirs,” always passed the devisor's entire estate in the land, and operated to pass a fee simple estate, if the devisor owned such estate in the land, unless the contrary intent plainly appeared in the will. Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Thurston v. University of North Carolina, 72 Tenn. 513, 1880 Tenn. LEXIS 55 (1880); King v. Miller, 79 Tenn. 633, 1883 Tenn. LEXIS 117 (1883); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Since the enactment of §§ 65-1-101 and 66-5-101, an absolute fee simple estate in land may be conveyed to the grantee, without the use of the word “heirs” or other words of inheritance. Wynne v. Wynne, 56 Tenn. 308, 1872 Tenn. LEXIS 146 (1872); Topp v. White, 59 Tenn. 165, 1873 Tenn. LEXIS 43 (1873); Hurd v. French, 2 Cooper's Tenn. Ch. 359 (1875); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Travis v. Sitz, 135 Tenn. 156, 185 S.W. 1075, 1915 Tenn. LEXIS 192, L.R.A. (n.s.) 1917A671 (1915); Remke v. Remke, 11 Tenn. App. 301, 1929 Tenn. App. LEXIS 90 (1929).

This section and § 66-5-101 did not change the effect of the use of words of inheritance, but merely provided that they were not necessary to create an estate in fee. Graves v. Graves, 3 Tenn. App. 439, 1926 Tenn. App. LEXIS 121 (1926); Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939); Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

The purpose of §§ 66-1-101 and 66-5-101 was to abolish the common law rule requiring words of inheritance as an indispensable prerequisite to the creation of an absolute estate in fee simple. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936); Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

Since the passage of §§ 66-1-101 and 66-5-101, a grant to “A” or to “A and his heirs” means one and the same thing and vests in the grantee the same quantum of interest. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

As a result of §§ 66-1-101 and 66-5-101, a fee passes without the use of the word “heirs” or other words of inheritance, unless the intent to pass a less estate appears. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

The vestiture of title “in Mary Hamby,” and the vestiture of title “in Mary Hamby and her heirs,” would be, in legal effect, precisely the same; and either would purport to vest in Mary Hamby an absolute title in fee. Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

2. Rule at Common Law.

At common law, and before the enactment of §§ 66-1-101 and 66-5-101 a conveyance of land without words of inheritance vested only a life estate; and to create an absolute estate in fee simple, it was indispensable that the land be conveyed to the grantee and his heirs, although the deed purported to convey the land to the grantee forever, or to him and his assigns forever. This was a rule of property. Hunter v. Bryan, 24 Tenn. 47, 1844 Tenn. LEXIS 12 (1844); Cromwell v. Winchester, 39 Tenn. 389, 1859 Tenn. LEXIS 233 (Tenn. Apr. 1859); McKinney v. Stacks, 53 Tenn. 284, 1871 Tenn. LEXIS 358 (Tenn. Oct. 7, 1871); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

At common law, a conveyance of land without words of inheritance vested only a life estate, and to create an absolute estate in fee simple, it was indispensable that the land be conveyed to the grantee and his heirs, although the deed purported to convey the land to the grantee forever or to him and his assigns forever. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

3. Intent — Ascertainment — Effectuating.

Under §§ 66-1-101 and 66-5-101, the courts look to the whole of the instrument, without reference to formal common law divisions of deeds and common law rules of construction in order to ascertain the intention of the parties, and will not allow technical rules to override the intent. Kirk v. Burkholtz, 3 Cooper's Tenn. Ch. 421 (1877); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911); Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560, 1914 Tenn. LEXIS 126 (1915); Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022, 1915 Tenn. LEXIS 135 (1915); Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

The entire “terms of the instrument” may be considered in order to ascertain the estate actually intended to be vested in the grantee. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560, 1914 Tenn. LEXIS 126 (1915); Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931).

In determining what estate the grantor intended to convey, the deed as a whole is to be considered and the intention of the grantor gathered by giving all the words used their appropriate meaning. Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931); Pryor v. Richardson, 162 Tenn. 346, 37 S.W.2d 114, 1930 Tenn. LEXIS 96 (1930); Lockett v. Thomas, 179 Tenn. 240, 165 S.W.2d 375, 1942 Tenn. LEXIS 17 (1942); Baird v. Southern Ry., 179 Tenn. 366, 166 S.W.2d 617, 1942 Tenn. LEXIS 32 (1942); Archer v. Culbertson, 28 Tenn. App. 52, 185 S.W.2d 912, 1944 Tenn. App. LEXIS 61 (1944).

The merger of an equitable title into the legal title will not be permitted where the result will be to defeat the intention of the grantor or testator. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

In determining whether an instrument is testamentary in character or a deed, the intent of the grantor is controlling. Wright v. Huskey, 592 S.W.2d 899, 1979 Tenn. App. LEXIS 368 (Tenn. Ct. App. 1979).

4. “Assigns” — Use or Omission of Word — Effect.

The use of the word “assigns” in the granting clause and habendum of a deed imports an intention to give the grantee the power to sell and dispose of the property, and, therefore, creates a fee simple estate in the grantee. Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Failure to express “assigns” in conveyance will not defeat curtesy. Travis v. Sitz, 135 Tenn. 156, 185 S.W. 1075, 1915 Tenn. LEXIS 192, L.R.A. (n.s.) 1917A671 (1915).

5. Quitclaim Deed — Effect.

A quitclaim deed conveys all the title then held by the grantor unless its language renders that construction impossible. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

In allowing the witness to testify that it was not the witness's intention to release whatever interest held in the property via the quitclaim deed, the bankruptcy court permitted the witness to contradict the quitclaim deed in violation of the parol evidence rule. Joyner v. Johnson, 187 B.R. 598 (E.D. Tenn. 1994).

6. Conflicting Parts of Deed or Will — Construction.

The first clause in a deed when in conflict with a subsequent clause, and the last clause in a will when in conflict with a preceding clause, must prevail; but this is only where there is an irreconcilable repugnance, and both clauses in the deed or will cannot stand. There is no such repugnance where the last clause in a deed does no more than extend and enlarge the first clause. Meredith v. Owen, 36 Tenn. 223, 1856 Tenn. LEXIS 86 (1856); Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Where the premises convey a life estate, and the habendum enlarges such estate to an absolute estate, the habendum is not repugnant to the premises, because it only extends and enlarges the estate given by the premises. Meredith v. Owen, 36 Tenn. 223, 1856 Tenn. LEXIS 86 (1856); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Where the husband's deed, by its premises, conveyed land to his wife, “and her heirs in fee simple forever,” and, by its first habendum, limited it to her sole and separate use and benefit, “with power to sell, and, by deed made and executed jointly with her husband, convey the said lot of land, and vest the proceeds in other property, to be held for the same sole and separate use as the property herein conveyed,” with the additional provision that, if the husband survived the wife, the land should revert to him in fee simple; and, by its second habendum, limited the land to the wife “and her heirs forever,” the husband, surviving the wife, takes the land, because such was manifestly the intention of the parties. Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Where granting clause conveyed property to husband and wife, and habendum recited that the conveyance was to husband and wife as joint tenants for the period of their lives and upon their death the survivor was to take the estate in fee simple, and further provided that during their lives the land could be conveyed by their joint deed, the deed construed as a whole indicated an intention to vest the grantees a joint estate in fee. Hamilton v. Fowler, 99 F. 18, 1899 U.S. App. LEXIS 2790 (6th Cir. Tenn. 1899), cert. denied, 176 U.S. 685, 20 S. Ct. 1027, 44 L. Ed. 639, 1900 U.S. LEXIS 2769 (1900), cert. denied, Hamilton v. Fowler, 176 U.S. 685, 20 S. Ct. 1027, 44 L. Ed. 639, 1900 U.S. LEXIS 2769 (1900).

Where the granting clause of a deed conveyed land to the grantees, “their heirs and assigns forever,” with the exception of a homestead therein for the grantors, and the habendum was to the grantees “their lifetime and then to their heirs and assigns forever,” the granting and habendum clauses were wholly repugnant, and not being reconcilable by the aid of the context showing the grantor's intention, the granting clause creating a fee simple estate will prevail over the subsequent habendum granting a less estate. Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908). See Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022, 1915 Tenn. LEXIS 135 (1915).

Where there is an irreconcilable conflict or repugnancy between the premises of a deed and its habendum, the former prevails. Ballard v. Farley, 143 Tenn. 161, 226 S.W. 544, 1920 Tenn. LEXIS 5 (1920); Hicks v. Sprankle, 149 Tenn. 310, 257 S.W. 1044, 1923 Tenn. LEXIS 101 (1924).

7. Subsequent Words Cutting Down Fee.

An estate granted absolutely will not be cut down or destroyed by a subsequent clause in the habendum, which, if it raises any doubt, will be resolved against the limitation and in favor of the estate. Hicks v. Sprankle, 149 Tenn. 310, 257 S.W. 1044, 1923 Tenn. LEXIS 101 (1924).

Where there is primarily a clear and certain devise of a fee about which the testamentary intention is obvious and without ambiguity the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning. Smith v. Reynolds, 173 Tenn. 579, 121 S.W.2d 572, 1938 Tenn. LEXIS 45 (1938).

Where granting clause provided for the conveyance of a certain tract of land to a named grantee and the habendum defined the estate granted as “in fee simple” but contained the immediate qualification that if the grantee did not dispose of the property in his lifetime and died seized and possessed thereof, then the fee simple was to pass to the grantee's daughter if she was living at the grantee's death, and where such daughter survived the grantee, the daughter took the land in fee simple on death of the grantee even though the grantee undertook to otherwise dispose of the property by will. Lockett v. Thomas, 179 Tenn. 240, 165 S.W.2d 375, 1942 Tenn. LEXIS 17 (1942).

Courts refuse to cut down an estate already granted in fee or absolutely, when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not, in themselves, clear, unmistakable and certain, so that there can be no doubt of the meaning and intention of the testator. Whitfield v. Butler, 30 Tenn. App. 221, 204 S.W.2d 537, 1947 Tenn. App. LEXIS 79 (1947).

A fee simple title granted in one clause of a will without any power of disposition may be cut down or limited in a subsequent clause by express terms or necessary implication. Whitfield v. Butler, 30 Tenn. App. 221, 204 S.W.2d 537, 1947 Tenn. App. LEXIS 79 (1947).

Where testatrix conveyed her home to the devisee “to live in and not to be sold” the court concluded that testatrix's will passed a fee simple absolute in the home to the devisee, and the attempted restraint on alienation was declared void as inconsistent with the incidents and nature of the estate devised and contrary to public policy. White v. Brown, 559 S.W.2d 938, 1977 Tenn. LEXIS 656 (Tenn. 1977).

8. Doubtful Expressions — Construction.

Following the description, a deed provided: “This conveyance is made to the said Helen C. Graves for the sole use and benefit of herself and her heirs at her death and not to be subject in any way to the debts of her husband. The right to control the same during my natural life is hereby retained.” The remainder of the deed was in the regular form of a warranty deed. Such deed conveyed a fee-simple title. Graves v. Graves, 3 Tenn. App. 439, 1926 Tenn. App. LEXIS 121 (1926).

If the expression in the will is doubtful, the doubt is resolved against the limitation and in favor of the absolute estate, and clause in will of childless wife bequeathing to her husband all her property, real and personal, “to be used by him for his support and comfort during his life” conferred absolute estate upon the husband. Green v. Young, 163 Tenn. 16, 40 S.W.2d 793, 1931 Tenn. LEXIS 87 (1931).

Where the will of a testator aged 94 years, whose children resided with him, devised first the use, improvements, income of his dwelling-house, lands and appurtenances to his children “for and during their natural lives,” and then devised and bequeathed “all the residue of my estate personal or mixed of which I shall die seized or possessed” to his children, followed by pecuniary bequests to grandchildren, and concluding with a bequest to his children of all remainder of “my money at my decease,” the proper construction gives the remainder in the lands to the children, there being no gift over. Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561, 1933 Tenn. LEXIS 3 (1933).

Doubt as to meaning of a will will be resolved against a limitation and in favor of the vesting of an estate absolute. The testator is presumed to dispose of his entire estate and not to die intestate as to any part or interest therein. Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561, 1933 Tenn. LEXIS 3 (1933); Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35, 1944 Tenn. LEXIS 294 (1944).

A deed to “Robert L. Johnson and wife Dortha Jane Johnson and her Dortha Jane Johnson's heirs and assigns” vested an estate in fee in the husband and wife as tenants by the entireties as against the contention that the phrase “and her Dortha Jane Johnson's heirs and assigns” manifested an intention to create in the grantees an estate of joint tenancy or tenancy in common, and the latter words were surplusage. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

Will by uneducated man in his own handwriting which read “I want my wife … to then take in her perseson the remainder of all of my property boath real and personal and use as her Own for her surpoard in any way that her needs require until her death” vested the fee in the widow. Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35, 1944 Tenn. LEXIS 294 (1944).

Where grantor transferred land by deed to wife for and during her natural life and upon her death to his daughter if then living or if daughter was dead “to her children then living, or the representatives of such as may be dead, and in the event of the death of … (the daughter) … dying without children, or the representatives of such, then in the event said land is to revert back to my legal heirs…” vested a fee simple absolute in the daughter upon her surviving her mother. Templeton v. Stong, 182 Tenn. 591, 188 S.W.2d 560, 1945 Tenn. LEXIS 257 (1945).

Provision in will providing for division of real estate of testator between two sons after the death of his widow and providing that “if either or one of my sons, or both of them should die without children born to them” the land should go to his stepchildren meant death of one or both of the sons within the lifetime of the testator, and where the sons survived the testator both married son with children and unmarried son without children took an undivided half interest in the realty in fee upon death of the widow. Johnson v. Painter, 189 Tenn. 307, 225 S.W.2d 72, 1949 Tenn. LEXIS 430 (1949).

The words “I give to my daughter all of my property” was sufficient to convey a fee simple title. Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), aff'd, Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

9. Conveyances Passing Whatever Interest Grantor Has.

The deed of an executor, conveying “all the right, title, and claim” of his testator holding under registered tax deed purporting to convey the fee, is an assurance of title. Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911).

One who makes a deed conveying all his right, title, estate, and interest in certain described lands, or who uses equivalent words, necessarily refers to his title papers, and the deed conveys whatever interest those title papers show that he has; and where his title papers do not convey a title to him in fact and law, but only purport to do so, the effect would be the same, that is, the deed would carry whatever force or effect such assurance has under our statutes of limitation. Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911); Hitt v. Caney Fork Gulf Coal Co., 124 Tenn. 334, 139 S.W. 693, 1910 Tenn. LEXIS 58 (1911); Campbell v. Home Ice & Coal Co., 126 Tenn. 524, 150 S.W. 427, 1912 Tenn. LEXIS 75 (1912); Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560, 1914 Tenn. LEXIS 126 (1915); Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co., 137 Tenn. 313, 193 S.W. 106, 1916 Tenn. LEXIS 78 (1916).

Where a deed conveyed “all right, title, claim, and interest being an undivided one half interest in certain lands,” the whole estate in the lands, as such, was conveyed so far as the grantor was concerned, because an instrument should be construed against the grantor where the description of the quantity of the estate affected is doubtful, and where property is sufficiently described as a whole, the description is not restricted by a further general statement which may be given a construction inconsistent with the prior inclusive words of grant. Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co., 137 Tenn. 313, 193 S.W. 106, 1916 Tenn. LEXIS 78 (1916); Pipkin v. Lentz, 49 Tenn. App. 206, 354 S.W.2d 87, 1961 Tenn. App. LEXIS 153 (1961).

10. Executory Devisees or Contingent Remaindermen — Estates Conveyable.

Conveyances by executory devisees and contingent remaindermen may be operative to pass or convey the after acquired estate, interest, or title, if there be a general warranty of title, because such warranty operates as an estoppel to deny the title of the warantee. Henderson v. Overton, 10 Tenn. 394, 1830 Tenn. LEXIS 8, 24 Am. Dec. 492 (1830); Robertson v. Gaines, 21 Tenn. 367, 1841 Tenn. LEXIS 20 (1841); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Coal Creek Mining & Mfg. Co. v. Ross, 80 Tenn. 1, 1883 Tenn. LEXIS 133 (1883); Woods v. Bonner, 89 Tenn. 411, 18 S.W. 67, 1890 Tenn. LEXIS 62 (1890); Bruce v. Goodbar, 104 Tenn. 638, 58 S.W. 282, 1900 Tenn. LEXIS 38 (1900); Taylor v. Swafford, 122 Tenn. 303, 123 S.W. 350, 1909 Tenn. LEXIS 24, 25 L.R.A. (n.s.) 442 (1909); Bird v. Cross, 123 Tenn. 419, 131 S.W. 974, 1910 Tenn. LEXIS 15 (1910); Ferguson v. Prince, 136 Tenn. 543, 190 S.W. 548, 1916 Tenn. LEXIS 160 (1916).

The deed of conveyance of land by the executory devisees in the estate, who are ascertained and named, or the deed by the contingent remaindermen, operates to pass their present and future estate or interest acquired upon the happening of any contingency provided for in the will or deed, unless a contrary intent appears. The grantee steps into their shoes, taking their chances for future interests as well as their present estate. Bruce v. Goodbar, 104 Tenn. 638, 58 S.W. 282, 1900 Tenn. LEXIS 38 (1900).

Where daughter took life estate only, with remainder to children, and, in default of surviving children, to brothers and sisters, partition deed from such brothers and sisters conveying all their interest held valid conveyance divesting them of all rights as contingent remaindermen in grantee's estate. Frank v. Frank, 153 Tenn. 215, 280 S.W. 1012, 1925 Tenn. LEXIS 21 (1926).

11. Equity or Redemption — Conveyances Passing.

The conveyance of land in fee, without reservation of any right or interest, operates to pass the grantor's entire interest in the land, and includes his right of redemption, existing under a mortgage or execution sale, though not specially mentioned. Graves v. McFarlane, 42 Tenn. 167, 1865 Tenn. LEXIS 36 (1865); McClean v. Harris, 82 Tenn. 510, 1884 Tenn. LEXIS 153 (1884); Pearcy v. Tate, 91 Tenn. 478, 19 S.W. 323, 1892 Tenn. LEXIS 18 (1892).

12. Vested Remainder — Devise Passing.

A devise of all of testator's “personal property and real estate” passes a vested remainder estate the right to the possession and enjoyment of which has not accrued because the property is still held by the life tenant who survived the testator. Davis v. Bawcum, 57 Tenn. 406, 1873 Tenn. LEXIS 223 (1873).

13. Homesteads and Dower — Conveyances Passing.

Under a deed of conveyance of land, either absolute or as a security for debt, executed by a husband and wife, and duly acknowledged as required by law, or under a judicial decree or judgment in a suit to which the husband and wife are both parties, divesting the title out of them and vesting the same in others, their right of homestead, and the wife's inchoate right to dower, pass to the grantee under the deed, or to the party in whom the title is vested by such decree or judgment, although the deed contains no express stipulation conveying the homestead and dower, and the decree or judgment does not in terms mention the homestead and dower. Lover, Strouse & Co. v. Bessenger, 68 Tenn. 393, 1876 Tenn. LEXIS 28 (1876); Atwater v. Butler, 68 Tenn. 299, 1878 Tenn. LEXIS 13 (1878); Crook v. Lunsford, 70 Tenn. 237, 1879 Tenn. LEXIS 165 (1879); Daly v. Willis, 73 Tenn. 100, 1880 Tenn. LEXIS 90 (1880); Fogg v. Yeatman, 74 Tenn. 575, 1880 Tenn. LEXIS 295 (1880); Nichol v. County of Davidson, 76 Tenn. 389, 1881 Tenn. LEXIS 23 (1881); Parr, Nolen & Co. v. Fumbanks, 79 Tenn. 391, 1883 Tenn. LEXIS 77 (1883), overruled, White v. Fulghum, 87 Tenn. 281, 10 S.W. 501, 1888 Tenn. LEXIS 60 (1889); 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); Hall v. Fulghum, 86 Tenn. 451, 7 S.W. 121, 1887 Tenn. LEXIS 61 (1888).

The express conveyance or release of either the homestead or dower in a deed of trust or mortgage leaves the right to the one not so expressly conveyed or released unaffected, for the express conveyance of one is the exclusion of the other. Atwater v. Butler, 68 Tenn. 299, 1878 Tenn. LEXIS 13 (1878); Daly v. Willis, 73 Tenn. 100, 1880 Tenn. LEXIS 90 (1880).

The wife's right to homestead was not defeated by the fact that her husband made to her a voluntary conveyance of the homestead property, which conveyance was subsequently set aside at a suit by the husband's creditors, as the conveyance was merely fraudulent in law; thus her application for assignment of homestead was not barred, after remand to execute the decree, there being no question of homestead made in the original pleadings. Rosenbaum v. Davis, 106 Tenn. 51, 60 S.W. 497, 1900 Tenn. LEXIS 132 (1900).

Where the decree in divorce proceedings is silent upon the question, the homestead will, upon the dissolution of the marriage, remain in possession of the party holding the legal title thereto, discharge from all homestead rights or claims of the other party; thus, a divorced wife could not subsequently, in an independent suit, assert her right to homestead against the husband or his vendee. Moore v. Ward, 107 Tenn. 731, 64 S.W. 1087, 1901 Tenn. LEXIS 125 (1901).

14. Conveyances and Devises to Married Women.

Where property was conveyed to trustees, by the first clause to the mother, and by the second clause “for the only proper use, benefit, and behoof of the said” mother and her children, and by the last clause to the mother and her heirs, these clauses gave her the sole and entire right, and created in her a separate estate, free from the rights of her husband, and her children took no estate in the property. Moore v. Simmons, 39 Tenn. 545, 1859 Tenn. LEXIS 272 (Tenn. Apr. 1959); Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879).

A devise to a married woman and the heirs of her body created an estate tail at common law, but gave her, under § 66-1-102, an absolute fee simple estate; and the addition of the clause “for her own sole and separate use during her natural life,” added after the word “body,” did not show an intention to convey a less estate than a fee simple interest, but merely had the effect of excluding the marital rights of her husband during her life. Skillin v. Loyd, 46 Tenn. 563, 1869 Tenn. LEXIS 99 (1869), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12, 1896 Tenn. LEXIS 217 (Tenn. Dec. 1896); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where a testator gave and devised to his wife all of his estate, real and personal, “for her own individual purposes and property, to have for her benefit to enable her to support his three infant children,” naming them, but with no limitation over to his children, it was held that she took the absolute estate. Davis v. Bawcum, 57 Tenn. 406, 1873 Tenn. LEXIS 223 (1873); Allen v. Westbrook, 84 Tenn. 251, 1886 Tenn. LEXIS 91 (1886), criticized, Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 1924 Tenn. LEXIS 34 (1924). See Maloney v. Hawkins, 77 Tenn. 663, 1882 Tenn. LEXIS 119 (1882).

Under a title bond to husband and wife binding the obligor to convey certain land by warranty deed to the wife, for her sole and separate use, reserving to the husband during his lifetime the control and management of the property for the use and support of the wife and their children, as expressed in one place, and for the use of the wife, himself, and family, as expressed in another place; the wife takes a separate equitable estate, the father the right to control and manage the property during life in trust as provided in the bond, and the children the right to participate in the benefits of the income while members of the family, and, after their mother's death, there being no breach of the bond, the children inherit the equitable estate from their mother, subject to the father's right of control and management of the property for himself and the children constituting the family. Hix v. Gosling, 69 Tenn. 560, 1878 Tenn. LEXIS 140 (1878).

15. Conveyance to Wife — Effect on Curtesy.

Where realty is conveyed by husband to wife, directly, he is not entitled to an estate by the curtesy therein. Bingham v. Weller, 113 Tenn. 70, 81 S.W. 843, 106 Am. St. R. 803, 1904 Tenn. LEXIS 6, 69 L.R.A. 370 (1904); Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

Where a husband pays for realty, directing the grantor to convey to his wife, he has the right of curtesy therein, this section notwithstanding. Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

A husband's general warranty deed to his wife divests him of his curtesy estate in the land conveyed, if same is not excepted or reserved. Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

16. —Subsequent Matters Affecting Rights.

Where a husband bought lands, directing the grantor to convey them to his wife, he acquired an estate by curtesy consummate in such lands of his intestate wife; however, where they had joined in a trust deed for money borrowed by the husband, upon the death of the wife intestate, the husband could not establish tenancy by curtesy consummate without personally discharging the mortgage for protection of their minor children. Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

17. Conveyance in Trust for Benefit of Wife — Effect on Curtesy.

A husband, after the death of his wife, took an estate of curtesy in lands which he had conveyed to a trustee for the benefit of his wife, as the deed made no settlement of the land after the death of the wife, and the husband was taken to have intended that the wife hold the estate subject to curtesy consummate, it not being clearly excluded. Frazer v. Hightower, 59 Tenn. 94, 1873 Tenn. LEXIS 31 (1873).

18. Trust Estate for Support of Children.

While trust fund to mother for support of children may be limited for the education of the children during their minority, yet the trust fund for their maintenance is not so limited, but continues as long as they remain members of the family, especially if there is no reasonable objection to this course, or if the child is a female with no other protection and means of support. Pilcher v. McHenry, 82 Tenn. 77, 1884 Tenn. LEXIS 108 (1884).

19. Trustee's Interest — Duration of Trust.

A trustee takes only the quantity of interest which the purposes of the trust require, and the trust cannot continue after the death of the surviving beneficiary. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

20. Rents and Profits Devised.

A devise or conveyance of the rents and profits, or the income of the land, is equivalent to a devise or conveyance of the land itself; and, if unlimited, there is vested in the devisee or grantee an absolute fee-simple title to the land, without the use of the term “heirs,” or other words of inheritance, notwithstanding no express power of alienation is conferred upon the devisee or grantee. However, the devise or conveyance of the rents and profits may be for life of the devisee or grantee, and then there is vested in him only a life estate in the land; and such devise or conveyance of the rents and profits may be in remainder, and in that case, there is vested in the devisee or grantee a remainder estate in the land. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Settle v. Settle, 29 Tenn. 474, 1850 Tenn. LEXIS 18 (1850); Morgan v. Pope, 47 Tenn. 541, 1870 Tenn. LEXIS 170 (1870); 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); Davis v. Williams, 85 Tenn. 646, 4 S.W. 8, 1887 Tenn. LEXIS 6 (1887); 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); Vick v. Gower, 92 Tenn. 391, 21 S.W. 677, 1892 Tenn. LEXIS 86 (1892); Johnson v. Johnson, 92 Tenn. 559, 23 S.W. 114, 1893 Tenn. LEXIS 13, 22 L.R.A. 179 (1893); Bank of Shelby v. James, 95 Tenn. 8, 30 S.W. 1038, 1895 Tenn. LEXIS 60 (1895); Jobe v. Dillard, 104 Tenn. 658, 58 S.W. 324, 1900 Tenn. LEXIS 40 (1900); Mays v. Beech, 114 Tenn. 544, 86 S.W. 713, 1904 Tenn. LEXIS 110 (1904); Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

The rule that a devise or grant of the rents and profits of land is equivalent to a devise or grant of land itself only applies where no active trust is interposed, for, in such case, the devisee or grantee takes only the equitable estate which is not subject to levy and sale under execution at law. 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); Jobe v. Dillard, 104 Tenn. 658, 58 S.W. 324, 1900 Tenn. LEXIS 40 (1900).

21. Devise of Use and Occupation of Property.

The devise of use and occupation of property constitutes a freehold, and makes the devisee owner of a freehold estate unless a contrary intention appear from the will. Anderson v. Hensley, 55 Tenn. 834, 1875 Tenn. LEXIS 8 (1875).

22. Conveyances and Devises to Parent and Children.

Land devised or personalty bequeathed to a parent and his children, without more, where there are children in existence at the death of the testator, will go to the parent and children equally, unless there is an indication of intention, to be gathered from the whole will, that the parent is to take a life estate, and the children the remainder. A very slight indication of intention will give estate for life, and children the remainder estate. Belote v. White, 39 Tenn. 703, 1859 Tenn. LEXIS 305 (1859); Gannaway v. Tarpley, 41 Tenn. 384, 41 Tenn. 572, 1860 Tenn. LEXIS 110 (1860); Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907).

A devise of land to testator's daughter, “to have and to hold the same to her and her children, to their special use and benefit forever,” vests in the daughter, for life, the legal title to the whole property, in trust as a separate estate for the joint use and benefit of herself and children, that is, vests in her for life an equal equitable interest in the land with each of her children, including her after born children as well as those in existence at the death of the testator and, after her death, vests in her children the legal and equitable title, or the whole estate. Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Haywood v. Nash, 1 Cooper's Tenn. Ch. 157 (1873); Arrington v. Roper, 3 Cooper's Tenn. Ch. 572 (1877); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Smith v. Smith, 108 Tenn. 21, 64 S.W. 483, 1901 Tenn. LEXIS 4 (1901); Sanders v. Byrom, 112 Tenn. 472, 79 S.W. 1028, 1903 Tenn. LEXIS 116 (1903).

Where a husband procured a deed of conveyance of land to a trustee “for the benefit of Laura E. Mabry and her children,” as a settlement upon his wife and children, it was held that this constituted a continuing trust, under which after born children will take equally with the children living at the date of the conveyance. Ragsdale v. Mabry, 67 Tenn. 300, 1874 Tenn. LEXIS 377 (1874); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881).

A deed of gift of a husband and father conveying certain land to his wife and her “issues” by him then living, naming the wife and the then living children, with a provision letting in “any further issue or heirs” reserving the right to dispose of the property by the joint consent and signature of the wife, and, in case of her death, by himself “as the trustee” of his children, is, in legal effect a deed of gift to the wife and the children then living, subject to open and let in after born children, with a limited power of sale for the purposes of the trust, and is on its face valid. Hurd v. French, 2 Cooper's Tenn. Ch. 350 (1875).

A note signed by a husband and wife for the rent of land, with the words “I bind my separate estate” written below the wife's signature, will not bind the wife personally, and cannot be enforced against land conveyed by her father to her “and such children as she now has, or may hereafter have,” to their sole and separate use, with power of sale in her for the purpose of reinvestment in other property on the same uses and trusts, the land “in no event to pass out of the hands of her and her children” unless thus invested. Arrington v. Roper, 3 Cooper's Tenn. Ch. 572 (1877).

A deed by a husband to his wife and children, which conveys to his wife by name and his children, “their heirs and assigns forever” passes a present estate to the wife and the then living children as tenants in common. Livingston v. Livingston, 84 Tenn. 448, 1886 Tenn. LEXIS 122 (1886).

While a conveyance of land to a mother and her children, without qualifying words, will generally vest the title in the mother and her then living children as tenants in common, to the exclusion of after born children, a slight indication will induce the courts to adopt the other construction. To effectuate this purpose the mother will be converted into a tenant for life, and the children into remaindermen, the remainders vesting in the children living when the instrument became effective, and the estate opening upon the subsequent birth of children so as to embrace them; or else the mother will be held to be a trustee for herself and her then living children as well as her after born children. Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

23. —Conveyance or Devise to Parent for Life with Remainder to Children.

Under a deed by which the grantor “lends” to his daughter and her husband a slave during the lifetime of the daughter, and after her death, gives the slave to the child or children of the daughter, if any of them reach the age of 21 years, or leave heirs of their body, and, if none, to revert to the grant or, the daughter and mother takes a life estate, with remainder vested in the child or children living at her death, contingent, however, upon their reaching the age of 21 years, or, if dying before that time, upon their leaving children then surviving. Hughes v. Cannon, 21 Tenn. 589, 1841 Tenn. LEXIS 75 (1841).

Where property was devised to a trustee for the sole use and benefit of testator's daughter, who was only 11 years old at her father's death, and to her children, if she should have any; and, if she should die without any child or children, the property to return to testator's children, and be equally divided among them, the equitable title was vested in the daughter for life, and at her death the legal title vested in any child or children she might then have. Turner v. Ivie, 52 Tenn. 222, 1871 Tenn. LEXIS 254 (1871); Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where the testator directed his property to be kept together by his executors during the life of his widow, and the proceeds and income therefrom to be used for the support and maintenance of the family, and for the education of the children, and, at her death, that the same be sold, and the proceeds be divided equally among his children, the widow was given only a life interest, although no disposition was made of any surplus of such proceeds and income. Andrews v. Andrews, 54 Tenn. 234, 1872 Tenn. LEXIS 42 (1872).

In a conveyance or devise of land to a mother and her children, a very slight indication of an intention that the children shall not take jointly with the mother will suffice to give the estate to the mother for life, with remainder to her children. Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Williams v. Williams, 84 Tenn. 164, 1885 Tenn. LEXIS 133 (1885); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

The rule that very slight indication of intention will give mother estate for life with remainder to her children applies in case of deeds of conveyance of land as well as in devises by will. Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

Under a conveyance of land to a married woman to “her sole and separate use,” and to the “children upon her body begotten by her then husband,” the wife took only a separate life estate, and on her death the entire estate passed to her children, and the husband had no estate by the curtesy therein. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Stovall v. Austin, 84 Tenn. 700, 1886 Tenn. LEXIS 159 (1886); Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897); Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 1900 Tenn. LEXIS 165, 82 Am. St. Rep. 882 (Tenn. 1900).

The word children was not surplusage where deed transferred tract of land to daughter “to her use and benefit and her children and their benefit,” and a life estate was created in daughter and a remainder to the children of the daughter living at her death. Cutshaw v. Shelley, 13 Tenn. App. 580, 1931 Tenn. App. LEXIS 97 (1931).

Clause giving children only a lifetime use of property directed by earlier clause to be “equally divided” among the children or their representatives, so that the property might descend unimpaired to the testator's grandchildren, gave the children only a life estate in their several shares of the property. Parker v. Milam, 166 Tenn. 266, 61 S.W.2d 674, 1933 Tenn. LEXIS 90 (1933).

24. Conveyance to Children of Named Person.

A covenant to convey to the “heirs” of a living person is good as to the children of such person, because the word “heirs” is descriptive of the persons to take, and means the children of such living person. Hickman v. Quinn, 14 Tenn. 95, 14 Tenn. 96, 1834 Tenn. LEXIS 57 (Tenn. Mar. 1834).

A deed of gift to a certain person's living children by name, and to any other children that such person may afterwards have, conferred no title whatever upon an after born child. Lillard v. Ruckers, 17 Tenn. 64, 1836 Tenn. LEXIS 17 (1836); Arrington v. Roper, 3 Cooper's Tenn. Ch. 572 (1877). But see Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

Where a grandfather, by deed of gift, gives to his grandchildren by name, “heirs” of his son named, certain slaves, “to have and to hold the same unto the above named children forever; the same to remain in the possession of the son during his life, but not to be subject to his creditors, or liable for the payment of his debts in any way whatever,” and forbidding the son to dispose of the slaves “in any way or manner, either for his life or any number of years,” such deed vested the whole and exclusive legal title to the slaves in the grandchildren, and, if the father had any interest whatever under the deed, it was a mere equitable usufruct, subordinate to their legal title, not liable for his debts, and not available for any purpose in a court of law. Benton v. Pope, 24 Tenn. 392, 1844 Tenn. LEXIS 90 (1844); Bearden v. Taylor, 42 Tenn. 134, 1865 Tenn. LEXIS 30 (1865).

A deed of gift of slaves by a father to his daughter's children, heirs of her body, appointing her their guardian, to manage for them — hire out, if she pleases, or keep them until she pleases to deliver them to her children — vested in her children, then in being, the absolute title at that time, subject to her use and usufruct, with no estate in her. The words “heirs of her body” are descriptive of the persons who are to take, and meant her children then in being in this case. Bearden v. Taylor, 42 Tenn. 134, 1865 Tenn. LEXIS 30 (1865); Johnson v. Hurley, 3 Cooper's Tenn. Ch. 258 (1876).

A deed of conveyance of land, to take effect at once, to the heirs of a certain person then living, vests the title in that person's children then in being, and after born children take no interest in the land. Bearden v. Taylor, 42 Tenn. 134, 1865 Tenn. LEXIS 30 (1865); Grimes v. Orrand, 49 Tenn. 298, 1871 Tenn. LEXIS 9 (1871); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Livingston v. Livingston, 84 Tenn. 448, 1886 Tenn. LEXIS 122 (1886); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

If a deed, when taken altogether, discloses upon the grantor's part that all the children of the mother, without regard to the time of their birth, shall become beneficiaries of the property conveyed, then to effectuate such purpose the mother will be converted into a tenant for life and the children into remaindermen, the remainders vesting in the children living at the time of the instrument and the estate opening to embrace other children subsequently born, at their birth; or else the mother will be held to be a trustee for herself and her then living as well as after born children. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

Where the conveyance of land is to the present and future children of a certain person, to take immediate effect, the title vests at law in the present children to the exclusion of after born children; but it is suggested that perhaps the living children as such grantees would hold the legal title in trust for themselves and the after born children. However, where there is a trust by deed or will, or a remainder is conveyed to present and future children of a certain person, or there is a postponement of the division or enjoyment of the property until they all come into being, the after born children will take with the children in being when the deed or will creating such estate shall become effective. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

25. Remaindermen — Persons Included.

Under a father's deed conveying land to his daughter “for and during the term of her natural life, and after her death to such of her children, their heirs and assigns forever, as she and her first husband shall limit, direct, and appoint, and, for want of such appointment, to all her children equally, their heirs and assigns forever,” the mother took a life estate, with a contingent remainder over to her children, and, upon the birth of a child, the remainder vested in that child, subject to be divested by the birth of other children, or by the exercise, by the mother and her first husband, of their power of appointment. Haywood's Heirs v. Moore, 21 Tenn. 584, 1841 Tenn. LEXIS 74 (1841); Bostick v. Winton, 33 Tenn. 524, 1853 Tenn. LEXIS 82 (1853); Belote v. White, 39 Tenn. 703, 1859 Tenn. LEXIS 305 (1859); Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Hurd v. French, 2 Cooper's Tenn. Ch. 350 (1875); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881).

A conveyance of land to a married woman, to have and to hold the same unto her as a separate estate, and to her children by her then husband, with a warranty of title to her, her heirs and assigns, operates to vest in her a life estate, and a remainder estate in her children by her husband, then living or thereafter born, and that may be living at her death. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Statute making it unnecessary to use the word “heir” in conveying a fee did not change the rule that a devise of a remainder to the children of a life tenant inures to the benefit of the survivors of the life tenant, and excludes children of life tenant's deceased children. Neal v. Hodges, 48 S.W. 263, 1898 Tenn. Ch. App. LEXIS 59 (1898).

Devise to named persons “during their natural lives and to descend to their bodily heirs,” created life estate with remainder to such persons as should be bodily heirs at the expiration of the life estate. Stratton v. McKinnie, 62 S.W. 636, 1900 Tenn. Ch. App. LEXIS 166 (Tenn. App. 1900).

Where a father conveyed lands to his certain daughter “and her children, forever” and in a subsequent clause provided that, in case the daughter died before her husband, he should have 400 acres of the lands for use and occupancy during his lifetime, which, at his death should go to “said children, bodily heirs” of the daughter, and that the daughter and husband be put in possession of all the lands and improvements to their own use, and that the husband should have control of the whole during her lifetime, and afterwards of the 400 acres during his lifetime; it was held that the deed created a life estate in the daughter in the whole tract and in her husband to the 400 acres, with vested remainders in her children living when the deed became effective, which opened and admitted the after born children, and that upon the falling in of the life estates, her children then living and a son of a deceased child took the absolute estate in the lands. Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

A devise to a son and to his children, and if he should die during the life of the testator without children, then to his named sister and her children, creates a life estate in the son if he survived the testator with remainder to his children, and at the birth of a child of the son, the remainder would vest, subject to open and let in after born children. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Under a deed giving land to grantor's son for life and providing that on his death it shall “pass to and vest in his issue,” the term “issue” includes grandchildren as well as children, and the children and grandchildren take per capita, unless a contrary intention can be found in the instrument itself; however, as a contrary intention was found, the children and grandchildren took per stirpes. Lea v. Lea, 145 Tenn. 693, 237 S.W. 59, 1921 Tenn. LEXIS 107 (1921).

Where deed provided that the son was to hold the land for his use and benefit for his life, that on his death, it was to vest in his issue, and that, if he died without issue or issue should become extinct within 21 years after his death, the land should revert, it was held that, the conveyance was to the son as trustee and his heirs in fee simple, or fee determinable, and, a subsequent provision limiting the son's estate to life estate, the word “issue” merely limited the heirs to descending heirs and did not give the property to the son's children and grandchildren per capita. Lea v. Lea, 145 Tenn. 693, 237 S.W. 59, 1921 Tenn. LEXIS 107 (1921).

26. Power of Disposition in First Taker.

Where a life estate or other particular estate is conveyed or devised to one, with an executory limitation or remainder over to another, and an absolute, unlimited, or unqualified power of disposition of the whole property or estate is given the first taker, it is a rule of property, regardless of the evident intention, that an executory limitation or remainder over, dependent upon the nondisposition of the first taker, is void, and an absolute estate is vested in the first taker; but, where the power of disposition given the first taker is contingent, limited, or qualified, the executory limitation or remainder over becomes effective when the property has not been disposed of within or according to the power; or where the power of disposition arises, by operation of law, as the mere incident to or consequence of the fee simple estate devised, the subsequent limitation over by way of executory devise is valid. Smith v. Bell, 8 Tenn. 301, 8 Tenn. 302, 1827 Tenn. LEXIS 57, 17 Am. Dec. 798 (1827); David v. Bridgman, 10 Tenn. 558, 1831 Tenn. LEXIS 16 (1831); Campbell v. Taul, 11 Tenn. 548, 1832 Tenn. LEXIS 113 (1832); Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833); Henderson v. Vaulx, 18 Tenn. 30, 1836 Tenn. LEXIS 98 (1836); Davis v. Richardson, 18 Tenn. 290, 1837 Tenn. LEXIS 23, 31 Am. Dec. 581 (1837); Thompson v. McKisick, 22 Tenn. 631, 1842 Tenn. LEXIS 167 (1842); Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Deadrick v. Armour, 29 Tenn. 588, 1850 Tenn. LEXIS 39 (1850); Pillow v. Rye, 31 Tenn. 185, 1851 Tenn. LEXIS 44 (1851); Sevier v. Brown, 32 Tenn. 112, 1852 Tenn. LEXIS 30 (1852); Williams v. Jones, 32 Tenn. 620, 1853 Tenn. LEXIS 93 (1853); Ballentine & Spear, 61 Tenn. 269, 1872 Tenn. LEXIS 369 (1872); Fraker v. Fraker, 65 Tenn. 350, 1873 Tenn. LEXIS 363 (1873); McGavock v. Pugsley, 1 Cooper's Tenn. Ch. 410 (1873); Troup v. Hart, 66 Tenn. 188, 1874 Tenn. LEXIS 103 (1874); Pool v. Pool, 78 Tenn. 486, 1882 Tenn. LEXIS 211 (1882); Read v. Watkins, 79 Tenn. 158, 1883 Tenn. LEXIS 32 (1883); Turner v. Durham, 80 Tenn. 316, 1883 Tenn. LEXIS 174 (1883); Lancaster v. Lancaster, 81 Tenn. 126, 1884 Tenn. LEXIS 12 (1884); Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Bradley v. Carnes, 94 Tenn. 27, 27 S.W. 1007, 1894 Tenn. LEXIS 22, 45 Am. St. R. 696 (1894); Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12, 1896 Tenn. LEXIS 217 (Tenn. Dec. 1896); Clark v. Hill, 98 Tenn. 300, 39 S.W. 339, 1896 Tenn. LEXIS 224 (Tenn. Dec. 1896); Young v. Mutual Life Ins. Co., 101 Tenn. 311, 47 S.W. 428, 1898 Tenn. LEXIS 66 (1898); Brien v. Robinson, 102 Tenn. 157, 52 S.W. 802, 1898 Tenn. LEXIS 16 (1899); Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 1900 Tenn. LEXIS 165, 82 Am. St. Rep. 882 (Tenn. 1900); Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901); Hair v. Caldwell, 109 Tenn. 148, 70 S.W. 610, 1902 Tenn. LEXIS 65 (1902); Carson v. Carson, 115 Tenn. 37, 88 S.W. 175, 1905 Tenn. LEXIS 43 (1905); McKnight v. McKnight, 120 Tenn. 431, 115 S.W. 134, 1907 Tenn. LEXIS 56 (1908); Emert v. Blair, 121 Tenn. 240, 118 S.W. 685, 1908 Tenn. LEXIS 18 (1908); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

It is a rule of property that an unlimited power of disposition gives the first taker an absolute estate, though in contravention of the actual or evident intention it is otherwise if the power of disposition is limited or contingent. McGavock v. Pugsley, 59 Tenn. 689, 1874 Tenn. LEXIS 34 (1874); Pool v. Pool, 78 Tenn. 486, 1882 Tenn. LEXIS 211 (1882); McKnight v. McKnight, 120 Tenn. 431, 115 S.W. 134, 1907 Tenn. LEXIS 56 (1908).

Though the owner of a life estate, empowered to sell the property, thought that she owned the fee and conveyed in fee simple under that impression, without specifically intending to exercise the power to sell and convey, her deed was a sufficient execution of the power, since a grantor parts with all title she may or can convey, unless a contrary intention appears. Young v. Mutual Life Ins. Co., 101 Tenn. 311, 47 S.W. 428, 1898 Tenn. LEXIS 66 (1898); Matthews v. Capshaw, 109 Tenn. 480, 72 S.W. 964, 1902 Tenn. LEXIS 88, 97 Am. St. Rep. 854 (1902).

Where testatrix, having a husband and three children, devised her property to her husband for life with “power by will and testament to dispose of the property hereby willed to him between my children as he may deem proper,” and the husband by will gave the entire property to the surviving child, but charged it with one hundred dollars ($100) in favor of the children of another deceased child, the husband's will was a proper and effective execution of the power conferred upon him by his wife's deed, except for the one hundred dollars ($100) in favor of the grandchildren, as his power of appointment was limited to the wife's children that survived him, and did not extend to her grandchildren. Herrick v. Fowler, 108 Tenn. 410, 67 S.W. 861, 1901 Tenn. LEXIS 42 (1901).

The power of disposition to be implied from the mere ownership has no application to the rule that unlimited power of disposition vests absolute estate in first taker. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where the testator bequeathed all his estate to his wife and adding “and it is my wish that she do with said property as she may think best, and it is further my wish and desire that at the death of my wife that all our estate …shall go to our adopted daughter Jessie,” he gave the wife unlimited power of absolute disposition, and thereby gave her the absolute estate. Ogilvie v. Wright, 140 Tenn. 114, 203 S.W. 753, 1918 Tenn. LEXIS 26 (1918).

A bequest of $7,000 in trust for testator's son until he reached the age of 50 years, to prevent his squandering it, and providing that “at his death the remaining money to be equally divided between” a brother and sister, impliedly gave full power of disposition to the donee after he reached the age of 50 years; and, since the limitation overtook effect, if at all, not merely at his death before 50, but at his death before or after that period, the limitation over was ineffective, because inconsistent with the previous absolute estate, and, on the donee's death before 50, leaving a wife and minor child, the trust fund passed to them as his distributees. Eaton v. Nashville Trust Co., 145 Tenn. 575, 238 S.W. 865, 1921 Tenn. LEXIS 95 (1921).

A will giving the residue of realty and personalty to testator's daughter for life, with power of disposition by her at death, vests in her but an estate for life, and remainder passes as intestate property where a subsequent provision authorized specific use of testator's stock. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

27. Conditional or Contingent Limitations Over.

A devise or bequest of property to one, with a provision that upon his death it shall go to and descend to his children, vests an absolute estate in the first taker, with a conditional limitation over, in the nature of an executory devise to his children upon his death, and if he dies leaving any children, they will take the property under the will. Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884).

A son's devise of land to his widowed mother “to and for her own use and benefit absolutely, provided that she does not marry again,” with limitation over to another in the event of her remarriage, does not invest her with an absolute estate in fee, but with a contingent estate in fee, determinable upon her remarriage. The estate did not become absolute in the mother, because the power of disposition was not given to her, either expressly or by necessary implication, by superadded words, as required by the rule. The limitation over is valid, and takes effect upon the mother's remarriage. Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901).

A condition that not any of the property devised by a son to his mother shall go, by inheritance, devise, gift, or otherwise, from the mother to a named sister of the testator, or her husband, or their descendants, or any one of their name, and a limitation over that, in the event of any such disposition, the property shall go to another named person, is a valid conditional limitation upon such devise. Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901); Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

Where the testator devised a life estate to his daughters, with remainder in fee to their children, and in default of children by them, then to the testator's children who should then be living, the remainder was vested in such of the testator's grandchildren, children of the daughters, as were in existence when the will became effective and contingent in the case of any daughter who at that time was without children. Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Under a will devising land to testator's mother, coupled with a provision that no part of his estate should come into the possession of his sister or her descendants, and providing that, upon the death of his mother intestate, the property should go to a third person, the condition in the will that none of the property should pass to testator's sister or her descendants did not follow the property into the hands of any one, upon whom the same might be devolved through the operation of the limitation attached to the condition. Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

A conveyance to husband and wife reciting that, if the husband died without bodily heirs, the wife should take by survivorship, and if she died without issue, he should take an undivided moiety, operated to convey to her an undivided half in fee absolutely and to the husband in fee subject to a condition in her favor in case he should die without children, for the term “bodily heirs” means children as used in such deed. Young v. Brown, 136 Tenn. 184, 188 S.W. 1149, 1916 Tenn. LEXIS 115 (1916).

28. —Matters Defeating Limitations Over.

Under a will giving a present vested interest in property, real or personal, whether the estate given be general, equitable, absolute, or for life, with a limitation or executory devise over upon the happening of the contingency of the devisee or legatee dying without children, upon his death with children, his estate in the property becomes absolute. Petty v. Moore, 37 Tenn. 126, 1857 Tenn. LEXIS 91 (1857); Owen v. Hancock, 38 Tenn. 563, 1858 Tenn. LEXIS 228 (Tenn. Dec. 1858); Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Puryear v. Edmondson, 51 Tenn. 43, 1871 Tenn. LEXIS 133 (1871); Turner v. Ivie, 52 Tenn. 222, 1871 Tenn. LEXIS 254 (1871); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888); Nott v. Fitzgibbon, 107 Tenn. 54, 64 S.W. 26, 1901 Tenn. LEXIS 58 (1901); Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901); Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937, 1903 Tenn. LEXIS 80 (1903). See also Williamson v. Tunis, 107 Tenn. 83, 64 S.W. 10, 1901 Tenn. LEXIS 61 (1901), holding that, under such limitations and terms, the birth and survival of a child determines the contingency upon which the estate becomes vested and absolute in the first taker; and there being no express limitation to the children, none will be implied, and they will take nothing as devisees.

Where an absolute estate is given by will, with a provision for a limitation over upon the death of the devisee or legatee, upon a certain contingency, the absolute estate is not defeated where the contingency never happens, and it becomes impossible for the limitation over to take effect. Petty v. Moore, 37 Tenn. 126, 1857 Tenn. LEXIS 91 (1857); Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Cowan, McClung & Co. v. Wells, 73 Tenn. 682, 1880 Tenn. LEXIS 198 (1880); Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

Under a devise or bequest of property to one, to be held by trustees for his use and benefit during his natural life, and at his death to be equally divided among his children, the gift becomes absolute upon his death with no children, for the testator did not, in that event, die intestate as to the remainder, so that the same would go to his heirs and distributees under the statutes of descent and distribution. Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Stretch v. Gowdey, 1 Cooper's Tenn. Ch. 37 (1872); Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884).

Ordinary words devising an absolute title will not, without superadded words giving unlimited power of disposition, defeat an executory devise. Read v. Watkins, 79 Tenn. 158, 1883 Tenn. LEXIS 32 (1883); Carson v. Carson, 115 Tenn. 37, 88 S.W. 175, 1905 Tenn. LEXIS 43 (1905); McKnight v. McKnight, 120 Tenn. 431, 115 S.W. 134, 1907 Tenn. LEXIS 56 (1908).

In a partition of land among the absolute owners, the fee is not in abeyance while a remainder is contingent under a consent decree vesting in one of the parties a life estate in the part allotted to her, with remainder at her death to her children then living and the issue of such as may be dead, but the fee abides with her during such contingency, and, if the line of remaindermen is extinct so that there is no remainderman to take at her death, the remainder then ceases forever, and her title is freed from the remainder and subject to her disposal, by will, and her will devising the land to her husband becomes operative and passes to him the whole estate. Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897).

29. —Devisee with Limitation Over Making Conveyance.

Under a conveyance by the first taker of an estate for life with an executory devise over, the right of inheritance of her children would be defeated, they being estopped by the deed. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

30. Precatory Trusts.

Where a testator, after giving his wife all his real and personal property, declared that he had sold one relative land accepting notes in payment and requested that when the relative had paid all but the last $1,500 that amount be given him, and stated that he valued land occupied by another relative at $5,000, and requested that such relative be permitted to purchase it on instalments, such two requests must be treated as precatory trusts in favor of the two relatives, as they were definite and certain and left the wife no discretion. Daly v. Daly, 142 Tenn. 242, 218 S.W. 213, 1919 Tenn. LEXIS 53 (1919).

31. Determinable Fees.

Where will bequeathing life estate to son further stated “but should my son … die childless, then and in that event, the land above described shall revert to and become the property of my legal heirs then living” the son became vested with a determinable fee, and if he died with children they would not take under the will but as his heirs, but if he died without children the fee terminated and became vested in heirs at law of his father. Johnson v. Johnson, 4 Tenn. Civ. App. (4 Higgins) 118 (1914).

32. Estate Conditioned to Arise by Way of Executory Devise — Effect of Failure on First Estate.

Where an estate is created in fee or for life, and on this estate another is conditioned to arise, by way of executory devise, on the occurrence of a given event, and that event does not occur, so that the estate cannot vest, then the first estate continues, and if a life estate, it is enlarged into a fee. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), overruled on other grounds, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

Under a devise to A and after her death to her children, if any, with provision that if she should die without lawful issue, then over to other; and it appeared that A died leaving children, it was impossible for the estate over to vest and fee vested in her, and her children could take no estate under the devise, but only by inheritance from her. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), overruled on other grounds, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

33. Life Estate With Contingent Remainder — Effect on Fee.

Where land was devised to named devisee for life and provided that “at his death the remainder shall go to the heirs of his body,” the fee or inheritance devised to the bodily heirs of the named devisee passed to the heirs at law of the testatrix immediately upon her death subject to the contingent remainder created by the will. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

34. No Reversion Stipulated — Effect.

Where all title, claim and interest is conveyed by the owner of the fee simple title, without providing for any reversion, the grantee takes full title even though there is a repugnant provision in the habendum clause purporting to limit the estate thus granted to life of grantee, followed by a gift over only in event the grantee dies with issue surviving. The absolute estate first granted was to be limited only in the event there should be surviving issue. Pryor v. Richardson, 162 Tenn. 346, 37 S.W.2d 114, 1930 Tenn. LEXIS 96 (1930).

35. Deed Conditioned for Grantor's Support.

A deed conditioned that the grantee shall support the grantor passes title immediately, provision for a reversion to grantor, and breach, notwithstanding. The remedy of the grantor is in equity for enforcement of a lien on the realty and not for a rescission, even where there is a total breach. Goodman v. Skeleton, 2 Tenn. Ch. App. 283 (1901); Carney v. Carney, 138 Tenn. 647, 200 S.W. 517, 1917 Tenn. LEXIS 71 (1917); Trice v. McGill, 158 Tenn. 394, 13 S.W.2d 49, 1928 Tenn. LEXIS 167 (1928), questioned, Patterson v. Anderson Motor Co., 45 Tenn. App. 35, 319 S.W.2d 492, 1958 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1958).

Death of grantee before that of the grantor, and the fact that he can no longer, or fully, perform will not defeat the estate conditioned on grantor's support as equity will protect the interests of both parties. Carney v. Carney, 138 Tenn. 647, 200 S.W. 517, 1917 Tenn. LEXIS 71 (1917).

36. Right of Way Deed.

Conveyance to a railway company of land “for railroad purposes only,” creates a personal covenant which is fulfilled by the location, of a railroad through grantor's tract of land, and is not to be construed as a limitation on the fee conveyed. Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931).

Deed which conveyed to railroad company “the right of way and roadbed and 150 feet on east and 50 feet on west of said roadbed” did not purport to convey a right of way only, and under this section title to such land passed to the railroad in fee. Baird v. Southern Ry., 179 Tenn. 366, 166 S.W.2d 617, 1942 Tenn. LEXIS 32 (1942).

Although habendum clause contained language indicative of a fee simple, where granting clause in deed of conveyance to railroad stated that interest involved was a right of way the instrument clearly expressed an intent to pass an estate or interest less than a fee and section did not apply. Smoky Mt. R.R. v. Paine Oil Co., 496 S.W.2d 904, 1972 Tenn. App. LEXIS 300 (Tenn. Ct. App. 1972).

37. Exception of “Lands Adversely Held.”

An exception in a deed of “such parts of said lands as may be adversely held” is an exception of land held adversely to the warranting grantor, and not of land acquired by adverse possession of grantor's predecessor in title and conveyed to the immediate grantor before his own conveyance. Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co., 137 Tenn. 313, 193 S.W. 106, 1916 Tenn. LEXIS 78 (1916).

38. Conveyance of Story of Building.

A building may be divided horizontally and the different floors or the different rooms be separately conveyed and owned and deed was held to convey one story of a building to one person and the other story to another. Townes v. Cox, 162 Tenn. 624, 39 S.W.2d 749, 1931 Tenn. LEXIS 77 (1931).

39. Partition Deed.

The general rule is that a voluntary partition of realty does not confer on the parties any additional title, and a partition instrument executed by devisees and intended only to sever the interest and estate granted to each by the will does not pass the reversion, which was not devised by the will and which the grantors received as heirs by descent, notwithstanding such instrument contained language which, in the absence of anything else, would have passed title. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930). See Frank v. Frank, 153 Tenn. 215, 280 S.W. 1012, 1925 Tenn. LEXIS 21 (1926).

40. Possibility of Interest in Land.

It was not the intention of the legislature that a bare possibility of an interest in land should pass as an “interest therein” under §§ 66-1-101 and 66-5-101. Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

41. Right of Reentry Upon Condition Broken.

This section did not abrogate common law rule that right of reentry upon condition broken is inalienable, however attempted alienation will not operate to extinguish such right but instead such right will pass eo instante to heirs of grantor. Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

Some act of reentry on the part of the heirs is necessary to revest title upon breach of a condition subsequent. Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

42. Reservation of Life Estate.

When a grantor reserves a life estate with unlimited power to sell, he retains the fee — no interest in praesenti passes to the grantee — the instrument is not a deed. Wright v. Huskey, 592 S.W.2d 899, 1979 Tenn. App. LEXIS 368 (Tenn. Ct. App. 1979).

43. Conveyance Conditional upon Spouse Not Remarrying.

Where deed from husband to wife granted wife the property with a condition that if the husband should die before the wife the wife should have full control and power to handle the property “so long as she lives my widow” but if she should remarry the property would go to his children, and she conveyed the property after her husband's death, the grantee acquired the property subject to forfeiture upon the remarriage of the widow. Hall v. Hall, 604 S.W.2d 851, 1980 Tenn. LEXIS 495 (Tenn. 1980).

Collateral References.

Deed as conveying fee or easement. 136 A.L.R. 379.

Fee simple absolute as created by grant to one and heirs if donee should have any heirs. 16 A.L.R.2d 670.

Fee simple conditional, conveyance of, by grantee after birth of issue as passing fee simple title. 114 A.L.R. 612.

Grant to one and his children. 161 A.L.R. 612.

Railroad company's right in respect of material or minerals within right of way. 21 A.L.R. 1131.

Railroad premises, grantee as acquiring fee entitling him to adjoining land upon its abandonment for. 136 A.L.R. 300.

Reverter, release of possibility of, as vesting fee in grantee. 38 A.L.R. 1111.

NOTES TO DECISIONS

1. Construction of Words — Rules Governing.

This statute, which turns estates tail into a fee simple, creates a rule of property and its application ought not be made difficult by a broad construction of familiar words, which uniformly created an estate tail at common law. Hill v. Maloney, 21 Tenn. App. 216, 108 S.W.2d 791, 1937 Tenn. App. LEXIS 23 (1937).

A word of limitation may be construed as a word of purchase, and a word of purchase may be construed as a word of limitation, where the context of the whole instrument manifestly and clearly requires it. Kay v. Connor, 27 Tenn. 624, 1848 Tenn. LEXIS 10, 49 Am. Dec. 690 (1848); Pierce v. Ridley, 60 Tenn. 145, 1873 Tenn. LEXIS 425, 25 Am. Rep. 769 (1873); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Franklin v. Franklin, 91 Tenn. 119, 18 S.W. 61, 1891 Tenn. LEXIS 84 (1892); Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893); Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 1900 Tenn. LEXIS 165, 82 Am. St. Rep. 882 (Tenn. 1900); Smith v. Smith, 108 Tenn. 21, 64 S.W. 483, 1901 Tenn. LEXIS 4 (1901); Farley v. Farley, 121 Tenn. 324, 115 S.W. 921, 1908 Tenn. LEXIS 22 (1908).

Where the words “heirs” and “children” are used in different clauses of a deed or will, they will not be construed to mean the same thing, but the legal inference to be drawn is that the maker knew their legal meaning, and used them accordingly. Kay v. Connor, 27 Tenn. 624, 1848 Tenn. LEXIS 10, 49 Am. Dec. 690 (1848); Simpson v. Smith, 33 Tenn. 394, 1853 Tenn. LEXIS 61 (1853); Randolph v. Wendel, 36 Tenn. 646, 1857 Tenn. LEXIS 68 (1857); Wood v. Polk, 59 Tenn. 220, 1873 Tenn. LEXIS 46 (1873); Nott v. Fitzgibbon, 107 Tenn. 54, 64 S.W. 26, 1901 Tenn. LEXIS 58 (1901); Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908).

Since the statute creates a rule of property, its application ought not to be rendered difficult by a latitudinarian construction of familiar words, the technical signification of which uniformly creates an estate tail at common law. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

2. Statute de Donis — Abolition by Section.

The statute coming in aid of the policy of the fictitious action of common recoveries, and of the rule in Shelley's Case, put an end to the effect and operation of the statute of entailments, commonly called the statute de donis. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

3. Estates Tail — Abolition by Section.

The statute abolished estates tail, whether general or special tail, and converted them into estates in fee simple, and gave the absolute title to the first taker; and where the words of the instrument would, at common law, have created an estate tail or a conditional fee, they will, under this statute, create an absolute fee in the first taker. Middleton v. Smith, 41 Tenn. 144, 1860 Tenn. LEXIS 32 (1860); Kirk v. Furgerson, 46 Tenn. 479, 1869 Tenn. LEXIS 83 (1869); Wynne v. Wynne, 56 Tenn. 308, 1872 Tenn. LEXIS 146 (1872); Balch v. Johnson, 106 Tenn. 249, 61 S.W. 289, 1900 Tenn. LEXIS 159 (1901); Bingham v. Weller, 113 Tenn. 70, 81 S.W. 843, 106 Am. St. R. 803, 1904 Tenn. LEXIS 6, 69 L.R.A. 370 (1904); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907); Bailey ex rel. State v. Henry, 125 Tenn. 390, 143 S.W. 1124, 1911 Tenn. LEXIS 35 (Tenn. Dec. 1911); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915); Delk v. Williams, 10 Tenn. App. 246, — S.W.2d —, 1929 Tenn. App. LEXIS 29 (Tenn. Ct. App. 1929).

Fee tail created by use of words “the heirs of her body” in will was converted by statute into fee simple. Hill v. Maloney, 21 Tenn. App. 216, 108 S.W.2d 791, 1937 Tenn. App. LEXIS 23 (1937).

4. “Estates Tail” Defined.

An “estate tail” is an estate of inheritance limited to the heirs of the body, or a particular class of the heirs of the body, of the grantee; and, on the failure of such heirs of the body, the estate shall revert to the grantor. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Kirk v. Furgerson, 46 Tenn. 479, 1869 Tenn. LEXIS 83 (1869); Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353, 1924 Tenn. LEXIS 88 (1925).

An estate tail may be general or special; it is general where it is limited to the heirs of the body of the grantee; and it is special where the limitation is to a special class of such heirs, as to the heirs of his body by a certain wife named, or to the heirs male or female of the body. Kirk v. Furgerson, 46 Tenn. 479, 1869 Tenn. LEXIS 83 (1869).

To create an estate tail at common law, it was necessary to use technical words designating a class of heirs to take in perpetual succession, or language disclosing a clear intent to that effect. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881).

5. Nature and Object of Rule.

The statute, like the rule in Shelley's Case, is a rule, not of construction, but of property, and, like it, has relation, not to the wishes of the donor, but to the interests of the community. It tends to control individual purpose for the attainment of a public object, namely, the unlocking of property and the subjection of it to the uses of society. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Settle v. Settle, 29 Tenn. 474, 1850 Tenn. LEXIS 18 (1850); Lawrence v. Singleton, 3 Shan. 168, 17 S.W. 265 (1875).

6. Intent of Grantor — Effect.

It matters not how distinctly, in point of intention, it may appear that the grantor means that the first taker shall have a life estate only; if it further appears that, by the use of the terms heirs of the body or issue of the grantee, he means the descendants of the first taker shall take, in their character of heirs, a descendible estate of inheritance, exhausting the lineal stock of the first taker, such purpose, by operation of the rule, will vest the first taker with the inheritance. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353, 1924 Tenn. LEXIS 88 (1925).

7. “Children” Defined.

The word “children” is a technical word, and is always construed to be a word of “purchase,” unless it be so controlled by other words used so as to show that it was intended as a word of “limitation.” Kay v. Connor, 27 Tenn. 624, 1848 Tenn. LEXIS 10, 49 Am. Dec. 690 (1848); Stubbs v. Stubbs, 30 Tenn. 43, 1850 Tenn. LEXIS 47 (1850); Williams v. Sneed, 43 Tenn. 533, 1866 Tenn. LEXIS 84 (1866); Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Turner v. Ivie, 52 Tenn. 222, 1871 Tenn. LEXIS 254 (1871); Adylett v. Swope, 1 Shan. 446 (Tenn. 1875); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907).

The word “children” is usually a word of purchase, requiring strong language to change it into a word of “limitation.” Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881).

The word “child” or “children” are words of purchase, not of limitation, unless controlled by other language of the will, and are not equivalent to the terms “heirs” or “heirs of his body,” as used in the statement of the rule in Shelley's Case. Collins v. Williams, 98 Tenn. 525, 41 S.W. 1056, 1896 Tenn. LEXIS 244 (1896).

The technical and legal meaning of the words “child” or “children” is the immediate offspring, and not an indefinite line of heirs. Collins v. Williams, 98 Tenn. 525, 41 S.W. 1056, 1896 Tenn. LEXIS 244 (1896); Bruce v. Goodbar, 104 Tenn. 638, 58 S.W. 282, 1900 Tenn. LEXIS 38 (1900).

8. “Issue” Defined.

Under a deed conveying land to grantor's son for life and providing that on his death it shall “pass to and vest in his issue,” the term “issue” includes grandchildren, and the children and grandchildren take per capita, unless a contrary intention can be found in the instrument itself. Lea v. Lea, 145 Tenn. 693, 237 S.W. 59, 1921 Tenn. LEXIS 107 (1921).

9. “Heirs” Defined.

The word “heirs” is a technical term, and is always construed to be a word of limitation and not of purchase, unless there be other controlling words clearly showing that a contrary meaning was intended by its use. Kay v. Connor, 27 Tenn. 624, 1848 Tenn. LEXIS 10, 49 Am. Dec. 690 (1848); Randolph v. Wendel, 36 Tenn. 646, 1857 Tenn. LEXIS 68 (1857); Cooper v. Coursey, 42 Tenn. 416, 1865 Tenn. LEXIS 83 (1865); Adylett v. Swope, 1 Shan. 446 (Tenn. 1875); Alexander v. Wallace, 76 Tenn. 569, 1881 Tenn. LEXIS 47 (1881); Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

A testator, having only one brother and sister, bequeathed his entire estate to the brother “and his lawful heirs,” and, in the event of the brother's death without “such heirs,” then to the sister. As the testator had no children, the brother and sister would have been his heirs; and, as the sister would have been an heir of her brother, the phrase “lawful heirs” of the will must be taken to mean “children,” otherwise the sister could not take unless she were dead. The bequest to the sister was valid and was neither a perpetuity nor an estate tail which would by the statute be converted into an estate in fee. Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893).

The word “heirs” is a technical term, and is always construed to be a word of limitation and not of purchase, unless there be other controlling words clearly showing that a contrary meaning was intended by its use. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

10. Heirs of the Body — Scope — Technical Use.

Under a devise of land to a son “and the heirs of his body, and if he should die without heirs, then * * * to his sister, Lucinda, and her heirs, that is, the heirs of her body,” there is nothing sufficiently clear to overturn the true technical meaning of the words “heirs of the body,” and nothing to indicate that the words were intended to be used in any other than the technical sense. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Heirs of the body include grandchildren, lineal descendants. Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

A conveyance to a named grantee “and at his death to his bodily heirs” vested a life estate in the grantee with a contingent remainder in his heirs under the provisions of § 64-103 (now § 66-1-103) and did not fall within the provisions of this section converting a fee tail into a fee simple. Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174, 1956 Tenn. LEXIS 445 (1956).

11. Fee Simple Estate — Words Creating — Examples.

Where the conveyance or devise of land is made to a certain person and “his bodily heirs,” or “heirs of his body,” or “his body heirs,” or “his lawful heirs,” or “lawful issues of his body,” or “his heirs, the natural issue of his body forever,” or like words without more, that person takes an absolute estate in fee simple under this section, and his children or heirs take nothing under the deed or will. Middleton v. Smith, 41 Tenn. 144, 1860 Tenn. LEXIS 32 (1860); Kirk v. Furgerson, 46 Tenn. 479, 1869 Tenn. LEXIS 83 (1869); Skillin v. Loyd, 46 Tenn. 563, 1869 Tenn. LEXIS 99 (1869), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Wynne v. Wynne, 56 Tenn. 308, 1872 Tenn. LEXIS 146 (1872); Balch v. Johnson, 106 Tenn. 249, 61 S.W. 289, 1900 Tenn. LEXIS 159 (1901); Bingham v. Weller, 113 Tenn. 70, 81 S.W. 843, 106 Am. St. R. 803, 1904 Tenn. LEXIS 6, 69 L.R.A. 370 (1904); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907).

A deed of land to grantor's certain daughter, and “to her heirs, the natural issue of her body, forever,” if there should be no issue, then such land to descend to grantor's grandchildren, gave to the daughter the absolute title, because she was invested with an estate tail under the common law. Kirk v. Furgerson, 46 Tenn. 479, 1869 Tenn. LEXIS 83 (1869).

A devise to testator's daughter and her “bodily heirs,” with limitation over on her death without heirs, creates estate tail, converted into fee simple and “dying without heirs” means indefinite failure of issue. Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353, 1924 Tenn. LEXIS 88 (1925).

12. Base or Determinable Fee.

A devise “to my daughter and the heirs of her body” creates a fee tail, which is converted into a fee simple by this section, but a further provision, “if she should die leaving no children it is my will that the land so bequeathed to her shall be divided equally among my surviving children,” cuts down such fee simple to a base or determinable fee. Hill v. Maloney, 21 Tenn. App. 216, 108 S.W.2d 791, 1937 Tenn. App. LEXIS 23 (1937).

13. Estate Over Not Vesting — Effect.

Under a devise to A, and after her death to her children, with a provision that if she should die without lawful issue, then over to others; and it appears that A died leaving children, it was impossible for the estate over to vest, and the fee became vested in her. What at common law would have been an estate tail is by this section not to be deemed an entail. A's children could take only by inheritance from her, and in case of a conveyance by her as first taker such right of inheritance would be defeated and estopped by her deed. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), overruled, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

14. Life Estates.

As to the rule that the loan of chattels to the lendee for life and then to go to the heirs of his body gives the lendee only a life estate and the remainder estate to his children, see Loving v. Hunter, 16 Tenn. 4, 1832 Tenn. LEXIS 2 (1835); Settle v. Settle, 29 Tenn. 474, 1850 Tenn. LEXIS 18 (1850); Ward v. Saunders, 32 Tenn. 174, 1852 Tenn. LEXIS 44 (1852); Vaden v. Hance, 38 Tenn. 300, 1858 Tenn. LEXIS 178 (1858).

Where the testator “lends” his land to his son for life, which upon the son's death is to go to the heirs of his body, the rule in Shelley's Case, when in force, did not apply; and the son took only an equitable life estate and the legal estate vested in the testator's heirs pending the contingency, and subject to be divested only by the happening of the contingency of the son dying with a child or children or other issue surviving him. Clopton v. Clopton, 49 Tenn. 31, 1870 Tenn. LEXIS 185 (1870); Ryan v. Monaghan, 99 Tenn. 338, 42 S.W. 144, 1897 Tenn. LEXIS 36 (1897).

This statute has no application where one takes only an estate for life, and does not take an estate tail under the common law; as, where there is a devise to one for life, and then to the heirs of his body, and if he die without such heirs, then to another, the first devisee takes only an estate for life, with a contingent remainder over to such heirs, and, in the event of his death without such heirs, then to go to the other, this statute does not apply so as to enlarge the life estate to an absolute estate in the first taker. Williams v. Williams, 57 Tenn. 566, 1873 Tenn. LEXIS 264 (1873); Williams v. Williams, 62 Tenn. 55, 1873 Tenn. LEXIS 137 (1873); Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930); Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

A devise to a grandson “during his life and then to the heirs of his body by a legal marriage,” refers to lawful heirs; and there is created a life estate with a contingent remainder in the heirs of the body of the life tenant. Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

Under a conveyance to one “during his life and at his death to his bodily heirs,” the named grantee takes a life estate and his bodily heirs living at the time of his death take the remainder. Guy v. Culberson, 164 Tenn. 509, 51 S.W.2d 500, 1932 Tenn. LEXIS 16 (1932).

15. Personalty.

Where the words, if applied to real property, would create an estate tail, they will, when applied to personalty, vest the absolute property in the first taker. Duncan v. Martin, 15 Tenn. 519, 1835 Tenn. LEXIS 40, 27 Am. Dec. 525 (1835); Loving v. Hunter, 16 Tenn. 4, 1832 Tenn. LEXIS 2 (1835); Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Clark v. Clark, 39 Tenn. 336, 1859 Tenn. LEXIS 219 (39 Tenn. 336).

The rule that where the words, if applied to real property, would create an estate tail, they will, when applied to personalty, vest the entire and absolute property therein was a well established principle of the common law, which was not affected by the rule in Shelley's Case. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

Collateral References.

Grant to one and his children. 161 A.L.R. 612.

Inconsistency between granting and habendum clauses, effect of. 58 A.L.R.2d 1374.

NOTES TO DECISIONS

1. Scope and Effect.

The enactment of the statute operated to abolish the rule in Shelley's Case. Williams v. Williams, 57 Tenn. 566, 1873 Tenn. LEXIS 264 (1873); Williams v. Williams, 1 Cooper's Tenn. Ch. 306 (1873); Hurst v. Wilson, 89 Tenn. 270, 14 S.W. 778, 1890 Tenn. LEXIS 46 (Tenn. Sep. 1890); Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Union R.R. v. Clifton, 152 Tenn. 572, 280 S.W. 28, 1925 Tenn. LEXIS 103 (1925); Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

The statute abrogating the rule in Shelley's Case gives no rights to “heirs,” to whom no remainder was limited, as against the devisees of one who was not only a life tenant, but in whom the fee abode subject to a contingent remainder to her surviving children or issue of children, when, by the extinction of the line of her descendants during her life, the remainder failed, and her title, at the moment of her death, became absolute. Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915). See Duffy v. Jarvis, 84 F. 731, 1898 U.S. App. LEXIS 2692 (C.C.E.D. Tenn. 1898).

This statute is restricted to interests of remaindermen and does not apply to cases where interest of reversioner is involved. Robinson v. Blankenship, 116 Tenn. 394, 92 S.W. 854, 1906 Tenn. LEXIS 3 (1906).

The statute is not limited in application to cases where there are no heirs of the body of the life tenant, but applies whether the life tenant has such, and the estate of the first taker is limited to the life estate expressly given. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

2. Application.

Where deed granted land to wife during her natural life “or so long as she may remain a widow in the event I should die before she does * * * with a remainder to me in event she should die before I do, and should she survive me, then at her death or marriage to my heirs at law” the estate left in grantor after disposing of life estate though called a remainder was a reversion, and this section did not apply, and grantor could thereafter make a new deed and transfer the fee simple title to his wife. Robinson v. Blankenship, 116 Tenn. 394, 92 S.W. 854, 1906 Tenn. LEXIS 3 (1906).

Where word “assigns” appeared in granting clause and habendum of deed which conveyed estate to grantee during her natural life and at her death to her husband their heirs and assigns forever, it was not necessary to consider applicability of statute abolishing rule in Shelley's Case, as the limitation over was void, the wife taking an estate in fee. Erwin Nat'l Bank v. Riddle, 18 Tenn. App. 561, 79 S.W.2d 1032, 1934 Tenn. App. LEXIS 58 (Tenn. Ct. App. 1934).

Where father devises land to son for the term of his natural life, and at his death to his heirs, such heirs take the remainder in fee as purchasers. Spencer v. Stanton, 46 Tenn. App. 688, 333 S.W.2d 225, 1959 Tenn. App. LEXIS 122 (Tenn. Ct. App. 1959).

3. Rule in Shelley's Case — Statement — Application.

What is pronounced to be a full and accurate statement of the rule in Shelley's Case is as follows: Where any person, by deed, will, or other writing, takes an estate of freehold, either legal or equitable, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of an intervening estate of the same legal or equitable character, to his heirs or heirs of his body, as a class of persons to take in succession, the limitation to the heirs entitles the ancestor or first taker to the whole estate. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Cooper v. Coursey, 42 Tenn. 416, 1865 Tenn. LEXIS 83 (1865); Williams v. Sneed, 43 Tenn. 533, 1866 Tenn. LEXIS 84 (1866); Williams v. Williams, 57 Tenn. 566, 1873 Tenn. LEXIS 264 (1873); Williams v. Williams, 79 Tenn. 652, 1883 Tenn. LEXIS 120 (1883); Hurst v. Wilson, 89 Tenn. 270, 14 S.W. 778, 1890 Tenn. LEXIS 46 (Tenn. Sep. 1890); Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174, 1956 Tenn. LEXIS 445 (1956).

The rule in Shelley's Case does not apply, and the first taker is not vested with the fee under devise of lands to the testator's two daughters, and to the survivor of them, if either should die without a child, and to be held free from the debts of their husbands, if they should marry, and to descend “to their children,” though the will was made and the testator died before the abolishment of the rule in Shelley's Case. Collins v. Williams, 98 Tenn. 525, 41 S.W. 1056, 1896 Tenn. LEXIS 244 (1896); Bruce v. Goodbar, 104 Tenn. 638, 58 S.W. 282, 1900 Tenn. LEXIS 38 (1900).

4. “Life Estate” Defined.

A “life estate” is not an estate of inheritance, but a freehold for life of a tenant or another. Harwell v. Harwell, 151 Tenn. 587, 271 S.W. 353, 1924 Tenn. LEXIS 88 (1925).

5. Heirs — Construed.

The word “heirs” may be construed to mean children where appearing in a deed. Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893).

6. Lawful Heirs — Meaning.

The phrase “lawful heirs” means children, and hence not an estate tail. Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893).

7. Heirs of Body — Meaning.

“Heirs of the body” include grandchildren. The term is equivalent to lawful heirs or heirs by legal marriage. Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

In its primary sense, a remainder to the “heirs of his (life tenant's) body” is a remainder to the life tenant's lineal descendants. Fehringer v. Fehringer, 222 Tenn. 585, 439 S.W.2d 258, 1969 Tenn. LEXIS 465 (1969).

8. Impossibility of Issue on Account of Age.

The remainder to the children of a woman, who has an estate for life in the same property, is not extinguished until her death, although she may be very old and childless, as the law does not assume that there is an impossibility of issue at any age. Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897); Jordan v. Jordan, 145 Tenn. 378, 239 S.W. 423, 1921 Tenn. LEXIS 86 (1922); Barnett v. Daniel, 11 Tenn. App. 443, 1930 Tenn. App. LEXIS 27 (1930). But see Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (1858), holding that where an estate, real and personal, is given by a testator to his daughters and a stepdaughter, to be vested in trustees for them during their natural lives, and, at their deaths, to be equally divided among their “bodily heirs,” and one of the daughters was sixty years old and living, the gift was absolute in her, because the gift over could not take effect for the reason that the time for her bearing children had passed.

9. Conveyances Creating Remainders.

Where a deed conveys a life estate to a person, with the remainder to his heirs, the heirs will, under this statute, take a remainder estate, if that was the grantor's intention as expressed in the deed. Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Union R.R. v. Clifton, 152 Tenn. 572, 280 S.W. 28, 1925 Tenn. LEXIS 103 (1925); Delk v. Williams, 10 Tenn. App. 246, — S.W.2d —, 1929 Tenn. App. LEXIS 29 (Tenn. Ct. App. 1929).

Conveyance for life with remainder “to heirs of her body,” gives a remainder to the bodily heirs. Delk v. Williams, 10 Tenn. App. 246, — S.W.2d —, 1929 Tenn. App. LEXIS 29 (Tenn. Ct. App. 1929); Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930); Guy v. Culberson, 164 Tenn. 509, 51 S.W.2d 500, 1932 Tenn. LEXIS 16 (1932).

10. Contingent Remainders.

A devise to testator's grandson for life, then to the heirs of his body by a legal marriage, and in event of his death without such heirs to a residuary legatee, gives the grandson a life estate with contingent remainder in fee to such as at his death might answer the description of such heirs of his body. In default of such, then by executory devise to residuary devisee. Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

Where there is a devise to one for life and at his death the remainder expressed to go to the heirs of the life tenant's body, and there is no provision disposing of the reversion and no residuary clause, the named devisee takes a life estate with contingent remainder to his bodily heirs, and the reversion passes as intestate property to heirs at law of testator, ascertained as of date of his death. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

11. Conveyances Creating Life Estate.

Grantee took life estate rather than fee where granting clause of deed read “to her, her lifetime, then to her heirs of her body,” and habendum clause read “to have and to hold the same to her and her heirs and assigns.” Quarles v. Arthur, 33 Tenn. App. 291, 231 S.W.2d 589, 1950 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1950).

12. Conveyance During Life and at Death to Bodily Heirs.

A deed of land to one to be occupied by him and his family as a home during his life, and at his death to his bodily heirs, passed only a life estate, which was all that could be acquired under his trust deed in fee. Guy v. Culberson, 164 Tenn. 509, 51 S.W.2d 500, 1932 Tenn. LEXIS 16 (1932).

13. Applies to Deeds and Wills.

A conveyance to a named grantee “and at his death to his bodily heirs” vested a life estate in the grantee with a contingent remainder in his heirs under the provisions of this section and did not fall within the provisions of § 64-102 (now § 66-1-102) converting a fee tail into a fee simple. Butler v. Parker, 200 Tenn. 603, 293 S.W.2d 174, 1956 Tenn. LEXIS 445 (1956).

Collateral References.

Grant to one life, and afterwards, either absolutely or contingently, to grantor's heirs or next of kin, as leaving reversion or creating remainder. 16 A.L.R.2d 691.

Independent option to purchase real estate as violating rule against perpetuities or restraints on alienation. 66 A.L.R.3d 1294.

Modern status of the rule in Shelley's Case. 99 A.L.R.2d 1161.

NOTES TO DECISIONS

1. Purpose and Effect.

The provision of this section is the equivalent of a conclusive presumption that the maker of the deed or will intended the limitation to take effect within the lawful period unless the contrary is expressly and plainly declared; and if the intention is doubtful, the statute must be applied and the limitation upheld; and no presumption of an intended perpetuity will arise by construction from the use of the terms of the statute. Armstrong v. Douglass, 89 Tenn. 219, 14 S.W. 604, 1890 Tenn. LEXIS 39, 10 L.R.A. 85 (Tenn. Sep. 1890); Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893); Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

This section was enacted to change the common-law rule that the words “dying without issue,” and other equivalent terms, imported an indefinite failure of issue, a total extinction of descendants of the first taker, and that a limitation over dependent upon such indefinite failure or extinction, was void for remoteness, and as tending to create perpetuities, to avoid which the first taker was given an absolute estate. Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908). See Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

2. Application.

This section does not apply to a deed of date 1843, before passage of Acts 1851-1852, ch. 91. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

3. Construction of Limitations.

Such terms as “dying without heirs,” or “dying without issue,” import that the first taker is to die without leaving such heirs or issue living at the time of his death, or born to him within 10 months thereafter, as plainly expressed; and the statute applies to, and the legislative construction controls, every contingent limitation within the terms of the statute, “unless the intention of such limitation be otherwise expressly and plainly declared in the face of the deed or will creating it.” Armstrong v. Douglass, 89 Tenn. 219, 14 S.W. 604, 1890 Tenn. LEXIS 39, 10 L.R.A. 85 (Tenn. Sep. 1890); Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893).

A clause in a will, “I further direct that while said rent period is running that if any one or more of my grandchildren shall die, the remaining grandchildren shall receive all of said rents and profits,” was held to apply only to grandchildren living at the death of the testatrix. Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

Inasmuch as the heirs do not take by descent but by virtue of the remainder limited to them it follows that by the statute the first taker is deprived of any estate in the inheritance, and his interest is restricted in fact to what, under the rule, it was in form namely, a particular estate for life, and the will provided for a contingent remainder. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930), distinguishing Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918).

The two pertinent rules of construction are: (1) If there is an immediate gift to A, and a gift over in case of his death, or any similar expression implying the death to be a contingent event, the gift over will take effect only in the event of A's death before the testator; (2) If there is an immediate gift to A and if he dies leaving issue, or without issue, over, the gift over will take effect only in the event of A's death before the testator. Johnson v. Painter, 189 Tenn. 307, 225 S.W.2d 72, 1949 Tenn. LEXIS 430 (1949), citing Eckhardt v. Phillips, 176 Tenn. 34, 137 S.W.2d 301, 1939 Tenn. LEXIS 96 (1939).

Where testator used phrase “should either die without issue,” court was required to consider entire will in ascertaining whether testator meant death in his own lifetime or death at any time. Vickers v. Vickers, 205 Tenn. 86, 325 S.W.2d 544, 1959 Tenn. LEXIS 343 (1959).

This section does not require that limitation be construed as requiring death in the lifetime of testator where there is a clear expression by testator to make death of the first taker mean a death at any time. Vickers v. Vickers, 205 Tenn. 86, 325 S.W.2d 544, 1959 Tenn. LEXIS 343 (1959).

Where the first-named devisee was granted only a life estate in the income produced by corpus of a trust with a limitation over in the event of death of the first taker without living children, the rule of construction providing that the limitation over would take effect only in the event of the death of the first-named devisee before the death of the testator did not apply. Shannon v. Union Planters Nat'l Bank, 537 S.W.2d 919, 1976 Tenn. LEXIS 621 (Tenn. 1976).

Where deed contained provision that in the event the grantee should die without issue, the property should revert back to the grantors or their estate to be redistributed between their legal heirs, and also contained provision which would make the gift of the property an advancement to the grantee against her future inheritance from the grantors, it would be presumed that a reversion would take place only if the grantee died without issue before the death of the grantors. Collins v. Smithson, 585 S.W.2d 598, 1979 Tenn. LEXIS 483 (Tenn. 1979).

4. Prior Rule.

Before the enactment of this section, it was held that dying without issue, without heirs, and without heirs of the body, without more, or without any qualifying words to control, imported an indefinite failure of issue, heirs, or heirs of the body, a total extinction of descendants of the first taker; that a limitation over dependent upon such indefinite failure was void for remoteness, as tending to create perpetuities, and that the first taker took an absolute estate. Williams v. Turner, 18 Tenn. 287, 1837 Tenn. LEXIS 22 (1837); Bowman v. Tucker, 22 Tenn. 648, 1842 Tenn. LEXIS 171 (1842); Chester v. Greer, 24 Tenn. 26, 1844 Tenn. LEXIS 5 (1844); Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Bramlet v. Bates, 33 Tenn. 554, 1853 Tenn. LEXIS 85 (1853); Randolph v. Wendel, 36 Tenn. 646, 1857 Tenn. LEXIS 68 (1857); Hamner v. Hamner, 40 Tenn. 398, 1859 Tenn. LEXIS 113 (1859), questioned, Stones v. Maney, 3 Tenn. Ch. 731 (1878); Kirk v. Furgerson, 46 Tenn. 479, 1869 Tenn. LEXIS 83 (1869); Williams v. Williams, 57 Tenn. 566, 1873 Tenn. LEXIS 264 (1873); Stones v. Maney, 3 Tenn. Ch. 731 (1878); Armstrong v. Douglass, 89 Tenn. 219, 14 S.W. 604, 1890 Tenn. LEXIS 39, 10 L.R.A. 85 (Tenn. Sep. 1890); Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893); Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908).

5. Perpetuities — Invalidity.

Since, as well as before, the enactment of this section, perpetuities are unlawful, and when expressly and plainly declared, the contingent limitation that can take effect only upon the falling in of the perpetuity, will not be saved by this section, and the first taker will take the absolute title. Armstrong v. Douglass, 89 Tenn. 219, 14 S.W. 604, 1890 Tenn. LEXIS 39, 10 L.R.A. 85 (Tenn. Sep. 1890); Boyd v. Robinson, 93 Tenn. 1, 23 S.W. 72, 1893 Tenn. LEXIS 32 (1893). See Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Franklin v. Armfield, 34 Tenn. 305, 1854 Tenn. LEXIS 52 (1854); White v. Hale, 42 Tenn. 77, 1865 Tenn. LEXIS 20 (1865); Turner v. Ivie, 52 Tenn. 222, 1871 Tenn. LEXIS 254 (1871); Davis v. Williams, 85 Tenn. 646, 4 S.W. 8, 1887 Tenn. LEXIS 6 (1887); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

A testator cannot confer upon another power to vest title at such a time as would create a perpetuity. Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

6. Time Within Which Interest Must Vest.

Executory limitations, whether of real or personal estate, in order to be valid, must vest in interest, if at all, within a life or lives in being and 21 years and a fraction thereafter, for the term of gestation in cases of posthumous birth. Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

7. Heirs — Meaning.

After devising property to his wife and son testator provided that, in case of their deaths “and no heirs to them be left,” the property should revert to his brothers. Executors were authorized to dispose of property left to the son for his maintenance. “Heirs” did not mean children and absolute estates were created in wife and son. It was competent to show the quantity and kind of testator's estate and how lands devised to son were derived. Hennegar v. Deadrick, 54 S.W. 138, 1899 Tenn. Ch. App. LEXIS 118 (Tenn. Ch. App. 1899).

8. Children — Meaning.

While the term “children” may be construed to embrace grandchildren, in view of the context of the instrument, yet such term will not be so construed where there is nothing to authorize its such enlargement; and where the testator devised a life estate to his daughters, with remainder in fee to their children, and in default of children, then to the testator's children who should then be living, the term “children” cannot be enlarged to include the testator's grandchildren. Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908). See Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

It is a general rule of common law that the words “child” and “children” do not in their natural sense and proper signification include a grandchild or grandchildren, and that such words mean the immediate offspring of the parent. Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657, 1919 Tenn. LEXIS 47 (1919).

Executory devise over, in the event of death without children and grandchildren of a niece, devising a base or determinable fee to the “children” of a deceased nephew then living, was held not to include grandchildren of such nephew; the word “children” having been used in its ordinary sense, in view of the context. Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657, 1919 Tenn. LEXIS 47 (1919).

9. Valid Executory Devises — Examples.

Limitations over dependent on a definite failure of issue, or a contingency which must happen, if at all, within the period of a life or lives in being, and 21 years and 10 months thereafter, are good executory devises, and will be upheld by the courts. Armstrong v. Douglass, 89 Tenn. 219, 14 S.W. 604, 1890 Tenn. LEXIS 39, 10 L.R.A. 85 (Tenn. Sep. 1890). See Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Horton v. Thompson, 3 Cooper's Tenn. Ch. 575 (1877); Cowan, McClung & Co. v. Wells, 73 Tenn. 682, 1880 Tenn. LEXIS 198 (1880); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

A devise to the unborn child of an unborn child, eo nomine, is void, because it may not take effect within the period of a life or lives in being, and 21 years and 10 months thereafter; but when, by the express terms of the devise, the limitation over must take effect within the period of a life or lives of persons in being, then the reason supporting the objection fails, and the limitation over is good. Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888). See Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844).

Under a will giving testator's wife for life half of all his estate in a particular county, and to his niece the other half of such property, the estate to be kept together and managed for the joint benefit of the niece and wife until one should marry, and thereafter, if they chose, the property to go to the niece on the death of the wife, and “in the event of her dying without children or grandchildren the property to go” to the children of a deceased nephew then living, the niece took a base or determinable fee in the property; there being a valid executory devise over in favor of the children of the nephew on the death of the niece at any time without children or grandchildren. Hoggatt v. Clopton, 142 Tenn. 184, 217 S.W. 657, 1919 Tenn. LEXIS 47 (1919).

Where the interests of grandchildren devised are subject to contingencies, but all these events must happen and the various classes must be determined, within lives in being at the death of the testatrix, such interests begin within the limits of the rule against perpetuities. Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

Where first-named devisees, testator's wife and children, were granted only a life estate in income produced by corpus of trust, and where it expressly appeared on the face of the will that testator did not intend that the first-named devisees would in any event take an absolute interest, testator's intention was that upon the deaths of his wife and children the trust corpus would pass under his will and not the respective wills of his wife and children. Shannon v. Union Planters Nat'l Bank, 537 S.W.2d 919, 1976 Tenn. LEXIS 621 (Tenn. 1976).

10. Failure of Limitation Over.

Where there is an absolute gift to the first taker, followed with a limitation over upon his death without heirs, the absolute gift to the first taker remains undisturbed upon his death with children surviving him. Cowan, McClung & Co. v. Wells, 73 Tenn. 682, 1880 Tenn. LEXIS 198 (1880); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888); Nott v. Fitzgibbon, 107 Tenn. 54, 64 S.W. 26, 1901 Tenn. LEXIS 58 (1901); Williamson v. Tunis, 107 Tenn. 83, 64 S.W. 10, 1901 Tenn. LEXIS 61 (1901); Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937, 1903 Tenn. LEXIS 80 (1903).

11. Devises Over — Ineffectiveness Where Devisee Survives Testator.

It is an established rule in the construction of wills that where a devise or bequest is made to a person with a gift over “in case of” the death of the devisee or legatee, the gift over is contingent upon such devisee or legatee dying in the lifetime of the testator. Therefore, where a devise or bequest is made to A, and “in case of” his death, or if he die, to B, A surviving the testator takes the estate devised absolutely. Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937, 1903 Tenn. LEXIS 80 (1903), distinguishing Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Cowan, McClung & Co. v. Wells, 73 Tenn. 682, 1880 Tenn. LEXIS 198 (1880); Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884); Stovall v. Austin, 84 Tenn. 700, 1886 Tenn. LEXIS 159 (1886); Armstrong v. Douglass, 89 Tenn. 219, 14 S.W. 604, 1890 Tenn. LEXIS 39, 10 L.R.A. 85 (Tenn. Sep. 1890); Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908).

It is not only a well settled rule of construction of wills, but a rule of property, that the words “die without issue,” as applied to the first taker, and upon the happening of which a contingent remainder or limitation over is to become effective, contemplate and mean the death of the devisee or legatee, without issue surviving him during the lifetime of the testator. This rule is not affected by this section. Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908); Johnson v. Painter, 189 Tenn. 307, 225 S.W.2d 72, 1949 Tenn. LEXIS 430 (1949), distinguishing Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884); Stovall v. Austin, 84 Tenn. 700, 1886 Tenn. LEXIS 159 (1886). See Bramlet v. Bates, 33 Tenn. 554, 1853 Tenn. LEXIS 85 (1853); Vaughn v. Cator, 85 Tenn. 302, 2 S.W. 262, 1886 Tenn. LEXIS 44 (1886); Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12, 1896 Tenn. LEXIS 217 (Tenn. Dec. 1896); Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937, 1903 Tenn. LEXIS 80 (1903); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where there is a devise to a son and the heirs of his body, followed by a condition that if he should die without heirs, then to his sister, the fee simple estate thus created is not impaired by such limitation over, where the son survived the testator, since under the rule of construction and property these words would import the death of the devisee in the lifetime of the testator. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

The rule that devise over is ineffective where devisee survives testator applies notwithstanding the fact that at the time of making the will, the devisee (the first taker) was only eight years old and the testator died within one year thereafter. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Provision in will providing for division of real estate of testator between two sons after death of testator's widow and providing that “if either one of my sons, or both of them should die without children born to them” the land should go to his stepchildren meant death of one or both of the sons within the lifetime of the testator, and where the sons survived the testator both married son with children and unmarried son without children took an undivided half interest in the realty in fee upon death of the widow. Johnson v. Painter, 189 Tenn. 307, 225 S.W.2d 72, 1949 Tenn. LEXIS 430 (1949).

12. Conveyance of Contingent Remainder.

A devise to testator's grandson during life and then to the heirs of his body, and, in the event of his death without such heirs, to the testator's residuary legatee, operates to give the grandson an estate for life, with a contingent remainder in fee to such persons, as, at his death, might answer the description of heirs of his body; and, if he left no heirs of his body then living, the devise operated to give such residuary legatee an estate in fee, by way of executory devise; and a conveyance by the residuary legatee of this interest to the grandson would vest the latter with the fee subject to the contingent remainder in fee to the heirs of his body living at his death. Williams v. Williams, 57 Tenn. 566, 1873 Tenn. LEXIS 264 (1873); Williams v. Williams, 1 Cooper's Tenn. Ch. 306 (1873); Williams v. Williams, 62 Tenn. 55, 1873 Tenn. LEXIS 137 (1873). See Campbell v. Lewisburg & N. R. Co., 160 Tenn. 477, 26 S.W.2d 141, 1929 Tenn. LEXIS 124 (1930).

A deed of conveyance of land to one for life, and then to his children, with a provision that, if his issue should become extinct within 21 years after his death, the property should revert to one of the grantors, vests a determinable fee in remainder in the life tenant's surviving children, subject to the contingent reversionary estate, upon a failure of the issue of the life tenant within 21 years after his death. Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

In this case the reversionary grantor subsequently devised all her estate, including the contingent reversionary estate, to her husband, the other grantor, who conveyed such contingent estate to his brother, and it was held that the brother took the contingent reversionary interest, and that upon a failure of the issue of the life tenant within 21 years after his death, he would take the absolute estate. Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910). See Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897).

Collateral References.

Distinction between contingent estates and estates vested subject to defeasance. 131 A.L.R. 712.

Gift to issue, children, wife, etc., as implied from a provision over in default of such persons. 22 A.L.R.2d 177.

Phrase “from and after” death of life beneficiary as affecting character of remainder as vested or contingent. 103 A.L.R. 598.

Possibility of issue extinct, doctrine as to, as affecting property rights. 67 A.L.R. 538, 146 A.L.R. 794, 98 A.L.R.2d 1285.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift. 83 A.L.R.3d 135.

Validity and construction of bequest with limitation over to another in event that original beneficiary dies before distribution, payment, or receipt thereof. 59 A.L.R.3d 1043.

Vested or contingent character of remainder which is subject to be defeated by death of remainderman without issue before determination of particular estate. 109 A.L.R. 136.

NOTES TO DECISIONS

1. Application and Effect.

Although a will gives an unrestricted power of disposition of legacies, the limitation over will not be void under this section. Parker v. Milam, 166 Tenn. 266, 61 S.W.2d 674, 1933 Tenn. LEXIS 90 (1933); Abernathy v. Adams, 31 Tenn. App. 559, 218 S.W.2d 747, 1948 Tenn. App. LEXIS 114 (1948).

The rule that “if the first taker is given an estate in fee or for life, coupled with an unlimited power of disposition, the fee or absolute estate vests in the first taker, and the limitation over is void,” is now circumscribed by this section. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

Where life estate was devised to executrix with a limitation over and unlimited power of disposition, there was no significance in the fact that executrix was relieved of the necessity of filing inventory, giving bond or making settlement with court, and this section would convert it into a fee only if she actually disposed of the property and the limitation over would take effect as to the part undisposed of. Abernathy v. Adams, 31 Tenn. App. 559, 218 S.W.2d 747, 1948 Tenn. App. LEXIS 114 (1948).

Where conveyance was executed to husband and wife with unlimited power of disposition with fee simple to go to husband if wife should die first, or, if husband should die first, life estate to vest in wife with fee simple to heirs or husband on death of wife, wife was entitled to share as life tenant where she survived husband and property was condemned by state. Leach v. Dick, 205 Tenn. 221, 326 S.W.2d 438, 1959 Tenn. LEXIS 356 (1959).

The effect of T.C.A. § 66-1-106 is that the estate holder's power of disposition, whether qualified or unqualified, not accompanied by a trust, when given an estate for life or years, was elevated to a fee simple absolute as to creditors and purchasers but subject to any future interests if the power goes unexercised or the lands are not sold in satisfaction of debts. Hall v. Hall, 604 S.W.2d 851, 1980 Tenn. LEXIS 495 (Tenn. 1980).

Conveyance by a life tenant with power to dispose of property cut off remaindermen's interest where the remainder interest was only in the real property owned by the testator at his death. Hobbs v. Wilson, 614 S.W.2d 328, 1980 Tenn. LEXIS 518 (Tenn. 1980).

2. Power of Disposition Contemplated.

The power of unlimited disposition of realty or personalty which will defeat a limitation over must be a power given by the will itself, either directly or by necessary implication and a power attaching merely as a legal incident to the estate given by the will will not defeat a limitation over. Parker v. Milam, 166 Tenn. 266, 61 S.W.2d 674, 1933 Tenn. LEXIS 90 (1933).

Limitation over following an unlimited power of disposition was not void. Leach v. Dick, 205 Tenn. 221, 326 S.W.2d 438, 1959 Tenn. LEXIS 356 (1959).

The power to sell or dispose of assets during lifetime does not include the power to dispose of assets by will. Skovron v. Third Nat'l Bank, 509 S.W.2d 497, 1973 Tenn. App. LEXIS 318, 83 A.L.R.3d 111 (Tenn. Ct. App. 1973).

3. Construction of Wording of Will or Deed.

Clause giving children only a lifetime use of property directed by earlier clause to be “equally divided” among the children or their representatives, so that the property might descend unimpaired to the testator's grandchildren, gave the children only a life estate in their several shares of the property. Parker v. Milam, 166 Tenn. 266, 61 S.W.2d 674, 1933 Tenn. LEXIS 90 (1933).

Where testatrix made bequest of residue to nephew “to handle as he sees fit during his life time; and the balance to go to his two daughters,” and further subject to wish of testatrix that nephew take care of his uncle the nephew received a life estate with power to encroach upon the corpus to the extent required to take care of daughters and the uncle. Redman v. Evans, 184 Tenn. 404, 199 S.W.2d 115, 1947 Tenn. LEXIS 393 (1947).

Where deed transferred land to husband and wife “a one half interest to each. Each one to have full control over the one half interest deeded to them and at the death of either one the survivor to become owner of both interests with power to sell it and make title and use the proceeds as they see proper for their benefit, and at the death of the surviving partner if anything remains the same to go to the legal heirs” of husband and wife, “one half to each one's heirs,” wills executed by wife transferring interest to husband, and by husband to second wife did not pass title and heirs of husband and first wife were entitled to land. Thompson v. Turner, 186 Tenn. 241, 209 S.W.2d 25, 1948 Tenn. LEXIS 543 (1948).

Devise by testator of property to wife “to do with as she sees fit during her life” with provision that at the death of the wife the “remainder” of the estate was to go to named individuals or their heirs gave wife unlimited power of disposition so that she could convey land subject to the devise in absolute fee. Jones v. Jones, 225 Tenn. 12, 462 S.W.2d 872, 1971 Tenn. LEXIS 269 (1971).

Will which stated “I will, devise and bequest to my wife … all of my property … to have and hold during the full term of her natural life …” passed only a life estate to the wife and not a fee absolute estate, even though will gave her right of sale of personal property and charged the estate with monthly payments to decedent's brother. Skovron v. Third Nat'l Bank, 509 S.W.2d 497, 1973 Tenn. App. LEXIS 318, 83 A.L.R.3d 111 (Tenn. Ct. App. 1973).

T.C.A. § 66-1-106 did not apply to deed from husband to wife which granted her the property with a condition that if the husband should die before the wife the wife should have full control and power to handle the property “so long as she lives my widow” but if she should remarry the property would go to his children. Hall v. Hall, 604 S.W.2d 851, 1980 Tenn. LEXIS 495 (Tenn. 1980).

Where in a codicil to the husband's will, wife was given a life estate in the real property owned by her husband at the time of his death and also was expressly authorized to use any and all of the real property she decided was necessary for her comfort and maintenance, with her being the sole judge of her needs, this unlimited power of disposition changed the wife's life estate into a fee simple with power of disposition and placed in her the power to terminate the interest of the remaindermen by executing the power of disposition in her lifetime. Hobbs v. Wilson, 614 S.W.2d 328, 1980 Tenn. LEXIS 518 (Tenn. 1980).

Testator's devise of property to the his wife “for her lifetime and at her death the remainder, if any at that time, to be divided equally” among his children did not give the widow an unlimited power of disposition, qualified or unqualified. The testator devised a life estate to his widow and a vested remainder to his named children. Ogle v. Ogle, 880 S.W.2d 668, 1994 Tenn. LEXIS 197 (Tenn. 1994).

4. Estate Passing to Remaindermen.

If there is found on the face of the bequest of a life estate a power of disposition, “qualified or unqualified,” insofar as the power is not executed, or the property not sold for debts during the continuance of the life estate, the estate will pass to the remaindermen upon the death of the life tenant. Redman v. Evans, 184 Tenn. 404, 199 S.W.2d 115, 1947 Tenn. LEXIS 393 (1947).

The limitation over is not void, but takes effect upon whatever property remains undisposed of at the death of the first taker. Abernathy v. Adams, 31 Tenn. App. 559, 218 S.W.2d 747, 1948 Tenn. App. LEXIS 114 (1948).

Because the pre-1981 version of T.C.A. § 66-1-106 existed when testator died in 1963, the testator's spouse sale of the property terminated the remaindermen's interest in the farm; therefore the remaindermen's interest did not transfer to the proceeds of the sale of the farm. Fell v. Rambo, 36 S.W.3d 837, 2000 Tenn. App. LEXIS 276 (Tenn. Ct. App. 2000), rehearing denied, — S.W.3d —, 2000 Tenn. App. LEXIS 410 (Tenn. Ct. App. June 22, 2000).

Collateral References.

Creditor's attempt to subject property to their claims, validity of provision for limitation over or forfeiture in case of. 80 A.L.R. 1013.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift. 83 A.L.R.3d 135.

NOTES TO DECISIONS

1. In General.

This section extends to all cases, as well by devise as by deed, and cuts down an estate in joint tenancy to an estate in common, and destroys the common-law doctrine of survivorship. Strong v. Ready, 28 Tenn. 168, 1848 Tenn. LEXIS 64 (1848); Dixon v. Cooper, 88 Tenn. 177, 12 S.W. 445, 1889 Tenn. LEXIS 40 (1889), superseded by statute as stated in, Jacobsen v. Flathe, — S.W.2d —, 1997 Tenn. App. LEXIS 635 (Tenn. Ct. App. Sept. 17, 1997); Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, 1915 Tenn. LEXIS 74 (1915); Myers v. Comer, 144 Tenn. 475, 234 S.W. 325, 1921 Tenn. LEXIS 48 (1921).

This section applies to and abolishes technical joint tenancy only. It is not applicable to choses in action. Scholze v. Scholze, 2 Tenn. App. 80, 1925 Tenn. App. LEXIS 96 (1925).

In Tennessee joint tenancies have been converted into tenancies in common by this section. United States v. 654.8 Acres of Land, 102 F. Supp. 937, 1952 U.S. Dist. LEXIS 4824 (E.D. Tenn. Feb. 12, 1952).

Although common-law joint tenancy with right of survivorship has been abolished by statute, it can still be created by contract. Lowry v. Lowry, 541 S.W.2d 128, 1976 Tenn. LEXIS 534 (Tenn. 1976).

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

2. Effect of Section as to Multiplicity of Suits.

In an action for the breach of a covenant to convey land, the representative of a deceased obligee must join with the survivors in the action and if the survivors sue without the representative of the deceased, they ought to be stopped by plea in abatement from proceeding in the action brought by them alone. Gray v. Wilson, 19 Tenn. 394, 1838 Tenn. LEXIS 67 (1838); Carraway v. Burton, 23 Tenn. 108, 1843 Tenn. LEXIS 29 (1843).

By this section the most important characteristic of joint tenancy — survivorship — has been abolished in this state, but the statute does not abridge the right of the owner of property to expressly provide for survivorship by deed and survivorship must now result from the terms of the grant rather than by operation of law. Jones v. Jones, 185 Tenn. 586, 206 S.W.2d 801, 1947 Tenn. LEXIS 360 (1947).

3. Survivorship — Intent to Create — Effect.

This section does not prohibit the creation of estates of survivorship, and where in the instrument there is an intention to create such, this section is inapplicable, whether the instrument be deed or will. McLeroy v. McLeroy, 163 Tenn. 124, 40 S.W.2d 1027, 1930 Tenn. LEXIS 139 (1930); Jones v. Jones, 185 Tenn. 586, 206 S.W.2d 801, 1947 Tenn. LEXIS 360 (1947); Runions v. Runions, 186 Tenn. 25, 207 S.W.2d 1016, 1948 Tenn. LEXIS 512, 1 A.L.R.2d 242 (1948); Peebles v. Peebles, 223 Tenn. 221, 443 S.W.2d 469, 1969 Tenn. LEXIS 406 (1969).

Where a deed conveyed property to a son and daughter “and to the survivor,” the son became absolute owner on death of daughter. McLeroy v. McLeroy, 163 Tenn. 124, 40 S.W.2d 1027, 1930 Tenn. LEXIS 139 (1930). See Myers v. Comer, 144 Tenn. 475, 234 S.W. 325, 1921 Tenn. LEXIS 48 (1921); Mullens v. Mullens, 161 Tenn. 165, 29 S.W.2d 261, 1929 Tenn. LEXIS 45 (1930).

While this section abolishes joint tenancies, it does not prevent a deed or will from vesting in two or more persons a life estate with a contingent remainder to the survivor or survivors. Watts v. Stanton, 28 Tenn. App. 381, 190 S.W.2d 617, 1945 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1945).

Since the enactment of this section, the common law unities of time, title, interest, and possession requisite to joint tenancy have become academic as applied to that estate, a tenancy in common resulting if no contrary intent is expressed, whether or not the unities are present but when the intent to establish an estate by survivorship is clear, the existence or nonexistence of the unities becomes immaterial upon the idea that the rule fails where the reason fails. Jones v. Jones, 185 Tenn. 586, 206 S.W.2d 801, 1947 Tenn. LEXIS 360 (1947).

Where a brother owning one half of family farm and two sisters owning the other half of family farm signed an instrument wherein the brother reserved a life estate and a remainder in fee contingent upon his survival and conveyed a life estate in his land to each of the sisters as well as a remainder to each in fee contingent upon their survival, and the sisters reserved and conveyed similar interests, each to the other and each to the brother in their lands there was a joint life estate in the whole of the land with remainder in fee in each in the whole of the land contingent upon survival. Jones v. Jones, 185 Tenn. 586, 206 S.W.2d 801, 1947 Tenn. LEXIS 360 (1947).

A tenancy in common may have a right of survivorship attached to it if the grantor expresses an intention that it shall be so. Runions v. Runions, 186 Tenn. 25, 207 S.W.2d 1016, 1948 Tenn. LEXIS 512, 1 A.L.R.2d 242 (1948).

Specifying tenancy by the entirety was the full equivalent of declaring in so many words that there should be a right of survivorship. Runions v. Runions, 186 Tenn. 25, 207 S.W.2d 1016, 1948 Tenn. LEXIS 512, 1 A.L.R.2d 242 (1948).

Husband who upon acquisition of land conveyed a one half undivided interest in the land to his wife and who stated in deed “It is intended to convey the property herein described so that we will hold the same as tenants by the entirety” expressed an intention to create an estate of survivorship, hence on his death the wife was entitled to fee. Runions v. Runions, 186 Tenn. 25, 207 S.W.2d 1016, 1948 Tenn. LEXIS 512, 1 A.L.R.2d 242 (1948).

Where testatrix devised estate to her brother and sister jointly and equally and provided that on death of either the survivor was to take the one half of which the deceased should be the owner, testatrix intended to create a right of survivorship and the surviving sister took her brother's interest in the property. Peebles v. Peebles, 223 Tenn. 221, 443 S.W.2d 469, 1969 Tenn. LEXIS 406 (1969).

T.C.A. § 66-1-107 was not applicable where the evidence established the intent of the depositor; here, the evidence supported finding that certificate of deposit payable to decedent or niece was intended to go to niece when decedent died, rather than to decedent's heirs. Gay v. Phillips, 667 S.W.2d 495, 1983 Tenn. App. LEXIS 679 (Tenn. Ct. App. 1983).

In a case in which the owner of real property conveyed, by quitclaim deed, an interest to herself and her son as joint tenants, with the right of survivorship, and, a year later, the owner then conveyed her interest to her grandson by quitclaim deed, the trial court did not err in granting summary judgment to the son ruling that he owned the property in fee simple because the owner transferred only her right of survivorship to her grandson, but that right did not come into play as she predeceased her son; thus, the son properly exercised his right of survivorship and became the sole owner in fee of the property. Bryant v. Bryant, — S.W.3d —, 2015 Tenn. App. LEXIS 800 (Tenn. Ct. App. Sept. 28, 2015), rev'd, 522 S.W.3d 392, 2017 Tenn. LEXIS 212 (Tenn. Apr. 19, 2017).

4. Estates by Entireties and Joint Tenancy Distinguished.

Estate by entireties is a unit of indivisible parts, differing from a joint tenancy in the fact that the joint tenancy is a unit of divisible parts. The indivisible whole is vested in the husband and wife as two persons who are actually distinct, yet who, according to legal intendment, are one and the same. When one joint tenant died, the survivor took by the right of survivorship; but upon the death of the husband or wife, no new estate arises. There is a mere change in the properties of the legal person holding the originally granted estate, and the survivor takes no new estate or interest, nothing that was not in him or her before. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907); Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, 1915 Tenn. LEXIS 74 (1915); McGhee v. Henry, 144 Tenn. 548, 234 S.W. 509, 1921 Tenn. LEXIS 55, 18 A.L.R. 103 (1921).

A deed, conveying to one named and his wife, named, “their heirs and assigns forever jointly and severally in equal moieties,” was held to convey to the husband and wife as joint tenants or tenants in common, and not by the entirety; and, survivorship in joint tenancy being abolished, the husband could not convey the full title upon the wife's death, so as to bar her heirs. Myers v. Comer, 144 Tenn. 475, 234 S.W. 325, 1921 Tenn. LEXIS 48 (1921).

5. Estates by Entireties.

The same words of a conveyance which would make two other persons joint tenants under the common law, or tenants in common under this section, will make the husband and wife tenants by the entirety. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, 1915 Tenn. LEXIS 74 (1915); Young v. Brown, 136 Tenn. 184, 188 S.W. 1149, 1916 Tenn. LEXIS 115 (1916).

Tenancy by the entirety may exist whether the estate is in fee, for life, for years, or other chattel interest in land, and whether the property be in possession, reversion, or remainder. Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

The granting clause in a conveyance to “William Farley and wife” is just as effective as if it had stated “to William Farley and wife, Cora Farley,” for it is not necessary that the grantee be described by name, if otherwise identified. Ballard v. Farley, 143 Tenn. 161, 226 S.W. 544, 1920 Tenn. LEXIS 5 (1920).

Bequest of money to husband and wife jointly makes the legatees tenants by the entireties. Campbell v. Campbell, 167 Tenn. 77, 66 S.W.2d 990, 1933 Tenn. LEXIS 7 (1934).

6. —Effect of Statute.

This section applies to estates held in joint tenancy, and not to estates by entireties and does not abrogate the common law as to estates held by husband and wife by the entireties, because their such estate is not a joint tenancy. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Campbell v. Foster, 2 Cooper's Tenn. Ch. 402 (1875); Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, 1915 Tenn. LEXIS 74 (1915); Scholze v. Scholze, 2 Tenn. App. 80, 1925 Tenn. App. LEXIS 96 (1925).

7. —Marriage Relation — Necessity.

Where the rights of a prior purchaser do not intervene, a divorce of the husband and wife owning an estate by the entirety severs and destroys that estate as between them, and they then hold by the moieties or as tenants in common. Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Gillespie v. Worford, 42 Tenn. 632, 1865 Tenn. LEXIS 106 (1866); Aiken v. Suttle, 72 Tenn. 103, 1879 Tenn. LEXIS 11 (1879); Hopson v. Fowlkes, 92 Tenn. 697, 23 S.W. 55, 1893 Tenn. LEXIS 26, 36 Am. St. Rep. 120, 23 L.R.A. 805 (1893); Brown v. Brown, 160 Tenn. 685, 28 S.W.2d 350, 1929 Tenn. LEXIS 142 (1930).

A marriage must exist when the conveyance is made, in order to create an estate by the entirety, for by a conveyance to a man and woman while single, they take by moieties, and if they afterwards marry they will continue to hold by the moieties, and not by the entirety. Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Hopson v. Fowlkes, 92 Tenn. 697, 23 S.W. 55, 1893 Tenn. LEXIS 26, 36 Am. St. Rep. 120, 23 L.R.A. 805 (1893).

Where husband had previously parted with his interest in the land before the procurement of the divorce, the decree of divorce is not effective to make the wife and the purchasers of her husband tenants in common. Whitley v. Meador, 137 Tenn. 163, 192 S.W. 718, 1916 Tenn. LEXIS 64, L.R.A. (n.s.) 1917D736 (1917).

Estate by the entireties is not created by a conveyance to a man and a woman who are not under the marital bond, even though they are so described in the instrument; and such grantees would be tenants in common, even though believed by themselves and by the grantor to be husband and wife. McKee v. Bevins, 138 Tenn. 249, 197 S.W. 563, 1917 Tenn. LEXIS 27 (1917).

8. —Allegations in Deed.

The deed need not show upon its face that the grantees are husband and wife, in order to create the estate by entireties. Bennett v. Hutchens, 133 Tenn. 65, 179 S.W. 629, 1915 Tenn. LEXIS 74 (1915).

9. —Survivorship.

By a deed conveying land to a husband and wife, they take but one estate, as a corporation would take, being deemed in law but one person with the legal existence of the wife incorporated into that of the husband; and, if one die, the estate continues in the survivor in the same manner as it would in the corporation, if a corporator should die. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907). See Berrigan v. Fleming, 70 Tenn. 271, 1879 Tenn. LEXIS 174 (1879); Shields v. Netherland, 73 Tenn. 193, 1880 Tenn. LEXIS 110 (1880); Chambers v. Chambers, 92 Tenn. 707, 23 S.W. 67, 1893 Tenn. LEXIS 27 (1893).

Where the wife is the owner of land, and she and her husband convey it to a third person, who conveys the same back to them they hold the estate by the entirety, and the survivor, though the husband, will take it. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Young v. Brown, 136 Tenn. 184, 188 S.W. 1149, 1916 Tenn. LEXIS 115 (1916). See § 66-1-109.

The widow could not be compelled to take her homestead or dower in land held by the entireties, because upon the death of the husband, the wife, as survivor, took the entire and absolute estate, and there was no estate left as that of the husband. McRoberts v. Copeland, 85 Tenn. 211, 2 S.W. 33, 1886 Tenn. LEXIS 31 (1886); Jackson v. Shelton, 89 Tenn. 82, 16 S.W. 142, 1890 Tenn. LEXIS 24, 12 L.R.A. 514 (1890); Chambers v. Chambers, 92 Tenn. 707, 23 S.W. 67, 1893 Tenn. LEXIS 27 (1893).

Where in a deed by husband and wife conveying his land, a reservation or exception of a life estate in favor of both is made, such reservation operates as a conveyance; and upon the husband's death, it inures to the sole benefit of the wife in her own right, as survivor, by operation of law. McRoberts v. Copeland, 85 Tenn. 211, 2 S.W. 33, 1886 Tenn. LEXIS 31 (1886).

Where a husband devises to his wife all of his estate, both real and personal, for life, and the only interest the testator had in any land was that in a tract of land held by him and his wife by the entirety, the surviving wife took the entire interest in the tract of land, and was not deprived of her estate therein, notwithstanding she took under the will, and accepted its provisions, for the doctrine of election is not applicable. Walker v. Bobbitt, 114 Tenn. 700, 88 S.W. 327, 1905 Tenn. LEXIS 38 (1905); Rowlett v. Rowlett, 116 Tenn. 458, 95 S.W. 821, 1906 Tenn. LEXIS 9 (1906).

Where land is held by husband and wife, as an estate by the entirety, the survivor, upon the death of the other, becomes vested of the entire estate by virtue of the deed conveying the land to them; and in such case the survivor does not inherit, acquire, or otherwise take any interest or estate in the lands from or through the deceased husband or wife, for the interest of the predeceased was terminated by his or her death. Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907).

The death of one tenant by the entirety effects a change in the properties of the legal person holding, and reduces the legal personage holding the estate to an individuality identical with the natural person, and the estate of the survivor is freed from participation by the other. Whitley v. Meador, 137 Tenn. 163, 192 S.W. 718, 1916 Tenn. LEXIS 64, L.R.A. (n.s.) 1917D736 (1917).

10. —Alienation.

No severance of an estate held by the entirety can be made by either husband or wife, and the alienation of the husband alone will not defeat the wife's title to the whole, if she survives him; neither can make an alienation of such estate to the prejudice of the other, without the concurrence of that other one by a proper deed. Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); McGhee v. Henry, 144 Tenn. 548, 234 S.W. 509, 1921 Tenn. LEXIS 55, 18 A.L.R. 103 (1921).

The purchase of the husband's interest not made in view of the contingency of the wife's divorce at some future period is not affected by an absolute divorce subsequently obtained by her for supervenient causes occurring after the marriage; but where the marriage is declared absolutely void from the beginning, the supposed husband and wife become tenants in common, and the supposed wife is entitled to her moiety of the land as against such purchaser. Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Gillespie v. Worford, 42 Tenn. 632, 1865 Tenn. LEXIS 106 (1866); Aiken v. Suttle, 72 Tenn. 103, 1879 Tenn. LEXIS 11 (1879); Hopson v. Fowlkes, 92 Tenn. 697, 23 S.W. 55, 1893 Tenn. LEXIS 26, 36 Am. St. Rep. 120, 23 L.R.A. 805 (1893).

The purchaser of an estate held by the entirety, either from the husband or at execution sale, holds the estate independently of the husband and all his future creditors, and entirely free from all future accidents or contingencies that might, as against the husband, if the title had remained in him, have, directly or indirectly, affected the estate. Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Gillespie v. Worford, 42 Tenn. 632, 1865 Tenn. LEXIS 106 (1866); Aiken v. Suttle, 72 Tenn. 103, 1879 Tenn. LEXIS 11 (1879).

Without the consent or the concurrence of the wife, the husband may convey the estate by entirety, either absolutely or as security for debt, or it may be levied upon and sold under execution for his debts but the conveyee of the husband, or purchaser at the execution sale, or a creditor redeeming from such purchaser, can acquire no other or greater interest than the contingent interest vested in the husband dependent upon his surviving his wife; and, consequently, such purchaser's rights are in subordination to the contingent right of the wife, who is entitled to the possession during the joint lives of herself and husband, and, in case she survives her husband, she becomes the absolute owner of the whole estate. Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974); Berrigan v. Fleming, 70 Tenn. 271, 1879 Tenn. LEXIS 174 (1879); Jackson v. Shelton, 89 Tenn. 82, 16 S.W. 142, 1890 Tenn. LEXIS 24, 12 L.R.A. 514 (1890).

Where husband and wife, by virtue of a stipulation in a deed of trust mortgaging their lands, held by them as tenants by the entirety, become tenants of the purchaser at the foreclosure sale, holding from month to month, at a stipulated rental, with the option in the purchaser to determine the tenancy upon giving a specified notice, such tenancy cannot be terminated as to the wife, and suit for her dispossession maintained, upon notice to the husband alone. Hamilton Bldg. & Loan Ass'n v. Patton, 105 Tenn. 407, 58 S.W. 482, 1900 Tenn. LEXIS 84 (1900).

An interest of a tenant by the entirety cannot be passed by will. White v. Watson, 571 S.W.2d 493, 1978 Tenn. App. LEXIS 301 (Tenn. Ct. App. 1978).

When personalty is jointly acquired by husband and wife without limitations or conditions attached to it, it becomes entirety property with a right of survivorship and does not pass under the will of one of the spouses. White v. Watson, 571 S.W.2d 493, 1978 Tenn. App. LEXIS 301 (Tenn. Ct. App. 1978).

11. —Feloniously Killing Spouse — Effect on Estate.

The husband does not, by feloniously causing the death of his wife, forfeit the estate vested in him as tenant by the entirety. Beddingfield v. Estill & Newman, 118 Tenn. 39, 100 S.W. 108, 1906 Tenn. LEXIS 78 (1907).

12. —Reformation of Deed to Create Estate by Entireties.

Where the wife, whose money was being used in part payment for a farm, willingly and freely consented and agreed that the land was to be conveyed to the husband and wife as tenants by the entirety, without undue advantage being taken of the wife by the husband, equity will not refuse to reform the deed conveying the land to the husband and wife jointly, so as to create an estate by the entirety. Alexander v. Shapard, 146 Tenn. 90, 240 S.W. 287, 1921 Tenn. LEXIS 7 (1921).

Collateral References.

Construction of devise to persons as joint tenants and expressly to the survivor of them, or to them “with the right of survivorship.” 69 A.L.R.2d 1058.

Estates by entirety in personal property. 64 A.L.R.2d 8, 22 A.L.R.4th 459.

NOTES TO DECISIONS

1. Effect of Section.

This section prevents § 66-1-107 from destroying the right of survivorship in the case of partners and the consequent introduction of all the mischiefs and confusion which the right of survivorship is calculated to avoid in cases of partnership. McAlister v. Montgomery, 4 Tenn. 93, 4 Tenn. 94, 1816 Tenn. LEXIS 28 (1816); Griffey v. Northcutt, 52 Tenn. 746, 1871 Tenn. LEXIS 307 (1871).

2. Rights of Heirs.

This statute saved to the heirs of deceased partners their respective shares of the value of the real estate vested in the surviving partners which should remain unexhausted in the payment of debts. McAlister v. Montgomery, 4 Tenn. 93, 4 Tenn. 94, 1816 Tenn. LEXIS 28 (1816); Yeatman v. Woods, 14 Tenn. 20, 1834 Tenn. LEXIS 45, 27 Am. Dec. 452 (1834); Griffey v. Northcutt, 52 Tenn. 746, 1871 Tenn. LEXIS 307 (1871); Griffy v. Northcut, 3 Shan. 625 (1875).

3. —Time of Attaching.

The right of the heirs of the deceased partner does not attach immediately upon his death, but only after the payment of the debts and settlement of the partnership, and then only to what remains of the partnership lands, or the proceeds thereof. McAlister v. Montgomery, 4 Tenn. 93, 4 Tenn. 94, 1816 Tenn. LEXIS 28 (1816); Griffey v. Northcutt, 52 Tenn. 746, 1871 Tenn. LEXIS 307 (1871); Solomon v. Fitzgerald & Co., 54 Tenn. 552, 1872 Tenn. LEXIS 82 (1872).

Under this section and § 20-1-107, the reconversion of partnership lands into realty in favor of the heir at law does not take place until the partnership is wound up and surplus ascertained. Logan v. Greenlaw, 25 F. 299, 1885 U.S. App. LEXIS 1769 (C.C.D. Tenn. 1885).

NOTES TO DECISIONS

1. Application of Section.

This section does not apply to determine whether a joint tenancy was orally or impliedly created in personal property by the joint efforts of a husband and wife since the section is designed only so that either husband or wife can create an estate by the entireties without a deed to a third party to be reconveyed. Oliphant v. McAmis, 197 Tenn. 367, 273 S.W.2d 151, 1954 Tenn. LEXIS 496 (1954).

2. Construction of Language.

Where it was unavoidably manifest by the granting clause of deed by clear and express terms that husband was conveying wife an estate by the entireties in entire tract of land referred to, such estate would not be negated or limited by later inept and incorrect references to one half divided interest in the property which the husband had obtained on the same day. Bible v. State, 222 Tenn. 361, 436 S.W.2d 112, 1968 Tenn. LEXIS 437 (1968).

3. Coverture — Disabilities of Married Women.

Since all vestiges of the common-law disability of coverture have been removed in Tennessee, each tenant in a tenancy by the entireties has a joint right to the use, control, incomes, rents, profits, usufructs and possession of property so held and neither may sell, encumber, alienate or dispose of any portion thereof, except his or her right of survivorship, without the consent of the other, and any unilateral attempt to do so will be wholly and utterly void at the behest of the aggrieved tenant, and any prospective purchaser, transferee, lessee or mortgagee acts at his peril. Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

The abolition in Tennessee of the common-law disability of coverture does not abolish the estate of tenancy by the entirety but does strip it of the common-law restrictions on and deprivation of the rights of married women. Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

4. Partition Deeds — Effect of Section on Ancient Rules.

Where partition deeds were executed prior to the effective date of T.C.A. § 66-1-109, plaintiff was entitled to rely on the ancient rule, changed by T.C.A. § 66-1-109, that partition deeds create no new title or changes in degree of title; however, the parties could not be viewed as coparceners under that rule since their interests in the land were acquired by contract and purchase rather than by descent. Fraker v. Fraker, 603 S.W.2d 135, 1980 Tenn. LEXIS 478 (Tenn. 1980).

The ancient rule that partition deeds create no new title or changes in degree of title is a remnant of feudalism, and little or no reason exists for its perpetuation beyond the effective date of this section insofar as the inclusion of spouses on partition deeds is concerned. Fraker v. Fraker, 603 S.W.2d 135, 1980 Tenn. LEXIS 478 (Tenn. 1980).

Collateral References.

Character and incidents of estate created by a deed to persons as husband and wife who are not legally married. 9 A.L.R.4th 1189.

Character of conveyance or conveyances necessary to create an estate by entirety. 132 A.L.R. 630, 173 A.L.R. 1216, 44 A.L.R.2d 595.

Conveyance of property of one spouse to himself or herself and other spouse. 44 A.L.R.2d 595.

Deed to persons mistakenly supposed to be husband and wife as creating tenancy by the entireties. 9 A.L.R.4th 1189.

Estate created by conveyance to husband and wife as affected by language used in deed. 161 A.L.R. 457.

Married Woman's Act as affecting creation of estates by entireties. 141 A.L.R. 179.

Statute declaring nature of tenancy under grant or devise to two or more persons as affecting estate by entireties. 32 A.L.R.3d 570.

NOTES TO DECISIONS

1. Effect of Occupancy.

A husband's conveyance to his wife under this section, in the absence of restrictions or limitations in the deed or private agreement or understanding, was not rendered less absolute by the fact that the husband continued to occupy the property with his wife as their home and, at his death, it formed no part of his estate. Union Planters Nat'l Bank v. United States, 361 F.2d 662, 1966 U.S. App. LEXIS 5837 (6th Cir. Tenn. 1966).

2. Creditors' Rights.

Where husband conveyed realty previously held by him and his wife as tenants by the entirety to wife in fee simple and husband subsequently died, wife took property free of claims of husband's creditors since wife either took fee simple under this section or if conveyance was void in fraud of husband's creditors the estate by the entirety continued in effect and wife took fee simple by operation of law when husband died. Covington v. Murray, 220 Tenn. 265, 416 S.W.2d 761, 1967 Tenn. LEXIS 407 (1967).

Collateral References.

Validity and effect of one spouse's conveyance to other spouse of interest in property held as estate by the entireties. 18 A.L.R.5th 230.

66-1-201. Short title.

This part shall be known and may be cited as the “Tennessee Uniform Statutory Rule Against Perpetuities.”

Acts 1994, ch. 654, § 1.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

Law Reviews.

Freeing Property Owners From the RAP Trap: Tennessee Adopts the Uniform Statutory Rule Against Perpetuities (Amy Morris Hess), 62 Tenn. L. Rev. 267 (1995).

Symposium: The Role of Federal Law in Private Wealth Transfer: Comment, Perpetuities and the Genius of a Free State, 67 Vand. L. Rev. 1823 (2014).

Collateral References.

Independent option to purchase real estate as violating rule against perpetuities or restraints on alienation, 66 A.L.R.3d 1294.

66-1-202. Validity of nonvested property interests and powers of appointment.

1. A nonvested property interest is invalid unless one (1) of the following conditions is satisfied:
   1. When the interest is created, it is certain to vest or terminate no later than twenty-one (21) years after the death of an individual then alive;
   2. The interest either vests or terminates within ninety (90) years after its creation; or
   3. The interest satisfies the conditions set forth in subsection (f).
2. A general power of appointment not presently exercisable because of a condition precedent is invalid unless one (1) of the following conditions is satisfied:
   1. When the power is created, the condition precedent is certain to be satisfied or becomes impossible to satisfy no later than twenty-one (21) years after the death of an individual then alive;
   2. The condition precedent either is satisfied or becomes impossible to satisfy within ninety (90) years after its creation; or
   3. The condition precedent satisfies the conditions set forth in subsection (f).
3. A non-general power of appointment or a general testamentary power of appointment is invalid unless one (1) of the following conditions is satisfied:
   1. When the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than twenty-one (21) years after the death of an individual then alive; or
   2. The power is irrevocably exercised or otherwise terminates within ninety (90) years after its creation.
4. In determining whether a nonvested property interest or a power of appointment is valid under subdivision (a)(1), (b)(1), or (c)(1), the possibility that a child will be born to an individual after the individual's death is disregarded.
5. If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument seeks to disallow the vesting or termination of any interest or trust beyond, seeks to postpone the vesting or termination of any interest or trust until, or seeks to operate in effect in any similar fashion upon, the later of:
   1. The expiration of a period of time not exceeding twenty-one (21) years after the death of the survivor of specified lives in being at the creation of the trust or other property arrangement; or
   2. The expiration of a period of time that exceeds or might exceed twenty-one (21) years after the death of the survivor of lives in being at the creation of the trust or other property arrangement;

      such language is inoperative to the extent it produces a period of time that exceeds twenty-one (21) years after the death of the survivor of the specified lives.

6. As to any trust created after June 30, 2007, or that becomes irrevocable after June 30, 2007, the terms of the trust shall require that all beneficial interests in the trust vest or terminate or the power of appointment is exercised within three hundred sixty (360) years.

Acts 1994, ch. 654, § 2; 2007, ch. 144, §§ 14-16; 2010, ch. 725, § 20.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

66-1-203. Creation of nonvested property interest or power of appointment.

1. Except as provided in subsections (b) and (c) of this section and in § 66-1-206(a), the time of creation of a nonvested property interest or a power of appointment is determined by other applicable statutes or, if none, under general principles of property law.
2. For purposes of this part, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of:
   1. A nonvested property interest; or
   2. A property interest subject to a power of appointment described in §§ 66-1-202(b) or (c);

      the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.

3. For purposes of this part, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.

Acts 1994, ch. 654, § 3.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

66-1-204. Judicial reformation of property disposition.

Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the ninety (90) years allowed by §§ 66-1-202(a)(2), (b)(2) or (c)(2) if any of the following conditions is satisfied:

1. A nonvested property interest or a power of appointment becomes invalid under the statutory rule against perpetuities provided in § 66-1-202;
2. A class gift is not but might become invalid under the statutory rule against perpetuities provided in § 66-1-202, and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
3. A nonvested property interest that is not validated by § 66-1-202(a)(1) can vest but not within ninety (90) years after its creation.

Acts 1994, ch. 654, § 4.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

66-1-205. Exceptions to rule.

Section 66-1-202 does not apply to any of the following:

1. A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
   1. A premarital or postmarital agreement;
   2. A separation or divorce settlement;
   3. A spouse's election;
   4. A similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties;
   5. A contract to make or not to revoke a will or trust;
   6. A contract to exercise or not to exercise a power of appointment;
   7. A transfer in satisfaction of a duty of support; or
   8. A reciprocal transfer;
2. A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
3. A power to appoint a fiduciary;
4. A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;
5. A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
6. A nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one (1) or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or
7. A property interest, power of appointment, or arrangement that was not subject to the common law rule against perpetuities or is excluded by another statute of this state.

Acts 1994, ch. 654, § 5.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

66-1-206. Application — Retroactivity.

1. Except as provided in subsection (b), this part applies to nonvested property interests and unexercised powers of appointment regardless of whether they were created before, on, or after July 1, 1994. A property interest shall not be deemed vested merely because it would vest if the common law rule against perpetuities were violated.
2. This part does not apply to any property interest or power of appointment the validity of which has been determined by a final judgment in a judicial proceeding or by a settlement among interested persons prior to July 1, 1994.

Acts 1994, ch. 654, § 6.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

66-1-207. Preemption of common law.

This part supersedes the common law rule against perpetuities in this state.

Acts 1994, ch. 654, § 7.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

66-1-208. Application and construction.

This part shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this part among the states enacting it.

Acts 1994, ch. 654, § 8.

Cross-References. Construction of “dying without heirs”, § 66-1-104.

NOTES TO DECISIONS

1. Basis of Right of Inheritance by Alien.

An alien has no inheritable blood, under the common law, and, if he take at all, he must do so under statutes of the state where the property is, or by the provisions of treaties. Baker v. Shy, 56 Tenn. 85, 1871 Tenn. LEXIS 429 (1871); Ehrlich v. Weber, 114 Tenn. 711, 88 S.W. 188, 1905 Tenn. LEXIS 39 (1905).

2. Right of State to Declare Alien Capable of Inheriting or Taking Property.

In the absence of a treaty, the right of a state to declare an alien capable of inheriting or taking property and holding the same within its borders is not precluded by U.S. Const., art 1, § 10, declaring that “no state shall enter into any treaty, alliance, or confederation.” Blythe v. Hinckley, 180 U.S. 333, 21 S. Ct. 390, 45 L. Ed. 557, 1901 U.S. LEXIS 1309 (1901).

3. Treaties — Priority over Statutes.

In case of a conflict between the statutes of a state and the terms of a treaty made under the authority of the United States, the treaty must prevail, because, by U.S. Const., art. 6, such treaties are declared to “be the supreme law of the land” binding upon the judges in every state, notwithstanding the Constitution or laws of the state may be to the contrary. Baker v. Shy, 56 Tenn. 85, 1871 Tenn. LEXIS 429 (1871); Ehrlich v. Weber, 114 Tenn. 711, 88 S.W. 188, 1905 Tenn. LEXIS 39 (1905); Couch v. State, 140 Tenn. 156, 203 S.W. 831, 1918 Tenn. LEXIS 31 (1918).

Every treaty concerning the right of ownership or inheritance of property made by the authority of the United States is superior to the Constitution and laws of any individual state, and if the law of a state is contrary to a treaty, it is void. Hauenstein v. Lynham, 100 U.S. 483, 25 L. Ed. 628, 1879 U.S. LEXIS 1841 (Tenn. 1879).

4. Citizens — Who Constitute.

Children born of alien parents in this country and under its jurisdiction become at once, by virtue of such birth, citizens of the United States. Ehrlich v. Weber, 114 Tenn. 711, 88 S.W. 188, 1905 Tenn. LEXIS 39 (1905).

5. Alienage — Presumed Continuance.

The status of alienage of a foreigner is presumed to continue, in the absence of proof that he has denationalized himself or ceased to be a citizen of his native country, and the mere fact of long residence in this country is not sufficient to overcome this presumption. Ehrlich v. Weber, 114 Tenn. 711, 88 S.W. 188, 1905 Tenn. LEXIS 39 (1905).

6. Claim under Treaty — Pleadings.

Where a complainant based his claim upon the provisions of a treaty made under the authority of the United States, it is not necessary to make a formal claim of his rights under the treaty, since “the constitution, laws and treaties of the United States are as much a part of the laws of every state as its own local laws and constitution.” Ehrlich v. Weber, 114 Tenn. 711, 88 S.W. 188, 1905 Tenn. LEXIS 39 (1905).

Collateral References.

Conveyance of “right of way,” in connection with conveyance of another tract, as passing fee or easement. 89 A.L.R.3d 767.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift. 83 A.L.R.3d 135.

Treaty regulations, disabilities, and property rights of aliens as proper subjects of. 4 A.L.R. 1391, 134 A.L.R. 882.

66-2-201. Ownership of land.

Any religious denomination, religious society, or church, whether incorporated or not, may take, by deed or otherwise, and hold any amount of acreage at one (1) place for purposes of public worship, or for a parsonage, or for a burial ground.

Code 1858, § 1508 (deriv. Acts 1843-1844, ch. 110); Acts 1889, ch. 11, § 1; Shan., § 2562; mod. Code 1932, § 4407; Acts 1957, ch. 206, § 1; T.C.A. (orig. ed.), § 64-203.

Cross-References. Cemeteries owned by religious societies, exemption from certain regulations, § 46-1-106.

Not for profit religious corporations, title 48, ch. 67.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 185.

Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 3; 6 Tenn. Juris., Charities, § 2, 21; 21 Tenn. Juris., Religious Societies, §§ 2, 7.

Law Reviews.

An Overview of the Tennessee Residential Landlord and Tenant Act, 7 Mem. St. U.L. Rev. 109 (1977).

66-2-202. Title in trustees.

All lands bought or otherwise acquired by any religious denomination or society shall be vested in a board of trustees or other persons designated by the members of such denomination or society, for the use and benefit of the denomination or society.

Code 1858, § 1509 (deriv. Acts 1855-1856, ch. 79, § 1); Shan., § 2563; Code 1932, § 4408; T.C.A. (orig. ed.), § 64-204.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-210.

Tennessee Jurisprudence, 21 Tenn. Juris., Religious Societies, §§ 5, 7.

66-2-203. Conveyance by church officers.

In all cases where any elders, trustees, or other church officers, in any of the churches or organizations of any religious denomination, shall have any lands conveyed to them for the use of their respective churches or congregations as building sites, or for any other purpose, by deed, grant, devise, or in any other manner, they or their successors in office, according to the regulations of such church or congregation, may sell and convey the same by deed, which deed, when officially signed by such elders, trustees, or other church officers, or their successors in office, shall pass the title, whether for life, for years, or in fee, to such land to the purchaser in as full and ample a manner as if the officers held the same as a corporation, and had conveyed it by deed under the corporate name.

Acts 1883, ch. 37, § 1; Shan., § 2564; Code 1932, § 4409; T.C.A. (orig. ed.), § 64-205.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 185.

Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-210.

Tennessee Jurisprudence, 5 Tenn. Juris., Cemeteries, § 3; 6 Tenn. Juris., Charities, § 10; 21 Tenn. Juris., Religious Societies, §§ 2, 5, 7.

NOTES TO DECISIONS

1. Construction.

Statutes made to suppress fraud are to be liberally expounded. Wilson v. Beadle, 39 Tenn. 510, 1859 Tenn. LEXIS 263 (1859); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873); Parker v. Savage, 74 Tenn. 406, 1880 Tenn. LEXIS 267 (1880).

2. History and Scope.

By construction, the statute embraces voluntary gifts and conveyances of lands, goods, and chattels, made by insolvent debtors, though without intentional fraud; but it does not embrace the absolute gifts of money, corporate stocks, and choses in action, made without any secret trust or intentional fraud, for the reason that, under this statute, there was no jurisdiction in chancery to subject a debtor's money, corporate stocks, choses in action, and the like, to the satisfaction of judgments against him, whether in his own hands, or in the hands of a voluntary donee, however, this jurisdiction was conferred in title 26, ch. 4 and title 29, ch. 12. Erwin v. Oldham, 14 Tenn. 185, 1834 Tenn. LEXIS 61, 27 Am. Dec. 458 (1834); Ewing v. Cantrell, 19 Tenn. 364, 1838 Tenn. LEXIS 64 (1838); Nichol v. Levy, 72 U.S. 433, 18 L. Ed. 596, 1866 U.S. LEXIS 949 (1867); White v. Bettis, 56 Tenn. 645, 1872 Tenn. LEXIS 184 (1872); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873); Creswell v. Smith, 2 Cooper's Tenn. Ch. 416 (1875); Hooberry v. Harding, 3 Cooper's Tenn. Ch. 677 (1878); McKeldin v. Gouldy, 91 Tenn. 677, 20 S.W. 231, 1892 Tenn. LEXIS 35 (1892); Bryan v. Zarecor, 112 Tenn. 503, 81 S.W. 1252, 1903 Tenn. LEXIS 118 (1904).

The first part of this section embraces the essential provisions of the English statute contained in 13th Elizabeth, ch. 5, § 2, and protects creditors against fraudulent conveyances and dispositions of land, chattels, and every species of claims and choses in action; and the second part embraces the essential provisions of 27th Elizabeth, ch. 4, § 2, and protects purchasers against the fraudulent conveyances of lands only. Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896); State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

The principle of our cases makes no distinction between voluntary conveyances of realty and personalty. Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Ramsey v. Quillen, 73 Tenn. 184, 1880 Tenn. LEXIS 109 (1880); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

The current version of T.C.A. § 66-3-101 first appeared in 1858. In 1919 the Tennessee legislature enacted a uniform fraudulent conveyance law, which supplements but does not replace its older relative. Gigandet v. Covington, 171 B.R. 294, 1994 Bankr. LEXIS 1296 (Bankr. M.D. Tenn. 1994).

3. Purpose and Effect.

A conveyance of land to defraud, hinder, and delay creditors is void as to creditors and bona fide purchasers, without notice. Hubbs v. Brockwell, 35 Tenn. 574, 1856 Tenn. LEXIS 100 (1856).

The law sanctions and commands diligence and vigilance on the part of creditors, in securing their just demands; but in the race amongst them for priority, it forbids all resorts to covinous, guileful, or fraudulent devices and this section was intended to secure entire fairness amongst creditors in their efforts to secure their debts. Hickerson v. Blanton & Co., 49 Tenn. 160, 1870 Tenn. LEXIS 207 (1870).

The widow was not a creditor under T.C.A. § 66-3-101 so as to have standing for an action to have husband's transfer of property declared fraudulent with intent to defeat wife's distributive share of his estate. McClure v. Stegall, 729 S.W.2d 263, 1987 Tenn. App. LEXIS 2538 (Tenn. Ct. App. 1987).

Beneficiary was not entitled to relief under the fraudulent conveyances and devices statutory scheme set forth in T.C.A. § 66-3-101 et seq. as the rights and remedies afforded under T.C.A. § 66-3-101 et seq. were expressly reserved for creditors or purchasers; the beneficiary was neither a creditor nor purchaser, and thus did not have standing to assert a claim that the decedent's conveyances were fraudulent conveyances under T.C.A. § 66-3-101 et seq.Perkins v. Brunger, 303 S.W.3d 688, 2009 Tenn. App. LEXIS 373 (Tenn. Ct. App. June 10, 2009).

4. Nature of Section.

This is not a statute of limitation. O'Brien v. Waggoner, 20 Tenn. App. 145, 96 S.W.2d 170, 1936 Tenn. App. LEXIS 11 (Tenn. Ct. App. 1936).

5. Effect of Uniform Law.

The uniform law relating to fraudulent conveyances as set out in part 3 of this chapter did not repeal this section but merely enlarged thereon. Scarborough v. Pickens, 26 Tenn. App. 213, 170 S.W.2d 585, 1942 Tenn. App. LEXIS 34 (1942).

6. Jurisdiction.

Chancery courts have jurisdiction to set aside fraudulent conveyances, and to subject property to demands of creditors. Anderson v. Stribling, 160 Tenn. 453, 26 S.W.2d 131, 1929 Tenn. LEXIS 121 (1930).

Suit by Kentucky receiver to recover personal property allegedly transferred to defendant corporations in satisfaction of open account covering purchase of property which was based on contention that transfer was contrary to Kentucky statutes as preferential conveyance in contemplation of insolvency could not be maintained as a matter of courtesy or comity since it was inimical to the interests of defendants as Tennessee creditors and contrary to Tennessee public policy and statutes permitting good faith transfers to secure antecedent debts. De Laney Furniture Co. v. Magnavox Co. of Tennessee, 222 Tenn. 329, 435 S.W.2d 828, 1968 Tenn. LEXIS 511 (1968), overruled in part, Davenport v. State Farm Mut. Auto. Ins. Co., 756 S.W.2d 678, 1988 Tenn. LEXIS 160 (Tenn. 1988).

7. Laches.

Where a speculator in the commodities market transferred real and personal property to his wife and subsequently became bankrupt, it not having been shown that he was insolvent at the time of such transfers, and his creditors did not challenge such transfers until 13 years later when they contended the transfers were fraudulent under this section and former §§ 66-3-306 and 66-3-307, in view of the speculative nature of the transferor's business, the court held it unnecessary to decide this contention on the merits, since the claim was barred either by the equitable doctrine of laches or by the limitation of actions provisions of §§ 28-2-103, 28-3-109 and 28-3-110. Louis Dreyfus Corp. v. Butler, 496 F.2d 806, 1974 U.S. App. LEXIS 8973 (6th Cir. Tenn. 1974).

8. Fraudulent Conveyances Generally.

A bill of sale of goods made to defraud any existing creditors is void as to all existing and subsequent creditors. Greenlee v. Hays' Adm'r, 1 Tenn. 300, 1808 Tenn. LEXIS 23 (1808); Young v. Pate, 12 Tenn. 164, 1833 Tenn. LEXIS 35 (1833).

Every conveyance without a fair consideration is fraudulent if the conveyor is thereby rendered insolvent, or if he is engaged or about to engage in a business or transaction for which his remaining property is an unreasonably small capital, or if he intends or believes that he will incur debts beyond his ability to pay; the second situation making the conveyance fraudulent as to creditors and as to persons who become creditors during the continuance of such business transaction, and the third as to both present and future creditors. State v. Nashville Trust Co., 28 Tenn. App. 388, 190 S.W.2d 785, 1944 Tenn. App. LEXIS 79 (Tenn. Ct. App. 1944).

Transfers are fraudulent if they either are without fair consideration and leave the grantor insolvent or are made with actual intent to hinder, delay or defraud creditors. In re Shelton, 33 B.R. 377, 1983 U.S. Dist. LEXIS 15699 (M.D. Tenn. 1983); Macon Bank & Trust Co. v. Holland, 715 S.W.2d 347, 1986 Tenn. App. LEXIS 2968 (Tenn. Ct. App. 1986); United Nat'l Real Estate v. Thompson, 941 S.W.2d 58, 1996 Tenn. App. LEXIS 634 (Tenn. Ct. App. 1996).

In accord with Macon Bank & Trust Co. v. Holland. See United Nat'l Real Estate v. Thompson, 941 S.W.2d 58, 1996 Tenn. App. LEXIS 634 (Tenn. Ct. App. 1996).

Whether or not a particular transfer is declared fraudulent is determined by the facts and circumstances of each case. Stevenson v. Hicks, 176 B.R. 466, 1995 Bankr. LEXIS 336 (Bankr. W.D. Tenn. 1995).

The person who acquires property by fraud merely obtains title or a possessory interest in the property, and is said to hold this property in trust for its rightful owner. Such a trust is referred to as a “constructive trust” because it is “constructed” by a court of equity “to satisfy the demands of justice” and to prevent unjust enrichment. Stevenson v. Hicks, 176 B.R. 466, 1995 Bankr. LEXIS 336 (Bankr. W.D. Tenn. 1995).

The record contained clear and convincing evidence that the brother-in-law was a party, along with the deceased, to a conveyance to the brother-in-law undertaken for the sole purpose of enabling the deceased and the widow to qualify for governmental assistance to which they would not otherwise have been entitled; because of the fraudulent character of the conveyance and the brother-in-laws' role in it, the brother-in-law was not entitled to gain personally from the transfer of funds by being permitted to retain the money, and the trial court did not err by setting aside the transaction and ordering the brother-in-law to return the unspent remainder of the certificate of deposit. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

Defendants' claim of fraudulent conveyance, presumably made under T.C.A. § 66-3-101, fell short of the specific pleading requirements of Fed. R. Civ. P. 9; defendants' counterclaim and third party complaint failed to allege the time, place, and amount of the conveyance, or the injury defendants suffered. Eastwood v. United States, — F. Supp. 2d —, 100 A.F.T.R.2d (RIA) 6161, 2007 U.S. Dist. LEXIS 71892 (E.D. Tenn. Sept. 25, 2007).

Where a Chapter 7 debtor transferred real property to her husband and herself as tenants by the entirety, claiming that she transferred the property, because she thought he would be less worried about obtaining a large loan for her benefit if he had an ownership interest in the real property securing the debt, neither the trustee nor the husband were entitled to summary judgment in the trustee's fraudulent transfer claim under T.C.A. § 66-3-101 and T.C.A. § 66-3-305(a)(1), because there was a genuine issue of material fact as to whether the debtor's intent was fraudulent. Farinash v. Silvey (in re Silvey), 378 B.R. 186, 2007 Bankr. LEXIS 4345 (Bankr. E.D. Tenn. Oct. 10, 2007).

Proposed settlement between debtor's estate and debtor's spouse was not approved because Trustee failed to meet his burden to show that proposed settlement would likely benefit estate more than probability and costs of success in fraudulent conveyance litigation or collection of judgment against spouse. In re Stanfill, — B.R. —, 2016 Bankr. LEXIS 2535 (Bankr. E.D. Tenn. July 8, 2016).

9. —Standard of Proof.

Actual intent to defraud must be shown by a preponderance of the evidence. Stevenson v. Hicks, 176 B.R. 466, 1995 Bankr. LEXIS 336 (Bankr. W.D. Tenn. 1995).

10. —Nature of Fraud Required to Warrant Relief.

Fraud, to be relieved against, must be operative and injurious to the party seeking relief, for fraud without damage, or damage without fraud, gives no cause of action. Cunningham v. Shields, 5 Tenn. 43, 5 Tenn. 44, 1817 Tenn. LEXIS 41 (1817); Union Bank v. Osborne, 23 Tenn. 413, 1843 Tenn. LEXIS 130 (1843); Cunningham v. Edgefield & K.R.R., 39 Tenn. 23, 1858 Tenn. LEXIS 245 (Tenn. Dec. 1858); Whitson v. Gray, 40 Tenn. 441, 1859 Tenn. LEXIS 124 (1859); Waterbury v. Netherland, 53 Tenn. 512, 1871 Tenn. LEXIS 389 (1871); Flippin v. Knaffle, 2 Cooper's Tenn. Ch. 238 (1875); Nichol v. Davidson County, 3 Cooper's Tenn. Ch. 547 (1877), aff'd, Nichol v. County of Davidson, 76 Tenn. 389, 1881 Tenn. LEXIS 23 (1881); Rodgers v. Dibrell, 74 Tenn. 69, 1880 Tenn. LEXIS 212 (1880); Hamilton v. Gleaves, 44 Tenn. App. 642, 316 S.W.2d 335 (1958).

11. —Effect of Fraud on Right to Relief.

It is settled in this state by an unbroken line of decisions that a party guilty of fraud is not entitled to be relieved from its consequences. Thomas v. Hedges, 27 Tenn. App. 585, 183 S.W.2d 14, 1944 Tenn. App. LEXIS 97 (1944).

12. —Fraud in Law.

A deed of trust for the benefit of creditors securing to the maker the use and enjoyment of the property conveyed is, upon its face, fraudulent in law as against his other creditors. Galt v. Dibrell, 18 Tenn. 146, 1836 Tenn. LEXIS 111 (1836); Doyle v. Smith, 41 Tenn. 15, 1860 Tenn. LEXIS 4 (1860); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

A conveyance not fraudulent in fact, or not fraudulent in law apparent upon the face of the instrument, but only fraudulent by construction of law, as to certain debts secured, will be good to the extent of the bona fide debts secured, whether they be separate and distinct claims, or any separable part thereof. Neuffer, Hendrix & Co. v. Pardue, 35 Tenn. 191, 1855 Tenn. LEXIS 38 (1855); Lasell v. Tucker, 37 Tenn. 33, 1857 Tenn. LEXIS 72 (1857).

Where the conveyance is only fraudulent in law, the purchaser will be protected to the extent of refunding his purchase money, or allowing the conveyance to stand as a security for it. Alley v. Connell, 40 Tenn. 578, 1859 Tenn. LEXIS 173 (1859); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871); Cunningham v. Campbell, 3 Cooper's Tenn. Ch. 708 (1878).

Where a bill attacks a deed of trust charging fraud and alleging no specific facts which call for proof, but alleging that it is a general assignment, that it was not properly acknowledged for registration, that it stipulated for greater delay than the law permits, that it made unlawful reservations for the benefit of the debtors, that it gave preferences, that the grantors were insolvent, and that the trustee had not given bond, the attack is for fraud in law, and not fraud in fact. Reed Fertilizer Co. v. Thomas, 97 Tenn. 478, 37 S.W. 220, 1896 Tenn. LEXIS 169 (1896).

13. —Fraud in Fact.

The payee of a note made, without consideration, to hinder and delay his creditors, cannot have any recovery against the maker. Walker v. McConnico, 18 Tenn. 228, 1836 Tenn. LEXIS 126 (1836); Parks v. McKamy, 40 Tenn. 297, 1859 Tenn. LEXIS 80 (1859).

A deed absolute upon its face, but intended as a security for some fraudulent purpose, will not be converted into a mortgage; and the courts will not interpose to grant relief. Nichols v. Cabe, 40 Tenn. 92, 1859 Tenn. LEXIS 28 (1859); Kelton v. Millikin, 42 Tenn. 410, 1865 Tenn. LEXIS 82 (1865).

A conveyance fraudulent in fact is absolutely void, and is not permitted to stand as security for any purpose of reimbursement or indemnity to the grantee for advances actually made, responsibilities assumed in consequence of the conveyance, or for purchase money paid. Brooks v. Caughran, 40 Tenn. 464, 1859 Tenn. LEXIS 131 (1859); Alley v. Connell, 40 Tenn. 578, 1859 Tenn. LEXIS 173 (1859); McCutchen v. Pigue, 51 Tenn. 565, 1871 Tenn. LEXIS 206 (1871); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873); Cunningham v. Campbell, 3 Cooper's Tenn. Ch. 708 (1878); Shepherd v. Woodfolk, 78 Tenn. 593, 1882 Tenn. LEXIS 229 (1882).

Where the maker of and the payee of a note alike participated in the illegal transaction in connection with which the note was given, equity will not aid the maker by restraining an action at law against him to enforce the payment of the note. Osborne v. Allen, 143 Tenn. 343, 226 S.W. 221, 1920 Tenn. LEXIS 23 (1920).

In suit by creditor of insolvent corporation to set aside transfer of property to another corporation where agreement as to transfer included agreement that insolvent corporation was to discharge of all its debts upon certain escrow funds being released to it, evidence was not sufficient to establish actual fraud as to creditor where the amount of the funds released to the insolvent corporation was more than the value of the assets transferred. Hamilton v. Gleaves, 44 Tenn. App. 642, 316 S.W.2d 335 (1958).

14. —Relative Rights of Creditors and Family of Debtor.

The debtor is certainly under a moral obligation, to use all reasonable exertions to satisfy the just claims of his creditors; but he is under a positive obligation, both in law and morals, to support and maintain his family, which is his first and most imperative duty. Hamilton v. Zimmerman, 37 Tenn. 39, 1857 Tenn. LEXIS 73 (1857); Leslie v. Joyner, 39 Tenn. 514, 1859 Tenn. LEXIS 264 (Tenn. Apr. 1859); Van Vleet v. Stratton, 91 Tenn. 473, 19 S.W. 428, 1892 Tenn. LEXIS 17 (1892).

A debtor cannot be coerced to labor for the benefit of his creditor, and may dispose of the products of the labor of his wife and minor children. Leslie v. Joyner, 39 Tenn. 514, 1859 Tenn. LEXIS 264 (Tenn. Apr. 1859); Glasgow v. Turner, 91 Tenn. 163, 18 S.W. 261, 1891 Tenn. LEXIS 89 (1891).

As the future comfort and support of the wife and minor children shall be provided for, when a settlement made for that purpose is attacked for fraud, the fraud must be made to appear by clear and satisfactory evidence. White v. Bettis, 56 Tenn. 645, 1872 Tenn. LEXIS 184 (1872).

A debtor has no right to settle upon his family his property of a stable character, and leave to his creditors the property of an uncertain and doubtful character. Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880). See Allen v. Walt, 56 Tenn. 242, 1872 Tenn. LEXIS 136 (1872); Levering v. Norvell, 68 Tenn. 176, 1877 Tenn. LEXIS 12 (1877).

Land purchased and paid for by the husband who, for the purpose of defeating his creditors, fraudulently procures the same to be conveyed to his wife, will be subjected to the payment of his debts, upon a bill filed for that purpose. Hartnett v. Doyle, 16 Tenn. App. 302, 64 S.W.2d 227, 1932 Tenn. App. LEXIS 6 (1932).

Although a Chapter 7 trustee's claims seeking avoidance under 11 U.S.C. § 548 and the Tennessee Uniform Fraudulent Transfer Act of transfers a debtor made to her daughter in 2007 and 2008 were time-barred, the trustee's claims seeking avoidance of those transfers under 11 U.S.C. § 544 and T.C.A. § 66-3-101 were not time-barred because T.C.A. § 28-2-103 allowed claims for recovery of real property under § 66-3-101 to be filed within seven years; however, there were issues of fact concerning the debtor's intent in transferring fifteen houses to her daughter which precluded the court from granting summary judgment to the trustee or the daughter on the trustee's claims seeking avoidance of the transfers. Paris v. Walker (In re Walker), 566 B.R. 503, 2017 Bankr. LEXIS 929 (Bankr. E.D. Tenn. Apr. 3, 2017).

15. —Hinder and Delay — Meaning — Effect on Conveyance.

A deed of conveyance not operating as an illegal preference of creditors, but in fact hindering and delaying the creditors of the maker is void, no matter what were the intentions of the grantor, the grantee, or beneficiary. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833); Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880).

The words “hinder and delay” are to be taken in their legal sense, and not in their literal sense. The statute only refers to an improper hindrance or delay, and not to such as is reasonable and fair in the exercise of the well established right to prefer creditors. Hefner v. Metcalf, 38 Tenn. 577, 1858 Tenn. LEXIS 230 (Tenn. Dec. 1858).

16. —Transferor and Transferee Fraudulent.

Where a deed of trust is made to hinder, delay, or defeat creditors, and such fraud is actively participated in by the beneficiaries, the deed is fraudulent and void as against the grantor's other unsecured creditors, although it was made upon full consideration and to secure debts due to the beneficiaries. Boils v. Boils, 41 Tenn. 284, 1860 Tenn. LEXIS 64 (1860).

17. —Effect of Action of Agent on Rights of Debtor.

The mere possession of an agent, without any authority to sell, actual or apparent, from the owner, and without any apparent title conferred on him by the owner, will not enable such agent to confer upon his agent, a power to sell and defeat the title of the owner, and under such circumstances it is impossible to impute to the owner any fraud or to repeal him of the right to assert his title. Taylor, Cole & McLeod v. Pope, 45 Tenn. 413, 1868 Tenn. LEXIS 23 (1868), overruled, A. J. Roach & Co. v. Turk, 56 Tenn. 708, 1872 Tenn. LEXIS 196, 24 Am. Rep. 360 (1872), overruled, A. J. Roach & Co. v. Turk, 56 Tenn. 708, 1872 Tenn. LEXIS 196, 24 Am. Rep. 360 (1872).

18. —Fraudulent Conveyance by Surety.

Sureties are as much prohibited from making fraudulent conveyances to defeat creditors as the principal debtors. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816).

19. —Contract to Purchase — Transfer of Title to Another.

Where husband and wife had entered into contract for purchase of land and before payment for such land was completed or title transferred truck belonging to husband was involved in collision which resulted in several judgments against him, and thereafter a deed was obtained to the property in the name of the wife alone, the husband was held to be the owner of the property for the purpose of satisfying the judgments. Gemignani v. Partee, 42 Tenn. App. 358, 302 S.W.2d 821, 1956 Tenn. App. LEXIS 142 (1956).

20. —Solvency of Debtor — Determination.

The question of the solvency of a debtor depends upon whether enough can be realized from his property to pay his liabilities, and not upon the nominal value of his unsalable goods or property. Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870); Allen v. Walt, 56 Tenn. 242, 1872 Tenn. LEXIS 136 (1872); Weaver v. Hawley, 2 Shan. 176 (1876); Levering v. Norvell, 68 Tenn. 176, 1877 Tenn. LEXIS 12 (1877).

21. —Insolvent's Good Faith Belief of Solvency in Making Gift.

A voluntary gift by a son to his mother, or by a husband to his wife, in the way of improving her real estate, done in good faith when both thought the donor to be absolutely solvent, though in fact he was insolvent, is not fraudulent as against his creditors; and the creditors of a husband cannot subject his wife's land in order to reach the money invested in the improvements by him, where the wife was not guilty of any fraudulent participation on her part, and was not guilty of positive fraud in the particular case. Ewing v. Cantrell, 19 Tenn. 364, 1838 Tenn. LEXIS 64 (1838); Wilkinson v. Wilkinson, 38 Tenn. 305, 1858 Tenn. LEXIS 179 (Tenn. Dec. 1858); McFerrin v. Carter, 62 Tenn. 335, 1874 Tenn. LEXIS 52 (1874); Holder v. Crump, 78 Tenn. 320, 1882 Tenn. LEXIS 184 (1882); Federlicht v. Glass, 81 Tenn. 481, 1884 Tenn. LEXIS 60 (1884).

22. —Estoppel of Fraudulent Donor.

Fraudulently giving up a note to defraud the donor's wife of her alimony estops the donor himself or his distributees to recover the note or the amount due on the same. Mulloy v. Young, 29 Tenn. 298, 1859 Tenn. LEXIS 1 (1859); Rowland v. Rowland, 34 Tenn. 543, 1855 Tenn. LEXIS 94 (1855), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

23. —Badges of Fraud.

Circuity of conveyance may constitute a badge of fraud. Jones v. Read, 20 Tenn. 335, 1839 Tenn. LEXIS 58 (1839).

Where vendor, indebted to insolvent, conveys to three persons jointly property not convenient to be enjoyed in that mode and which they pretend to rent to the insolvent, such facts are badges of fraud. Tubb v. Williams, 26 Tenn. 367, 1846 Tenn. LEXIS 139 (1846).

The following facts are either badges of fraud or circumstances which awaken suspicion:

Unusual and unnecessary clauses. Langford v. Fly, 26 Tenn. 585, 1847 Tenn. LEXIS 27 (1847).

Insufficient evidence of the fairness of the transaction to overcome the fraudulence of a conveyance otherwise appearing. McCutchen v. Pigue, 51 Tenn. 565, 1871 Tenn. LEXIS 206 (1871).

The pecuniary inability of the purchaser to pay the purchase price. McCutchen v. Pigue, 51 Tenn. 565, 1871 Tenn. LEXIS 206 (1871); Robinson v. Frankel, 85 Tenn. 475, 3 S.W. 652, 1886 Tenn. LEXIS 72 (1886); Dillard & C. Co. v. Smith, 105 Tenn. 372, 59 S.W. 1010, 1900 Tenn. LEXIS 81 (1900).

No limitation as to the time in which the trust shall be closed. Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871); Woodward v. Goodman, 3 Shan. 483 (1875).

Suspicion cast upon the genuineness and validity of the debts secured, without proof showing them to be bona fide. Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871).

A conveyance of personalty given in connection with a secret agreement to keep its existence secret for purpose of protecting the mortgagor's credit is fraudulent. Moore v. Wood, 61 S.W. 1063, 1901 Tenn. Ch. App. LEXIS 11 (Tenn. Ch. App. 1900).

Where circumstances under which a debtor transfers property are suspicious, failure of the parties to testify or produce an available explanation or rebutting evidence is a badge of fraud. Gurlich's, Inc. v. Myrick, 54 Tenn. App. 97, 388 S.W.2d 353, 1964 Tenn. App. LEXIS 148 (Tenn. Ct. App. Dec. 10, 1964).

Transactions between husband and wife whereby husband's property is placed beyond the reach of his creditors generally excites suspicion and should be carefully scrutinized, and where complainant introduces evidence casting suspicion on the transaction and warranting a suspicion of fraud the burden of proof shifts to the defendant. Gurlich's, Inc. v. Myrick, 54 Tenn. App. 97, 388 S.W.2d 353, 1964 Tenn. App. LEXIS 148 (Tenn. Ct. App. Dec. 10, 1964).

Badges of fraud identified to assist trial courts in determining a debtor's intent for fraudulent conveyance purposes are as follows: (1) The transferor is in a precarious financial condition; (2) The transferor knew there was or soon would be a large money judgment rendered against the transferor; (3) Inadequate consideration was given for the transfer; (4) Secrecy or haste existed in carrying out the transfer; (5) A family or friendship relationship existed between the transferor and the transferee(s); (6) The transfer included all or substantially all of the transferor's nonexempt property; (7) The transferor retained a life estate or other interest in the property transferred; (8) The transferor failed to produce available evidence explaining or rebutting a suspicious transaction; (9) There was a lack of innocent purpose or use for the transfer. Stevenson v. Hicks, 176 B.R. 466, 1995 Bankr. LEXIS 336 (Bankr. W.D. Tenn. 1995).

Transfers were made with the intent to defraud for purposes of 11 U.S.C. § 548 and T.C.A. § 66-3-101 and T.C.A. § 66-3-305 where there was testimony that the debtor's chief scientific officer frequently mentioned the need to protect his assets, that he failed to properly separate the debtor's assets from his “entangled web” of business entities, and his outright fraud in directing the involuntary bankruptcy filing. Holcomb Health Care Servs., LLC v. Quart Ltd., LLC (In re Holcomb Health Care Servs., LLC), 329 B.R. 622, 2004 Bankr. LEXIS 2378 (Bankr. M.D. Tenn. 2004).

24. — —Description of Property.

Want of sufficient description of the debts intended to be secured may constitute a badge of fraud or suspicious circumstance. Barcroft, Beaver & Co. v. Snodgrass, 41 Tenn. 430, 1860 Tenn. LEXIS 87 (1860); D.R. Young & Co. v. Gillespie, Warren & Co., 59 Tenn. 239, 1873 Tenn. LEXIS 48 (1873).

Too general, indefinite, or meager a description of the property conveyed, though not so insufficient as to render the conveyance invalid, may amount to a badge of fraud. Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871); Atwood v. Brown, 1 Shan. 639 (1876); Woodward v. Goodman, 3 Shan. 483 (1875); Williamson v. Steele, 71 Tenn. 527, 1879 Tenn. LEXIS 111, 31 Am. Rep. 652 (1879); Scheibler v. Mundinger, 86 Tenn. 674, 9 S.W. 33, 1888 Tenn. LEXIS 23 (1888).

25. — —Consideration.

The following facts are either badges of fraud or circumstances which awaken suspicion:

Colorable, inadequate, or small consideration. Cains v. Jones, 13 Tenn. 249, 1833 Tenn. LEXIS 155 (1833); Alley v. Connell, 40 Tenn. 578, 1859 Tenn. LEXIS 173 (1859).

The recital of a fictitious consideration in a conveyance for the benefit of creditors. Peacock v. Tompkins, 19 Tenn. 317, 1838 Tenn. LEXIS 60 (1838); Gibbs v. Thompson, 26 Tenn. 179, 1846 Tenn. LEXIS 96 (1846); Neuffer, Hendrix & Co. v. Pardue, 35 Tenn. 191, 1855 Tenn. LEXIS 38 (1855); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871); Thurman v. Jenkins, 61 Tenn. 426, 1873 Tenn. LEXIS 199 (1873); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873); R. W. McCrasly & Co. v. Hasslock, 63 Tenn. 1, 1874 Tenn. LEXIS 191 (1874).

A display of various considerations stated in the deed. Jones v. Read, 20 Tenn. 335, 1839 Tenn. LEXIS 58 (1839).

Mere inadequacy of consideration is, as a general rule, no ground for setting aside a contract; but gross inadequacy of consideration raises a presumption of imposition, oppression, and fraud, and is ground for setting aside a contract. Inadequacy of consideration, coupled with other circumstances, such as misplaced confidence, overreaching, weakness of mind, and the like, may be ground for setting aside a contract. Wright v. Wilson, 10 Tenn. 294, 1829 Tenn. LEXIS 12 (1839); Birdsong v. Birdsong, 39 Tenn. 289, 1859 Tenn. LEXIS 214 (Tenn. Apr. 1859); Coffee v. Ruffin, 44 Tenn. 487, 1867 Tenn. LEXIS 72 (1867); Hamilton v. Saunders, 3 Shan. 789 (1870); Meath v. Porter, 56 Tenn. 224, 1872 Tenn. LEXIS 133 (1872); Mound City Mut. Life Ins. Co. v. Hamilton, 3 Cooper's Tenn. Ch. 228 (1876); Mann v. Russey, 101 Tenn. 596, 49 S.W. 835, 1898 Tenn. LEXIS 107 (1898); Talbott v. Manard, 106 Tenn. 60, 59 S.W. 340, 1900 Tenn. LEXIS 133 (1900); Stephens v. Ozbourne, 107 Tenn. 572, 64 S.W. 902, 1901 Tenn. LEXIS 111, 89 Am. St. Rep. 957 (1901); Stamper v. Venable, 117 Tenn. 557, 97 S.W. 812, 1906 Tenn. LEXIS 67 (1906).

Any conveyance is fraudulent if the fair salable value of the conveyor's assets is less than the amount necessary to pay his liabilities on his absolute liabilities as they mature. Citizens & S. Nat'l Bank v. Auer, 514 F. Supp. 638, 1981 U.S. Dist. LEXIS 11966 (E.D. Tenn. 1981), rev'd on other grounds, Citizens & S. Nat'l Bank v. Auer, 640 F.2d 837, 1981 U.S. App. LEXIS 20446 (6th Cir. 1981), rev'd, Citizens & S. Nat'l Bank v. Auer, 514 F. Supp. 631, 1977 U.S. Dist. LEXIS 15593 (E.D. Tenn. 1977).

26. — —Debtor's Retention of Possession.

See also notes under headings 41-43 infra.

The following facts are either badges of fraud or circumstances which awaken suspicion:

The vendor's retention of the possession of personal property after his absolute sale thereof. Callen v. Thompson, 11 Tenn. 474, 11 Tenn. 475, 1832 Tenn. LEXIS 98, 24 Am. Dec. 587 (1832); Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Young v. Pate, 12 Tenn. 164, 1833 Tenn. LEXIS 35 (1833); Maney v. Killough, 15 Tenn. 440 (1835); Wiley v. Lashlee, 27 Tenn. 717, 1848 Tenn. LEXIS 30 (1848); Shaddon v. Knott, 32 Tenn. 358, 1852 Tenn. LEXIS 83 (1852); Grubbs v. Greer, 45 Tenn. 160, 1867 Tenn. LEXIS 111 (1867).

The grantor's retention of the possession of personal property conveyed to secure creditors, continued after the maturity of the debt and default of payment on his part. Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Maney v. Killough, 15 Tenn. 440 (1835); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

Retention of the possession of personal property after its sale under an execution by debtor who confessed judgment, when purchased by the judgment creditor. Floyd v. Goodwin, 16 Tenn. 484, 1835 Tenn. LEXIS 112 (1835).

Embarrassment; relationship; no money paid; nominal ownership changed by deeds and forms of law, possession, and real ownership continuing as before. Grannis, White & Co. v. Smith, 22 Tenn. 179, 1842 Tenn. LEXIS 62 (1842).

The retention of the possession and control of the land and personalty as his own by the grantor in an absolute conveyance, his sale of the crops and stock, and his acting in every respect as owner. Langford v. Fly, 26 Tenn. 585, 1847 Tenn. LEXIS 27 (1847).

The grantor's continuance in possession of the property, a stock of merchandise goods, conveyed in a deed of trust to secure certain creditors, without any limitation as to his discretion in appropriating the proceeds of sales. R. W. McCrasly & Co. v. Hasslock, 63 Tenn. 1, 1874 Tenn. LEXIS 191 (1874); Bank of Cookville v. Brier, 95 Tenn. 331, 32 S.W. 205, 1895 Tenn. LEXIS 94 (1895).

27. — —Facts Not Constituting.

The mere relationship between the parties to a conveyance is not, of itself, a badge of fraud; but it is a circumstance which naturally awakens suspicion, and lends greater weight to other unfavorable circumstances. Bumpas v. Dotson, 26 Tenn. 310, 1846 Tenn. LEXIS 132 (1846); Sporrer v. Eifler, 48 Tenn. 633, 1870 Tenn. LEXIS 125 (1870); Bank of Tenn. v. Erwin, 2 Shan. 442 (1877); Robinson v. Frankel, 85 Tenn. 475, 3 S.W. 652, 1886 Tenn. LEXIS 72 (1886); Blackmore v. Parkes, 81 F. 899, 1897 U.S. App. LEXIS 1912 (6th Cir. 1897); First Nat'l Bank v. Wilkins, 11 Tenn. App. 9, 1929 Tenn. App. LEXIS 70 (1929).

The fact that purchaser had no use for the property conveyed may engender suspicion but is not itself evidence of fraud. Grubbs v. Greer, 45 Tenn. 160, 1867 Tenn. LEXIS 111 (1867).

Where purchaser takes immediate possession of property transferred in payment of a debt which exceeds the value of the property, and the instrument sets forth the articles conveyed, fraud is not presumed from fact that purchaser is unable to specify all articles received. Bank of Madisonville v. McCoy, 42 S.W. 814, 1897 Tenn. Ch. App. LEXIS 79 (Tenn. Ch. App. 1897).

28. — —Rebuttal of Inference of Fraud.

If the deed of trust be proved to have been made in good faith for a valuable consideration, such evidence rebuts and repeals all inferences of fraud from the existence of facts usually considered badges of fraud; but proof of a bona fide valuable or full consideration does not rebut and repel the evidence of actual fraud. Trotter v. Watson, 25 Tenn. 509, 1846 Tenn. LEXIS 31 (1846).

29. —Consideration.

A conveyance made by an individual or the members of a partnership firm to secure the debt of another then created, or in consideration of an extension of time for the payment of an existing debt, is supported by a valuable consideration, and is not voluntary and fraudulent as against the individual or firm creditors of the grantor or grantors. Allen, Asher & Co. v. Morgan, 24 Tenn. 624, 1845 Tenn. LEXIS 148 (1845).

30. — —Conveyance of Expectancy Without Consideration.

Where an insolvent heir apparent made an assignment without consideration of his estate in expectancy, such assignment was fraudulent as to his existing creditors and would be set aside at their instance, and the property descended subject to payment of their debts. Read v. Mosby, 87 Tenn. 759, 11 S.W. 940, 1889 Tenn. LEXIS 25, 5 L.R.A. 122 (1889).

31. — —False Consideration — Effect.

Where property is sold under several executions, some valid, and some colorable because contrived for the fraudulent purpose to defraud, a purchase by the execution creditors under the colorable and void executions, for the purpose of assisting in the scheme to defraud is fraudulent as against other creditors, because a purchase based on a consideration partly fair and partly colorable and fraudulent is within the statute. Floyd v. Goodwin, 16 Tenn. 484, 1835 Tenn. LEXIS 112 (1835). But see Saylors v. Saylors, 50 Tenn. 525, 1871 Tenn. LEXIS 109 (1871).

In the absence of intentional fraud, or fraud in fact, or fraud in law apparent upon the face of the instrument, a deed will be held good as a security for the debts really due at the time of its execution, despite its recital of fictitious consideration. Peacock v. Tompkins, 19 Tenn. 317, 1838 Tenn. LEXIS 60 (1838); Bumpas v. Dotson, 26 Tenn. 310, 1846 Tenn. LEXIS 132 (1846); Neuffer, Hendrix & Co. v. Pardue, 35 Tenn. 191, 1855 Tenn. LEXIS 38 (1855); Lasell v. Tucker, 37 Tenn. 33, 1857 Tenn. LEXIS 72 (1857); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871); Thurman v. Jenkins, 61 Tenn. 426, 1873 Tenn. LEXIS 199 (1873); Blizzard v. Craigmiles, 75 Tenn. 693, 1881 Tenn. LEXIS 172 (1881); Leech v. Hillsman, 76 Tenn. 747, 1882 Tenn. LEXIS 5 (1882).

A mistake as to the amount of a claim secured where the amount is not capable of exact computation, as a surety's liability for a guardian's unsettled liability, not assumed to be stated accurately, but stated to be about double what it really was afterwards ascertained to be, does not render the deed fraudulent. Bumpas v. Dotson, 26 Tenn. 310, 1846 Tenn. LEXIS 132 (1846).

The recital of a false and fictitious consideration in a conveyance for the benefit of creditors renders the deed fraudulent as against them. Gibbs v. Thompson, 26 Tenn. 179, 1846 Tenn. LEXIS 96 (1846); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871); Thurman v. Jenkins, 61 Tenn. 426, 1873 Tenn. LEXIS 199 (1873); R. W. McCrasly & Co. v. Hasslock, 63 Tenn. 1, 1874 Tenn. LEXIS 191 (1874); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

A false and fictitious statement of the amount of debts secured by a deed of trust will not render the deed fraudulent as to the actual amount of valid debts shown to exist, where the creditors did not participate in the intentional fraud of the grantor, or where the discrepancy was the result of mere inadvertence without fraudulent design. A. & J. Troustine & Co. v. Lask, 63 Tenn. 162, 1874 Tenn. LEXIS 222 (1874).

An intentional fraud by the maker of a trust deed, as to a portion of the debts provided for, but not participated in by other beneficiaries, whose debts are valid, renders the deed void only as to so much as is embraced by the fraudulent purpose of the maker, and concurred in by the beneficiaries, whose debts are false and fictitious, but such deed is good as to the claims of other beneficiaries. A. & J. Troustine & Co. v. Lask, 63 Tenn. 162, 1874 Tenn. LEXIS 222 (1874); Jones v. Cullen, 100 Tenn. 1, 42 S.W. 873, 1897 Tenn. LEXIS 86 (1897).

32. — —Evidence Disproving Payment of Consideration.

Recital of payment in a deed is prima facie evidence of the fact requiring clear and satisfactory evidence to disprove it. Gaugh v. Henderson, 39 Tenn. 628, 1859 Tenn. LEXIS 293 (1859); Bayliss v. Williams, 46 Tenn. 440, 1869 Tenn. LEXIS 79 (1869); McKissick v. Martin, 59 Tenn. 311, 1873 Tenn. LEXIS 63 (1873).

Proof that the party, by whom it is recited that the payment was made, had not sufficient means to make the payment raises a presumption against the payment. Dunlap v. Haynes, 51 Tenn. 476, 1871 Tenn. LEXIS 189 (1871).

33. — —Grantee Having No Visible Means of Paying.

A conveyance of land made by an insolvent debtor to his son in consideration of the satisfaction of the father's alleged indebtedness and of the son's note, claimed to have been paid before the filing of the bill, will be set aside as fraudulent against the father's creditors, where the son at the date of the conveyance was but a few months over age, and had no visible means wherewith he could pay the price, since the notes were in fact executed for no actual indebtedness, the conveyance was made to hinder and defeat the father's creditors. Hillsman v. Blackwell, 57 Tenn. 480, 1873 Tenn. LEXIS 245 (1873).

34. —Voluntary Conveyances or Settlements Not Void Per Se.

Indebtedness at the time of a voluntary conveyance, which bears an inconsiderable proportion in amount to the property reserved, does not, of itself, render such conveyance void; if the property retained be entirely ample to pay all demands, the gift is good. Burkey v. Self, 36 Tenn. 121, 1856 Tenn. LEXIS 67 (1856); Perkins v. Perkins, 1 Cooper's Tenn. Ch. 537 (1874); Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879); Sanders v. Logue, 88 Tenn. 355, 12 S.W. 722, 1889 Tenn. LEXIS 57 (1890). See Allen v. Walt, 56 Tenn. 242, 1872 Tenn. LEXIS 136 (1872).

Voluntary conveyances or settlements are not void per se as against the grantor's creditors. Burkey v. Self, 36 Tenn. 121, 1856 Tenn. LEXIS 67 (1856); Ricketts v. McCully, 54 Tenn. 712, 1872 Tenn. LEXIS 108 (1872); Perkins v. Perkins, 1 Cooper's Tenn. Ch. 537 (1874); Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879); Lippman v. Boals, 84 Tenn. 283, 1886 Tenn. LEXIS 97 (1886).

35. —Voluntary Conveyances Without Fraud or Prejudice at Time — Validity.

A registered voluntary conveyance of personalty or realty, made in consideration of blood or other relationship, and without fraud as against subsequent creditors or purchasers, will protect the grantee as against subsequent creditors or purchasers for value, and without actual notice of the registered conveyance; but such consideration is not good as to existing creditors. Bank of United States v. Lee, 38 U.S. 107, 10 L. Ed. 81, 1839 U.S. LEXIS 419 (1839); Marshall v. Booker, 9 Tenn. 13, 1820 Tenn. LEXIS 10 (1820); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896).

The statute does not discountenance a voluntary conveyance to a child or relative, or even to a stranger, if it be not, at the time, prejudicial to the rights of any other person, or in execution of any meditated scheme of future fraud or injury to other persons. Nicholas v. Ward, 38 Tenn. 323, 1858 Tenn. LEXIS 181, 73 Am. Dec. 177 (1858); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871).

A voluntary conveyance by husband to his wife, when solvent, and not in anticipation of insolvency, and without any intent to defraud existing or subsequent creditors, is not fraudulent as against creditors, especially is it not fraudulent against the creditors of a firm of which he is a member, debts of which were contracted without knowledge of the property conveyed to the wife. Nelson v. Kinney, 93 Tenn. 428, 25 S.W. 100, 1893 Tenn. LEXIS 70 (1893).

36. —Retention of Sufficient Property to Pay Debts upon Making Voluntary Conveyance — Necessity — Proof.

Where the maker of a voluntary conveyance or settlement was indebted at the time of the making of the same, it should satisfactorily appear that abundant means were reserved, and that the maker of the conveyance was not indebted to an amount sufficient for it to have the effect of delaying and defeating his creditors. Smith v. Greer, 22 Tenn. 118, 1842 Tenn. LEXIS 41 (1842); Allen v. Walt, 56 Tenn. 242, 1872 Tenn. LEXIS 136 (1872); White v. Bettis, 56 Tenn. 645, 1872 Tenn. LEXIS 184 (1872); Weaver v. Hawley, 2 Shan. 176 (1876).

A voluntary conveyance of land is not fraudulent, where the grantor retains sufficient property to pay his debts. Ricketts v. McCully, 54 Tenn. 712, 1872 Tenn. LEXIS 108 (1872).

Where a person making a voluntary settlement of $15,000 or $16,000 is indebted to the extent of $45,000 or $50,000, and his assets are vaguely and indefinitely shown to be worth $75,000 or $80,000, without showing that the notes and accounts are solvent and collectable, nor showing the amount or quantity of the assets, the conveyances will be set aside. Allen v. Walt, 56 Tenn. 242, 1872 Tenn. LEXIS 136 (1872).

The inquiry is limited to the circumstances of the grantor at the time of the execution of the conveyance. Liabilities as an endorser, when there is no evidence that the persons for whom he was liable were unable to pay them, cannot be taken into account. Weaver v. Hawley, 2 Shan. 176 (1876); Lippman v. Boals, 84 Tenn. 283, 1886 Tenn. LEXIS 97 (1886).

In order to sustain a voluntary conveyance to a wife or child, the proof must show, not merely a sufficiency of property retained to pay the creditors assailing the conveyance, but that ample property was reserved to pay all existing creditors at the time of the conveyance. Weaver v. Hawley, 2 Shan. 176 (1876).

Where the responsible and solvent member of a partnership makes a voluntary conveyance to his wife and children of all his individual property, or practically all, worth from $60,000 to $100,000, while his firm owes at least $40,000, with assets of the nominal value of $90,000, consisting principally of notes and accounts not shown to be available to creditors, the conveyance will be set aside at the instance of the creditors of the firm. The court found that there was fraud in fact in this case. Levering v. Norvell, 68 Tenn. 176, 1877 Tenn. LEXIS 12 (1877).

37. —Conveyances to Settle Debts.

The fact that a debtor corporation conveyed all its property to another corporation in an effort to settle its debts and for a consideration in excess of the reasonable value of the same is no evidence of fraud. Hicks v. Whiting, 149 Tenn. 411, 258 S.W. 784, 1923 Tenn. LEXIS 105 (1923).

38. —Conveyance to Supposed Creditors Fraudulently Procured.

Where a father, an old and ignorant man, moved by misrepresentation and false information of the existence of a judgment and execution against him, the whole thing being a conspiracy against him, for the purpose of extracting money from him, executed a deed to all of his property to one of his children, retaining for himself a life estate, and simultaneously took a bond from the grantee obligating herself to convey to each of his other children, at the death of her father, an equal share of the property, such deed and bond constituted a conveyance and settlement of his property upon all his children at his death, and will be enforced as between the children, because there were in fact no creditors. Such contract would be enforced, although designed to defraud the creditors of the father. Graham v. Lambert, 24 Tenn. 595, 1845 Tenn. LEXIS 141 (1845).

Conveyance or sale procured by fraud from one not in pari delicto by falsely creating an unfounded apprehension of some ill defined and imaginary liability will be set aside at the instance of the maker or his representatives, where he was overreached through the weakness of his mind. Davis v. McNalley, 37 Tenn. 583, 1858 Tenn. LEXIS 67 (1858); Tally v. Smith, 41 Tenn. 290, 1860 Tenn. LEXIS 66 (1860). See Johnson v. Chadwell, 27 Tenn. 145, 1847 Tenn. LEXIS 62 (1847); Martin v. Martin, 48 Tenn. 644, 1870 Tenn. LEXIS 127 (1870).

39. —Conditional Sales.

The written retention of title in conditional sales of chattels or merchandise, to secure the payment of the purchase price, with power in the purchaser to sell, whether express or by necessary implication, is contrary to public policy, and void as to creditors of the purchaser. Nailer v. Young, 75 Tenn. 735, 1881 Tenn. LEXIS 181 (1881); Star Clothing Mfg. Co. v. Nordeman, 118 Tenn. 384, 100 S.W. 93, 1906 Tenn. LEXIS 106 (Tenn. Dec. 1906).

40. —Retention of Property After Sale or Conveyance.

The vendor's retention of the use of personal property, after a sale thereof, with the consent of the purchaser, is strong evidence of fraud, but not fraud in itself. The presumption may be repelled by proof of fairness in the transaction. The burden of proof rests upon the purchaser. Ragan v. Kennedy, 1 Tenn. 91, 1804 Tenn. LEXIS 34 (1804); Callen v. Thompson, 11 Tenn. 474, 11 Tenn. 475, 1832 Tenn. LEXIS 98, 24 Am. Dec. 587 (1832); Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Young v. Pate, 12 Tenn. 164, 1833 Tenn. LEXIS 35 (1833); Maney v. Killough, 15 Tenn. 440 (1835); Simpson v. Mitchell, 16 Tenn. 417, 1835 Tenn. LEXIS 96 (1835); Richmond v. Crudup, 19 Tenn. 581, 1838 Tenn. LEXIS 92 (1838); Wiley v. Lashlee, 27 Tenn. 717, 1848 Tenn. LEXIS 30 (1848); Shaddon v. Knott, 32 Tenn. 358, 1852 Tenn. LEXIS 83 (1852); Grubbs v. Greer, 45 Tenn. 160, 1867 Tenn. LEXIS 111 (1867); Bank of Tenn. v. Erwin, 2 Shan. 442 (1877).

The grantor's retention of some of the conveyed property consumable or destructible in its use, in the absence of an express reservation or stipulation therefor, is only a strong badge of fraud in fact, but not in law. Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Charlton v. Lay, 24 Tenn. 496, 1844 Tenn. LEXIS 118 (1844); Bank of Tenn. v. Erwin, 2 Shan. 442 (1877); Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883); Reeves v. John, 95 Tenn. 434, 32 S.W. 312, 1895 Tenn. LEXIS 112 (1895).

The grantor's retention after the execution of a bill of sale therefor, absolute on its face, but proved to be intended by the parties as a security only for debt, creates no presumption of fraud. Wiley v. Lashlee, 27 Tenn. 717, 1848 Tenn. LEXIS 30 (1848).

41. — —Retention of Possession upon Conveyance to Secure Debt.

See also notes under heading 26.

Where personal property is conveyed to secure the payment of debts already due, without any provision for further indulgence, and with the consequent right to sell immediately, the maker's retention of possession is prima facie evidence of fraud, which may be rebutted. Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Maney v. Killough, 15 Tenn. 440 (1835); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

Where a conveyance is fraudulent as to some of the property conveyed, it is void as to all; as where there is a stipulation for the grantor's retention of the possession and use of property consumable or destructible in its use, the deed is fraudulent and void as to all of the property. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833); Simpson v. Mitchell, 16 Tenn. 417, 1835 Tenn. LEXIS 96 (1835); Floyd v. Goodwin, 16 Tenn. 484, 1835 Tenn. LEXIS 112 (1835).

Where personal property is conveyed to secure debts, the grantor's retention of the possession after default in payment, raises a presumption of fraud; but this presumption may be rebutted. Maney v. Killough, 15 Tenn. 440 (1835); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

Where the instrument conveying personal property to secure the payment of debts is silent as to the possession thereof, the retention of the possession by the debtor, from the execution of the deed till default of payment of the debts secured, is presumed to be by the assent of the trustee or mortgagee, and is not inconsistent with the deed, and is no evidence of fraud. Maney v. Killough, 15 Tenn. 440 (1835); Reeves v. John, 95 Tenn. 434, 32 S.W. 312, 1895 Tenn. LEXIS 112 (1895).

The fact that the maker of the instrument retains the possession of the property, consistently with the deed, is not fraudulent per se, nor is it prima facie evidence of fraud, where the time of indulgence is equivalent only to the probable “law's delay.” Mitchell v. Beal, 16 Tenn. 134, 1835 Tenn. LEXIS 59 (1835); Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882). See Farquharson v. McDonald, 49 Tenn. 404, 1871 Tenn. LEXIS 24 (1871); Masson v. Tarver, 62 Tenn. 290, 1873 Tenn. LEXIS 189 (1873).

The mere fact that the mortgagor was permitted to retain the possession of the personal property conveyed by the mortgage, and that he afterwards disposed of it without the consent of the mortgagee, will not render the mortgage void as to the land conveyed by the same. Saylors v. Saylors, 50 Tenn. 525, 1871 Tenn. LEXIS 109 (1871).

42. — — —Retaining Use of Consumable Property.

A mortgage, deed of trust, or trust assignment to secure the payment of the grantor's debts, conveying property in its nature necessarily consumable or destructible in its use, or any part of which is so consumable, and stipulating that the grantor shall retain the possession and use of the same, is, upon its face, fraudulent in law, not only as to the property so consumable, but also as to the nonconsumable property. Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Young v. Pate, 12 Tenn. 164, 1833 Tenn. LEXIS 35 (1833); Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833); Simpson v. Mitchell, 16 Tenn. 417, 1835 Tenn. LEXIS 96 (1835); Richmond v. Crudup, 19 Tenn. 581, 1838 Tenn. LEXIS 92 (1838); Wade v. Green, 22 Tenn. 547, 1842 Tenn. LEXIS 143 (1842); Sugg v. Tillman, 32 Tenn. 208, 1852 Tenn. LEXIS 52 (1852); Bank of Rome v. Haselton, 83 Tenn. 216, 1885 Tenn. LEXIS 45 (1885).

A conveyance to secure debts stipulating for the possession and use of property consumable or destructible in its use is good only as between the parties, and as against volunteers and third persons having no superior equity to the beneficiaries. Wade v. Green, 22 Tenn. 547, 1842 Tenn. LEXIS 143 (1842).

The fact that some of the property included in a mortgage was consumable in its use, and was retained by the mortgagor, in the absence of an express reservation in the deed of the possession and use in favor of the grantor, would be only a badge of fraud as a matter of fact, and not such as a matter of law. Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883).

43. — — —Failure to Consume Consumable Property.

The fact that the property, necessarily consumable in its use, the retention of the possession and use of which by the debtor is stipulated for in the conveyance for creditors, is not consumed by the debtor, but is afterwards sold, and the proceeds applied to the payment of the debts secured, does not restore the deed. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833); Trabue v. Willis, 19 Tenn. 583; Sugg v. Tillman, 32 Tenn. 208, 1852 Tenn. LEXIS 52 (1852).

Corn and pork. Simpson v. Mitchell, 16 Tenn. 417, 1835 Tenn. LEXIS 96 (1835).

44. —Property Consumable or Destructible in Use.

Property in its nature held to be necessarily and absolutely consumable or destructible in its use is such as follows:

Whisky, vinegar, flour, brandy, wines, coffee, sugar, bacon, dried beef, candles, wood, corn, and hay. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833).

Meat, corn, and fodder. Richmond v. Crudup, 19 Tenn. 581, 1838 Tenn. LEXIS 92 (1838); Trabue v. Willis, 19 Tenn. 583; Charlton v. Lay, 24 Tenn. 496, 1844 Tenn. LEXIS 118 (1844).

Hay. Bank of Tenn. v. Erwin, 2 Shan. 442 (1877).

Corn. Lincoln Sav. Bank v. Ewing, 80 Tenn. 598, 1883 Tenn. LEXIS 211 (1883).

45. — —Terms Describing.

The various expressions in the several cases as to the character of property subject to consumption or destruction by its use are as follows:

Property, use of which, from its nature, was its destruction or exhaustion. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833).

Property necessarily consumed in the using. Simpson v. Mitchell, 16 Tenn. 417, 1835 Tenn. LEXIS 96 (1835).

Property consumable in the using. Richmond v. Crudup, 19 Tenn. 581, 1838 Tenn. LEXIS 92 (1838).

Property necessarily consumable in the use. Trabue v. Willis, 19 Tenn. 583; Ross v. Young, 37 Tenn. 627, 1858 Tenn. LEXIS 81 (1858).

Property in its nature consumable in the use of it. Hunter v. Foster, 23 Tenn. 211, 1843 Tenn. LEXIS 55 (1843).

46. —Property Not Consumable in Use.

The following are examples of property not consumable or destructible in use:

Household goods and furniture. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833).

Land, horses, cattle, and furniture. Maney v. Killough, 15 Tenn. 440 (1835).

Hogs, sheep, lambs, bee hives, and vinegar kegs. Ross v. Young, 37 Tenn. 627, 1858 Tenn. LEXIS 81 (1858).

Wagons and windmills. Bank of Tenn. v. Erwin, 2 Shan. 442 (1877).

47. —Mortgages, Deeds of Trust and Assignments.

The mortgage or deed of trust of a mining and manufacturing corporation, conveying its mineral lands, furnaces, and equipment for the purpose of securing its bonded indebtedness, is valid as against subsequent creditors, when construed not to include cash on hand, commissary stock, iron ore, pig iron, accounts receivable, income, issues and profit, until default and possession taken thereunder by the trustee. Morgan Bros. v. Dayton Coal & Iron Co., 134 Tenn. 228, 183 S.W. 1019, 1915 Tenn. LEXIS 160 (1916).

48. — —Conveyances to Prevent Sacrifice of Property and Race Among Creditors.

A deed of trust made to prevent creditors from sacrificing the property of the debtor, by execution sales, or to prevent a race of diligence among his creditors for his property, by appropriating it to preferred creditors, is valid. Hefner v. Metcalf, 38 Tenn. 577, 1858 Tenn. LEXIS 230 (Tenn. Dec. 1858). See Mitchell v. Beal, 16 Tenn. 134, 1835 Tenn. LEXIS 59 (1835); Wiley v. Lashlee, 27 Tenn. 717, 1848 Tenn. LEXIS 30 (1848).

49. — —Conveyances Purporting to Secure Existing Debt but Covering Future Debts.

A deed of trust, purporting to secure an existing debt, but intended by parol agreement to secure a debt to be contracted in the future, is, as to the future debt, fraudulent and void as against the grantor's creditors; but, in the absence of fraud in fact, such deed of trust is valid as to any existing debt. Neuffer, Hendrix & Co. v. Pardue, 35 Tenn. 191, 1855 Tenn. LEXIS 38 (1855); McGavock v. Deery, 41 Tenn. 265, 1860 Tenn. LEXIS 62 (1860); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871).

50. — —Assignment for Benefit of Creditors — Assignee Empowered to Continue Business.

An assignment for the benefit of creditors may be drawn with a stipulation for the continuance of the debtor's business by the assignee, with the view of more effectually promoting the interests of creditors, and such assignment will be sustained. Doyle v. Smith, 41 Tenn. 15, 1860 Tenn. LEXIS 4 (1860); Reeves v. John, 95 Tenn. 434, 32 S.W. 312, 1895 Tenn. LEXIS 112 (1895).

A deed of trust for the benefit of all creditors, but which gives a preference to certain creditors, and stipulates that the merchandising business is to be continued for two years and three months, the stock conveyed in the deed replenished from the proceeds of sale of goods, and the assignor retained to assist in management of the business, is void on its face, because the stipulation for continuation of the business is for the benefit of the debtor, not the creditors. Lowenstein v. Love, 84 Tenn. 658, 1886 Tenn. LEXIS 152 (1886).

51. — —Stock in Trade Conveyed to Certain Creditors with Right to Conduct Business Reserved.

A mortgage, deed of trust, or trust assignment conveying a stock of merchandise, intended to secure certain debts, with the possession and power of sale or disposition, and the right to carry on the business in the usual course of trade, and to replenish the stock, all retained in the maker, and the new stock so acquired by replenishment to be covered by the mortgage, is fraudulent in law as against creditors. Doyle v. Smith, 41 Tenn. 15, 1860 Tenn. LEXIS 4 (1860); Tennessee Nat'l Bank v. Ebbert & Co., 56 Tenn. 153, 1872 Tenn. LEXIS 119 (1872); R. W. McCrasly & Co. v. Hasslock, 63 Tenn. 1, 1874 Tenn. LEXIS 191 (1874); Phelps v. Murray, 2 Cooper's Tenn. Ch. 746 (1877); Bank of Rome v. Haselton, 83 Tenn. 216, 1885 Tenn. LEXIS 45 (1885); Lowenstein v. Love, 84 Tenn. 658, 1886 Tenn. LEXIS 152 (1886); Bank of Cookville v. Brier, 95 Tenn. 331, 32 S.W. 205, 1895 Tenn. LEXIS 94 (1895); Rodes v. Haynes, 95 Tenn. 673, 33 S.W. 564, 1895 Tenn. LEXIS 141 (1895); Morgan Bros. v. Dayton Coal & Iron Co., 134 Tenn. 228, 183 S.W. 1019, 1915 Tenn. LEXIS 160 (1916).

The mortgagor's power of continuation of the business by the sale of the goods mortgaged in the usual course of trade renders the mortgage fraudulent in law, and void as against his creditors; and it is immaterial whether such power is expressly retained upon the face of the mortgage, or is made to appear, aliunde, by other proof, either direct or circumstantial, as by the express oral declaration of the mortgagee, or by inference from the relation and conduct of the parties. Bank of Rome v. Haselton, 83 Tenn. 216, 1885 Tenn. LEXIS 45 (1885).

Where a deed of trust conveying a stock of goods or merchandise to secure certain debts is fraudulent in law upon its face, and void as against creditors, as to the stock of goods so conveyed, because of a stipulation for a continuation of the business for the benefit of the debtor, and not the creditors, it is also void as to the real estate conveyed by the same conveyance for the same purpose. Bank of Cookville v. Brier, 95 Tenn. 331, 32 S.W. 205, 1895 Tenn. LEXIS 94 (1895).

The reservation of the right of possession and the power of sale in the grantor, so as to render the deed of trust on a stock of goods or merchandise fraudulent in law, and void as against creditors, will not be implied from provisions for a public sale by the trustee for failure to pay the debts within six months, and for the inclusion of any other goods thereafter purchased and added to the stock by the grantor, where there is no provision that the trustee shall defer to take possession until after default, and his power to make private sales before that time is not negatived. Reeves v. John, 95 Tenn. 434, 32 S.W. 312, 1895 Tenn. LEXIS 112 (1895).

Where the pledgor of lumber remained in the actual possession of the lumberyard, in which the lumber was stored, and carried on the business of a dealer, bought and sold at will, with outward show of ownership, and was enabled to incur additional debt for that reason, neither the lease of the yard to the pledgee nor contracts pledging the lumber having been registered, the pledge was fraudulent and void as against other creditors. Williams v. First Nat'l Bank, 150 Tenn. 15, 261 S.W. 973, 1923 Tenn. LEXIS 59 (1923).

52. — —Time of Foreclosure Considered with Value of Property Conveyed to Creditor.

See also notes under heading 87.

A deed of trust including all the debtor's property, double or greatly exceeding in value the debt secured, with time of indulgence three years, with no annual payments stipulated for, and the possession and use of the property for that time expressly reserved to the debtor, and put beyond the control of the trustee, with power of sale reserved to the debtor to sell on credit for three years, with no other restriction but that he should pay the proceeds to the trustee, is at least fraudulent in law. Mitchell v. Beal, 16 Tenn. 134, 1835 Tenn. LEXIS 59 (1835); Young v. Hail, 74 Tenn. 175, 1880 Tenn. LEXIS 226 (1880); Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882).

Inclusion in the conveyance of considerably more property in value than the amount of the creditor's claim is not a decisive circumstance in the creation of constructive fraud, if the time of indulgence in the conveyance is usual and reasonable. Bennett v. Union Bank, 24 Tenn. 612, 1845 Tenn. LEXIS 146 (1845); Roane v. Bank of Nashville, 38 Tenn. 526, 1858 Tenn. LEXIS 218 (Tenn. Dec. 1858); Stewart v. Cockrell, 70 Tenn. 369, 1879 Tenn. LEXIS 183 (1879). See Mitchell v. Beal, 16 Tenn. 134, 1835 Tenn. LEXIS 59 (1835).

If all the debtor's property, or a greater portion of it, be included in the conveyance, and if its value be greatly or considerably beyond the amount of the debt to be secured, the period of indulgence to the debtor becomes material; and if the indulgence is for an unreasonable time, the conveyance is fraudulent as against other creditors; but if the deed includes property of insufficient or only sufficient value to secure the debt, time ceases to be decisive, and would not of itself render the conveyance fraudulent. Bennett v. Union Bank, 24 Tenn. 612, 1845 Tenn. LEXIS 146 (1845); McCasland v. Carson, 38 Tenn. 117, 1858 Tenn. LEXIS 134 (Tenn. Sep. 1858); Roane v. Bank of Nashville, 38 Tenn. 526, 1858 Tenn. LEXIS 218 (Tenn. Dec. 1858); Stewart v. Cockrell, 70 Tenn. 369, 1879 Tenn. LEXIS 183 (1879); Young v. Hail, 74 Tenn. 175, 1880 Tenn. LEXIS 226 (1880); Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882); Reed Fertilizer Co. v. Thomas, 97 Tenn. 478, 37 S.W. 220, 1896 Tenn. LEXIS 169 (1896).

Where both the excess in value of the property over the debt is considerable, and the time of indulgence is long, the evidence of a fraudulent purpose on the face of the instrument becomes greater, and that evidence becomes more and more pregnant in proportion as the excess in value increases and the time of indulgence is prolonged. Bennett v. Union Bank, 24 Tenn. 612, 1845 Tenn. LEXIS 146 (1845); Doyle v. Smith, 41 Tenn. 15, 1860 Tenn. LEXIS 4 (1860); Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882).

The extension of credit or the time of closing the trust for five years cannot affect other creditors injuriously, and does not vitiate a deed of trust, where it conveys property of no greater value than the debts secured. Roane v. Bank of Nashville, 38 Tenn. 526, 1858 Tenn. LEXIS 218 (Tenn. Dec. 1858).

Excess of property, where not too excessive, and extension of time for five years, will not render a deed of trust fraudulent as against creditors not provided for; especially where the excess of property is covered by a subsequent deed of trust for other creditors before the contesting creditors filed their bills. Roane v. Bank of Nashville, 38 Tenn. 526, 1858 Tenn. LEXIS 218 (Tenn. Dec. 1858).

A stipulation for indulgence of two years before closing the trust is not unreasonable, where the value of the property embraced is not disproportionate to the debts secured, and such deed is not fraudulent in law on its face. Masson v. Tarver, 62 Tenn. 290, 1873 Tenn. LEXIS 189 (1873). See also Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882); Reed Fertilizer Co. v. Thomas, 97 Tenn. 478, 37 S.W. 220, 1896 Tenn. LEXIS 169 (1896).

Where in a general assignment for the benefit of creditors, conveying all of the grantor's property subject to execution, a stipulation for a delay of nearly four years and six months is made, such deed hinders and delays creditors, and is fraudulent in law, and cannot be sustained. Young v. Hail, 74 Tenn. 175, 1880 Tenn. LEXIS 226 (1880).

A deed of trust conveying land, which is all the property of the grantor that may be subjected to his debts, to secure debts of less than one-third its value, and stipulating for a delay of two and one half years before closing the trust, necessarily hinders and delays the unsecured creditors unreasonably, and is fraudulent in law. Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882).

53. — —Right to Extend Time of Indulgence.

A deed of trust in which indulgence is given to the debtor for one year, with liberty to extend the time, from year to year, for four years longer, by paying the debt in five yearly installments, and foreclosure to be made in default of payment of any installment, is not necessarily fraudulent. Bennett v. Union Bank, 24 Tenn. 612, 1845 Tenn. LEXIS 146 (1845); McCasland v. Carson, 38 Tenn. 117, 1858 Tenn. LEXIS 134 (Tenn. Sep. 1858); Roane v. Bank of Nashville, 38 Tenn. 526, 1858 Tenn. LEXIS 218 (Tenn. Dec. 1858); Stewart v. Cockrell, 70 Tenn. 369, 1879 Tenn. LEXIS 183 (1879).

Extension of time for five years, where the excess of property is not too great, will not render a deed of trust fraudulent as against creditors not provided for; especially where the excess of property is covered by subsequent deed of trust for other creditors made before the contesting creditors filed their bills. Roane v. Bank of Nashville, 38 Tenn. 526, 1858 Tenn. LEXIS 218 (Tenn. Dec. 1858).

54. —Exempt Property.

55. — —Disposition.

A disposition of property which creditors cannot subject to the payment of their debts, whatever may be the intent, is not fraudulent and void. Planters' Bank v. Henderson, 23 Tenn. 75, 1843 Tenn. LEXIS 21 (1843); Fitzgerald v. Vestal, 36 Tenn. 258, 1856 Tenn. LEXIS 92 (1856); Leslie v. Joyner, 39 Tenn. 514, 1859 Tenn. LEXIS 264 (Tenn. Apr. 1859); Farquharson v. McDonald, 49 Tenn. 404, 1871 Tenn. LEXIS 24 (1871); McCord v. Moore, 52 Tenn. 734, 1871 Tenn. LEXIS 304 (1871); Wagner v. Smith, 81 Tenn. 560, 1884 Tenn. LEXIS 71 (1884); Harvey v. Harrison, 89 Tenn. 470, 14 S.W. 1083, 1890 Tenn. LEXIS 73 (1891); Maples v. Rawlins, 105 Tenn. 457, 58 S.W. 644, 1900 Tenn. LEXIS 92, 80 Am. St. Rep. 903 (1900).

The gift of exempt personalty to take effect at the donor's death, when the exemption ceases to exist, the sole object of which is to defraud the donor's creditors, may be set aside at the suit of the administrator of the deceased donor for the benefit of creditors. Martin v. Crosby, 79 Tenn. 198, 1883 Tenn. LEXIS 41 (1883).

56. — —Converting Property or Funds into Exempt Property.

A debtor cannot convert property which is subject to execution into a homestead and hold same as exempt from his debts to which the converted property was subject; however, it seems if he should buy a homestead with money which he has on hand, that he might hold same as against his creditors. Hollins, Burton & Co. v. Webb, 2 Shan. 581 (1877).

Debtor's prebankruptcy purchase of a single premium insurance policy and transfer to family members of a remainder interest in real property were avoidable by Chapter 7 trustee. Gigandet v. Covington, 171 B.R. 294, 1994 Bankr. LEXIS 1296 (Bankr. M.D. Tenn. 1994).

Trustee had not established that debtor's decision to take an annuity and to establish an IRA shortly before debtor filed for bankruptcy was a fraudulent conveyance that needed to be set aside because debtor indicated that she made the transfers to provide some protection for her children; reviewing the evidence against the badges of fraud supported the conclusion that no fraudulent conveyance occurred. In re Blackburn, — B.R. —, 2007 Bankr. LEXIS 4640 (Bankr. M.D. Tenn. May 1, 2007).

57. — —Valid Reservation of Exempt Property in Conveyance to Secure Debts.

Where the property conveyed and that reserved as exempt is not separated, there should be such a description of each in the deed that anyone can separate the same from the description given, or the separation should be made in fact immediately after the execution of the deed, and before any execution or attachment is levied on the same. Sugg v. Tillman, 32 Tenn. 208, 1852 Tenn. LEXIS 52 (1852); Farquharson v. McDonald, 49 Tenn. 404, 1871 Tenn. LEXIS 24 (1871); Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871); McCord v. Moore, 52 Tenn. 734, 1871 Tenn. LEXIS 304 (1871).

If the exempt property reserved, whether consumable in its use or not, is so described as to be distinguishable from the property of like character not exempt, no inference of fraud will arise. Farquharson v. McDonald, 49 Tenn. 404, 1871 Tenn. LEXIS 24 (1871).

In the absence of fraud, the exception or reservation of the exempt property, without separation from the other property, does not affect the validity of the deed for fraud. Farquharson v. McDonald, 49 Tenn. 404, 1871 Tenn. LEXIS 24 (1871).

The grantor's reservation or exception of his property exempt from execution from the operation of his conveyance of property to secure the payment of debts does not render the deed fraudulent in law. Farquharson v. McDonald, 49 Tenn. 404, 1871 Tenn. LEXIS 24 (1871); McCord v. Moore, 52 Tenn. 734, 1871 Tenn. LEXIS 304 (1871). See Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871).

A conveyance of land, subject to the grantor's homestead exemption allowed by law, to secure the payment of debts, is not fraudulent on its face. Carter Bros. & Co. v. Hicks, 70 Tenn. 511, 1879 Tenn. LEXIS 189 (1879); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880).

58. — —Fraudulent Reservation of Exempt Property in Conveyance to Secure Debts.

A deed of trust conveying all the debtor's property with the reservation of the exemptions allowed by law, without further description of them, and without separation in fact from the property conveyed, is fraudulent. Sugg v. Tillman, 32 Tenn. 208, 1852 Tenn. LEXIS 52 (1852); Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871); Thurman v. Jenkins, 61 Tenn. 426, 1873 Tenn. LEXIS 199 (1873); Williamson v. Steele, 71 Tenn. 527, 1879 Tenn. LEXIS 111, 31 Am. Rep. 652 (1879); Puckett v. Richardson, 74 Tenn. 49, 1880 Tenn. LEXIS 210 (1880).

Where the object of the grantor in a deed of trust is to use the exemption laws as a mask for protecting his property subject to execution, by so mingling the exempt and nonexempt property as to hinder and embarrass his creditors, the deed is fraudulent. Sugg v. Tillman, 32 Tenn. 208, 1852 Tenn. LEXIS 52 (1852).

59. —Revesting Property in Vendor.

Where the fraudulent vendee relinquishes all claim to the property, and declares that it belongs to the vendor and not to him, there is nothing to resist vendor's claim as the rightful owner; and certainly a stranger to that contract, who may have possessed himself of the property, cannot resist the owner's title, on the ground that such property had once been the subject of a fraudulent contract. Walker v. McConnico, 18 Tenn. 228, 1836 Tenn. LEXIS 126 (1836); Sharp v. Caldwell, 26 Tenn. 415, 1846 Tenn. LEXIS 146 (1846); Trafford v. Austin, 3 Cooper's Tenn. Ch. 492 (1877).

To obliterate the effect of the fraud in a sale or conveyance made to defeat creditors, and to revest the fraudulently conveyed property in the original owner, it must be actually surrendered and reconveyed; and a promise or expressed willingness to surrender the property is not sufficient. Battle v. Street, 85 Tenn. 282, 2 S.W. 384, 1886 Tenn. LEXIS 43 (1886).

60. —New Conveyance After Fraudulent Conveyance — Effect.

A conveyance, without consideration, and tainted with fraud, cannot be purified by the payment of an honest consideration, accompanied by a new conveyance, nor is such conveyance capable of confirmation to the prejudice of creditors, though the vendor is bound by it. Jones v. Read, 20 Tenn. 335, 1839 Tenn. LEXIS 58 (1839); Jacobi v. Schloss, 47 Tenn. 385, 1870 Tenn. LEXIS 159 (1870).

61. —Evidence.

Evidence of transaction with family members held sufficient to constitute fraud. Weaver v. Nelms, 750 S.W.2d 158, 1987 Tenn. App. LEXIS 3118 (Tenn. Ct. App. 1987).

62. Rights and Liabilities of Grantee, Vendee or Purchaser.

A bona fide purchaser under a trust deed gets a good title to the property so purchased, whether the deed was fraudulent or not. Richards v. Ewing, 30 Tenn. 327, 1850 Tenn. LEXIS 126 (1850).

63. —Nonfraudulent Transferee of Fraudulent Debtor.

A sale and conveyance for a fair price by a debtor, though intentionally fraudulent upon his part, is not void as against his creditors, where the vendee and conveyee did not participate in the selling debtor's fraud. Peck v. Carmichael, 17 Tenn. 325, 1836 Tenn. LEXIS 55 (1836); Wiley v. Lashlee, 27 Tenn. 717, 1848 Tenn. LEXIS 30 (1848); C. H. Mills & Co. v. Haines, 40 Tenn. 332, 1859 Tenn. LEXIS 91 (1859); Keith v. Proctor, 67 Tenn. 189, 1874 Tenn. LEXIS 352 (1874). See Trotter v. Watson, 25 Tenn. 509, 1846 Tenn. LEXIS 31 (1846); Gage v. Epperson, 39 Tenn. 669, 1859 Tenn. LEXIS 298 (Tenn. Apr. 1859); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Jones v. Cullen, 100 Tenn. 1, 42 S.W. 873, 1897 Tenn. LEXIS 86 (1897).

In a contest between the general unsecured creditors and the creditors secured in a deed of trust, fraud on the part of the maker, or of the maker and trustee combined, will not deprive the beneficiaries of the security or preference provided for them in the conveyance, unless they have participated in the fraud. Trotter v. Watson, 25 Tenn. 509, 1846 Tenn. LEXIS 31 (1846); C. H. Mills & Co. v. Haines, 40 Tenn. 332, 1859 Tenn. LEXIS 91 (1859); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); A. & J. Troustine & Co. v. Lask, 63 Tenn. 162, 1874 Tenn. LEXIS 222 (1874); Keith v. Proctor, 67 Tenn. 189, 1874 Tenn. LEXIS 352 (1874); Jones v. Cullen, 100 Tenn. 1, 42 S.W. 873, 1897 Tenn. LEXIS 86 (1897).

No fraud can be attributed to a creditor for purchasing goods from his embarrassed debtor; and he is not liable to the debtor's other creditors, on the ground of participating in the debtor's fraud by aiding him where, with a knowledge that the debtor was much embarrassed, and probably was contemplating a fraudulent disposition of his property, but without intending to aid him in consummating his fraudulent purpose, or to hinder and defeat his creditors, he bought a stock of goods from the debtor, especially where the money thus paid by the purchasing creditor was used by the selling debtor in paying some of his other creditors. A. & J. Troustine & Co. v. Lask, 63 Tenn. 162, 1874 Tenn. LEXIS 222 (1874).

Where a debtor's deed conveyed land to his creditor, with the intent in fact, but not expressed in the deed, to secure a debt due from the grantor to the grantee, and recited a false consideration, not originally or primarily participated in by the grantee, and unknown to him until the deed was afterwards sent to him, the legal title to the land thus vested in him may be retained, as against the grantor and his other creditors, to secure the payment of his debt against the grantor. Keith v. Proctor, 67 Tenn. 189, 1874 Tenn. LEXIS 352 (1874).

A deed of trust to secure a debt for trust funds embezzled or appropriated by fraudulent breach of trust is not rendered fraudulent as against the other creditors of the maker, upon the ground that he executed it in the hope and expectation that he would thereby avoid a prosecution where the secured creditor did nothing to excite such hope, and the deed was made and accepted by him without any knowledge of the existence of such hope and expectation on the part of the maker, or without any agreement, express or implied, to forbear or suppress the prosecution. Jones v. Cullen, 100 Tenn. 1, 42 S.W. 873, 1897 Tenn. LEXIS 86 (1897).

Where the husband fraudulently transferred to his wife certificates of stock in a corporation, but she did not participate in the fraud, and, in consideration for such transfer, she joined with her husband in the assignment of a life policy on her husband in which she was the sole and irrevocable beneficiary, and the notes, after the husband's death, were satisfied with the proceeds of the policy, the wife was entitled to credit for such payments in a suit to compel her to account for the value of such certificates of stock. Elledge v. Sumpter, 140 Tenn. 11, 203 S.W. 346, 1917 Tenn. LEXIS 141 (1918).

When personal property pledged to secure the payment of a valid debt is fraudulently transferred by the owner, his creditors are not, upon setting aside the transfer, entitled to recover from the nonfraudulent transferee the full value of the pledged property, but only its value after deducting the amount secured by the pledge. Elledge v. Sumpter, 140 Tenn. 11, 203 S.W. 346, 1917 Tenn. LEXIS 141 (1918).

Where a nonfraudulent transferee pays unsecured creditors of the transferor, after notice that the transfer was a fraud on such creditors, he is entitled to be subrogated to the rights of such creditors on a pro rata basis. Elledge v. Sumpter, 140 Tenn. 11, 203 S.W. 346, 1917 Tenn. LEXIS 141 (1918).

64. —Purchaser from Fraudulent Grantor and Grantee.

Where A conveyed land to B to avoid his debts, and afterwards sold the same to C, informing him of the fact, and agreeing to procure a deed from B, who accordingly executed a deed, but made a mistake in giving the boundaries, so as to leave out of the conveyance half of the lot or more, including the buildings thereon, which gave the land its chief value; and afterwards A conveyed the part so omitted from the deed to D, and D conveyed to E; whereupon C filed his bill for the correction of the mistake and the reformation of the deed, it was held that he was entitled to the relief sought, or at least that D and E could interpose no valid objection to such relief. Parish v. Scott, 57 Tenn. 438, 1873 Tenn. LEXIS 232 (1873).

65. —Purchasers from Fraudulent Grantee or Vendee.

An innocent purchaser, for a valuable consideration, without notice, from the fraudulent vendee of personalty, will be protected against the creditors of the fraudulent vendor. Williams v. Lowe, 23 Tenn. 62, 1843 Tenn. LEXIS 16 (1843); Simpson v. Simpson, 26 Tenn. 275, 1846 Tenn. LEXIS 124 (1846), questioned, Daly v. Sumpter Drug Co., 127 Tenn. 412, 155 S.W. 167, 1912 Tenn. LEXIS 39 (1912); Lazell v. Powell, 1 Shan. 132 (1859).

Where one who acquired property by fraud sells the same to an innocent purchaser, without knowledge or notice of the fraud, for a full consideration, the title of such bona fide purchaser cannot be defeated. Arendale v. Samuel D. Morgan & Co., 37 Tenn. 703, 1857 Tenn. LEXIS 124 (1857); Goff v. Gott, 37 Tenn. 562, 1858 Tenn. LEXIS 62 (1858); Gage v. Epperson, 39 Tenn. 669, 1859 Tenn. LEXIS 298 (Tenn. Apr. 1859); Parham v. Riley, 44 Tenn. 5, 1867 Tenn. LEXIS 5 (1867); Hawkins v. Davis, 64 Tenn. 698, 1875 Tenn. LEXIS 163 (1875); Biggs v. Johnson, 1 Shan. 622 (Tenn. 1876); Atlanta Guano Co. v. Hunt, 100 Tenn. 89, 42 S.W. 482, 1897 Tenn. LEXIS 92 (1897); National Bank of Commerce v. Chatfield, Woods & Co., 118 Tenn. 481, 101 S.W. 765, 1907 Tenn. LEXIS 58, 10 L.R.A. (n.s.) 801 (1907).

The purchaser of goods, with notice that his vendor had procured them by fraud, or under circumstances failing to show himself to be a bona fide purchaser, for a valuable consideration paid for them, is liable therefor to the original owner, upon the ground that his reception of the goods to his own use operated in law as a conversion. Arendale v. Samuel D. Morgan & Co., 37 Tenn. 703, 1857 Tenn. LEXIS 124 (1857); Gage v. Epperson, 39 Tenn. 669, 1859 Tenn. LEXIS 298 (Tenn. Apr. 1859); Dillard & C. Co. v. Smith, 105 Tenn. 372, 59 S.W. 1010, 1900 Tenn. LEXIS 81 (1900).

Purchaser with notice from one procuring realty by fraud is liable to the original owner as for a conversion. Anderson v. Ammonett, 77 Tenn. 1, 1882 Tenn. LEXIS 7 (1882); Williamson v. Williams, 79 Tenn. 355, 1883 Tenn. LEXIS 74 (1883).

The burden rests upon a second purchaser to show that he is an innocent purchaser. National Bank of Commerce v. Chatfield, Woods & Co., 118 Tenn. 481, 101 S.W. 765, 1907 Tenn. LEXIS 58, 10 L.R.A. (n.s.) 801 (1907).

66. —Voluntary Conveyance to Defraud — Effect Against Subsequent Purchasers.

The statute may operate in favor of a person having a legal title, so as to enable him to avoid a prior conveyance, in a court of law, on the ground of fraud, as the statute makes such prior conveyance absolutely void; but the operation of the statute can never create a legal conveyance. Stinson's Lessee v. Russell, 2 Tenn. 40, 1809 Tenn. LEXIS 3 (1809); Hopkins v. Webb, 28 Tenn. 519, 1848 Tenn. LEXIS 115 (1848).

A subsequent purchaser seeking to set aside the previous voluntary deed as fraudulent must be a bona fide purchaser for a good or valuable consideration. Cains v. Jones, 13 Tenn. 249, 1833 Tenn. LEXIS 155 (1833).

The heirs of the fraudulent grantee of land, who never took possession, cannot recover the land from a subsequent purchaser, without actual notice of the first deed from the fraudulent grantor in possession, although the prior deed had been registered, and was fraudulent only as to creditors. Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896).

67. —Fraudulent Grantee — Rights Against Third Persons.

In all sales and purchases of personalty made with actual intent to defraud, indemnity or reimbursement is not the policy of the law but the rule does not apply where there was merely fraud in law. Lazell v. Powell, 1 Shan. 132 (1859).

A purchaser of a stock of goods for an inadequate consideration paid, with the knowledge that the seller is largely indebted and in failing circumstances, and that his creditors are about to attach his property, is guilty of aiding the seller in perpetrating a fraud on his creditors, and acquires no title as against the seller's creditors. Carny, Howe & Co. v. Palmer, 42 Tenn. 35, 1865 Tenn. LEXIS 9 (1865).

The fraudulent grantee cannot, in chancery, recover the land from a third person who has possession of it; and, in such case, the defendant may allege the fraud in defense, and, by an answer filed as a crossbill, have a discovery, from the complaint in the original bill, of the facts constituting fraud. Swan v. Castleman, 63 Tenn. 257, 1874 Tenn. LEXIS 240 (1874); Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896).

68. —Fraudulent Grantee or Subgrantee — Personal Liability.

Where the fraudulent vendee of personalty has so concealed, sold, or disposed of the property that it cannot be reached or identified, the creditors of the fraudulent vendor may, in equity, recover the proceeds or value thereof as against the fraudulent vendee. Lazell v. Powell, 1 Shan. 132 (1859); Chalfant, Cox & Co. v. Grant, 71 Tenn. 118, 1879 Tenn. LEXIS 44 (1879); Williamson v. Williams, 79 Tenn. 355, 1883 Tenn. LEXIS 74 (1883); Solinsky v. Lincoln Sav. Bank, 85 Tenn. 368, 4 S.W. 836, 1886 Tenn. LEXIS 58 (1887); German Bank v. Haller, 101 Tenn. 83, 52 S.W. 807, 1898 Tenn. LEXIS 33 (1898); Dillard & C. Co. v. Smith, 105 Tenn. 372, 59 S.W. 1010, 1900 Tenn. LEXIS 81 (1900).

A creditor of a fraudulent donor or grantor may sue the fraudulent donee or grantee and recover the value or proceeds of the property fraudulently given or granted to the extent of his debt. German Bank v. Haller, 101 Tenn. 83, 52 S.W. 807, 1898 Tenn. LEXIS 33 (1898); Dillard & C. Co. v. Smith, 105 Tenn. 372, 59 S.W. 1010, 1900 Tenn. LEXIS 81 (1900).

A fraudulent grantee and a purchaser from him with notice may both be held personally liable, at the same time and concurrently, to a creditor of the fraudulent grantor to the extent of his debt, though there can be but one satisfaction. Dillard & C. Co. v. Smith, 105 Tenn. 372, 59 S.W. 1010, 1900 Tenn. LEXIS 81 (1900).

69. —Restitution Note of Grantee — Liability Thereon.

If property was conveyed to the defendant to prevent the grantor's creditors from reaching it, the defendant could not escape liability on a note executed by him to the grantor by way of turning back to the grantor part of the proceeds of the lands, though a purchaser of the note knew of the fraudulent transaction, as the note was not in furtherance of the fraud, but in disaffirmance. Peoples Bank v. True, 144 Tenn. 171, 231 S.W. 541, 1920 Tenn. LEXIS 69 (1921).

70. Creditors' Rights.

71. —Who Are Creditors.

72. — —Litigants as Creditors.

One who has been slandered, and is prosecuting a suit therefor, is a creditor. Farnsworth v. Bell, 37 Tenn. 531, 1858 Tenn. LEXIS 56 (1858).

A creditor is a person who has a just demand or right, recognized by law, to recover for any demand in the nature of a debt, or for an injury to his person or property, in a pending or even expected and contemplated suit; and a plaintiff in a pending action for slander is also a creditor in the sense of this statute. Farnsworth v. Bell, 37 Tenn. 531, 1858 Tenn. LEXIS 56 (1858); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Parker v. Savage, 74 Tenn. 406, 1880 Tenn. LEXIS 267 (1880); Bryan v. Norfolk & W. R. Co., 119 Tenn. 349, 104 S.W. 523, 1907 Tenn. LEXIS 10 (1907).

One entitled to a right of action for damages for a tort is not a creditor, in the sense of this statute, before the institution of suit therefor. Sanders v. Logue, 88 Tenn. 355, 12 S.W. 722, 1889 Tenn. LEXIS 57 (1890); Rosen v. Levy, 120 Tenn. 642, 113 S.W. 1042, 1908 Tenn. LEXIS 49 (1908); Oliphant v. Moore, 155 Tenn. 359, 293 S.W. 541, 1926 Tenn. LEXIS 54 (1926).

A plaintiff in a pending action for tort, brought to recover damages for a tort committed against him, is an existing creditor of the defendant, and the defendant's conveyance of property, fraudulent in fact or in law, or voluntarily made, without the retention of sufficient property to pay his debts, will be set aside, at the instance of such creditor, after the obtainment of his judgment. Rosen v. Levy, 120 Tenn. 642, 113 S.W. 1042, 1908 Tenn. LEXIS 49 (1908).

73. — —Sureties and Accommodation Endorsers.

A surety or accommodation endorser, before his payment of the debt, or loss, or the rendition of a judgment against him, is such a creditor that he may maintain a bill in chancery to set aside fraudulent conveyances made by his principal, and subject the property, or its proceeds, in the hands of anyone who is not a bona fide purchaser, without notice, but the creditor, the principal debtor, and the fraudulent conveyee must all be made parties to the suit. Greene v. Starnes, 48 Tenn. 582, 1870 Tenn. LEXIS 117 (1870); Saylors v. Saylors, 50 Tenn. 525, 1871 Tenn. LEXIS 109 (1871); Miller v. Speed, 56 Tenn. 196, 1872 Tenn. LEXIS 128 (1872); McBee v. Bearden, 75 Tenn. 731, 1881 Tenn. LEXIS 180 (1881); Oneal v. Smith, 78 Tenn. 340, 1882 Tenn. LEXIS 188 (1882); Howell v. Thompson, 95 Tenn. 396, 32 S.W. 309, 1895 Tenn. LEXIS 107 (1895).

74. — —Wives Claiming Alimony.

The claims of the husband's bona fide creditors, or liabilities properly incurred on his behalf, existing prior to the application for divorce, must prevail over the rights of a wife for alimony; and such creditors who assert their rights by suit before her claim for alimony is ripened into a decree, or within proper time thereafter, have rights prior to hers where they are not parties to the divorce suit. McGhee v. McGhee, 34 Tenn. 221, 1854 Tenn. LEXIS 37 (1854); Greene v. Starnes, 48 Tenn. 582, 1870 Tenn. LEXIS 117 (1870); Smith v. Johnson, 49 Tenn. 225, 1870 Tenn. LEXIS 220 (1870); Wilhoit v. Castell, 62 Tenn. 419, 1874 Tenn. LEXIS 72 (1874); Aiken v. Suttle, 72 Tenn. 103, 1879 Tenn. LEXIS 11 (1879); White v. Bates, 89 Tenn. 570, 15 S.W. 651, 1890 Tenn. LEXIS 80 (1891). See Ames v. Norman, 36 Tenn. 683, 1857 Tenn. LEXIS 70 (1857), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

Fraudulent conveyances or assignments made to defeat alimony are void as to the wife of the maker and will not even stand for the purchase money advanced on the same by the grantee, nor for advances he may have made, or responsibilities he may have entered into, on account of them. Brooks v. Caughran, 40 Tenn. 464, 1859 Tenn. LEXIS 131 (1859); Boils v. Boils, 41 Tenn. 284, 1860 Tenn. LEXIS 64 (1860); Nix v. Nix, 57 Tenn. 546, 1873 Tenn. LEXIS 257 (1873); Wilhoit v. Castell, 62 Tenn. 419, 1874 Tenn. LEXIS 72 (1874); Taylor v. Taylor, 6 Tenn. Civ. App. (6 Higgins) 268 (1915).

A wife suing for divorce and alimony to which she is entitled is a creditor; and the husband's conveyance of his land thereafter made to a purchaser with actual notice of her bill will, upon her amended bill, be set aside, and the land subjected to her decree for alimony. Boils v. Boils, 41 Tenn. 284, 1860 Tenn. LEXIS 64 (1860); Taylor v. Taylor, 6 Tenn. Civ. App. (6 Higgins) 268 (1915).

75. —Existing Creditors.

76. — —Voluntary Conveyance in Fraud of Existing Creditors.

Where the grantee under a voluntary conveyance duly registered, with a secret agreement to reconvey to the grantor, obtains credit on the faith of his apparent ownership being real, his voluntary reconveyance, in accordance with such agreement, is fraudulent in law, if not in fact, as against his such existing creditors. Susong v. Williams, 48 Tenn. 625, 1870 Tenn. LEXIS 124 (1870); Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879); Trezevant v. Terrell, 96 Tenn. 528, 33 S.W. 109, 1896 Tenn. LEXIS 2 (1896).

Land purchased and paid for by the husband who, for the purpose of defeating his creditors, fraudulently procures the same to be conveyed to his wife, will be subjected to the payment of his debts. Brooks v. Gibson, 3 Shan. 760 (1877); Yost v. Hudiburg, 70 Tenn. 627, 1879 Tenn. LEXIS 208 (1879).

A voluntary registered deed of conveyance by an insolvent husband to his wife, attempting to convey to her his estate in expectancy in his father's estate, is fraudulent in law, whether so intended or not, as against his creditors, whose debts were in existence, both at the date of the deed and at the time the grantor, by descent, became seized of the title to the property sought to be conveyed. Read v. Mosby, 87 Tenn. 759, 11 S.W. 940, 1889 Tenn. LEXIS 25, 5 L.R.A. 122 (1889); Gore v. Howard, 94 Tenn. 577, 30 S.W. 730, 1894 Tenn. LEXIS 71 (1895).

77. — —Voluntary Conveyance Raising Presumption of Fraud.

A voluntary conveyance, made by person who is at the time heavily indebted, and of such a proportion of his property that it must necessarily operate to delay or defeat his existing creditors, is to be presumed fraudulent as to them. Smith v. Greer, 22 Tenn. 118, 1842 Tenn. LEXIS 41 (1842); Burkey v. Self, 36 Tenn. 121, 1856 Tenn. LEXIS 67 (1856); Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870); Ramsey v. Quillen, 73 Tenn. 184, 1880 Tenn. LEXIS 109 (1880); Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880).

A voluntary conveyance made by a husband to his wife and children is not void per se as to his creditors, but it will be presumed to be fraudulent as against his existing creditors, which presumption may be rebutted by showing the reservation or retention of sufficient property or assets to pay all his existing debts. Ricketts v. McCully, 54 Tenn. 712, 1872 Tenn. LEXIS 108 (1872); Perkins v. Perkins, 1 Cooper's Tenn. Ch. 537 (1874); Cheatham v. Hess, 2 Cooper's Tenn. Ch. 763 (1877); Yost v. Hudiburg, 70 Tenn. 627, 1879 Tenn. LEXIS 208 (1879); Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879); Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880); Lippman v. Boals, 84 Tenn. 283, 1886 Tenn. LEXIS 97 (1886); Sanders v. Logue, 88 Tenn. 355, 12 S.W. 722, 1889 Tenn. LEXIS 57 (1890); Trezevant v. Terrell, 96 Tenn. 528, 33 S.W. 109, 1896 Tenn. LEXIS 2 (1896); Crane & Co. v. Hall, 141 Tenn. 556, 213 S.W. 414, 1919 Tenn. LEXIS 10 (1919).

As against existing creditors, a voluntary conveyance or settlement will be presumed to be fraudulent. Nicholas v. Ward, 38 Tenn. 323, 1858 Tenn. LEXIS 181, 73 Am. Dec. 177 (1858); Susong v. Williams, 48 Tenn. 625, 1870 Tenn. LEXIS 124 (1870); Cheatham v. Hess, 2 Cooper's Tenn. Ch. 763 (1877); Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879); Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880); Lippman v. Boals, 84 Tenn. 283, 1886 Tenn. LEXIS 97 (1886); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

A voluntary conveyance was prima facie fraudulent in fact against existing creditors under this section before the passage of the Uniform Fraudulent Conveyance Act. Bowery v. Vines, 178 Tenn. 98, 156 S.W.2d 395, 1941 Tenn. LEXIS 36 (1941).

As to existing creditors, a voluntary transfer is presumed fraudulent and is avoidable unless the debtor proves that his financial condition was such that the transfer did not have the effect of hindering or delaying creditors; a subsequent creditor does not have the benefit of this presumption unless it is relying on the rights of an existing creditor. In re Turner, 78 B.R. 166, 1987 Bankr. LEXIS 1521 (Bankr. E.D. Tenn. 1987).

78. — —Existing Creditor with Subsequent Debt.

A voluntary conveyance made to defraud subsequent creditors, though registered, is void as to such creditors, if they relied on the property, and had no actual knowledge or notice of the conveyance, and had no cause to suspect any fraudulent disposition of the property, or had the positive assurance of the debtor, given shortly before the creation of the subsequent debts, that all his property was in his own name and should so remain during his life, and be subject to his debts, especially where such creditors were existing creditors at the time of such conveyance and resided and did business in another state. Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870); Levering v. Norvell, 68 Tenn. 176, 1877 Tenn. LEXIS 12 (1877).

A voluntary conveyance, made by one heavily indebted at the time, and disposing of such a proportion of his property that it must necessarily operate to delay or defeat his creditors, is fraudulent as to debts subsequently created with existing creditors, though the existing debts are paid, and though the deed is duly registered, where the creditors, residing and doing business in another state, have no actual knowledge or notice of it, and have no cause to suspect any fraudulent disposition of the property, or have the positive assurances of the debtor, given shortly before the creation of the subsequent debts, that all his property was in his own name and should so remain during his life, and be subject to his debts. Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Trezevant v. Terrell, 96 Tenn. 528, 33 S.W. 109, 1896 Tenn. LEXIS 2 (1896).

An existing creditor does not lose his right against a voluntary conveyance for an existing debt by taking notes for it and a subsequently created debt bearing date after the conveyance, for if it is fraudulent as to the existing debt, it is likewise fraudulent as to the subsequent debt. Trezevant v. Terrell, 96 Tenn. 528, 33 S.W. 109, 1896 Tenn. LEXIS 2 (1896).

Existing creditors whose debts were paid off, and who subsequently contracted other debts, are subsequent creditors in a bill to set aside a voluntary conveyance. Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

79. —Subsequent Creditors.

A voluntary conveyance will not be presumed fraudulent as to subsequent creditors, but fraud in fact must be established; and one who gives credit to the grantor of a duly registered voluntary conveyance six months after its registration cannot claim that he relied on the security of the property conveyed. Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

Although subsequent creditors may impeach a voluntary conveyance by showing antecedent debts to afford reasonable evidence of fraudulent intent, the mere existence of debts at the time of such conveyance is insufficient for this purpose, if amply sufficient property was retained to meet the indebtedness. Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

Subsequent creditor had the burden of proving debtor's financial condition or prospects. In re Turner, 78 B.R. 166, 1987 Bankr. LEXIS 1521 (Bankr. E.D. Tenn. 1987).

80. — —Voluntary Conveyance to Defraud.

As to subsequent creditors, fraud in fact must be established in order to set aside a voluntary conveyance or settlement. Nicholas v. Ward, 38 Tenn. 323, 1858 Tenn. LEXIS 181, 73 Am. Dec. 177 (1858); Susong v. Williams, 48 Tenn. 625, 1870 Tenn. LEXIS 124 (1870); Cheatham v. Hess, 2 Cooper's Tenn. Ch. 763 (1877); Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879); Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880); Lippman v. Boals, 84 Tenn. 283, 1886 Tenn. LEXIS 97 (1886); Nelson v. Kinney, 93 Tenn. 428, 25 S.W. 100, 1893 Tenn. LEXIS 70 (1893); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

A voluntary deed, made to defraud a subsequent purchaser for value, is void as against him, with or without registration, and with or without notice. Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896).

Where the complainant knew of a fraudulent conveyance by defendant Long to his codefendant True to defraud Long's creditors, and assisted Long in the transaction, the complainant was not entitled as judgment creditor of Long, to reach funds owing from True to Long under the transaction and to subject those funds to complainant's judgment against Long, especially where complainant's judgment was rendered subsequent to the conveyance, and was founded on notes of Long acquired after such fraudulent conveyance. Long v. True, 149 Tenn. 673, 261 S.W. 669, 1923 Tenn. LEXIS 124 (1923).

If, upon the eve of an indebtedness about to be increased, and with a view thereto, and without the knowledge of the creditor, the debtor makes a voluntary conveyance of property, upon which he knows his contemplated creditor relies or has a right to rely, this is an actual fraud, producing the same results both upon existing and subsequent creditors; and such conveyance is not relieved from its fraudulent character from the fact that it has been registered, if the creditor has no actual notice, and the conveyance, without his negligence, operates as a surprise upon him. Hartnett v. Doyle, 16 Tenn. App. 302, 64 S.W.2d 227, 1932 Tenn. App. LEXIS 6 (1932).

81. — —Voluntary Conveyance Fraudulent as to Existing Creditors.

If a voluntary conveyance is fraudulent in fact as to existing creditors, it will, in general, be held void as to subsequent creditors; but if the deed was made under circumstances which repel any presumption of fraudulent intention, the subsequent creditors must establish the fraud in fact. Young v. Pate, 12 Tenn. 164, 1833 Tenn. LEXIS 35 (1833); Nicholas v. Ward, 38 Tenn. 323, 1858 Tenn. LEXIS 181, 73 Am. Dec. 177 (1858); Spence v. Dunlap, 74 Tenn. 457, 1880 Tenn. LEXIS 273 (1880); Trezevant v. Terrell, 96 Tenn. 528, 33 S.W. 109, 1896 Tenn. LEXIS 2 (1896); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

Although the maker may not have been indebted at the time of making the voluntary gift or conveyance, if it was made with any design of fraud or collusion, or injury to other persons in the future, it would be void; and it is likewise true that, if the conveyance is made intentionally to defraud existing creditors, it will, in general, be held void as to subsequent creditors. Nicholas v. Ward, 38 Tenn. 323, 1858 Tenn. LEXIS 181, 73 Am. Dec. 177 (1858).

The question whether a voluntary conveyance made by a husband to his wife can be set aside at the suit of subsequent creditors, upon the ground that the husband was, at the time of the conveyance, in debt to existing creditors who remained unpaid, was reserved. Nelson v. Kinney, 93 Tenn. 428, 25 S.W. 100, 1893 Tenn. LEXIS 70 (1893).

A subsequent purchaser, without actual notice of a prior registered voluntary deed made with intent to defraud existing creditors, is not protected as an innocent purchaser, and cannot, even as against the volunteer, obtain affirmative relief setting aside such conveyance. Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896).

A voluntary conveyance is valid as to a subsequent creditor who had actual or constructive notice of the conveyance when the debt was contracted, and no actual fraud was practiced upon him, although existing creditors remain unpaid, and the conveyance is fraudulent as to them. Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

82. — —Voluntary Conveyance Without Fraud.

A duly registered voluntary conveyance, made by a person not indebted at the time, in favor of his wife, children, relative, or even a stranger, cannot be impeached by subsequent creditors or purchasers upon the mere ground of its being voluntary, unless the intent to defraud them affirmatively appears. Hester v. Wilkinson, 25 Tenn. 215, 1845 Tenn. LEXIS 64, 44 Am. Dec. 303 (1845); Martin v. Olliver, 28 Tenn. 561, 1848 Tenn. LEXIS 123 (1848); Nicholas v. Ward, 38 Tenn. 323, 1858 Tenn. LEXIS 181, 73 Am. Dec. 177 (1858); Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Ricketts v. McCully, 54 Tenn. 712, 1872 Tenn. LEXIS 108 (1872); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897); Rosen v. Levy, 120 Tenn. 642, 113 S.W. 1042, 1908 Tenn. LEXIS 49 (1908).

A duly registered voluntary conveyance cannot be impeached by subsequent creditors, when not fraudulent as to existing creditors, and not made with a view to defraud subsequent creditors; for, in such case, registration is constructive notice affecting subsequent creditors. Martin v. Olliver, 28 Tenn. 561, 1848 Tenn. LEXIS 123 (1848); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); White v. Bettis, 56 Tenn. 645, 1872 Tenn. LEXIS 184 (1872); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

A voluntary conveyance, duly registered before the creation of the debt, in the absence of clear and satisfactory proof, aliunde, of an actual intent to defraud subsequent creditors, is not fraudulent or void as to subsequent creditors who had not previously extended credit to the debtor, whether they had actual notice or not of the conveyance. Martin v. Olliver, 28 Tenn. 561, 1848 Tenn. LEXIS 123 (1848); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); White v. Bettis, 56 Tenn. 645, 1872 Tenn. LEXIS 184 (1872); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

Subsequent creditors are conclusively presumed to have had notice of a registered voluntary conveyance, where the credit was not given upon the faith of the property conveyed. White v. Bettis, 56 Tenn. 645, 1872 Tenn. LEXIS 184 (1872); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

A duly registered voluntary conveyance is valid as to a subsequent creditor who had notice, actual or constructive, of the conveyance at the time the debt was contracted, and no actual fraud was practiced on him, although existing creditors remain unpaid, and the conveyance is fraudulent as to them. Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

83. — —Unregistered Deeds.

An unregistered voluntary conveyance will be held to be fraudulent as against a subsequent purchaser, without actual notice of it. Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871).

84. —Creditor Without Judgment.

A creditor, without first obtaining a judgment, may maintain a bill in chancery to set aside the debtor's fraudulent conveyances of property of any description — real, personal, or mixed and legal or equitable — and obtain satisfaction of his debt out of the property so fraudulently conveyed. Hervey & New v. Champion, 30 Tenn. 569, 1851 Tenn. LEXIS 106 (1851); Fay v. Jones, 38 Tenn. 442, 1858 Tenn. LEXIS 209 (1858); Wilson v. Beadle, 39 Tenn. 510, 1859 Tenn. LEXIS 263 (1859); Armstrong v. Croft, 71 Tenn. 191, 1879 Tenn. LEXIS 56 (1879); McBee v. Bearden, 75 Tenn. 731, 1881 Tenn. LEXIS 180 (1881); Battle v. Street, 85 Tenn. 282, 2 S.W. 384, 1886 Tenn. LEXIS 43 (1886); Howell v. Thompson, 95 Tenn. 396, 32 S.W. 309, 1895 Tenn. LEXIS 107 (1895); Citizens' Nat'l Bank v. Watkins, 126 Tenn. 453, 150 S.W. 96, 1912 Tenn. LEXIS 71 (1912).

85. —Property to Which Creditor May Resort.

The general rule is that the property must be of a kind to which a creditor may resort for satisfaction. Wagner v. Smith, 81 Tenn. 560, 1884 Tenn. LEXIS 71 (1884).

86. —Conveyances to Secure Certain Creditors Reserving Benefits to Maker — Effect Against Other Creditors.

A conveyance to secure certain creditors, which secures, whether expressly or secretly, any benefit or advantage to the debtor making it, is fraudulent in law as against the other unsecured creditors. Darwin v. Handley, 11 Tenn. 502, 1832 Tenn. LEXIS 104 (1832); Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833).

Where a deed of trust undertakes to secure debts largely in excess of the value of the property conveyed, and covers up none of the debtor's other property, if he has any, but leaving that subject to his other debts, his other creditors have no right to complain because of the fact that some benefit or advantage is given to the grantor in the use of the property and in the delay of time in closing the trust. Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833).

A stipulation in a deed of trust that the grantor shall be employed as salesman by the trustee, and that he shall be allowed compensation out of the trust fund, does not of itself vitiate the deed. Saunders v. Turbeville, 21 Tenn. 272, 1840 Tenn. LEXIS 73 (1840); Lockhard v. Brodie, 1 Tenn. Ch. 384 (1873).

The stipulation that any surplus remaining after paying the debts specified shall be paid to the grantor, or his order, does not raise a presumption of fraud. Austin v. Johnson, 26 Tenn. 191, 1846 Tenn. LEXIS 101 (1846); Jones v. Hamlet, 34 Tenn. 256, 1854 Tenn. LEXIS 45 (1854).

87. —Trust Deeds Regulating Creditors' Rights.

A condition excluding suing creditors, or a provision for preferences in a deed of trust executed under a power of attorney not authorizing the same, is void, and is not a part of the deed; and, therefore, such a provision does not render the deed fraudulent. Gimell, Simicker, Storms & Co. v. Adams, 30 Tenn. 283, 1850 Tenn. LEXIS 113 (1850).

A condition in a deed of trust excluding from benefits all secured creditors who shall bring suit for their debts, or prohibiting their suing under penalty of forfeiture of all interest under the deed, rendered the deed fraudulent. Wilde v. Rawlings, 38 Tenn. 34, 1858 Tenn. LEXIS 110 (Tenn. Sep. 1858).

A deed of trust conveying property insufficient in value to satisfy the debts, and stipulating that the fund shall be divided pro rata among the creditors, and that all creditors accepting such pro rata shall take in absolute acquittance of their debts, or otherwise receive nothing, and that, if the fund should be more than sufficient to pay the claims of creditors accepting the terms of the deed, the surplus shall be paid to the debtor, and not appropriated for the benefit of the other creditors, is fraudulent in law. Wilde v. Rawlings, 38 Tenn. 34, 1858 Tenn. LEXIS 110 (Tenn. Sep. 1858).

A provision that only those creditors who shall present their claims within a certain specified reasonable time shall share in the benefits of the deed does not render the deed void, especially where the trustee is required to notify the creditors. L. Mayer & Co. v. Pulliam, 39 Tenn. 346, 1859 Tenn. LEXIS 222 (Tenn. Apr. 1859).

88. —Time of Foreclosure — Effect on Validity of Conveyances to Creditor.

See also notes under heading 52.

The fact that a deed of trust contains no limitation as to the time in which the trust shall be closed is not a conclusive circumstance of fraud, but one to be considered as a badge of fraud. Overton v. John H. Holinshade & Co., 52 Tenn. 683, 1871 Tenn. LEXIS 295 (1871); Woodward v. Goodman, 3 Shan. 483 (1875); Morris v. Clark, 62 S.W. 673, 1901 Tenn. Ch. App. LEXIS 62 (Tenn. Ch. App. 1901).

A deed of trust on hotel furniture to secure 60 monthly rent notes for a five year lease of a hotel is not fraudulent, either in law or in fact, where the beneficiary (the lessor) acted in good faith, and without knowledge of the financial embarrassment of the maker. Stewart v. Cockrell, 70 Tenn. 369, 1879 Tenn. LEXIS 183 (1879).

A delay of two years and six months of itself would not ordinarily be regarded as unreasonable. Hartman v. Allen, 77 Tenn. 657, 1882 Tenn. LEXIS 118 (1882); Reed Fertilizer Co. v. Thomas, 97 Tenn. 478, 37 S.W. 220, 1896 Tenn. LEXIS 169 (1896).

89. —Stipulation for Sale on Credit in Conveyance to Creditor — Effect on Validity.

A deed of trust stipulating that, in default of payment, the property should be sold on a credit, would not be fraudulent for that reason. Gimell, Simicker, Storms & Co. v. Adams, 30 Tenn. 283, 1850 Tenn. LEXIS 113 (1850).

The fact that a credit of one, two, and three years is given upon a sale of land by a debtor will not, of itself, render such sale fraudulent in law. McCasland v. Carson, 38 Tenn. 117, 1858 Tenn. LEXIS 134 (Tenn. Sep. 1858).

Where a general assignment postpones the sale of the land for two years, and then provides that it shall be sold for one third cash and the balance on a credit of one and two years, it is fraudulent in law. Farmers' & Traders' Bank v. Martin, 96 Tenn. 1, 33 S.W. 565, 1895 Tenn. LEXIS 1 (1896).

90. —Preference of Creditors.

A debtor may prefer one creditor and pay or secure his debt though others may suffer loss, but he cannot cover a much larger amount of property than will satisfy such debt and postpone its appropriation for an unreasonable time beyond what would be equivalent to the probable law's delay. Mitchell v. Beal, 16 Tenn. 134, 1835 Tenn. LEXIS 59 (1835).

A father becoming insolvent may prefer his daughter as a creditor by conveying to her his property, and such conveyance, made in good faith, is not fraudulent as against his other creditors or the creditors of a firm of which he is a member. Nelson v. Kinney, 93 Tenn. 428, 25 S.W. 100, 1893 Tenn. LEXIS 70 (1893).

The mortgages or deeds of trust of a hopelessly insolvent corporation conveying practically all of its property, for the purpose of winding up its affairs in such manner as to secure preferences to a creditor who was an officer and director, and ceasing to do business with no intention of resuming again, are fraudulent. Smith v. Bradt Printing Co., 97 Tenn. 351, 37 S.W. 10, 1896 Tenn. LEXIS 149 (1896).

91. — —Confessions of Judgment as Preference — Validity.

A debtor may, at any time before a lien has been acquired on his property by a judgment, or by a judgment and levy where the judgment would create no lien, confess judgment in favor of another and surrender his property in satisfaction thereof, so as to defeat the suing creditors. Hefner v. Metcalf, 38 Tenn. 577, 1858 Tenn. LEXIS 230 (Tenn. Dec. 1858).

A confession of judgment by a debtor is fraudulent as against his other creditors, where the debtor and creditor collude together, and, by fraudulent practices, resort to the confessed judgment, with the purpose of defeating the debtor's other creditors, as where a creditor by notes not due procures the debtor to make past due notes in lieu thereof, and to confess judgment thereon, and causes executions to be levied on land as that of the confessed judgment debtor, though previously conveyed by unregistered deed with a vendor's lien retained, all of which was known to such judgment creditor, and done for the purpose of defeating the lien debt held by the assignees of the judgment debtor. Hickerson v. Blanton & Co., 49 Tenn. 160, 1870 Tenn. LEXIS 207 (1870). See also Floyd v. Goodwin, 16 Tenn. 484, 1835 Tenn. LEXIS 112 (1835).

92. Setting Aside Conveyances.

A conveyance of land as part of the consideration for a stock of goods sold and purchased to defeat creditors will be canceled, where the creditors attach and recover the goods or their proceeds, and subject and appropriate the same to the satisfaction of their debts. Lazell v. Powell, 1 Shan. 132 (1859).

A bill to set aside a conveyance of land as being fraudulent as to creditors must describe the property, and mere reference to book and page of register's office where deed is recorded does not suffice. Stacker v. Wilson, 52 S.W. 709, 1899 Tenn. Ch. App. LEXIS 30 (Tenn. Ch. App. 1899).

93. —Duty of Courts as to Discovery of Fraud.

The courts are not required to be laboriously astute and subtle in search of hypotheses by which to discover that that which began honestly might in the end be applied to dishonest uses, so as to avoid a solemn conveyance, for the contrary is the duty of the courts, namely, to let a conveyance stand if it seems fair and honest. Bennett v. Union Bank, 24 Tenn. 612, 1845 Tenn. LEXIS 146 (1845); Stewart v. Cockrell, 70 Tenn. 369, 1879 Tenn. LEXIS 183 (1879).

94. —Right to Impeach Fraudulent Conveyances.

Conveyances and sales voidable at the instance of the creditors are valid between the parties themselves and all persons claiming under them, and will not be set aside by the courts, except at the instance of the creditors of the grantor or vendor. Greenlee v. Hays' Adm'r, 1 Tenn. 300, 1808 Tenn. LEXIS 23 (1808); Walker v. McConnico, 18 Tenn. 228, 1836 Tenn. LEXIS 126 (1836); Byrd v. Curlin, 20 Tenn. 466, 1840 Tenn. LEXIS 2 (1840); Coleman v. Pinkard, 21 Tenn. 185, 1840 Tenn. LEXIS 63 (1840); Wade v. Green, 22 Tenn. 547, 1842 Tenn. LEXIS 143 (1842); Gilliam v. Spence, 25 Tenn. 160, 1845 Tenn. LEXIS 53 (1845); Mulloy v. Young, 29 Tenn. 298, 1859 Tenn. LEXIS 1 (1859); Rowland v. Rowland, 34 Tenn. 543, 1855 Tenn. LEXIS 94 (1855), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981); Hubbs v. Brockwell, 35 Tenn. 574, 1856 Tenn. LEXIS 100 (1856); McCutchen v. Pigue, 51 Tenn. 565, 1871 Tenn. LEXIS 206 (1871); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871); Parish v. Scott, 57 Tenn. 438, 1873 Tenn. LEXIS 232 (1873); Swan v. Castleman, 63 Tenn. 257, 1874 Tenn. LEXIS 240 (1874); Parker v. Freeman, 2 Cooper's Tenn. Ch. 612 (1876); Trafford v. Austin, 3 Cooper's Tenn. Ch. 492 (1877); Nichol v. Davidson County, 3 Cooper's Tenn. Ch. 547 (1877), aff'd, Nichol v. County of Davidson, 76 Tenn. 389, 1881 Tenn. LEXIS 23 (1881); Ramsey v. Quillen, 73 Tenn. 184, 1880 Tenn. LEXIS 109 (1880); Battle v. Street, 85 Tenn. 282, 2 S.W. 384, 1886 Tenn. LEXIS 43 (1886); German Bank v. Haller, 101 Tenn. 83, 52 S.W. 807, 1898 Tenn. LEXIS 33 (1898).

Where a note was without consideration, and was executed to hinder and delay the creditors of the maker, the promise to pay, being executory, cannot be enforced at the suit of the payee, but the enforcement of a deed of trust made to secure such a note cannot be resisted by the maker, because the parties cannot invoke the aid of the courts to undo it. Walker v. McConnico, 18 Tenn. 228, 1836 Tenn. LEXIS 126 (1836); Parks v. McKamy, 40 Tenn. 297, 1859 Tenn. LEXIS 80 (1859); Swan v. Castleman, 63 Tenn. 257, 1874 Tenn. LEXIS 240 (1874); Derrington ex rel. Waterfield v. Ellis, 2 Shan. 643 (1878).

A fraudulent vendor cannot impeach his conveyance for fraud. Moody v. Fry, 22 Tenn. 567, 1842 Tenn. LEXIS 147 (1842); Maley v. Barrett, 34 Tenn. 501, 1855 Tenn. LEXIS 88 (1855).

The fraudulent vendee cannot impeach a conveyance to him for fraud. Maley v. Barrett, 34 Tenn. 501, 1855 Tenn. LEXIS 88 (1855); Searcy v. Carter, 36 Tenn. 271, 1856 Tenn. LEXIS 95 (1856).

Where a husband conveyed land to defeat his wife's dower right, such conveyance is void as to the right protected; however, such conveyance cannot be set aside at the suit of the heirs, upon the death of the vendor, as it is not void as to them, but only as to the widow. Rowland v. Rowland, 34 Tenn. 543, 1855 Tenn. LEXIS 94 (1855), superseded by statute as stated in, Warren v. Compton, 626 S.W.2d 12, 1981 Tenn. App. LEXIS 558 (Tenn. Ct. App. 1981).

None but creditors or those who represent them may impeach a conveyance of their debtor for fraud. Lewis v. Gibson, 1 Shan. 163 (1860).

A conveyance or assignment made in violation of an injunction sued out by the wife is void against her, but it is valid as against the maker, and may be valid as against his other creditors. Wilhoit v. Castell, 62 Tenn. 419, 1874 Tenn. LEXIS 72 (1874).

In administrator's suit, brought after suggestion of insolvency of estate, to set aside his intestate's fraudulent conveyance of lands, and subject them to payment of debts, where indebtedness is denied, the complainant is not entitled to relief unless he shows, by satisfactory evidence, that there are subsisting and unpaid debts against the estate; and if claims had been reduced to judgment, or allowed by the clerk of the court as uncontested, such might be sufficient. Pitt v. Poole, 91 Tenn. 70, 17 S.W. 802, 1891 Tenn. LEXIS 78 (1891).

Fraudulent conveyance of land could not be set aside where the grantee had been in continuous adverse possession of the land for more than seven years before suit brought as grantee's title was perfected by the statute of limitations. Stacker v. Wilson, 52 S.W. 709, 1899 Tenn. Ch. App. LEXIS 30 (Tenn. Ch. App. 1899).

The rule that, where the parties are in pari delicto in an illegal contract, complainant cannot rescind is of general application, where the illegal contract involves no consideration of the public welfare, but there is an exception to the rule where the public good is to be promoted by permitting a disaffirmance of the contract and recovery of the consideration paid. Darnell-Love Lumber Co. v. Wiggs, 144 Tenn. 113, 230 S.W. 391, 1921 Tenn. LEXIS 32 (1921).

95. — —Estoppel.

A creditor who accepts a note for his debt is not estopped to set aside a fraudulent conveyance. Nichol v. Nichol, 63 Tenn. 145, 1874 Tenn. LEXIS 221 (1874).

96. —Evasive Answers and Answers Not Denying Charge.

Evasive statement in the answer, or statement of a legal conclusion, or the expression of an opinion without giving any fact to justify it, does not deny the charge in the bill. Welcker v. Price, 70 Tenn. 666, 1879 Tenn. LEXIS 217 (1879).

Answer evasively denying the fraud charged in the bill casts the burden on the defendant. Hartnett v. Doyle, 16 Tenn. App. 302, 64 S.W.2d 227, 1932 Tenn. App. LEXIS 6 (1932).

97. —Burden of Proof.

Where the facts and circumstances raise a suspicion of fraud which is equivalent to a presumption of fraud, it is incumbent upon the party, though a defendant, claiming under the conveyance, to remove such presumption and to show the good faith and fairness of the transaction, and the actual payment of the consideration. Jones v. Read, 20 Tenn. 335, 1839 Tenn. LEXIS 58 (1839); Smartt v. Watterhouse, 25 Tenn. 158, 1845 Tenn. LEXIS 52 (1845); Farnsworth v. Bell, 37 Tenn. 531, 1858 Tenn. LEXIS 56 (1858); Alley v. Connell, 40 Tenn. 578, 1859 Tenn. LEXIS 173 (1859); Dunlap v. Haynes, 51 Tenn. 476, 1871 Tenn. LEXIS 189 (1871); Robinson v. Frankel, 85 Tenn. 475, 3 S.W. 652, 1886 Tenn. LEXIS 72 (1886); Taylor v. Taylor, 6 Tenn. Civ. App. (6 Higgins) 268 (1915).

If the answer not only denies the fraud as charged, but goes further, and gives the details of the transaction, and admits the embarrassment, relationship and sale on long credit, any legitimate inference may be drawn to establish the existence of fraud in the face of the general denials of the answer, and to cast the burden of proof upon the defendant. Grannis, White & Co. v. Smith, 22 Tenn. 179, 1842 Tenn. LEXIS 62 (1842); Yost v. Hudiburg, 70 Tenn. 627, 1879 Tenn. LEXIS 208 (1879); Rhodes v. Wood, 93 Tenn. 702, 28 S.W. 294, 1894 Tenn. LEXIS 18 (1894).

Where a bill is filed by a creditor attacking a conveyance as fraudulent against creditors, and the answer responsively denies the fraud, or the facts charged as constituting the fraud, without more, the burden rests upon the complainant to prove the fraud. Washington v. Ryan, 64 Tenn. 622, 1875 Tenn. LEXIS 144 (1875); Cox v. Scott, 68 Tenn. 305, 1878 Tenn. LEXIS 14 (1878); Yost v. Hudiburg, 70 Tenn. 627, 1879 Tenn. LEXIS 208 (1879); Williamson v. Williams, 79 Tenn. 355, 1883 Tenn. LEXIS 74 (1883); Rhodes v. Wood, 93 Tenn. 702, 28 S.W. 294, 1894 Tenn. LEXIS 18 (1894); City Nat'l Bank v. Barnes, 164 Tenn. 450, 51 S.W.2d 503, 1932 Tenn. LEXIS 9 (1932).

It is only where the answer expressly or impliedly admits material matter which tends to support the allegation of the bill that the burden shifts to the defendant, to make proof of explanatory matter set up in avoidance. Farmers Bank of Lynchburg v. Farrar, 4 Tenn. App. 186, 1926 Tenn. App. LEXIS 180 (1926); City Nat'l Bank v. Barnes, 164 Tenn. 450, 51 S.W.2d 503, 1932 Tenn. LEXIS 9 (1932).

Where the bill anticipates the defense and such defense is made in answer, then as to such matter the burden is on the complainant. Farmers Bank of Lynchburg v. Farrar, 4 Tenn. App. 186, 1926 Tenn. App. LEXIS 180 (1926); City Nat'l Bank v. Barnes, 164 Tenn. 450, 51 S.W.2d 503, 1932 Tenn. LEXIS 9 (1932).

Inference of fraud may be drawn from facts and circumstances admitted in answer, and the burden of proof put on defendant, though the answer explicitly denies the fraud. Hartnett v. Doyle, 16 Tenn. App. 302, 64 S.W.2d 227, 1932 Tenn. App. LEXIS 6 (1932).

Suspicious circumstances creating a suspicion or presumption of fraud must be rebutted by the defendant claiming under a conveyance. Hartnett v. Doyle, 16 Tenn. App. 302, 64 S.W.2d 227, 1932 Tenn. App. LEXIS 6 (1932).

98. —Evidence and Proof.

Proof that a voluntary conveyance was made to defeat unjust demands against him is not sufficient proof that there were legal or just demands against him, and some existing debt must be proved to render the conveyance fraudulent as against existing or subsequent creditors. Greenlee v. Hays' Adm'r, 1 Tenn. 300, 1808 Tenn. LEXIS 23 (1808).

The law will not presume fraud; and while the law requires fraud to be proved by facts sworn to, or circumstances arising from and connected with the facts sworn; yet, in most instances, the evidence of it must be gathered more from the circumstances attending the transaction than upon tangible proof, as such things are not generally told or done openly. Fraud will, in most instances, though ever so artfully and secretly contrived, leave its slime by which it may be traced. Floyd v. Goodwin, 16 Tenn. 484, 1835 Tenn. LEXIS 112 (1835); Harris v. Smith, 42 Tenn. 306, 1865 Tenn. LEXIS 63 (1865); Kelton v. Millikin, 42 Tenn. 410, 1865 Tenn. LEXIS 82 (1865); Parrott v. Parrott, 48 Tenn. 681, 1870 Tenn. LEXIS 133 (1870); Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

It is not necessary to prove, by direct and express evidence, the intent to defraud, for this would be impracticable in many instances. The intent may be collected from the circumstances of the case and such badges of fraud as the transaction wears. Nelson v. Vanden, 99 Tenn. 224, 42 S.W. 5, 1897 Tenn. LEXIS 28 (1897).

99. — —Declarations of Grantor or Vendor — Admissibility Against Purchaser.

Where one sells personalty absolutely, or sells and conveys land absolutely, and retains the possession of the property inconsistently with the terms of the sale or the terms of the deed, his declarations made, even in the absence of the purchaser, in reference to the ownership, contract, the character of his possession, or the terms upon which he holds, may be received in evidence against the purchaser, as part of the res gestae. But where his possession is consistent with the terms of the sale or deed, such statements and declarations of his, made in the absence of the purchaser and without his knowledge, are not admissible as evidence as against the purchaser. Trotter v. Watson, 25 Tenn. 509, 1846 Tenn. LEXIS 31 (1846); Carnahan v. Wood, 32 Tenn. 500, 1852 Tenn. LEXIS 105 (1852); Farnsworth v. Bell, 37 Tenn. 531, 1858 Tenn. LEXIS 56 (1858); Neal v. Peden, 38 Tenn. 546, 1858 Tenn. LEXIS 223 (Tenn. Dec. 1858); McClellan v. Cornwell, 42 Tenn. 298, 1865 Tenn. LEXIS 62 (1865); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Carney v. Carney, 66 Tenn. 284, 1874 Tenn. LEXIS 125 (1874); Williamson v. Williams, 79 Tenn. 355, 1883 Tenn. LEXIS 74 (1883); Harton v. Lyons, 97 Tenn. 180, 36 S.W. 851, 1896 Tenn. LEXIS 124 (1896).

The right of a party to property bona fide purchased by him cannot be prejudiced by the declarations of the vendor after the transaction, not made in the presence of the purchaser, even where the vendor retains possession consistently with the rights of the purchaser, and according to the terms of the contract. Carnahan v. Wood, 32 Tenn. 500, 1852 Tenn. LEXIS 105 (1852); Neal v. Peden, 38 Tenn. 546, 1858 Tenn. LEXIS 223 (Tenn. Dec. 1858); McClellan v. Cornwell, 42 Tenn. 298, 1865 Tenn. LEXIS 62 (1865); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Wright v. Hessey, 62 Tenn. 42, 1873 Tenn. LEXIS 135 (1873); Carney v. Carney, 66 Tenn. 284, 1874 Tenn. LEXIS 125 (1874).

A valid deed of trust to secure creditors cannot be invalidated by subsequent declarations or acts of the maker. Wilson v. Eifler, 47 Tenn. 31, 1869 Tenn. LEXIS 5 (1869); Jones v. Cullen, 100 Tenn. 1, 42 S.W. 873, 1897 Tenn. LEXIS 86 (1897).

Declarations of a former owner are not admissible against his purchaser. Collger v. Francis, 61 Tenn. 422, 1873 Tenn. LEXIS 198 (1873).

Subsequent statements of grantor are not admissible to defeat purchaser's title until it is shown that the purchaser participated in or was connected with the fraud. First Nat'l Bank v. Wilkins, 11 Tenn. App. 9, 1929 Tenn. App. LEXIS 70 (1929).

100. —Division of Proceeds upon Setting Aside Conveyance.

Where a voluntary conveyance is set aside for fraud in fact, the proceeds of the property become assets for the benefit of creditors generally, and all the creditors, including subsequent creditors, will be allowed to share in the proceeds. Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870); Levering v. Norvell, 68 Tenn. 176, 1877 Tenn. LEXIS 12 (1877).

101. —Purchase Money Notes — Cancellation upon Setting Aside Conveyance.

Where a conveyance of land made to defraud the grantor's creditors is set aside at the suit of such creditors, and the land is subjected and appropriated to the satisfaction of their debts, the notes given by the fraudulent grantee for the purchase money will be canceled. Lazell v. Powell, 1 Shan. 132 (1859).

102. —Appeal.

The grantor has no right of appeal from a decree setting aside his conveyance as fraudulent against creditors, and subjecting the land to the satisfaction of the debts against him. The grantee is the only person that has a right to complain. Hunt v. Childress, 73 Tenn. 247, 1880 Tenn. LEXIS 118 (1880).

Cause came to court of appeals with a presumption of correctness of chancellor's finding that conveyance was fraudulent, unless the preponderance of the evidence was to the contrary. Gurlich's, Inc. v. Myrick, 54 Tenn. App. 97, 388 S.W.2d 353, 1964 Tenn. App. LEXIS 148 (Tenn. Ct. App. Dec. 10, 1964).

103. Levy on Property.

104. —Levy on Insolvent's Property.

Levy on property of insolvent corporation after it ceases to do business gives the execution creditor no advantage over other creditors. Memphis Barrel Co. v. Ward, 99 Tenn. 172, 42 S.W. 13, 1897 Tenn. LEXIS 21, 63 Am. St. Rep. 825 (1897); Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

105. —Levy on Fraudulently Conveyed Property.

Personal property fraudulently sold to defeat the seller's creditors is subject to levy for the creditors of either the seller or purchaser, and, as between their respective creditors, it is a race of diligence, without any priority of rights; but there is such title in the fraudulent purchaser that the execution creditor of the fraudulent seller has no lien on the property, and after a sale by the fraudulent purchaser to an innocent purchaser for a valuable consideration without notice, the property cannot be levied on under an execution against the original fraudulent seller, though it be tested before such sale. Russell v. Stinson, 4 Tenn. 1, 1816 Tenn. LEXIS 2 (1816); Williams v. Lowe, 23 Tenn. 62, 1843 Tenn. LEXIS 16 (1843); Simpson v. Simpson, 26 Tenn. 275, 1846 Tenn. LEXIS 124 (1846), questioned, Daly v. Sumpter Drug Co., 127 Tenn. 412, 155 S.W. 167, 1912 Tenn. LEXIS 39 (1912); Richards v. Ewing, 30 Tenn. 327, 1850 Tenn. LEXIS 126 (1850); Parker v. Freeman, 2 Cooper's Tenn. Ch. 612 (1876); Cryer v. Mayfield, 5 Tenn. Civ. App. (5 Higgins) 537 (1914).

Where a slave (a chattel) was conveyed and received to defraud creditors, and by the conveyee exchanged for another slave which was conveyed to him as trustee for the debtor (the original grantor), the latter slave was not subject to levy as that of the debtor (the original grantor), because the legal title was in the trustee. Childs v. Derrick, 9 Tenn. 78, 9 Tenn. 79, 1824 Tenn. LEXIS 2 (1824); Allen v. Holland, 11 Tenn. 342, 11 Tenn. 343, 1832 Tenn. LEXIS 58 (1832); Gray v. Faris, 15 Tenn. 154, 15 Tenn. 155, 1834 Tenn. LEXIS 31 (1834).

The execution sale of land levied on as that of the grantor, after his fraudulent conveyance made to defeat his creditors, cannot be enforced, nor can such fraudulent conveyance be removed as a cloud upon the title of the purchaser at such execution sale; but in chancery the fraudulent conveyance will be set aside, and the land will be subjected to the payment of the grantor's debts; and such relief will be granted under a bill seeking the enforcement of the execution sale, or the removal of the fraudulent conveyance as a cloud upon the execution purchaser's title, where the bill seeks such relief alternatively. 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); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Ballard v. Scruggs, 90 Tenn. 585, 18 S.W. 259, 1891 Tenn. LEXIS 47, 25 Am. St. Rep. 703 (1891).

Land purchased by an indebted father, and paid for by him, and conveyed by his procurement to his infant children, for the avowed purpose of protecting the same against his own creditors, and with the intent to defraud and defeat his creditors, is not subject to be levied on as his property, but in chancery such conveyance will be declared fraudulent as against creditors, and the land will be subjected to the payment of the debts of the father. 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); Anderson v. Lyons, 2 Cooper's Tenn. Ch. 61 (1874); Weakley v. Cockrill, 2 Cooper's Tenn. Ch. 316 (1875), reversed on other grounds, Weakley v. Cockrill, 74 Tenn. 270, 1880 Tenn. LEXIS 246 (1880). See Gaugh v. Henderson, 39 Tenn. 628, 1859 Tenn. LEXIS 293 (1859).

While the legal title is in the fraudulent grantee, the land is subject to be levied on for his debts, but after his conveyance to the true owner, without fraudulent intent and while abundantly able to pay all of his debts, the land cannot be subjected to the payment of his debts. Where the purchaser of land fraudulently procures the title to be made to a third person to hinder and delay his creditors, the creditors of such third person may subject the same to the payment of their debts against him while the title remains in him, yet if, before any proceedings against him by his creditors, he reconveys the property to the true purchaser and owner, without fraudulent intent and while abundantly able to pay all of his debts, the land cannot be reached in satisfaction of debts by his creditors. Stanton v. Shaw, 62 Tenn. 12, 1873 Tenn. LEXIS 126 (1873).

106. —Purchase of Land Previously Levied On.

Where one purchases land with actual knowledge that it has been levied on by virtue of an execution, the purchase must be made with the intent to defeat the creditor in the collection of his debt, for which reason the sale will be void by force of this statute, and such purchaser will obtain no title. Overton v. Perkins, 8 Tenn. 367, 1828 Tenn. LEXIS 14 (1828); Miller's Lessee v. Estill, 16 Tenn. 452, 1835 Tenn. LEXIS 106 (1835).

Collateral References.

Admissibility of testimony of transferee as to his knowledge, purpose, intention, or good faith on issue whether conveyance was in fraud of transferor's creditors. 52 A.L.R.2d 418.

Assumption of mortgage as consideration for conveyance attached as in fraud of creditors. 6 A.L.R.2d 270.

Attorney's compensation for services in matters involving fraudulent conveyances, amount of. 143 A.L.R. 798, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Cloud on title, fraudulent conveyance as. 78 A.L.R. 250.

Conveyance as fraudulent where made in contemplation of possible liability for future tort. 38 A.L.R.3d 597.

Husband's agreement that wife shall receive proceeds of sale of homestead as fraud on his creditors. 6 A.L.R. 574.

Insurance, validity as against creditors of change of beneficiary of policy from estate to individual or assignment of policy payable to estate. 6 A.L.R. 1173, 106 A.L.R. 596.

Judgment for fine or penalty as supporting creditors' bill or other suit to avoid, as fraudulent, conveyance or transfer before its entry. 48 A.L.R. 605.

Lis pendens as applicable to actions to avoid conveyance or transfer in fraud of creditors or to prevent such conveyance. 74 A.L.R. 690.

Purchase of homestead as fraud on creditors. 161 A.L.R. 1287.

Receivership or liquidation of debtor as affecting right of individual creditor or creditors to maintain bill to set aside conveyance or transfer in fraud of creditors. 119 A.L.R. 1339.

Redemption from, acquisition or extinction of, outstanding rights, title or interest, by grantee or transferee in fraud of creditors, right of creditor to benefit of. 87 A.L.R. 830.

Resulting trust in property conveyed by third person to debtor's spouse and attacked by creditors as fraudulent. 35 A.L.R.2d 8.

Right of creditor to set aside transfer of property as fraudulent as affected by the fact that his claim is barred by statute of limitations. 14 A.L.R.2d 598.

Right of tort claimant, prior to judgment, to attack conveyance or transfer as fraudulent. 73 A.L.R.2d 749.

Services of debtor, gift of, to third person as fraud on creditors. 28 A.L.R. 1046.

Stockholder's conveyance or transfer as fraudulent as regards his liability as stockholder to creditors of corporations. 89 A.L.R. 751.

Support, who may attack conveyance in consideration of. 2 A.L.R. 1452, 23 A.L.R. 584.

Tort claimant's right to attack conveyance or transfer as fraudulent. 73 A.L.R.2d 749.

Use of debtor's individual funds or property for acquisition, improvement of, or discharge of liens on, property held in estate by entireties as fraud upon creditors. 7 A.L.R.2d 1104.

When statute of limitations or laches commences to run against action to set aside fraudulent conveyances or transfer in fraud of creditors. 100 A.L.R.2d 1094.

Will, creditors' right to complain of or control debtor's renunciation of benefit under, or his election to take under or against. 39 A.L.R.4th 633.

Wills: undue influence in gift to testator's attorney. 19 A.L.R.3d 575.

NOTES TO DECISIONS

1. Registered Conveyance — Validity.

A registered voluntary conveyance of property, either personal or real, is good as against subsequent purchasers for value. Marshall v. Booker, 9 Tenn. 13, 1820 Tenn. LEXIS 10 (1820); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871).

A registered voluntary conveyance of property, either personal or real, is good as against subsequent creditors, when not fraudulent as to existing creditors, and not made with a view to defraud subsequent creditors. Martin v. Olliver, 28 Tenn. 561, 1848 Tenn. LEXIS 123 (1848); Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870); Vance v. Smith, 49 Tenn. 343, 1871 Tenn. LEXIS 16, 73 Am. Dec. 177 (1871); Laird v. Scott, 52 Tenn. 314, 1871 Tenn. LEXIS 267 (1871).

2. —Registration of Fraudulent Gift.

A gift valid under this section, by compliance with its every requirement, may be fraudulent as against the donor's creditors, for a conveyance may be free from objection under this section, and yet be void as against creditors for fraud under § 66-3-101. Perkins v. Perkins, 1 Cooper's Tenn. Ch. 537 (1874); Martin v. Crosby, 79 Tenn. 198, 1883 Tenn. LEXIS 41 (1883).

If fraud is intended or practiced, the registration will not affect the subsequent creditors. Levering v. Norvell, 68 Tenn. 176, 1877 Tenn. LEXIS 12 (1877).

3. Unregistered Conveyance.

4. —Facts Constituting Completed Gift — Validity of Conveyance.

Where plaintiff's brother purchased car, had bill of sale recite that automobile was transferred to plaintiff and delivered the bill of sale to the plaintiff, but the bill of sale was not registered and she did not retain possession of the automobile although both used it, the conveyance was a completed gift and did not fall within this section and could not be set aside by one claiming title by subsequent gift. Marlin v. Merrill, 25 Tenn. App. 328, 156 S.W.2d 814, 1941 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1941).

5. —Possession Remaining in Donor.

Unregistered voluntary conveyances of goods and chattels, where the possession remains with the donor, shall be taken to be fraudulent, that is, void as to the creditors of the donor only. Dillard v. Dillard, 22 Tenn. 41, 1842 Tenn. LEXIS 19 (1842); Moses v. Marcrief, 2 Shan. 181 (1876).

Where a father advances the money to pay for a chattel and procures the bill of sale, which was not registered to be made directly to his five year old daughter, at a time when he has ample property to satisfy every demand against him, and afterwards becomes insolvent, the daughter is vested with the legal title; and the subsequent insolvency of her father cannot affect her rights. The possession of the father for his infant daughter, and not for himself, instead of operating against her, is in confirmation of her title. Dillard v. Dillard, 22 Tenn. 41, 1842 Tenn. LEXIS 19 (1842).

6. —Unregistered Gifts Known to Creditors.

The donor's creditors will not be affected by actual notice or knowledge of the existence of unregistered deeds of gift, or other instruments. Douglas v. Morford, 16 Tenn. 373, 1835 Tenn. LEXIS 91 (1835); Lillard v. Ruckers, 17 Tenn. 64, 1836 Tenn. LEXIS 17 (1836); Banks v. Thomas, 19 Tenn. 28, 1838 Tenn. LEXIS 7 (1838).

7. Gift Without Delivery and During Insolvency.

A gift, without delivery, by husband to wife when husband is insolvent is invalid as to creditors. State v. Caldwell, 21 Tenn. App. 396, 111 S.W.2d 377, 1937 Tenn. App. LEXIS 42 (Tenn. Ct. App. 1937)

8. Intent to Defraud — Effect.

A voluntary conveyance with actual intent to defraud either existing or subsequent creditors is void as to the creditors to whom the fraudulent intent extends. Churchill v. Wells, 47 Tenn. 364, 1870 Tenn. LEXIS 156 (1870).

Collateral References.

Annuity, purchase of, by debtor as fraud on creditors. 154 A.L.R. 727.

Antenuptial agreement, conveyance pursuant to, as fraud on creditors. 41 A.L.R. 1163.

Barred debt, conveyance to pay or secure. 109 A.L.R. 1220.

Conveyance in consideration of future support as fraudulent against creditors. 2 A.L.R. 1438, 23 A.L.R. 584.

Excessive security for debt as affecting question of fraud upon creditors. 138 A.L.R. 1051.

Illegal consideration, right, of creditor or one representing him, to recover money paid or property transferred by debtor on. 34 A.L.R. 1297.

Liability of one who assists or encourages a preference to a third person. 112 A.L.R. 1250.

Promise by beneficiary of, to insured, to pay proceeds of policy in whole or in part to third person, as effecting transfer in fraud of creditors. 102 A.L.R. 559.

Trust, validity, as against creditors of trustee, or one deriving his right from trustee, of conveyance or transfer to carry out terms of unenforceable parol trust. 64 A.L.R. 576.

NOTES TO DECISIONS

1. Purpose and Effect.

This section converts neglect and delay into a positive presumption of fraud, and thus, without his consent, divests the lender of his property, so far as the creditors of the possessor or purchasers from him are concerned. Hallum v. Yourie, 33 Tenn. 369, 1853 Tenn. LEXIS 57 (1853).

The policy of this section has never been controverted. The possession of property so long is calculated to give credit, and men may reasonably consider the right with the possession, when the same is permitted to remain undisturbed for so long a time. Gunn v. Mason, 34 Tenn. 637, 1855 Tenn. LEXIS 110 (1855).

This section was enacted for the benefit of creditors of the possessor and the purchasers from him, and not for the benefit of the possessor of chattels, unless the contrary appears by bill of sale, acknowledged and registered. O'Brien v. Waggoner, 20 Tenn. App. 145, 96 S.W.2d 170, 1936 Tenn. App. LEXIS 11 (Tenn. Ct. App. 1936).

This section was enacted for the protection of parties who had innocently purchased property and parties who had advanced credit upon the showing of apparent ownership in a party in possession, and it was not designed to regulate title as between the true owner and a person to whom property might have been loaned or otherwise held in bailment. Thach v. Brown Knitting Co., 23 Tenn. App. 317, 132 S.W.2d 228, 1939 Tenn. App. LEXIS 39 (1939).

T.C.A. § 66-3-103, an “ostensible ownership” statute, is a creditors' statute, not a statute of adverse possession, in that it creates no rights in the possessor of the property but only in his creditors. In re Hall, 5 B.R. 120, 1980 B.R. LEXIS 4940 (Bankr. M.D. Tenn. 1980).

2. Application.

This section does not apply to contracts of hiring. Porter v. Armstrong, 10 Tenn. 74, 1820 Tenn. LEXIS 9 (1820); Gunn v. Mason, 34 Tenn. 637, 1855 Tenn. LEXIS 110 (1855).

The provisions of this section were not applicable to machinery whose possession by a corporation was not shown to have continued for a period of five years preceding the date of such corporation's bankruptcy, it appearing in fact that possession had terminated before bankruptcy and before the rights of creditors attached by surrender of such machinery to its true owner. Thach v. Brown Knitting Co., 23 Tenn. App. 317, 132 S.W.2d 228, 1939 Tenn. App. LEXIS 39 (1939).

This section can have no application without the intervention of the rights of third parties, where the party in possession continues to recognize the title of the true owner. Thach v. Brown Knitting Co., 23 Tenn. App. 317, 132 S.W.2d 228, 1939 Tenn. App. LEXIS 39 (1939).

3. Methods of Obviating Statute — Validity.

A contract of hiring of property, with no intention of collecting the hire, but without contract to that effect, a method resorted to for the purpose of obviating this section and protecting the property from the creditors of the hirer, is not a fraud upon the law. Gunn v. Mason, 34 Tenn. 637, 1855 Tenn. LEXIS 110 (1855).

4. Character of Possession Required.

To make this section effective and to give the possessor a salable title, or one that may be subjected to the payment of his debts, the five years' possession must be one which the lender can put an end to by suit, an indefinite possession depending on the will of the lender, and not one founded upon contract, which cannot be put an end to at pleasure by the lender. Porter v. Armstrong, 10 Tenn. 74, 1820 Tenn. LEXIS 9 (1820); Gunn v. Mason, 34 Tenn. 637, 1855 Tenn. LEXIS 110 (1855).

5. Loans of Property.

This section has no application to contracts or loans for a definite time; and a loan for a definite period, by contract not in writing, though for more than five years, does not vest title in the lendee, even as in favor of his creditors or purchasers. Porter v. Armstrong, 10 Tenn. 74, 1820 Tenn. LEXIS 9 (1820); Hallum v. Yourie, 33 Tenn. 369, 1853 Tenn. LEXIS 57 (1853); Gunn v. Mason, 34 Tenn. 637, 1855 Tenn. LEXIS 110 (1855).

This section does not apply where the loan of goods and chattels was made in another state, or where the limitation or reservation was made by deed or will in another state, in which the property was at the time situate, so as to require the registration of such instruments in this state. Crenshaw v. Anthony, 8 Tenn. 101, 8 Tenn. 102, 1827 Tenn. LEXIS 17 (1827); Loving v. Hunter, 16 Tenn. 4, 1832 Tenn. LEXIS 2 (1835); Gilliam v. Spence, 25 Tenn. 160, 1845 Tenn. LEXIS 53 (1845); Finch v. Rogers, 30 Tenn. 559, 1851 Tenn. LEXIS 104 (1851).

The owner of the property loaned must be a party to the deed or will declaring the loan, and such a declaration by a stranger in interest will be invalid, and will not prevent the operation of this section. Wade v. Green, 22 Tenn. 547, 1842 Tenn. LEXIS 143 (1842).

6. —Lender's Disposition of Property within Period.

Where the lender, within the five years from the date of the loan, conveys the property by a deed properly registered, or bequeaths the same by will duly probated, recognized by the borrower, the loan is terminated, and the subsequent possession of the borrower is under the deed or will, and in subordination to it. To give such borrower the title, his possession must be adverse to the deed or will for the requisite period from the date of the registration of the deed or probate of the will. Gilliam v. Spence, 25 Tenn. 160, 1845 Tenn. LEXIS 53 (1845); Gardenhire v. Hinds, 38 Tenn. 402, 1858 Tenn. LEXIS 202 (Tenn. Dec. 1858).

7. —Lender and Creditor — Respective Rights After Period.

Where borrowed property is held by the borrower, continuously and uninterruptedly, for the period of five years, it becomes liable for his debts, but he cannot hold it as against the lender, who may, as against the borrower, before a levy or sale, regain the possession of the property. Andrews v. Hartsfield, 11 Tenn. 38, 11 Tenn. 39, 1832 Tenn. LEXIS 14 (1832); Walker v. Wynne, 11 Tenn. 61, 11 Tenn. 62, 1832 Tenn. LEXIS 19 (1832); Dowell v. Bailey, 18 Tenn. 489, 1837 Tenn. LEXIS 64 (1837); Peters v. Chares, 12 Tenn. 176, 1833 Tenn. LEXIS 44 (1833); Twiss v. Martin's Adm'rs & Distribs., 20 Tenn. 189, 1839 Tenn. LEXIS 38 (1839); McDougal v. Armstrong, 25 Tenn. 428, 1846 Tenn. LEXIS 10 (1846).

8. —Interruption of Possession — Effect.

If, after five years, the lender regains possession of the property and holds it bona fide as his own for any length of time, and then again lends the property to the same person, the borrower must hold the possession, continuously and uninterruptedly, for another five years, before his subsequent creditors can subject the property to the satisfaction of their debts against him. Walker v. Wynne, 11 Tenn. 61, 11 Tenn. 62, 1832 Tenn. LEXIS 19 (1832); Peters v. Chares, 12 Tenn. 176, 1833 Tenn. LEXIS 44 (1833); Dowell v. Bailey, 18 Tenn. 489, 1837 Tenn. LEXIS 64 (1837); Twiss v. Martin's Adm'rs & Distribs., 20 Tenn. 189, 1839 Tenn. LEXIS 38 (1839).

9. Gifts of Property.

T.C.A. § 66-3-103 converts the rebuttable presumption that an unexplained transfer of property from a parent to a child was intended as a gift to a conclusive presumption when possession has continued for a period of five years. In re Hall, 5 B.R. 120, 1980 B.R. LEXIS 4940 (Bankr. M.D. Tenn. 1980).

10. —Presumed Gift.

Where a parent places personalty in the possession of his child, without any explanation as to the manner in which the latter is to hold it, the law will presume it to be a gift; but the presumption only holds in the absence of proof showing a contrary intention. Porter v. Armstrong, 10 Tenn. 74, 1820 Tenn. LEXIS 9 (1820); Stewart v. Cheatham, 11 Tenn. 59, 11 Tenn. 60, 1832 Tenn. LEXIS 18 (1832); Wade v. Green, 22 Tenn. 547, 1842 Tenn. LEXIS 143 (1842); Turner v. Grainger, 24 Tenn. 347, 1844 Tenn. LEXIS 74 (1844); McKissick v. McKissick, 25 Tenn. 75, 1845 Tenn. LEXIS 26 (1845).

11. —Gift Elsewhere — Possession within State.

The statutes of limitations of this state will run in favor of a verbal gift of property (slaves) under the North Carolina statute, where the same is subsequently brought and held here for the requisite period according to our statutes of limitations. Hardeson v. Hays, 12 Tenn. 506, 12 Tenn. 507, 1833 Tenn. LEXIS 87 (1833); McDonald v. McDonald, 16 Tenn. 145 (1835); McKisick v. McKisick, 19 Tenn. 427, 1838 Tenn. LEXIS 72 (1838); McKissick v. McKissick, 25 Tenn. 75, 1845 Tenn. LEXIS 26 (1845); Stevens v. Bomar, 28 Tenn. 546, 1848 Tenn. LEXIS 120 (1848); Finch v. Rogers, 30 Tenn. 559, 1851 Tenn. LEXIS 104 (1851); Hallum v. Yourie, 33 Tenn. 369, 1853 Tenn. LEXIS 57 (1853).

12. —Possession Under Verbal Gift Which Should Be in Writing.

The donee's possession of personalty under a verbal gift would, from the nature of the transaction, be for himself exclusively, and the statute of limitation contained in § 28-3-105 would commence running; and if such possession be held by the donee for three years, and if the donor does not, by suit or otherwise, reclaim the property, the title, not, indeed, by operation of the gift and delivery, but by the adverse possession under the statute, would be vested in the donee as against the donor and others, for while the verbal gift, in such case, is invalid as conferring title, still it would serve to manifest and establish the nature and character of the donee's possession. Turner v. Grainger, 24 Tenn. 347, 1844 Tenn. LEXIS 74 (1844); McKissick v. McKissick, 25 Tenn. 75, 1845 Tenn. LEXIS 26 (1845); James v. Patterson's Lessee, 31 Tenn. 309, 1851 Tenn. LEXIS 74 (1851); Hallum v. Yourie, 33 Tenn. 369, 1853 Tenn. LEXIS 57 (1853).

13. Remainderman's Rights.

A remainder in slaves, after a life estate, created by an unregistered deed, was cut off, and the absolute title was vested in the life tenant, by his possession for five years, so far as his creditors and purchasers were concerned. Kenner v. Smith, 16 Tenn. 206, 1835 Tenn. LEXIS 76 (1835).

A remainderman in personalty under a registered deed or probated will is not affected by the possession of the borrower for five years under a loan made by the life tenant; and in a proper case, the rights of the remaindermen will be protected in chancery. McDougal v. Armstrong, 25 Tenn. 428, 1846 Tenn. LEXIS 10 (1846); Williams v. Conrad, 30 Tenn. 412, 1850 Tenn. LEXIS 140 (1850); Henderson v. Tipton, 88 Tenn. 255, 14 S.W. 380, 1889 Tenn. LEXIS 44 (Tenn. Sep. 1889).

66-3-201. Devises declared void.

All devises of lands, tenements, and hereditaments, or of any rent, profit, term, or charge out of the same, contrived and made to defraud creditors of their just debts, shall be deemed and taken to be null and void only as against such creditors, their heirs, successors, executors, administrators, and assigns, and every one of them.

Code 1858, § 1762 (deriv. Acts 1789, ch. 39, § 2); Shan., § 3153; Code 1932, § 7835; T.C.A. (orig. ed.), § 64-304.

Cross-References. Statute of frauds, § 29-2-101.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 854.

66-3-202. Action against devisees.

Every such creditor may maintain an action or suit against such devisee, and, severally or jointly, against the debtor and the heirs at law of the debtor, in all cases, and in like manner, as such action or suit could be brought or maintained against the debtor's heirs at law.

Code 1858, § 1763 (deriv. Acts 1789, ch. 39, § 2); Shan., § 3154; Code 1932, § 7836; T.C.A. (orig. ed.), § 64-305.

Cross-References. Creditor's bill to set aside conveyance, § 29-12-101.

Statute of frauds, § 29-2-101.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 854.

66-3-203. Execution for value of alienated lands.

If the devisee sells, aliens, or makes over the lands so devised, before an action is brought or process sued out against the devisee, such devisee shall be answerable for such debt to the value of the lands, sold, aliened, or made over; and execution shall be taken out upon the judgment or decree obtained against such devisee to the value of the lands, as if the same were the devisee's own proper debt.

Code 1858, § 1764 (deriv. Acts 1789, ch. 39, § 3); Shan., § 3155; Code 1932, § 7837; T.C.A. (orig. ed.), § 64-306.

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

Execution, title 26, ch. 1.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 854.

66-3-204. Bona fide purchasers protected.

Lands, tenements, and hereditaments, bona fide aliened before the action brought, shall not be liable to such execution.

Code 1858, § 1765 (deriv. Acts 1789, ch. 39, § 3); Shan., § 3156; Code 1932, § 7838; T.C.A. (orig. ed.), § 64-307.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 854.

Part 3
Uniform Fraudulent Transfer Act

NOTES TO DECISIONS

1. Extent of Representative's Power.

The personal representative is the mere statutory conduit through whom the title of the heirs may pass. Hale v. Darter, 24 Tenn. 79, 1844 Tenn. LEXIS 24 (1844).

The statute confers on the personal representative a mere naked power. It constitutes him a mere agent or attorney to execute a conveyance in the case provided for. Bartlett v. Watson, 35 Tenn. 287, 1855 Tenn. LEXIS 55 (1855).

A personal representative is not authorized to execute a deed where a deed was made to the decedent and another as individuals, and not in trust, in pursuance of a collateral agreement in writing between eleven persons, including among them the grantees, whereby land purchased by the eleven partners was to be conveyed to the grantees in trust for the use and benefit of all the partners, although the partnership was subsequently merged into a chartered corporation, and the deed was made by the personal representative of the decedent to the corporation, especially where there was nothing to show that the members of the partnership ever transferred their rights in the land to the corporation or that they ever demanded the execution of the deed to it. Byrd v. Phillips, 120 Tenn. 14, 111 S.W. 1109, 1907 Tenn. LEXIS 36 (1907).

2. Title Bond — Necessity.

The existence of the obligation, or title bond, is indispensable to the exercise of the power, and to the validity of the deed. Hence, in order to make the deed operative, the bond must be produced, or its existence, at the time of the execution of the deed by the personal representative, must be established by the proof. Bartlett v. Watson, 35 Tenn. 287, 1855 Tenn. LEXIS 55 (1855).

3. Recital as to Bond — Sufficiency.

As against third persons, perhaps, the recital of the obligation, or bond, in the conveyance, if sufficiently full and explicit, would be prima facie sufficient. Bartlett v. Watson, 35 Tenn. 287, 1855 Tenn. LEXIS 55 (1855).

4. Representative Refusing Conveyance — Liability.

The personal representative may protect the personal estate which he represents by making a conveyance in fulfillment of the decedent's contract, if properly demanded, and if he refuses to do this in a proper case, he is liable at common law for damages. Hale v. Darter, 24 Tenn. 79, 1844 Tenn. LEXIS 24 (1844).

5. Compelling Conveyance — Parties.

The heirs of the deceased maker of a written contract or title bond for the conveyance of land must be made parties to a bill to compel the personal representative to make a deed, because the title is in them by descent. Hale v. Darter, 24 Tenn. 79, 1844 Tenn. LEXIS 24 (1844).

The court of chancery has no power to compel the execution of a deed by a personal representative unless the heirs are made a party. Hale v. Darter, 24 Tenn. 79, 1844 Tenn. LEXIS 24 (1844).

Suit for specific performance of contract for sale of land was properly brought against administrator of deceased landowner and also against his heirs who were necessary parties. Brister v. Estate of Brubaker, 47 Tenn. App. 150, 336 S.W.2d 326, 1960 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1960).

6. Statute of Limitations.

After the expiration of seven years from the death of the maker of the contract or title bond, the personal representative has no power to make a deed, and specific performance will not be decreed against the heirs where they rely upon the statute of limitation of seven years. Smith v. Hickman's Heirs, 3 Tenn. 330, 1 Cooke 330, 1813 Tenn. LEXIS 25 (1813); Lewis's Ex'rs v. Hickman's Heirs & Adm'rs, 2 Tenn. 316, 2 Tenn. 317, 1814 Tenn. LEXIS 24 (1814).

A suit by a creditor against the heirs of a testator to recover real property is not barred by a seven year statute of limitations when a judgment has been recovered against the personal representative of the estate within the seven years if the suit against the heirs is commenced within seven years after recovery of the judgment against the personal representatives. Wooldridge v. Page, 68 Tenn. 325, 1878 Tenn. LEXIS 17 (1878); Woolridge v. Page, 69 Tenn. 135, 1878 Tenn. LEXIS 64 (1878).

The ancestor took and in writing agreed to hold the title of land in trust for himself and others, his heirs claiming and holding the land, for seven years after the ancestor's death, are protected, without having had any actual possession of the land, notwithstanding the recognition of such trust by the ancestor's personal representative, having only a naked power to sell the land; and notwithstanding such recognition by the heirs themselves, unless it is equivalent to a valid assumption of the claim or trust on the part of the heirs. Henderson v. Tipton, 88 Tenn. 255, 14 S.W. 380, 1889 Tenn. LEXIS 44 (Tenn. Sep. 1889).

A suit to foreclose a mortgage or deed of trust against the heirs of a mortgagor brought by a trustee more than seven years after the death of the mortgagor, was not barred by statute of limitations of seven years for protection of estates of decedents. Smith v. Goodlett, 92 Tenn. 230, 21 S.W. 106, 1892 Tenn. LEXIS 67 (1893).

Collateral References.

Option for renewal of lease or purchase of property, to whom notice of, must be given in event of death of lessor or owner who granted option. 148 A.L.R. 172.

Parties to action for specific performance of contract for conveyance of realty after death of party to the contract. 43 A.L.R.2d 453.

Real property, right or duty of executor or administrator of, to complete or enforce decedent's executory contract for purchase of. 58 A.L.R. 436.

Venue of action for specific performance of contract pertaining to real property. 63 A.L.R.2d 456.

NOTES TO DECISIONS

1. Necessity of Registration.

It is not necessary that the contract or title bond of the deceased be registered in order to give validity to the deed of his personal representative. While the personal representative is not bound to make the deed until the title bond is registered, yet if he should do so, the deed is good. Carter v. Parrot, 1 Tenn. 237, 1807 Tenn. LEXIS 14 (1807); Den ex rel. Demise of Haggard v. Mayfield, 6 Tenn. 121, 1818 Tenn. LEXIS 46 (1818); Butterfeild v. Miller, 195 F. 200, 1912 U.S. App. LEXIS 1362 (6th Cir. Tenn. 1912).

Suit for specific performance of contract for sale of land would lie against administrator and heirs of deceased landowner even though such contract was not properly authenticated for registration and consequently improperly registered since, under § 66-26-101, if a contract relied on by a complainant is otherwise sufficient it is binding between the parties, their heirs and representatives without registration. Brister v. Estate of Brubaker, 47 Tenn. App. 150, 336 S.W.2d 326, 1960 Tenn. App. LEXIS 76 (Tenn. Ct. App. 1960).

In an action for specific performance of a contract to sell land, the personal representative could be required to execute the conveyance although the written agreement was not recorded. Wright v. Universal Tire, Inc., 577 S.W.2d 194, 1978 Tenn. App. LEXIS 333 (Tenn. Ct. App. 1978).

Collateral References.

Recorded real property instrument as charging third party with constructive notice of provisions of extrinsic instrument referred to therein. 89 A.L.R.3d 901.

66-4-201. Champertous sales of pretended interest prohibited.

No person shall agree to buy, or to bargain or sell any pretended right or title in lands or tenements, or any interest in such pretended right or title.

Code 1858, § 1776 (deriv. Acts 1821, ch. 66, § 1); Shan., § 3171; Code 1932, § 7823; T.C.A. (orig. ed.), § 64-406.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Champerty and Maintenance, §§ 3, 5-7, 9, 10, 13; 12 Tenn. Juris., Executions, § 47; 25 Tenn. Juris., Witnesses, § 54.

Law Reviews.

Champerty as We Know It (R.D. Cox), 13 Mem. St. U.L. Rev. 139 (1983).

66-4-202. Sale without possession.

Any such agreement, bargain, sale, promise, covenant or grant shall be utterly void where the seller has not personally, or by the seller's agent or tenant, or the seller's ancestor, been in actual possession of the lands or tenements, or of the reversion or remainder, or taken the rents or profits for one (1) whole year next before the sale.

Code 1858, § 1777 (deriv. Acts 1821, ch. 66, § 1); Shan. § 3172; Code 1932, § 7824; T.C.A. (orig. ed.), § 64-407.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Champerty and Maintenance, § 10.

Law Reviews.

Champerty — Land Conveyed While in Adverse Possession, 15 Tenn. L. Rev. 719 (1939).

66-4-203. Dismissal of suit on disclosure of facts.

Any suit at law or equity brought for the recovery of the lands or tenements bargained or contracted for, whether the agreement, sale, bargain, covenant, grant, or promise be executed or executory, shall be forthwith dismissed, with costs, by the court in which such suit may be pending, upon the facts being disclosed.

Code 1858, § 1778 (deriv. Acts 1821, ch. 66, § 1); Shan., § 3173; Code 1932, § 7825; T.C.A. (orig. ed.), § 64-408; modified.

66-4-204. Bona fide sales unimpaired.

This part shall not prevent an absolute and bona fide sale or mortgage of lands or tenements not possessed and held adversely at the time of such sale or mortgage; nor a sale by execution; nor a sale and conveyance by a nonresident of this state, of lands which such nonresident may own, and of which lands no person, at the time of such sale, holds adverse possession by deed, devise, or inheritance.

Code 1858, § 1779 (deriv. Acts 1821, ch. 66, § 1); Shan., § 3174; Code 1932, § 7826; T.C.A. (orig. ed.), § 64-409.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Champerty and Maintenance, § 9; 12 Tenn. Juris., Executions, § 47.

66-4-205. Presumption of champerty from sale of land adversely held by another.

If any person sells any lands or tenements, not having possession of them personally or by agent or tenant, the same being adversely held by color of title, champerty shall be presumed until the purchaser shows that such sale was bona fide made.

Code 1858, § 1780 (deriv. Acts 1821, ch. 66, § 1); Shan., § 3175; Code 1932, § 7827; T.C.A. (orig. ed.), § 64-410.

Cross-References. Adverse possession, limitations, § 28-2-101.

Textbooks. Tennessee Jurisprudence, 6 Tenn. Juris., Champerty and Maintenance, §§ 3, 5, 6, 7, 9, 13; 12 Tenn. Juris., Executions, § 47; 25 Tenn. Juris., Witnesses, § 54.

Part 3
Loans by Nonprofit Lenders

NOTES TO DECISIONS

1. Conveyances or Devises Without Words of Inheritance — Effect of Statute.

Devises in this state, without words of inheritance or the use of the term “heirs,” always passed the devisor's entire estate in the land, and operated to pass a fee simple estate, if the devisor owned such estate in the land, unless the contrary intent plainly appeared in the will. Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Thurston v. University of North Carolina, 72 Tenn. 513, 1880 Tenn. LEXIS 55 (1880); King v. Miller, 79 Tenn. 633, 1883 Tenn. LEXIS 117 (1883); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Since the enactment of § 66-1-101 and this section, an absolute fee simple estate in land may be conveyed to the grantee, without the use of the word “heirs” or other words of inheritance. Wynne v. Wynne, 56 Tenn. 308, 1872 Tenn. LEXIS 146 (1872); Topp v. White, 59 Tenn. 165, 1873 Tenn. LEXIS 43 (1873); Hurd v. French, 2 Cooper's Tenn. Ch. 359 (1875); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Travis v. Sitz, 135 Tenn. 156, 185 S.W. 1075, 1915 Tenn. LEXIS 192, L.R.A. (n.s.) 1917A671 (1915); Remke v. Remke, 11 Tenn. App. 301, 1929 Tenn. App. LEXIS 90 (1929).

This section and § 66-1-101 did not change the effect of the use of words of inheritance, but merely provided that they were not necessary to create an estate in fee. Graves v. Graves, 3 Tenn. App. 439, 1926 Tenn. App. LEXIS 121 (1926); Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939); Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

The purpose of this section and § 66-1-101 was to abolish the common law rule requiring words of inheritance as an indispensable prerequisite to the creation of an absolute estate in fee simple. Nichols v. Todd, 20 Tenn. App. 564, 101 S.W.2d 486, 1936 Tenn. App. LEXIS 48 (Tenn. Ct. App. 1936); Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

Since the passage of § 66-1-101 and this section, a grant to “A” or to “A and his heirs” means one and the same thing and vests in the grantee the same quantum of interest. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

As a result of § 66-1-101 and this section, a fee passes without the use of the word “heirs” or other words of inheritance, unless the intent to pass a less estate appears. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

The vestiture of title “in Mary Hamby,” and the vestiture of title “in Mary Hamby and her heirs,” would be, in legal effect, precisely the same; and either would purport to vest in Mary Hamby an absolute title in fee. Hamby v. Northcut, 25 Tenn. App. 11, 149 S.W.2d 484, 1940 Tenn. App. LEXIS 87 (Tenn. Ct. App. 1940).

2. Rule at Common Law.

At common law, and before the enactment of § 66-1-101 and this section a conveyance of land without words of inheritance vested only a life estate; and to create an absolute estate in fee simple, it was indispensable that the land be conveyed to the grantee and his heirs, although the deed purported to convey the land to the grantee forever, or to him and his assigns forever. This was a rule of property. Hunter v. Bryan, 24 Tenn. 47, 1844 Tenn. LEXIS 12 (1844); Cromwell v. Winchester, 39 Tenn. 389, 1859 Tenn. LEXIS 233 (Tenn. Apr. 1859); McKinney v. Stacks, 53 Tenn. 284, 1871 Tenn. LEXIS 358 (Tenn. Oct. 7, 1871); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

At common law and before the enactment of the statute, a conveyance of land without words of inheritance vested only a life estate, and to create an absolute estate in fee simple, it was indispensable that the land be conveyed to the grantee and his heirs, although the deed purported to convey the land to the grantee forever or to him and his assigns forever. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

3. Intent — Ascertainment — Effectuating.

Under § 66-1-101 and this section, the courts look to the whole of the instrument, without reference to formal common law divisions of deeds and common law rules of construction in order to ascertain the intention of the parties, and will not allow technical rules to override the intent. Kirk v. Burkholtz, 3 Cooper's Tenn. Ch. 421 (1877); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911); Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560, 1914 Tenn. LEXIS 126 (1915); Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022, 1915 Tenn. LEXIS 135 (1915); Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

The entire “terms of the instrument” may be considered in order to ascertain the estate actually intended to be vested in the grantee. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560, 1914 Tenn. LEXIS 126 (1915); Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931).

In determining what estate the grantor intended to convey, the deed as a whole is to be considered and the intention of the grantor gathered by giving all the words used their appropriate meaning. Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931); Pryor v. Richardson, 162 Tenn. 346, 37 S.W.2d 114, 1930 Tenn. LEXIS 96 (1930); Lockett v. Thomas, 179 Tenn. 240, 165 S.W.2d 375, 1942 Tenn. LEXIS 17 (1942); Baird v. Southern Ry., 179 Tenn. 366, 166 S.W.2d 617, 1942 Tenn. LEXIS 32 (1942); Archer v. Culbertson, 28 Tenn. App. 52, 185 S.W.2d 912, 1944 Tenn. App. LEXIS 61 (1944).

The merger of an equitable title into the legal title will not be permitted where the result will be to defeat the intention of the grantor or testator. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

In determining whether an instrument is testamentary in character or a deed, the intent of the grantor is controlling. Wright v. Huskey, 592 S.W.2d 899, 1979 Tenn. App. LEXIS 368 (Tenn. Ct. App. 1979).

4. “Assigns” — Use or Omission of Word — Effect.

The use of the word “assigns” in the granting clause and habendum of a deed imports an intention to give the grantee the power to sell and dispose of the property, and, therefore, creates a fee simple estate in the grantee. Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Failure to express “assigns” in conveyance will not defeat curtesy. Travis v. Sitz, 135 Tenn. 156, 185 S.W. 1075, 1915 Tenn. LEXIS 192, L.R.A. (n.s.) 1917A671 (1915).

5. Quitclaim Deed — Effect.

A quitclaim deed conveys all the title then held by the grantor unless its language renders that construction impossible. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

In allowing the witness to testify that it was not the witness's intention to release whatever interest held in the property via the quitclaim deed, the bankruptcy court permitted the witness to contradict the quitclaim deed in violation of the parol evidence rule. Joyner v. Johnson, 187 B.R. 598 (E.D. Tenn. 1994).

Trustee was entitled to summary judgment when the grantor sought to set aside a quitclaim deed, which the grantor admittedly executed after discussions with the grantor's attorney, because the grantor intentionally made an irrevocable gift of property when the grantor established an irrevocable gift trust and executed a quitclaim deed transferring title of property to the trustee and the deed was, thereafter, recorded. 2012 Irrevocable Gift Trust, — S.W.3d —, 2018 Tenn. App. LEXIS 381 (Tenn. Ct. App. July 2, 2018).

6. Conflicting Parts of Deed or Will — Construction.

The first clause in a deed when in conflict with a subsequent clause, and the last clause in a will when in conflict with a preceding clause, must prevail; but this is only where there is an irreconcilable repugnance, and both clauses in the deed or will cannot stand. There is no such repugnance where the last clause in a deed does no more than extend and enlarge the first clause. Meredith v. Owen, 36 Tenn. 223, 1856 Tenn. LEXIS 86 (1856); Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Where the premises convey a life estate, and the habendum enlarges such estate to an absolute estate, the habendum is not repugnant to the premises, because it only extends and enlarges the estate given by the premises. Meredith v. Owen, 36 Tenn. 223, 1856 Tenn. LEXIS 86 (1856); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Where the husband's deed, by its premises, conveyed land to his wife, “and her heirs in fee simple forever,” and, by its first habendum, limited it to her sole and separate use and benefit, “with power to sell, and, by deed made and executed jointly with her husband, convey the said lot of land, and vest the proceeds in other property, to be held for the same sole and separate use as the property herein conveyed,” with the additional provision that, if the husband survived the wife, the land should revert to him in fee simple; and, by its second habendum, limited the land to the wife “and her heirs forever,” the husband, surviving the wife, takes the land, because such was manifestly the intention of the parties. Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908).

Where granting clause conveyed property to husband and wife, and habendum recited that the conveyance was to husband and wife as joint tenants for the period of their lives and upon their death the survivor was to take the estate in fee simple, and further provided that during their lives the land could be conveyed by their joint deed, the deed construed as a whole indicated an intention to vest the grantees a joint estate in fee. Hamilton v. Fowler, 99 F. 18, 1899 U.S. App. LEXIS 2790 (6th Cir. Tenn. 1899), cert. denied, 176 U.S. 685, 20 S. Ct. 1027, 44 L. Ed. 639, 1900 U.S. LEXIS 2769 (1900), cert. denied, Hamilton v. Fowler, 176 U.S. 685, 20 S. Ct. 1027, 44 L. Ed. 639, 1900 U.S. LEXIS 2769 (1900).

Where the granting clause of a deed conveyed land to the grantees, “their heirs and assigns forever,” with the exception of a homestead therein for the grantors, and the habendum was to the grantees “their lifetime and then to their heirs and assigns forever,” the granting and habendum clauses were wholly repugnant, and not being reconcilable by the aid of the context showing the grantor's intention, the granting clause creating a fee simple estate will prevail over the subsequent habendum granting a less estate. Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908). See Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022, 1915 Tenn. LEXIS 135 (1915).

Where there is an irreconcilable conflict or repugnancy between the premises of a deed and its habendum, the former prevails. Ballard v. Farley, 143 Tenn. 161, 226 S.W. 544, 1920 Tenn. LEXIS 5 (1920); Hicks v. Sprankle, 149 Tenn. 310, 257 S.W. 1044, 1923 Tenn. LEXIS 101 (1924).

7. Subsequent Words Cutting Down Fee.

An estate granted absolutely will not be cut down or destroyed by a subsequent clause in the habendum, which, if it raises any doubt, will be resolved against the limitation and in favor of the estate. Hicks v. Sprankle, 149 Tenn. 310, 257 S.W. 1044, 1923 Tenn. LEXIS 101 (1924).

Where there is primarily a clear and certain devise of a fee about which the testamentary intention is obvious and without ambiguity the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning. Smith v. Reynolds, 173 Tenn. 579, 121 S.W.2d 572, 1938 Tenn. LEXIS 45 (1938).

Where granting clause provided for the conveyance of a certain tract of land to a named grantee and the habendum defined the estate granted as “in fee simple” but contained the immediate qualification that if the grantee did not dispose of the property in his lifetime and died seized and possessed thereof, then the fee simple was to pass to the grantee's daughter if she was living at the grantee's death, and where such daughter survived the grantee, the daughter took the land in fee simple on death of the grantee even though the grantee undertook to otherwise dispose of the property by will. Lockett v. Thomas, 179 Tenn. 240, 165 S.W.2d 375, 1942 Tenn. LEXIS 17 (1942).

Courts refuse to cut down an estate already granted in fee or absolutely, when the supposed terms of limitation are to be found in some subsequent portion of the will, and are not, in themselves, clear, unmistakable and certain, so that there can be no doubt of the meaning and intention of the testator. Whitfield v. Butler, 30 Tenn. App. 221, 204 S.W.2d 537, 1947 Tenn. App. LEXIS 79 (1947).

A fee simple title granted in one clause of a will without any power of disposition may be cut down or limited in a subsequent clause by express terms or necessary implication. Whitfield v. Butler, 30 Tenn. App. 221, 204 S.W.2d 537, 1947 Tenn. App. LEXIS 79 (1947).

Where testatrix conveyed her home to the devisee “to live in and not to be sold” the court concluded that testatrix's will passed a fee simple absolute in the home to the devisee, and the attempted restraint on alienation was declared void as inconsistent with the incidents and nature of the estate devised and contrary to public policy. White v. Brown, 559 S.W.2d 938, 1977 Tenn. LEXIS 656 (Tenn. 1977).

8. Doubtful Expressions — Construction.

Following the description, a deed provided: “This conveyance is made to the said Helen C. Graves for the sole use and benefit of herself and her heirs at her death and not to be subject in any way to the debts of her husband. The right to control the same during my natural life is hereby retained.” The remainder of the deed was in the regular form of a warranty deed. Such deed conveyed a fee-simple title. Graves v. Graves, 3 Tenn. App. 439, 1926 Tenn. App. LEXIS 121 (1926).

If the expression in the will is doubtful, the doubt is resolved against the limitation and in favor of the absolute estate, and clause in will of childless wife bequeathing to her husband all her property, real and personal, “to be used by him for his support and comfort during his life” conferred absolute estate upon the husband. Green v. Young, 163 Tenn. 16, 40 S.W.2d 793, 1931 Tenn. LEXIS 87 (1931).

Where the will of a testator aged 94 years, whose children resided with him, devised first the use, improvements, income of his dwelling-house, lands and appurtenances to his children “for and during their natural lives,” and then devised and bequeathed “all the residue of my estate personal or mixed of which I shall die seized or possessed” to his children, followed by pecuniary bequests to grandchildren, and concluding with a bequest to his children of all remainder of “my money at my decease,” the proper construction gives the remainder in the lands to the children, there being no gift over. Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561, 1933 Tenn. LEXIS 3 (1933).

Doubt as to meaning of a will will be resolved against a limitation and in favor of the vesting of an estate absolute. The testator is presumed to dispose of his entire estate and not to die intestate as to any part or interest therein. Williams v. Williams, 167 Tenn. 26, 65 S.W.2d 561, 1933 Tenn. LEXIS 3 (1933); Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35, 1944 Tenn. LEXIS 294 (1944).

A deed to “Robert L. Johnson and wife Dortha Jane Johnson and her Dortha Jane Johnson's heirs and assigns” vested an estate in fee in the husband and wife as tenants by the entireties as against the contention that the phrase “and her Dortha Jane Johnson's heirs and assigns” manifested an intention to create in the grantees an estate of joint tenancy or tenancy in common, and the latter words were surplusage. Bost v. Johnson, 175 Tenn. 232, 133 S.W.2d 491, 1939 Tenn. LEXIS 34 (1939).

Will by uneducated man in his own handwriting which read “I want my wife … to then take in her perseson the remainder of all of my property boath real and personal and use as her Own for her surpoard in any way that her needs require until her death” vested the fee in the widow. Cannon v. Cannon, 182 Tenn. 1, 184 S.W.2d 35, 1944 Tenn. LEXIS 294 (1944).

Where grantor transferred land by deed to wife for and during her natural life and upon her death to his daughter if then living or if daughter was dead “to her children then living, or the representatives of such as may be dead, and in the event of the death of …(the daughter) … dying without children, or the representatives of such, then in the event said land is to revert back to my legal heirs…” vested a fee simple absolute in the daughter upon her surviving her mother. Templeton v. Stong, 182 Tenn. 591, 188 S.W.2d 560, 1945 Tenn. LEXIS 257 (1945).

Provision in will providing for division of real estate of testator between two sons after the death of his widow and providing that “if either or one of my sons, or both of them should die without children born to them” the land should go to his stepchildren meant death of one or both of the sons within the lifetime of the testator, and where the sons survived the testator both married son with children and unmarried son without children took an undivided half interest in the realty in fee upon death of the widow. Johnson v. Painter, 189 Tenn. 307, 225 S.W.2d 72, 1949 Tenn. LEXIS 430 (1949).

The words “I give to my daughter all of my property” was sufficient to convey a fee simple title. Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), aff'd, Harris v. Bittikofer, 562 S.W.2d 815, 1978 Tenn. LEXIS 593 (Tenn. 1978).

9. Conveyances Passing Whatever Interest Grantor Has.

The deed of an executor, conveying “all the right, title, and claim” of his testator holding under registered tax deed purporting to convey the fee, is an assurance of title. Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911).

One who makes a deed conveying all his right, title, estate, and interest in certain described lands, or who uses equivalent words, necessarily refers to his title papers, and the deed conveys whatever interest those title papers show that he has; and where his title papers do not convey a title to him in fact and law, but only purport to do so, the effect would be the same, that is, the deed would carry whatever force or effect such assurance has under our statutes of limitation. Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911); Hitt v. Caney Fork Gulf Coal Co., 124 Tenn. 334, 139 S.W. 693, 1910 Tenn. LEXIS 58 (1911); Campbell v. Home Ice & Coal Co., 126 Tenn. 524, 150 S.W. 427, 1912 Tenn. LEXIS 75 (1912); Brier Hill Collieries v. Gernt, 131 Tenn. 542, 175 S.W. 560, 1914 Tenn. LEXIS 126 (1915); Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co., 137 Tenn. 313, 193 S.W. 106, 1916 Tenn. LEXIS 78 (1916).

Where a deed conveyed “all right, title, claim, and interest being an undivided one half interest in certain lands,” the whole estate in the lands, as such, was conveyed so far as the grantor was concerned, because an instrument should be construed against the grantor where the description of the quantity of the estate affected is doubtful, and where property is sufficiently described as a whole, the description is not restricted by a further general statement which may be given a construction inconsistent with the prior inclusive words of grant. Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co., 137 Tenn. 313, 193 S.W. 106, 1916 Tenn. LEXIS 78 (1916); Pipkin v. Lentz, 49 Tenn. App. 206, 354 S.W.2d 87, 1961 Tenn. App. LEXIS 153 (1961).

10. Executory Devisees or Contingent Remaindermen — Estates Conveyable.

Conveyances by executory devisees and contingent remaindermen may be operative to pass or convey the after acquired estate, interest, or title, if there be a general warranty of title, because such warranty operates as an estoppel to deny the title of the warantee. Henderson v. Overton, 10 Tenn. 394, 1830 Tenn. LEXIS 8, 24 Am. Dec. 492 (1830); Robertson v. Gaines, 21 Tenn. 367, 1841 Tenn. LEXIS 20 (1841); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Coal Creek Mining & Mfg. Co. v. Ross, 80 Tenn. 1, 1883 Tenn. LEXIS 133 (1883); Woods v. Bonner, 89 Tenn. 411, 18 S.W. 67, 1890 Tenn. LEXIS 62 (1890); Bruce v. Goodbar, 104 Tenn. 638, 58 S.W. 282, 1900 Tenn. LEXIS 38 (1900); Taylor v. Swafford, 122 Tenn. 303, 123 S.W. 350, 1909 Tenn. LEXIS 24, 25 L.R.A. (n.s.) 442 (1909); Bird v. Cross, 123 Tenn. 419, 131 S.W. 974, 1910 Tenn. LEXIS 15 (1910); Ferguson v. Prince, 136 Tenn. 543, 190 S.W. 548, 1916 Tenn. LEXIS 160 (1916).

The deed of conveyance of land by the executory devisees in the estate, who are ascertained and named, or the deed by the contingent remaindermen, operates to pass their present and future estate or interest acquired upon the happening of any contingency provided for in the will or deed, unless a contrary intent appears. The grantee steps into their shoes, taking their chances for future interests as well as their present estate. Bruce v. Goodbar, 104 Tenn. 638, 58 S.W. 282, 1900 Tenn. LEXIS 38 (1900).

Where daughter took life estate only, with remainder to children, and, in default of surviving children, to brothers and sisters, partition deed from such brothers and sisters conveying all their interest held valid conveyance divesting them of all rights as contingent remaindermen in grantee's estate. Frank v. Frank, 153 Tenn. 215, 280 S.W. 1012, 1925 Tenn. LEXIS 21 (1926).

11. Equity or Redemption — Conveyances Passing.

The conveyance of land in fee, without reservation of any right or interest, operates to pass the grantor's entire interest in the land, and includes his right of redemption, existing under a mortgage or execution sale, though not specially mentioned. Graves v. McFarlane, 42 Tenn. 167, 1865 Tenn. LEXIS 36 (1865); McClean v. Harris, 82 Tenn. 510, 1884 Tenn. LEXIS 153 (1884); Pearcy v. Tate, 91 Tenn. 478, 19 S.W. 323, 1892 Tenn. LEXIS 18 (1892).

12. Vested Remainder — Devise Passing.

A devise of all of testator's “personal property and real estate” passes a vested remainder estate the right to the possession and enjoyment of which has not accrued because the property is still held by the life tenant who survived the testator. Davis v. Bawcum, 57 Tenn. 406, 1873 Tenn. LEXIS 223 (1873).

13. Homesteads and Dower — Conveyances Passing.

Under a deed of conveyance of land, either absolute or as a security for debt, executed by a husband and wife, and duly acknowledged as required by law, or under a judicial decree or judgment in a suit to which the husband and wife are both parties, divesting the title out of them and vesting the same in others, their right of homestead, and the wife's inchoate right to dower, pass to the grantee under the deed, or to the party in whom the title is vested by such decree or judgment, although the deed contains no express stipulation conveying the homestead and dower, and the decree or judgment does not in terms mention the homestead and dower. Lover, Strouse & Co. v. Bessenger, 68 Tenn. 393, 1876 Tenn. LEXIS 28 (1876); Atwater v. Butler, 68 Tenn. 299, 1878 Tenn. LEXIS 13 (1878); Crook v. Lunsford, 70 Tenn. 237, 1879 Tenn. LEXIS 165 (1879); Daly v. Willis, 73 Tenn. 100, 1880 Tenn. LEXIS 90 (1880); Fogg v. Yeatman, 74 Tenn. 575, 1880 Tenn. LEXIS 295 (1880); Nichol v. County of Davidson, 76 Tenn. 389, 1881 Tenn. LEXIS 23 (1881); Parr, Nolen & Co. v. Fumbanks, 79 Tenn. 391, 1883 Tenn. LEXIS 77 (1883), overruled, White v. Fulghum, 87 Tenn. 281, 10 S.W. 501, 1888 Tenn. LEXIS 60 (1889); 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); Hall v. Fulghum, 86 Tenn. 451, 7 S.W. 121, 1887 Tenn. LEXIS 61 (1888).

The express conveyance or release of either the homestead or dower in a deed of trust or mortgage leaves the right to the one not so expressly conveyed or released unaffected, for the express conveyance of one is the exclusion of the other. Atwater v. Butler, 68 Tenn. 299, 1878 Tenn. LEXIS 13 (1878); Daly v. Willis, 73 Tenn. 100, 1880 Tenn. LEXIS 90 (1880).

The wife's right to homestead was not defeated by the fact that her husband made to her a voluntary conveyance of the homestead property, which conveyance was subsequently set aside at a suit by the husband's creditors, as the conveyance was merely fraudulent in law; thus her application for assignment of homestead was not barred, after remand to execute the decree, there being no question of homestead made in the original pleadings. Rosenbaum v. Davis, 106 Tenn. 51, 60 S.W. 497, 1900 Tenn. LEXIS 132 (1900).

Where the decree in divorce proceedings is silent upon the question, the homestead will, upon the dissolution of the marriage, remain in possession of the party holding the legal title thereto, discharge from all homestead rights or claims of the other party; thus, a divorced wife could not subsequently, in an independent suit, assert her right to homestead against the husband or his vendee. Moore v. Ward, 107 Tenn. 731, 64 S.W. 1087, 1901 Tenn. LEXIS 125 (1901).

14. Conveyances and Devises to Married Women.

Where property was conveyed to trustees, by the first clause to the mother, and by the second clause “for the only proper use, benefit, and behoof of the said” mother and her children, and by the last clause to the mother and her heirs, these clauses gave her the sole and entire right, and created in her a separate estate, free from the rights of her husband, and her children took no estate in the property. Moore v. Simmons, 39 Tenn. 545, 1859 Tenn. LEXIS 272 (Tenn. Apr. 1959); Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879).

A devise to a married woman and the heirs of her body created an estate tail at common law, but gave her, under § 66-1-102, an absolute fee simple estate; and the addition of the clause “for her own sole and separate use during her natural life,” added after the word “body,” did not show an intention to convey a less estate than a fee simple interest, but merely had the effect of excluding the marital rights of her husband during her life. Skillin v. Loyd, 46 Tenn. 563, 1869 Tenn. LEXIS 99 (1869), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12, 1896 Tenn. LEXIS 217 (Tenn. Dec. 1896); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where a testator gave and devised to his wife all of his estate, real and personal, “for her own individual purposes and property, to have for her benefit to enable her to support his three infant children,” naming them, but with no limitation over to his children, it was held that she took the absolute estate. Davis v. Bawcum, 57 Tenn. 406, 1873 Tenn. LEXIS 223 (1873); Allen v. Westbrook, 84 Tenn. 251, 1886 Tenn. LEXIS 91 (1886), criticized, Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313, 1924 Tenn. LEXIS 34 (1924). See Maloney v. Hawkins, 77 Tenn. 663, 1882 Tenn. LEXIS 119 (1882).

Under a title bond to husband and wife binding the obligor to convey certain land by warranty deed to the wife, for her sole and separate use, reserving to the husband during his lifetime the control and management of the property for the use and support of the wife and their children, as expressed in one place, and for the use of the wife, himself, and family, as expressed in another place; the wife takes a separate equitable estate, the father the right to control and manage the property during life in trust as provided in the bond, and the children the right to participate in the benefits of the income while members of the family, and, after their mother's death, there being no breach of the bond, the children inherit the equitable estate from their mother, subject to the father's right of control and management of the property for himself and the children constituting the family. Hix v. Gosling, 69 Tenn. 560, 1878 Tenn. LEXIS 140 (1878).

15. Conveyance to Wife — Effect on Curtesy.

Where realty is conveyed by husband to wife, directly, he is not entitled to an estate by the curtesy therein. Bingham v. Weller, 113 Tenn. 70, 81 S.W. 843, 106 Am. St. R. 803, 1904 Tenn. LEXIS 6, 69 L.R.A. 370 (1904); Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

Where a husband pays for realty, directing the grantor to convey to his wife, he has the right of curtesy therein, this section notwithstanding. Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

A husband's general warranty deed to his wife divests him of his curtesy estate in the land conveyed, if same is not excepted or reserved. Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

16. —Subsequent Matters Affecting Rights.

Where a husband bought lands, directing the grantor to convey them to his wife, he acquired an estate by curtesy consummate in such lands of his intestate wife; however, where they had joined in a trust deed for money borrowed by the husband, upon the death of the wife intestate, the husband could not establish tenancy by curtesy consummate without personally discharging the mortgage for protection of their minor children. Hull v. Hull, 139 Tenn. 572, 202 S.W. 914, 1918 Tenn. LEXIS 7 (1918).

17. Conveyance in Trust for Benefit of Wife — Effect on Curtesy.

A husband, after the death of his wife, took an estate of curtesy in lands which he had conveyed to a trustee for the benefit of his wife, as the deed made no settlement of the land after the death of the wife, and the husband was taken to have intended that the wife hold the estate subject to curtesy consummate, it not being clearly excluded. Frazer v. Hightower, 59 Tenn. 94, 1873 Tenn. LEXIS 31 (1873).

18. Trust Estate for Support of Children.

While trust fund to mother for support of children may be limited for the education of the children during their minority, yet the trust fund for their maintenance is not so limited, but continues as long as they remain members of the family, especially if there is no reasonable objection to this course, or if the child is a female with no other protection and means of support. Pilcher v. McHenry, 82 Tenn. 77, 1884 Tenn. LEXIS 108 (1884).

19. Trustee's Interest — Duration of Trust.

A trustee takes only the quantity of interest which the purposes of the trust require, and the trust cannot continue after the death of the surviving beneficiary. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

20. Rents and Profits Devised.

A devise or conveyance of the rents and profits, or the income of the land, is equivalent to a devise or conveyance of the land itself; and, if unlimited, there is vested in the devisee or grantee an absolute fee-simple title to the land, without the use of the term “heirs,” or other words of inheritance, notwithstanding no express power of alienation is conferred upon the devisee or grantee. However, the devise or conveyance of the rents and profits may be for life of the devisee or grantee, and then there is vested in him only a life estate in the land; and such devise or conveyance of the rents and profits may be in remainder, and in that case, there is vested in the devisee or grantee a remainder estate in the land. Polk v. Faris, 17 Tenn. 209, 1836 Tenn. LEXIS 32, 30 Am. Dec. 400 (1836), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976); Settle v. Settle, 29 Tenn. 474, 1850 Tenn. LEXIS 18 (1850); Morgan v. Pope, 47 Tenn. 541, 1870 Tenn. LEXIS 170 (1870); 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); Davis v. Williams, 85 Tenn. 646, 4 S.W. 8, 1887 Tenn. LEXIS 6 (1887); 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); Vick v. Gower, 92 Tenn. 391, 21 S.W. 677, 1892 Tenn. LEXIS 86 (1892); Johnson v. Johnson, 92 Tenn. 559, 23 S.W. 114, 1893 Tenn. LEXIS 13, 22 L.R.A. 179 (1893); Bank of Shelby v. James, 95 Tenn. 8, 30 S.W. 1038, 1895 Tenn. LEXIS 60 (1895); Jobe v. Dillard, 104 Tenn. 658, 58 S.W. 324, 1900 Tenn. LEXIS 40 (1900); Mays v. Beech, 114 Tenn. 544, 86 S.W. 713, 1904 Tenn. LEXIS 110 (1904); Eager v. McCoy, 143 Tenn. 693, 228 S.W. 709, 1920 Tenn. LEXIS 53 (1921).

The rule that a devise or grant of the rents and profits of land is equivalent to a devise or grant of land itself only applies where no active trust is interposed, for, in such case, the devisee or grantee takes only the equitable estate which is not subject to levy and sale under execution at law. 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); Jobe v. Dillard, 104 Tenn. 658, 58 S.W. 324, 1900 Tenn. LEXIS 40 (1900).

21. Devise of Use and Occupation of Property.

The devise of use and occupation of property constitutes a freehold, and makes the devisee owner of a freehold estate unless a contrary intention appear from the will. Anderson v. Hensley, 55 Tenn. 834, 1875 Tenn. LEXIS 8 (1875).

22. Conveyances and Devises to Parent and Children.

Land devised or personalty bequeathed to a parent and his children, without more, where there are children in existence at the death of the testator, will go to the parent and children equally, unless there is an indication of intention, to be gathered from the whole will, that the parent is to take a life estate, and the children the remainder. A very slight indication of intention will give estate for life, and children the remainder estate. Belote v. White, 39 Tenn. 703, 1859 Tenn. LEXIS 305 (1859); Gannaway v. Tarpley, 41 Tenn. 384, 41 Tenn. 572, 1860 Tenn. LEXIS 110 (1860); Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Speight v. Askins, 118 Tenn. 749, 102 S.W. 74, 1907 Tenn. LEXIS 77 (Tenn. Apr. 1907).

A devise of land to testator's daughter, “to have and to hold the same to her and her children, to their special use and benefit forever,” vests in the daughter, for life, the legal title to the whole property, in trust as a separate estate for the joint use and benefit of herself and children, that is, vests in her for life an equal equitable interest in the land with each of her children, including her after born children as well as those in existence at the death of the testator and, after her death, vests in her children the legal and equitable title, or the whole estate. Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Haywood v. Nash, 1 Cooper's Tenn. Ch. 157 (1873); Arrington v. Roper, 3 Cooper's Tenn. Ch. 572 (1877); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Smith v. Smith, 108 Tenn. 21, 64 S.W. 483, 1901 Tenn. LEXIS 4 (1901); Sanders v. Byrom, 112 Tenn. 472, 79 S.W. 1028, 1903 Tenn. LEXIS 116 (1903).

Where a husband procured a deed of conveyance of land to a trustee “for the benefit of Laura E. Mabry and her children,” as a settlement upon his wife and children, it was held that this constituted a continuing trust, under which after born children will take equally with the children living at the date of the conveyance. Ragsdale v. Mabry, 67 Tenn. 300, 1874 Tenn. LEXIS 377 (1874); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881).

A deed of gift of a husband and father conveying certain land to his wife and her “issues” by him then living, naming the wife and the then living children, with a provision letting in “any further issue or heirs” reserving the right to dispose of the property by the joint consent and signature of the wife, and, in case of her death, by himself “as the trustee” of his children, is, in legal effect a deed of gift to the wife and the children then living, subject to open and let in after born children, with a limited power of sale for the purposes of the trust, and is on its face valid. Hurd v. French, 2 Cooper's Tenn. Ch. 350 (1875).

A note signed by a husband and wife for the rent of land, with the words “I bind my separate estate” written below the wife's signature, will not bind the wife personally, and cannot be enforced against land conveyed by her father to her “and such children as she now has, or may hereafter have,” to their sole and separate use, with power of sale in her for the purpose of reinvestment in other property on the same uses and trusts, the land “in no event to pass out of the hands of her and her children” unless thus invested. Arrington v. Roper, 3 Cooper's Tenn. Ch. 572 (1877).

A deed by a husband to his wife and children, which conveys to his wife by name and his children, “their heirs and assigns forever” passes a present estate to the wife and the then living children as tenants in common. Livingston v. Livingston, 84 Tenn. 448, 1886 Tenn. LEXIS 122 (1886).

While a conveyance of land to a mother and her children, without qualifying words, will generally vest the title in the mother and her then living children as tenants in common, to the exclusion of after born children, a slight indication will induce the courts to adopt the other construction. To effectuate this purpose the mother will be converted into a tenant for life, and the children into remaindermen, the remainders vesting in the children living when the instrument became effective, and the estate opening upon the subsequent birth of children so as to embrace them; or else the mother will be held to be a trustee for herself and her then living children as well as her after born children. Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

23. —Conveyance or Devise to Parent for Life with Remainder to Children.

Under a deed by which the grantor “lends” to his daughter and her husband a slave during the lifetime of the daughter, and after her death, gives the slave to the child or children of the daughter, if any of them reach the age of 21 years, or leave heirs of their body, and, if none, to revert to the grant or, the daughter and mother takes a life estate, with remainder vested in the child or children living at her death, contingent, however, upon their reaching the age of 21 years, or, if dying before that time, upon their leaving children then surviving. Hughes v. Cannon, 21 Tenn. 589, 1841 Tenn. LEXIS 75 (1841).

Where property was devised to a trustee for the sole use and benefit of testator's daughter, who was only 11 years old at her father's death, and to her children, if she should have any; and, if she should die without any child or children, the property to return to testator's children, and be equally divided among them, the equitable title was vested in the daughter for life, and at her death the legal title vested in any child or children she might then have. Turner v. Ivie, 52 Tenn. 222, 1871 Tenn. LEXIS 254 (1871); Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where the testator directed his property to be kept together by his executors during the life of his widow, and the proceeds and income therefrom to be used for the support and maintenance of the family, and for the education of the children, and, at her death, that the same be sold, and the proceeds be divided equally among his children, the widow was given only a life interest, although no disposition was made of any surplus of such proceeds and income. Andrews v. Andrews, 54 Tenn. 234, 1872 Tenn. LEXIS 42 (1872).

In a conveyance or devise of land to a mother and her children, a very slight indication of an intention that the children shall not take jointly with the mother will suffice to give the estate to the mother for life, with remainder to her children. Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Cannon v. Apperson, 82 Tenn. 553, 1885 Tenn. LEXIS 1 (1885); Williams v. Williams, 84 Tenn. 164, 1885 Tenn. LEXIS 133 (1885); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

The rule that very slight indication of intention will give mother estate for life with remainder to her children applies in case of deeds of conveyance of land as well as in devises by will. Bunch v. Hardy, 71 Tenn. 543, 1879 Tenn. LEXIS 114 (1879); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

Under a conveyance of land to a married woman to “her sole and separate use,” and to the “children upon her body begotten by her then husband,” the wife took only a separate life estate, and on her death the entire estate passed to her children, and the husband had no estate by the curtesy therein. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Stovall v. Austin, 84 Tenn. 700, 1886 Tenn. LEXIS 159 (1886); Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897); Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 1900 Tenn. LEXIS 165, 82 Am. St. Rep. 882 (Tenn. 1900).

The word children was not surplusage where deed transferred tract of land to daughter “to her use and benefit and her children and their benefit,” and a life estate was created in daughter and a remainder to the children of the daughter living at her death. Cutshaw v. Shelley, 13 Tenn. App. 580, 1931 Tenn. App. LEXIS 97 (1931).

Clause giving children only a lifetime use of property directed by earlier clause to be “equally divided” among the children or their representatives, so that the property might descend unimpaired to the testator's grandchildren, gave the children only a life estate in their several shares of the property. Parker v. Milam, 166 Tenn. 266, 61 S.W.2d 674, 1933 Tenn. LEXIS 90 (1933).

24. Conveyance to Children of Named Person.

A covenant to convey to the “heirs” of a living person is good as to the children of such person, because the word “heirs” is descriptive of the persons to take, and means the children of such living person. Hickman v. Quinn, 14 Tenn. 95, 14 Tenn. 96, 1834 Tenn. LEXIS 57 (Tenn. Mar. 1834).

A deed of gift to a certain person's living children by name, and to any other children that such person may afterwards have, conferred no title whatever upon an after born child. Lillard v. Ruckers, 17 Tenn. 64, 1836 Tenn. LEXIS 17 (1836); Arrington v. Roper, 3 Cooper's Tenn. Ch. 572 (1877). But see Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

Where a grandfather, by deed of gift, gives to his grandchildren by name, “heirs” of his son named, certain slaves, “to have and to hold the same unto the above named children forever; the same to remain in the possession of the son during his life, but not to be subject to his creditors, or liable for the payment of his debts in any way whatever,” and forbidding the son to dispose of the slaves “in any way or manner, either for his life or any number of years,” such deed vested the whole and exclusive legal title to the slaves in the grandchildren, and, if the father had any interest whatever under the deed, it was a mere equitable usufruct, subordinate to their legal title, not liable for his debts, and not available for any purpose in a court of law. Benton v. Pope, 24 Tenn. 392, 1844 Tenn. LEXIS 90 (1844); Bearden v. Taylor, 42 Tenn. 134, 1865 Tenn. LEXIS 30 (1865).

A deed of gift of slaves by a father to his daughter's children, heirs of her body, appointing her their guardian, to manage for them — hire out, if she pleases, or keep them until she pleases to deliver them to her children — vested in her children, then in being, the absolute title at that time, subject to her use and usufruct, with no estate in her. The words “heirs of her body” are descriptive of the persons who are to take, and meant her children then in being in this case. Bearden v. Taylor, 42 Tenn. 134, 1865 Tenn. LEXIS 30 (1865); Johnson v. Hurley, 3 Cooper's Tenn. Ch. 258 (1876).

A deed of conveyance of land, to take effect at once, to the heirs of a certain person then living, vests the title in that person's children then in being, and after born children take no interest in the land. Bearden v. Taylor, 42 Tenn. 134, 1865 Tenn. LEXIS 30 (1865); Grimes v. Orrand, 49 Tenn. 298, 1871 Tenn. LEXIS 9 (1871); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Livingston v. Livingston, 84 Tenn. 448, 1886 Tenn. LEXIS 122 (1886); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

If a deed, when taken altogether, discloses upon the grantor's part that all the children of the mother, without regard to the time of their birth, shall become beneficiaries of the property conveyed, then to effectuate such purpose the mother will be converted into a tenant for life and the children into remaindermen, the remainders vesting in the children living at the time of the instrument and the estate opening to embrace other children subsequently born, at their birth; or else the mother will be held to be a trustee for herself and her then living as well as after born children. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

Where the conveyance of land is to the present and future children of a certain person, to take immediate effect, the title vests at law in the present children to the exclusion of after born children; but it is suggested that perhaps the living children as such grantees would hold the legal title in trust for themselves and the after born children. However, where there is a trust by deed or will, or a remainder is conveyed to present and future children of a certain person, or there is a postponement of the division or enjoyment of the property until they all come into being, the after born children will take with the children in being when the deed or will creating such estate shall become effective. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

25. Remaindermen — Persons Included.

Under a father's deed conveying land to his daughter “for and during the term of her natural life, and after her death to such of her children, their heirs and assigns forever, as she and her first husband shall limit, direct, and appoint, and, for want of such appointment, to all her children equally, their heirs and assigns forever,” the mother took a life estate, with a contingent remainder over to her children, and, upon the birth of a child, the remainder vested in that child, subject to be divested by the birth of other children, or by the exercise, by the mother and her first husband, of their power of appointment. Haywood's Heirs v. Moore, 21 Tenn. 584, 1841 Tenn. LEXIS 74 (1841); Bostick v. Winton, 33 Tenn. 524, 1853 Tenn. LEXIS 82 (1853); Belote v. White, 39 Tenn. 703, 1859 Tenn. LEXIS 305 (1859); Bowers v. Bowers, 51 Tenn. 293, 1871 Tenn. LEXIS 165 (1871); Hurd v. French, 2 Cooper's Tenn. Ch. 350 (1875); Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881).

A conveyance of land to a married woman, to have and to hold the same unto her as a separate estate, and to her children by her then husband, with a warranty of title to her, her heirs and assigns, operates to vest in her a life estate, and a remainder estate in her children by her husband, then living or thereafter born, and that may be living at her death. Beecher v. Hicks, 75 Tenn. 207, 1881 Tenn. LEXIS 97 (1881); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Statute making it unnecessary to use the word “heir” in conveying a fee did not change the rule that a devise of a remainder to the children of a life tenant inures to the benefit of the survivors of the life tenant, and excludes children of life tenant's deceased children. Neal v. Hodges, 48 S.W. 263, 1898 Tenn. Ch. App. LEXIS 59 (1898).

Devise to named persons “during their natural lives and to descend to their bodily heirs,” created life estate with remainder to such persons as should be bodily heirs at the expiration of the life estate. Stratton v. McKinnie, 62 S.W. 636, 1900 Tenn. Ch. App. LEXIS 166 (Tenn. App. 1900).

Where a father conveyed lands to his certain daughter “and her children, forever” and in a subsequent clause provided that, in case the daughter died before her husband, he should have 400 acres of the lands for use and occupancy during his lifetime, which, at his death should go to “said children, bodily heirs” of the daughter, and that the daughter and husband be put in possession of all the lands and improvements to their own use, and that the husband should have control of the whole during her lifetime, and afterwards of the 400 acres during his lifetime; it was held that the deed created a life estate in the daughter in the whole tract and in her husband to the 400 acres, with vested remainders in her children living when the deed became effective, which opened and admitted the after born children, and that upon the falling in of the life estates, her children then living and a son of a deceased child took the absolute estate in the lands. Blackburn v. Blackburn, 109 Tenn. 674, 73 S.W. 109, 1902 Tenn. LEXIS 98 (1902).

A devise to a son and to his children, and if he should die during the life of the testator without children, then to his named sister and her children, creates a life estate in the son if he survived the testator with remainder to his children, and at the birth of a child of the son, the remainder would vest, subject to open and let in after born children. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Under a deed giving land to grantor's son for life and providing that on his death it shall “pass to and vest in his issue,” the term “issue” includes grandchildren as well as children, and the children and grandchildren take per capita, unless a contrary intention can be found in the instrument itself; however, as a contrary intention was found, the children and grandchildren took per stirpes. Lea v. Lea, 145 Tenn. 693, 237 S.W. 59, 1921 Tenn. LEXIS 107 (1921).

Where deed provided that the son was to hold the land for his use and benefit for his life, that on his death, it was to vest in his issue, and that, if he died without issue or issue should become extinct within 21 years after his death, the land should revert, it was held that, the conveyance was to the son as trustee and his heirs in fee simple, or fee determinable, and, a subsequent provision limiting the son's estate to life estate, the word “issue” merely limited the heirs to descending heirs and did not give the property to the son's children and grandchildren per capita. Lea v. Lea, 145 Tenn. 693, 237 S.W. 59, 1921 Tenn. LEXIS 107 (1921).

26. Power of Disposition in First Taker.

Where a life estate or other particular estate is conveyed or devised to one, with an executory limitation or remainder over to another, and an absolute, unlimited, or unqualified power of disposition of the whole property or estate is given the first taker, it is a rule of property, regardless of the evident intention, that an executory limitation or remainder over, dependent upon the nondisposition of the first taker, is void, and an absolute estate is vested in the first taker; but, where the power of disposition given the first taker is contingent, limited, or qualified, the executory limitation or remainder over becomes effective when the property has not been disposed of within or according to the power; or where the power of disposition arises, by operation of law, as the mere incident to or consequence of the fee simple estate devised, the subsequent limitation over by way of executory devise is valid. Smith v. Bell, 8 Tenn. 301, 8 Tenn. 302, 1827 Tenn. LEXIS 57, 17 Am. Dec. 798 (1827); David v. Bridgman, 10 Tenn. 558, 1831 Tenn. LEXIS 16 (1831); Campbell v. Taul, 11 Tenn. 548, 1832 Tenn. LEXIS 113 (1832); Sommerville v. Horton, 12 Tenn. 540, 12 Tenn. 541, 1833 Tenn. LEXIS 91 (1833); Henderson v. Vaulx, 18 Tenn. 30, 1836 Tenn. LEXIS 98 (1836); Davis v. Richardson, 18 Tenn. 290, 1837 Tenn. LEXIS 23, 31 Am. Dec. 581 (1837); Thompson v. McKisick, 22 Tenn. 631, 1842 Tenn. LEXIS 167 (1842); Booker v. Booker, 24 Tenn. 505, 1844 Tenn. LEXIS 121 (1844); Deadrick v. Armour, 29 Tenn. 588, 1850 Tenn. LEXIS 39 (1850); Pillow v. Rye, 31 Tenn. 185, 1851 Tenn. LEXIS 44 (1851); Sevier v. Brown, 32 Tenn. 112, 1852 Tenn. LEXIS 30 (1852); Williams v. Jones, 32 Tenn. 620, 1853 Tenn. LEXIS 93 (1853); Ballentine & Spear, 61 Tenn. 269, 1872 Tenn. LEXIS 369 (1872); Fraker v. Fraker, 65 Tenn. 350, 1873 Tenn. LEXIS 363 (1873); McGavock v. Pugsley, 1 Cooper's Tenn. Ch. 410 (1873); Troup v. Hart, 66 Tenn. 188, 1874 Tenn. LEXIS 103 (1874); Pool v. Pool, 78 Tenn. 486, 1882 Tenn. LEXIS 211 (1882); Read v. Watkins, 79 Tenn. 158, 1883 Tenn. LEXIS 32 (1883); Turner v. Durham, 80 Tenn. 316, 1883 Tenn. LEXIS 174 (1883); Lancaster v. Lancaster, 81 Tenn. 126, 1884 Tenn. LEXIS 12 (1884); Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Bradley v. Carnes, 94 Tenn. 27, 27 S.W. 1007, 1894 Tenn. LEXIS 22, 45 Am. St. R. 696 (1894); Meacham v. Graham, 98 Tenn. 190, 39 S.W. 12, 1896 Tenn. LEXIS 217 (Tenn. Dec. 1896); Clark v. Hill, 98 Tenn. 300, 39 S.W. 339, 1896 Tenn. LEXIS 224 (Tenn. Dec. 1896); Young v. Mutual Life Ins. Co., 101 Tenn. 311, 47 S.W. 428, 1898 Tenn. LEXIS 66 (1898); Brien v. Robinson, 102 Tenn. 157, 52 S.W. 802, 1898 Tenn. LEXIS 16 (1899); Waller v. Martin, 106 Tenn. 341, 61 S.W. 73, 1900 Tenn. LEXIS 165, 82 Am. St. Rep. 882 (Tenn. 1900); Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901); Hair v. Caldwell, 109 Tenn. 148, 70 S.W. 610, 1902 Tenn. LEXIS 65 (1902); Carson v. Carson, 115 Tenn. 37, 88 S.W. 175, 1905 Tenn. LEXIS 43 (1905); McKnight v. McKnight, 120 Tenn. 431, 115 S.W. 134, 1907 Tenn. LEXIS 56 (1908); Emert v. Blair, 121 Tenn. 240, 118 S.W. 685, 1908 Tenn. LEXIS 18 (1908); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

It is a rule of property that an unlimited power of disposition gives the first taker an absolute estate, though in contravention of the actual or evident intention it is otherwise if the power of disposition is limited or contingent. McGavock v. Pugsley, 59 Tenn. 689, 1874 Tenn. LEXIS 34 (1874); Pool v. Pool, 78 Tenn. 486, 1882 Tenn. LEXIS 211 (1882); McKnight v. McKnight, 120 Tenn. 431, 115 S.W. 134, 1907 Tenn. LEXIS 56 (1908).

Though the owner of a life estate, empowered to sell the property, thought that she owned the fee and conveyed in fee simple under that impression, without specifically intending to exercise the power to sell and convey, her deed was a sufficient execution of the power, since a grantor parts with all title she may or can convey, unless a contrary intention appears. Young v. Mutual Life Ins. Co., 101 Tenn. 311, 47 S.W. 428, 1898 Tenn. LEXIS 66 (1898); Matthews v. Capshaw, 109 Tenn. 480, 72 S.W. 964, 1902 Tenn. LEXIS 88, 97 Am. St. Rep. 854 (1902).

Where testatrix, having a husband and three children, devised her property to her husband for life with “power by will and testament to dispose of the property hereby willed to him between my children as he may deem proper,” and the husband by will gave the entire property to the surviving child, but charged it with one hundred dollars ($100) in favor of the children of another deceased child, the husband's will was a proper and effective execution of the power conferred upon him by his wife's deed, except for the one hundred dollars ($100) in favor of the grandchildren, as his power of appointment was limited to the wife's children that survived him, and did not extend to her grandchildren. Herrick v. Fowler, 108 Tenn. 410, 67 S.W. 861, 1901 Tenn. LEXIS 42 (1901).

The power of disposition to be implied from the mere ownership has no application to the rule that unlimited power of disposition vests absolute estate in first taker. Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Where the testator bequeathed all his estate to his wife and adding “and it is my wish that she do with said property as she may think best, and it is further my wish and desire that at the death of my wife that all our estate … shall go to our adopted daughter Jessie,” he gave the wife unlimited power of absolute disposition, and thereby gave her the absolute estate. Ogilvie v. Wright, 140 Tenn. 114, 203 S.W. 753, 1918 Tenn. LEXIS 26 (1918).

A bequest of $7,000 in trust for testator's son until he reached the age of 50 years, to prevent his squandering it, and providing that “at his death the remaining money to be equally divided between” a brother and sister, impliedly gave full power of disposition to the donee after he reached the age of 50 years; and, since the limitation overtook effect, if at all, not merely at his death before 50, but at his death before or after that period, the limitation over was ineffective, because inconsistent with the previous absolute estate, and, on the donee's death before 50, leaving a wife and minor child, the trust fund passed to them as his distributees. Eaton v. Nashville Trust Co., 145 Tenn. 575, 238 S.W. 865, 1921 Tenn. LEXIS 95 (1921).

A will giving the residue of realty and personalty to testator's daughter for life, with power of disposition by her at death, vests in her but an estate for life, and remainder passes as intestate property where a subsequent provision authorized specific use of testator's stock. Magevney v. Karsch, 167 Tenn. 32, 65 S.W.2d 562, 1933 Tenn. LEXIS 4, 92 A.L.R. 343 (1933).

27. Conditional or Contingent Limitations Over.

A devise or bequest of property to one, with a provision that upon his death it shall go to and descend to his children, vests an absolute estate in the first taker, with a conditional limitation over, in the nature of an executory devise to his children upon his death, and if he dies leaving any children, they will take the property under the will. Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884).

A son's devise of land to his widowed mother “to and for her own use and benefit absolutely, provided that she does not marry again,” with limitation over to another in the event of her remarriage, does not invest her with an absolute estate in fee, but with a contingent estate in fee, determinable upon her remarriage. The estate did not become absolute in the mother, because the power of disposition was not given to her, either expressly or by necessary implication, by superadded words, as required by the rule. The limitation over is valid, and takes effect upon the mother's remarriage. Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901).

A condition that not any of the property devised by a son to his mother shall go, by inheritance, devise, gift, or otherwise, from the mother to a named sister of the testator, or her husband, or their descendants, or any one of their name, and a limitation over that, in the event of any such disposition, the property shall go to another named person, is a valid conditional limitation upon such devise. Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901); Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

Where the testator devised a life estate to his daughters, with remainder in fee to their children, and in default of children by them, then to the testator's children who should then be living, the remainder was vested in such of the testator's grandchildren, children of the daughters, as were in existence when the will became effective and contingent in the case of any daughter who at that time was without children. Frank v. Frank, 120 Tenn. 569, 111 S.W. 1119, 1908 Tenn. LEXIS 44 (1908); Scruggs v. Mayberry, 135 Tenn. 586, 188 S.W. 207, 1915 Tenn. LEXIS 197 (1915).

Under a will devising land to testator's mother, coupled with a provision that no part of his estate should come into the possession of his sister or her descendants, and providing that, upon the death of his mother intestate, the property should go to a third person, the condition in the will that none of the property should pass to testator's sister or her descendants did not follow the property into the hands of any one, upon whom the same might be devolved through the operation of the limitation attached to the condition. Bradford v. Leake, 124 Tenn. 312, 137 S.W. 96, 1912D Am. Ann. Cas. 1140, 1910 Tenn. LEXIS 57 (1910).

A conveyance to husband and wife reciting that, if the husband died without bodily heirs, the wife should take by survivorship, and if she died without issue, he should take an undivided moiety, operated to convey to her an undivided half in fee absolutely and to the husband in fee subject to a condition in her favor in case he should die without children, for the term “bodily heirs” means children as used in such deed. Young v. Brown, 136 Tenn. 184, 188 S.W. 1149, 1916 Tenn. LEXIS 115 (1916).

28. —Matters Defeating Limitations Over.

Under a will giving a present vested interest in property, real or personal, whether the estate given be general, equitable, absolute, or for life, with a limitation or executory devise over upon the happening of the contingency of the devisee or legatee dying without children, upon his death with children, his estate in the property becomes absolute. Petty v. Moore, 37 Tenn. 126, 1857 Tenn. LEXIS 91 (1857); Owen v. Hancock, 38 Tenn. 563, 1858 Tenn. LEXIS 228 (Tenn. Dec. 1858); Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Puryear v. Edmondson, 51 Tenn. 43, 1871 Tenn. LEXIS 133 (1871); Turner v. Ivie, 52 Tenn. 222, 1871 Tenn. LEXIS 254 (1871); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888); Nott v. Fitzgibbon, 107 Tenn. 54, 64 S.W. 26, 1901 Tenn. LEXIS 58 (1901); Overton v. Lea, 108 Tenn. 505, 68 S.W. 250, 1901 Tenn. LEXIS 51 (1901); Katzenberger v. Weaver, 110 Tenn. 620, 75 S.W. 937, 1903 Tenn. LEXIS 80 (1903). See also Williamson v. Tunis, 107 Tenn. 83, 64 S.W. 10, 1901 Tenn. LEXIS 61 (1901), holding that, under such limitations and terms, the birth and survival of a child determines the contingency upon which the estate becomes vested and absolute in the first taker; and there being no express limitation to the children, none will be implied, and they will take nothing as devisees Williamson v. Tunis, 107 Tenn. 83, 64 S.W. 10, 1901 Tenn. LEXIS 61 (1901).

Where an absolute estate is given by will, with a provision for a limitation over upon the death of the devisee or legatee, upon a certain contingency, the absolute estate is not defeated where the contingency never happens, and it becomes impossible for the limitation over to take effect. Petty v. Moore, 37 Tenn. 126, 1857 Tenn. LEXIS 91 (1857); Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Cowan, McClung & Co. v. Wells, 73 Tenn. 682, 1880 Tenn. LEXIS 198 (1880); Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884); Brown v. Brown, 86 Tenn. 277, 6 S.W. 869, 1887 Tenn. LEXIS 48 (1888).

Under a devise or bequest of property to one, to be held by trustees for his use and benefit during his natural life, and at his death to be equally divided among his children, the gift becomes absolute upon his death with no children, for the testator did not, in that event, die intestate as to the remainder, so that the same would go to his heirs and distributees under the statutes of descent and distribution. Alston v. Davis, 39 Tenn. 266, 1858 Tenn. LEXIS 291 (Tenn. Dec. 1858); Stretch v. Gowdey, 1 Cooper's Tenn. Ch. 37 (1872); Hottell v. Browder, 81 Tenn. 676, 1884 Tenn. LEXIS 86 (1884).

Ordinary words devising an absolute title will not, without superadded words giving unlimited power of disposition, defeat an executory devise. Read v. Watkins, 79 Tenn. 158, 1883 Tenn. LEXIS 32 (1883); Carson v. Carson, 115 Tenn. 37, 88 S.W. 175, 1905 Tenn. LEXIS 43 (1905); McKnight v. McKnight, 120 Tenn. 431, 115 S.W. 134, 1907 Tenn. LEXIS 56 (1908).

In a partition of land among the absolute owners, the fee is not in abeyance while a remainder is contingent under a consent decree vesting in one of the parties a life estate in the part allotted to her, with remainder at her death to her children then living and the issue of such as may be dead, but the fee abides with her during such contingency, and, if the line of remaindermen is extinct so that there is no remainderman to take at her death, the remainder then ceases forever, and her title is freed from the remainder and subject to her disposal, by will, and her will devising the land to her husband becomes operative and passes to him the whole estate. Bigley v. Watson, 98 Tenn. 353, 39 S.W. 525, 1896 Tenn. LEXIS 230, 38 L.R.A. 679 (1897).

29. —Devisee with Limitation Over Making Conveyance.

Under a conveyance by the first taker of an estate for life with an executory devise over, the right of inheritance of her children would be defeated, they being estopped by the deed. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

30. Precatory Trusts.

Where a testator, after giving his wife all his real and personal property, declared that he had sold one relative land accepting notes in payment and requested that when the relative had paid all but the last $1,500 that amount be given him, and stated that he valued land occupied by another relative at $5,000, and requested that such relative be permitted to purchase it on instalments, such two requests must be treated as precatory trusts in favor of the two relatives, as they were definite and certain and left the wife no discretion. Daly v. Daly, 142 Tenn. 242, 218 S.W. 213, 1919 Tenn. LEXIS 53 (1919).

31. Determinable Fees.

Where will bequeathing life estate to son further stated “but should my son…die childless, then and in that event, the land above described shall revert to and become the property of my legal heirs then living” the son became vested with a determinable fee, and if he died with children they would not take under the will but as his heirs, but if he died without children the fee terminated and became vested in heirs at law of his father. Johnson v. Johnson, 4 Tenn. Civ. App. (4 Higgins) 118 (1914).

32. Estate Conditioned to Arise by Way of Executory Devise — Effect of Failure on First Estate.

Where an estate is created in fee or for life, and on this estate another is conditioned to arise, by way of executory devise, on the occurrence of a given event, and that event does not occur, so that the estate cannot vest, then the first estate continues, and if a life estate, it is enlarged into a fee. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), overruled on other grounds, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

Under a devise to A and after her death to her children, if any, with provision that if she should die without lawful issue, then over to other; and it appeared that A died leaving children, it was impossible for the estate over to vest and fee vested in her, and her children could take no estate under the devise, but only by inheritance from her. Anderson v. Lucas, 140 Tenn. 336, 204 S.W. 989, 1918 Tenn. LEXIS 47 (1918), overruled in part, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976), overruled on other grounds, Harris v. Bittikofer, 541 S.W.2d 372, 1976 Tenn. LEXIS 543 (Tenn. 1976).

33. Life Estate With Contingent Remainder — Effect on Fee.

Where land was devised to named devisee for life and provided that “at his death the remainder shall go to the heirs of his body,” the fee or inheritance devised to the bodily heirs of the named devisee passed to the heirs at law of the testatrix immediately upon her death subject to the contingent remainder created by the will. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

34. No Reversion Stipulated — Effect.

Where all title, claim and interest is conveyed by the owner of the fee simple title, without providing for any reversion, the grantee takes full title even though there is a repugnant provision in the habendum clause purporting to limit the estate thus granted to life of grantee, followed by a gift over only in event the grantee dies with issue surviving. The absolute estate first granted was to be limited only in the event there should be surviving issue. Pryor v. Richardson, 162 Tenn. 346, 37 S.W.2d 114, 1930 Tenn. LEXIS 96 (1930).

35. Deed Conditioned for Grantor's Support.

A deed conditioned that the grantee shall support the grantor passes title immediately, provision for a reversion to grantor, and breach, notwithstanding. The remedy of the grantor is in equity for enforcement of a lien on the realty and not for a rescission, even where there is a total breach. Goodman v. Skeleton, 2 Tenn. Ch. App. 283 (1901); Carney v. Carney, 138 Tenn. 647, 200 S.W. 517, 1917 Tenn. LEXIS 71 (1917); Trice v. McGill, 158 Tenn. 394, 13 S.W.2d 49, 1928 Tenn. LEXIS 167 (1928), questioned, Patterson v. Anderson Motor Co., 45 Tenn. App. 35, 319 S.W.2d 492, 1958 Tenn. App. LEXIS 111 (Tenn. Ct. App. 1958).

Death of grantee before that of the grantor, and the fact that he can no longer, or fully, perform will not defeat the estate conditioned on grantor's support as equity will protect the interests of both parties. Carney v. Carney, 138 Tenn. 647, 200 S.W. 517, 1917 Tenn. LEXIS 71 (1917).

36. Right of Way Deed.

Conveyance to a railway company of land “for railroad purposes only,” creates a personal covenant which is fulfilled by the location, of a railroad through grantor's tract of land, and is not to be construed as a limitation on the fee conveyed. Nashville, C. & S. L. R. Co. v. Bell, 162 Tenn. 661, 39 S.W.2d 1026, 1931 Tenn. LEXIS 84 (1931).

Deed which conveyed to railroad company “the right of way and roadbed and 150 feet on east and 50 feet on west of said roadbed” did not purport to convey a right of way only, and under this section title to such land passed to the railroad in fee. Baird v. Southern Ry., 179 Tenn. 366, 166 S.W.2d 617, 1942 Tenn. LEXIS 32 (1942).

Although habendum clause contained language indicative of a fee simple, where granting clause in deed of conveyance to railroad stated that interest involved was a right of way the instrument clearly expressed an intent to pass an estate or interest less than a fee and section did not apply. Smoky Mt. R.R. v. Paine Oil Co., 496 S.W.2d 904, 1972 Tenn. App. LEXIS 300 (Tenn. Ct. App. 1972).

37. Exception of “Lands Adversely Held.”

An exception in a deed of “such parts of said lands as may be adversely held” is an exception of land held adversely to the warranting grantor, and not of land acquired by adverse possession of grantor's predecessor in title and conveyed to the immediate grantor before his own conveyance. Sequatchie Land Co. v. Sewanee Coal, Coke & Land Co., 137 Tenn. 313, 193 S.W. 106, 1916 Tenn. LEXIS 78 (1916).

38. Conveyance of Story of Building.

A building may be divided horizontally and the different floors or the different rooms be separately conveyed and owned and deed was held to convey one story of a building to one person and the other story to another. Townes v. Cox, 162 Tenn. 624, 39 S.W.2d 749, 1931 Tenn. LEXIS 77 (1931).

39. Partition Deed.

The general rule is that a voluntary partition of realty does not confer on the parties any additional title, and a partition instrument executed by devisees and intended only to sever the interest and estate granted to each by the will does not pass the reversion, which was not devised by the will and which the grantors received as heirs by descent, notwithstanding such instrument contained language which, in the absence of anything else, would have passed title. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930). See Frank v. Frank, 153 Tenn. 215, 280 S.W. 1012, 1925 Tenn. LEXIS 21 (1926).

40. Possibility of Interest in Land.

It was not the intention of the legislature that a bare possibility of an interest in land should pass as an “interest therein” under § 66-1-101 and this section. Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

41. Right of Reentry Upon Condition Broken.

This section did not abrogate common law rule that right of reentry upon condition broken is inalienable, however attempted alienation will not operate to extinguish such right but instead such right will pass eo instante to heirs of grantor. Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

Some act of reentry on the part of the heirs is necessary to revest title upon breach of a condition subsequent. Pickens v. Daugherty, 217 Tenn. 349, 397 S.W.2d 815, 1965 Tenn. LEXIS 547 (1965).

42. Reservation of Life Estate.

When a grantor reserves a life estate with unlimited power to sell, he retains the fee — no interest in praesenti passes to the grantee — the instrument is not a deed. Wright v. Huskey, 592 S.W.2d 899, 1979 Tenn. App. LEXIS 368 (Tenn. Ct. App. 1979).

43. Conveyance Conditional upon Spouse Not Remarrying.

Where deed from husband to wife granted wife the property with a condition that if the husband should die before the wife the wife should have full control and power to handle the property “so long as she lives my widow” but if she should remarry the property would go to his children, and she conveyed the property after her husband's death, the grantee acquired the property subject to forfeiture upon the remarriage of the widow. Hall v. Hall, 604 S.W.2d 851, 1980 Tenn. LEXIS 495 (Tenn. 1980).

44. Fee Simple.

There was a statutory presumption that the 1921 deed conveyed to the grantee the entirety of the grantors'  interest, and while defendants attempted to rebut that presumption by claiming the deed showed an intention to grant a mere easement for railroad purposes, the use of the phrase right of way in the descriptive clause was merely intended to describe rather than to limit the use of the railroad corridor conveyed in the granting clause. The trial court did not err in finding that plaintiff owned the land in fee simple. KT Grp., LLC v. Lowe, 578 S.W.3d 1, 2018 Tenn. App. LEXIS 611 (Tenn. Ct. App. Oct. 19, 2018), appeal denied, KT Grp. LLC v. Lowe, — S.W.3d —, 2019 Tenn. LEXIS 143 (Tenn. Feb. 21, 2019).

Collateral References.

Affirmative covenants as running with the land. 68 A.L.R.2d 1022.

Breach of warranty in sale, installation, repair, design, or inspection of septic or sewage disposal systems. 50 A.L.R.5th 417.

Conflict between granting and habendum clauses as to estate conveyed. 58 A.L.R.2d 1374.

Conveyance of “right of way,” in connection with conveyance of another tract, as passing fee or easement. 89 A.L.R.3d 767.

Covenant as aid in interpretation of deed as to quantum of estate granted. 47 A.L.R. 872.

Deed as conveying fee or easement. 136 A.L.R. 379.

Fee simple conditional, effect of conveyance of by grantee. 114 A.L.R. 612.

Grant of gift or income of land as carrying absolute interest in property. 174 A.L.R. 323.

“Land” or “loan” use of, as affecting estate or interest created. 34 A.L.R. 956.

Liability of purchaser of real estate for interference with contract between vendor and real estate broker. 29 A.L.R.3d 1229.

Marriage, effect of condition in restraint of, on nature of estate taken. 122 A.L.R. 75.

Real-estate broker's liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold. 46 A.L.R.4th 546.

Real estate broker's right to compensation as affected by failure or refusal of principal's spouse to join in contract of sale. 10 A.L.R.3d 665.

Recorded real property instrument as charging third party with constructive notice of provisions of extrinsic instrument referred to therein. 89 A.L.R.3d 901.

Reverter, release of possibility of, as vesting fee in grantee. 38 A.L.R. 1111.

Severance or termination of joint tenancy by conveyance of divided interest directly to self. 7 A.L.R.4th 1268.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession. 87 A.L.R.2d 787.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse. 52 A.L.R.3d 753.

Will devising property, effect of doubtful construction on marketability of title. 65 A.L.R.3d 450.

NOTES TO DECISIONS

1. Constitutionality.

Strip mining regulation contained in former § 59-8-205(1)(F)(ii) and in T.C.A. § 66-5-102 does not deny equal protection, as the legislative classification is reasonably related to legitimate public interests. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

Since neither the plaintiff miners nor their predecessor in title was ever conveyed the legal right to strip mine, T.C.A. § 66-5-102 and former § 59-8-205(1)(F)(ii) concerning surface mining of coal did not unconstitutionally affect plaintiffs' contract rights or deprive them of property without due process, for the statutes merely codified the common law governing the construction of deeds and other such contracts. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

T.C.A. § 66-5-102 and former § 59-8-205(1)(F)(ii) concerning surface mining of coal do not encroach upon the domain of the judiciary but rather codify the age-old, common-law rule that the intent of the parties governs in the construction of contracts, deeds, wills and the like; the statutes create no irrebuttable presumptions and exclude no evidence from consideration and thus do not affect the courts' customary function of ascertaining the parties' intent based upon all the evidence. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

2. Presumed Intention.

Since strip mining was unknown in county when the mineral and surface estates at issue were severed, the contracting parties could not be presumed to have intended for one party to own the right to use and enjoy the surface of the land and for another party to own the right to completely disrupt that surface, and consequently no right to strip mine accompanied ownership of the mineral rights where there was no evidence that the parties had intended a contrary result. Doochin v. Rackley, 610 S.W.2d 715, 1981 Tenn. LEXIS 397 (Tenn. 1981).

Collateral References.

Production on one tract as extending term on other tract, where one mineral deed conveys oil or gas in separate tracts for as long as oil or gas is produced. 9 A.L.R.4th 1121.

NOTES TO DECISIONS

1. Purpose.

The statutory provisions disclose a clear legislative intent to reduce the forms of conveyance to their simplest elements, and to give the largest meaning to granting words, unless limited by the instrument itself. Daly v. Willis, 73 Tenn. 100, 1880 Tenn. LEXIS 90 (1880); Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883). See Fogarty v. Stack, 86 Tenn. 610, 8 S.W. 846, 1888 Tenn. LEXIS 14 (1888); Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484, 1908 Tenn. LEXIS 11 (1908); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911).

Successor developer validly succeeded to the rights of a prior developer because the deed between the developers identified the real property at issue and conveyed that property with the appurtenances, estate, title and interest thereto, as the deed stated the successor took title to the real property subject to a declaration, which, in turn, clearly (1) spoke to the development of the real property owned at the time by the prior developer, (2) referred to the impending creation of a charter, bylaws, a homeowners'  association, and a board, and (3) identified the “developer” as the prior developer “and its successors and assigns.” Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 2012 Tenn. LEXIS 819 (Tenn. Nov. 19, 2012).

2. Form of Conveyance.

A deed written by the grantor himself, and containing his signature in the usual granting clause, namely, “I, A B, have sold, and do hereby sell and convey,” would be good, if actually delivered to the grantee as the deed of the grantor. Saunders v. Hackney, 78 Tenn. 194, 1882 Tenn. LEXIS 163 (1882).

A quitclaim deed is a form of conveyance; and like other deeds, it conveys whatever interest the grantor has in the land, unless otherwise specially limited by its terms. Campbell v. Home Ice & Coal Co., 126 Tenn. 524, 150 S.W. 427, 1912 Tenn. LEXIS 75 (1912); Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

Where an instrument contained a recital of the consideration, the retention of a lien to secure deferred payments, the conveying clause, the covenants of seizin, possession, against incumbrances and general warranty, and it was executed, acknowledged for registration and registered in the form and manner prescribed for deeds of conveyance, it had all the essentials for the conveyance of a present interest and estate against the contention that the instrument was a will. Smith v. Prichard, 22 Tenn. App. 321, 122 S.W.2d 829, 1938 Tenn. App. LEXIS 34 (1938).

3. —Agreement to Execute Deed.

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

4. —Description of Property.

Because the description contained in the deed failed to identify a particular tract of land, extrinsic evidence was not admissible to supply the location of the land in question, and thus the description was insufficient under Tennessee law. CC Holdings (Tenn.), Inc. v. Tennessee Gas Transp., Inc., 169 B.R. 643, 1994 Bankr. LEXIS 1177 (Bankr. M.D. Tenn. 1994).

Deed of trust referred necessarily to some existing tract of land, and its terms could be applied to that one tract only. The outcome therefore, had to be the same as in ABN AMRO Mortgage Group, Inc. v. Southern Security Federal Credit Union, 372 S.W.3d 121 (Tenn. Ct. App. 2011): the deed of trust sufficiently designated the land intended to be mortgaged with reasonable certainty as required under Tennessee law. Jahn v. FirstBank (in re Jones), — B.R. —, 2013 Bankr. LEXIS 3972 (Bankr. E.D. Tenn. Sept. 23, 2013).

Because an appellate court was unable to determine whether a deed conveyed a tract of land to the grantees, the court remanded the case to the trial court for a determination of whether the tract was included in a referenced estate. If the trial court determined that tract was, in fact, included in the estate, then the property description was adequate to convey the tract to the grantees. Valentine v. Holt, — S.W.3d —, 2020 Tenn. App. LEXIS 25 (Tenn. Ct. App. Jan. 22, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 328 (Tenn. June 3, 2020).

5. Wording of Conveyance.

The words “bargained and sold” may operate as a conveyance of land. Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883); Southern Iron & Coal Co. v. Schwoon, 124 Tenn. 176, 135 S.W. 785, 1910 Tenn. LEXIS 51 (1911).

6. Intent of Maker — Significance — Showing.

No particular form or appropriate words are essential to indicate the grantor's intention, for it is sufficient if the deed, however short and inartfully drawn it may be, contains words showing it to be the intention of the maker to pass an estate from himself to the other party. Jackson v. Dillon's Lessee, 2 Tenn. 261, 1814 Tenn. LEXIS 14 (1814).

The same words may be construed as an agreement to convey, or as operating as an actual conveyance, according to the intention of the parties to be gathered from the context. Hanks v. Folsom, 79 Tenn. 555, 1883 Tenn. LEXIS 107 (1883).

Where the vendor accepted the cash payment on land and, at the request of the agent for both parties, signed the deed to the grantees paying the consideration, which deed had been prepared by the common agent, it was immaterial whether the vendor knew the exact names of the grantees or not, since she clearly intended to convey to the customers produced by the agent. Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416, 1918 Tenn. LEXIS 55 (1918), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974), superseded by statute as stated in, Third Nat'l Bank v. Knobler, — S.W.2d —, 1988 Tenn. App. LEXIS 655 (Tenn. Ct. App. Oct. 21, 1988), overruled on other grounds, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

7. Consideration — Necessity — Recital.

It is not essential to its validity to express any consideration in a deed; and it is not necessary that it be grounded upon a valuable consideration, if it be supported by a good consideration. Jackson v. Dillon's Lessee, 2 Tenn. 261, 1814 Tenn. LEXIS 14 (1814); Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Whitby v. Whitby, 36 Tenn. 473, 1857 Tenn. LEXIS 39 (1857), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006); Gass v. Hawkins, 1 Shan. 167 (1860); Perry v. Central S.R.R., 45 Tenn. 138, 1867 Tenn. LEXIS 105 (1867); Mowry v. Davenport, 74 Tenn. 80, 1880 Tenn. LEXIS 213 (1880); White v. Blakemore, 76 Tenn. 49, 1881 Tenn. LEXIS 9 (1881); Hill v. McLean, 78 Tenn. 107, 1882 Tenn. LEXIS 151 (1882).

The recital of a consideration in a title bond is not essential to its validity. Whitby v. Whitby, 36 Tenn. 473, 1857 Tenn. LEXIS 39 (1857), overruled in part, Blair v. Brownson, 197 S.W.3d 681, 2006 Tenn. LEXIS 603 (Tenn. 2006); Perry v. Central S.R.R., 45 Tenn. 138, 1867 Tenn. LEXIS 105 (1867); White v. Blakemore, 76 Tenn. 49, 1881 Tenn. LEXIS 9 (1881).

8. Omission of Name of Grantor from Body.

It is sufficient, although the name of the signer does not appear in the body or operative parts of the deed, and the pronoun “I” is, by an evidently clerical error, omitted in one place, but the omission is supplied by the context and other recitals and parts of the deed. Insurance Co. of Tennessee v. Waller, 116 Tenn. 1, 95 S.W. 811, 1905 Tenn. LEXIS 1 (1905).

9. —Wife's Deed of Homestead.

The name of the wife need not appear in the body of a deed in order to bind her as grantor of the homestead right. Kelton v. Brown, 39 S.W. 541, 1897 Tenn. Ch. App. LEXIS 3 (1897).

10. Erasure of Grantee's Name after Delivery — Effect.

Where a deed to husband and wife had been delivered, the subsequent erasing of the wife's name from the deed had no effect on her title. Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416, 1918 Tenn. LEXIS 55 (1918), overruled in part, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974), superseded by statute as stated in, Third Nat'l Bank v. Knobler, — S.W.2d —, 1988 Tenn. App. LEXIS 655 (Tenn. Ct. App. Oct. 21, 1988), overruled on other grounds, Robinson v. Trousdale County, 516 S.W.2d 626, 1974 Tenn. LEXIS 452 (Tenn. 1974).

11. Trust Agreement With Covenant to Stand Seized.

A trust agreement containing a covenant on part of declarant to stand seized of property to the use of his wife and daughters for their several lives, while an ancient form of conveyance and no longer in general use, is recognized and made valid as a deed by this section, and is good as between the parties though unrecorded. Rose v. Commissioner, 65 F.2d 616, 1933 U.S. App. LEXIS 3095 (6th Cir. 1933).

12. Estates Subject to Conveyance or Assignment.

Estate of remainder is subject to conveyance though remaindermen are children of the life tenant, though they predecease him. Bowers v. Moore, 138 Tenn. 132, 196 S.W. 147, 1917 Tenn. LEXIS 13 (1917).

Possibility of reversion may not be assigned. Yarbrough v. Yarbrough, 151 Tenn. 221, 269 S.W. 36, 1924 Tenn. LEXIS 62 (1925).

An estate in reversion is vested, and, therefore, assignable by conveyances. Manhattan Sav. Bank & Trust Co. v. Bedford, 161 Tenn. 187, 30 S.W.2d 227, 1929 Tenn. LEXIS 49 (1930).

Collateral References.

Description of land conveyed by reference to river or stream as carrying to thread or center or only to bank thereof — Modern status. 78 A.L.R.3d 604.

What constitutes a “structure” within restrictive covenant. 75 A.L.R.3d 1095.

Which of conflicting descriptions in deeds or mortgages of fractional quantity of interest intended to be conveyed prevails. 12 A.L.R.4th 795.

NOTES TO DECISIONS

1. Purpose.

This section was enacted for the protection of ordinary agents and attorneys from personal liability upon the contracts of their principals, when executed in accordance with the statute, which is in accord with the ancient common law in Comb's Case, 9 Coke's Rep., which protects all trustees alike from personal liability when the face of the paper itself shows clearly that they do not intend to bind themselves personally. Wyatt v. Davidson, 1 Shan. 613 (1876).

The purpose of this section is not to limit the mandatory forms of execution of an instrument by an agent to those specified, but is intended to protect agents from personal liability on instruments executed in their fiduciary capacities. Bush v. Cathey, 598 S.W.2d 777, 1979 Tenn. App. LEXIS 385, 11 A.L.R.4th 881 (Tenn. Ct. App. 1979).

2. Authority by Deed to Execute Deed.

To authorize the execution of a deed in the name of another, the authority must be by deed; and no previous parol assent or subsequent adoption will bind the party, unless the deed be acknowledged and redelivered. Turbeville v. Ryan, 20 Tenn. 113, 1839 Tenn. LEXIS 27, 34 Am. Dec. 622 (1839); Napier v. Catron, 21 Tenn. 534, 1841 Tenn. LEXIS 62 (1841); Boyd v. Dodson, 24 Tenn. 37, 1844 Tenn. LEXIS 6 (1844); Smith v. Dickinson, 25 Tenn. 261, 1845 Tenn. LEXIS 75, 44 Am. Dec. 306 (1845); Mosby v. Arkansas, 36 Tenn. 324, 1857 Tenn. LEXIS 3 (1857); McNutt v. McMahan, 38 Tenn. 98, 1858 Tenn. LEXIS 127 (Tenn. Sep. 1858); Cain v. Heard, 41 Tenn. 163, 1860 Tenn. LEXIS 37 (1860).

To authorize an agent to execute a deed in the name of another as his principal the authority must be by deed or by writing of equal formality with a deed. Lowe v. Wright, 40 Tenn. App. 525, 292 S.W.2d 413, 1956 Tenn. App. LEXIS 156 (Tenn. Ct. App. 1956).

3. Mode of Signing.

A deed, showing on its face that it is executed by the grantor as attorney in fact, but signed by attorney's name only, conveys the title of his principal. McCreary v. McCorkle, 54 S.W. 53, 1899 Tenn. Ch. App. LEXIS 105 (1899).

Although the plain meaning of the statute would seem to indicate that the instrument on its face must reflect the agency when executed by an agent who simply writes the name of the principal, the act of a husband in affixing his wife's initials to a counter-offer at her request was well within the spirit of the statute. Bush v. Cathey, 598 S.W.2d 777, 1979 Tenn. App. LEXIS 385, 11 A.L.R.4th 881 (Tenn. Ct. App. 1979).

4. —Corporate Deed Signed by Officers.

A deed binds a corporation, though not signed by the corporate name, where it purports on its face to be the deed of the corporation, recites in the testimonial clause that the corporation has caused its corporate seal and the names of its president and secretary to be attached thereto, and which in fact bears the corporate seal, and is signed by its president and secretary in their official capacities. Rawlings v. New Memphis Gaslight Co., 105 Tenn. 268, 60 S.W. 206, 1900 Tenn. LEXIS 76, 80 Am. St. Rep. 880 (1900); Turner v. Kingston Lumber & Mfg. Co., 106 Tenn. 1, 58 S.W. 854, 1900 Tenn. LEXIS 126 (1900).

5. Ineffectual Corporate Deed.

The deed of a private corporation is ineffectual to pass legal title to realty where it recites no authority for its execution and is signed by an individual as president without affixing a corporate seal, and which purports to be acknowledged by him personally, only. Garrett v. Belmont Land Co., 94 Tenn. 459, 29 S.W. 726, 1894 Tenn. LEXIS 59 (1895).

6. Contract by Agent in Principal's Name.

Under this statute, contracts relating to real or personal property may be executed by an agent in the name of his principal alone. Wilkerson v. Dennison, 113 Tenn. 237, 80 S.W. 765, 1904 Tenn. LEXIS 20, 106 Am. St. Rep. 821 (1904).

7. Deed Not Showing Name of Principal.

A deed signed in his own name by an attorney in fact is good notwithstanding he did not sign the name of his principal thereto, the deed showing on its face the capacity in which he was acting. McCreary v. McCorkle, 54 S.W. 53, 1899 Tenn. Ch. App. LEXIS 105 (1899).

Where a deed is executed by a trustee, and it appears on its face that it was executed by him in the character of trustee, the principle of this section applies, though deed be signed and acknowledged as an individual only. Renner v. Marshall, 58 S.W. 863, 1900 Tenn. Ch. App. LEXIS 52 (Tenn. Ch. App. 1900).

8. Illustrative Cases.

Trial court should not have answered a jury question during deliberations as to whether, if the decedent's adult stepchild had a power of attorney, could the stepchild sign a will and deed for the decedent in the affirmative or negative, and it should not have given a supplemental instruction concerning instruments to real property that were signed by an agent or attorney for a principal, but, instead, should have merely instructed the jury to render a verdict based on the jury instructions previously given. However, the error was harmless. Johnson-Murray v. Burns, 525 S.W.3d 625, 2017 Tenn. App. LEXIS 168 (Tenn. Ct. App. Mar. 14, 2017).

Collateral References.

Sufficiency of execution of deed by agent or attorney in fact in name of principal without his own name appearing. 96 A.L.R. 1252.

NOTES TO DECISIONS

1. Effect of Statute on Other Methods of Conveyance.

The statute abolished the old English modes of conveyance, and excluded all modes other than that by deed, and has formed a common law on the subject in this state, which cannot be disregarded. Upon this statute, all our registry acts are grounded, and registration is substituted for the livery of seizin and for the attornment of the tenants on the land. Hampton's Lessee v. M'Ginnis, 1 Tenn. 286, 1808 Tenn. LEXIS 15 (1808); Peeler v. Norris' Lessee, 12 Tenn. 331, 1833 Tenn. LEXIS 71 (1833); Thomas' Lessee v. Blackemore, 13 Tenn. 113, 1833 Tenn. LEXIS 119 (1833); Taul v. Campbell, 15 Tenn. 318, 15 Tenn. 319, 1835 Tenn. LEXIS 8 (1835); Hays v. McGuire, 16 Tenn. 92, 1835 Tenn. LEXIS 51 (1835); Miller v. Miller, 19 Tenn. 484, 1838 Tenn. LEXIS 79, 33 Am. Dec. 157 (1838); Wallace v. Hannum, 20 Tenn. 443, 1839 Tenn. LEXIS 76, 34 Am. Dec. 659 (1839); Ward v. Daniel, 29 Tenn. 603, 1850 Tenn. LEXIS 40 (1850); Saunders v. Hackney, 78 Tenn. 194, 1882 Tenn. LEXIS 163 (1882).

Transactions other than the giving of a deed may amount to a “sale or transfer” of some part of a property for purposes of a due-on-sale clause in a note. Hodge v. DMNS Co., 652 S.W.2d 762, 1982 Tenn. App. LEXIS 455 (Tenn. Ct. App. 1982).

2. Consideration — Expression Unnecessary.

It is not necessary to express any consideration in deed. Jackson v. Dillon's Lessee, 2 Tenn. 261, 1814 Tenn. LEXIS 14 (1814).

3. Registration — Necessity.

Deeds are good as between the parties, without registration, and registration is only necessary to protect the grantee against the grantor's creditors and purchasers from him without actual notice of the deed. Rogers' Lessee v. Cawood, 31 Tenn. 142, 1851 Tenn. LEXIS 36 (1851); Lessee of Stewart v. Harris, 32 Tenn. 656, 1853 Tenn. LEXIS 102 (1853); Ready v. Bragg, 38 Tenn. 511, 1858 Tenn. LEXIS 215 (Tenn. Dec. 1858); Wilkins v. May, 40 Tenn. 173, 1859 Tenn. LEXIS 47 (1859); Green v. Goodall, 41 Tenn. 404, 1860 Tenn. LEXIS 83 (1860); Coward v. Culver, 59 Tenn. 540, 1873 Tenn. LEXIS 107 (1873); Sanders v. Everett, 3 Cooper's Tenn. Ch. 520 (1877); Saunders v. Hackney, 78 Tenn. 194, 1882 Tenn. LEXIS 163 (1882); Templeton v. Twitty, 88 Tenn. 595, 14 S.W. 435, 1889 Tenn. LEXIS 80 (Tenn. Dec. 1889); Woods v. Bonner, 89 Tenn. 411, 18 S.W. 67, 1890 Tenn. LEXIS 62 (1890); Bridges v. Cooper, 98 Tenn. 394, 39 S.W. 723, 1896 Tenn. LEXIS 233 (1897); King v. Coleman, 98 Tenn. 561, 40 S.W. 1082, 1897 Tenn. LEXIS 145 (1897); Wilkins v. McCorkle, 112 Tenn. 688, 80 S.W. 834, 1904 Tenn. LEXIS 64 (1904); Hitt v. Caney Fork Gulf Coal Co., 124 Tenn. 334, 139 S.W. 693, 1910 Tenn. LEXIS 58 (1911); Campbell v. Home Ice & Coal Co., 126 Tenn. 524, 150 S.W. 427, 1912 Tenn. LEXIS 75 (1912).

Registration is not necessary to perfect the legal title, and to make deeds admissible in evidence, as against a party claiming under an entirely different title. Self v. Haun, 2 Shan. 123 (1876); Templeton v. Twitty, 88 Tenn. 595, 14 S.W. 435, 1889 Tenn. LEXIS 80 (Tenn. Dec. 1889); Woods v. Bonner, 89 Tenn. 411, 18 S.W. 67, 1890 Tenn. LEXIS 62 (1890); King v. Coleman, 98 Tenn. 561, 40 S.W. 1082, 1897 Tenn. LEXIS 145 (1897); Wilkins v. McCorkle, 112 Tenn. 688, 80 S.W. 834, 1904 Tenn. LEXIS 64 (1904).

Where purchaser at execution sale under decree of federal court failed to record his deed to the land, the deed was void as to creditors. Shea v. Rucker, 167 Tenn. 550, 72 S.W.2d 551, 1933 Tenn. LEXIS 65 (1933).

Even though deed could not be registered because acknowledgment was void it would still be valid as between parties who were creditors and had actual notice. Hinton v. Robinson, 51 Tenn. App. 1, 364 S.W.2d 97, 1962 Tenn. App. LEXIS 90 (1962).

4. Prior Registration — Effect Between Rival Instruments.

In case of rival conveyances, the one first registered or noted for registration, though subsequently made, has preference, unless in a court of equity it is proved that the one claiming under the subsequent instrument had previous notice of the earlier unregistered instrument. Campbell v. Home Ice & Coal Co., 126 Tenn. 524, 150 S.W. 427, 1912 Tenn. LEXIS 75 (1912).

5. Registration as Notice to Creditors.

A duly registered valid deed imparts the same notice to a creditor that it imparts to a purchaser of the land. Phoenix Mut. Life Ins. Co. v. Kingston Bank & Trust Co., 172 Tenn. 335, 112 S.W.2d 381, 1937 Tenn. LEXIS 83 (1938).

Registration based upon a defective certificate of acknowledgment does not constitute notice to strangers to the instrument registered. In re Airport-81 Nursing Care, Inc., 29 B.R. 501, 1983 Bankr. LEXIS 6536 (Bankr. E.D. Tenn. 1983); In re Airport-81 Nursing Care, Inc., 36 B.R. 370, 1984 Bankr. LEXIS 6427 (Bankr. E.D. Tenn. 1984).

6. Execution Against Land Conveyed by Unregistered Deed.

It has always been held that an unregistered deed vests such title in the grantee that the land so conveyed and held may be levied on and sold as his property. Vance's Heirs v. M'Nairy, 11 Tenn. 170, 1832 Tenn. LEXIS 34 (1832), limited, Helms v. Alexander, 29 Tenn. 44, 1849 Tenn. LEXIS 4 (1849); Shields v. Mitchell, 18 Tenn. 1, 1836 Tenn. LEXIS 95 (1836); Rochell v. Benson, Hunt & Co.'s Lessee, 19 Tenn. 3, 1838 Tenn. LEXIS 2 (1838); Kimbrough v. Benton, 22 Tenn. 110, 1842 Tenn. LEXIS 40 (1842), questioned, Mays v. Wherry, 3 Tenn. Ch. 80 (1875); Simmons v. McKissick, 25 Tenn. 259, 1845 Tenn. LEXIS 74 (1845); Ready v. Bragg, 38 Tenn. 511, 1858 Tenn. LEXIS 215 (Tenn. Dec. 1858); Wilkins v. May, 40 Tenn. 173, 1859 Tenn. LEXIS 47 (1859); Coward v. Culver, 59 Tenn. 540, 1873 Tenn. LEXIS 107 (1873); Bridges v. Cooper, 98 Tenn. 381, 39 S.W. 720, 1896 Tenn. LEXIS 232 (1897); Wilkins v. McCorkle, 112 Tenn. 688, 80 S.W. 834, 1904 Tenn. LEXIS 64 (1904).

Land conveyed by an unregistered deed is subject to levy and sale under execution or attachment, and to the judgment lien, as the property of the grantor. Stanley v. Nelson & Dickinson, 23 Tenn. 484, 1844 Tenn. LEXIS 145 (1844); Butler v. Maury, 29 Tenn. 420, 1850 Tenn. LEXIS 3 (1850); Ocoee Bank v. Nelson, 41 Tenn. 186, 1860 Tenn. LEXIS 43 (1860); Kinsey v. McDearmon, 45 Tenn. 392, 1868 Tenn. LEXIS 20 (1868); Charles v. Taylor, 48 Tenn. 528, 1870 Tenn. LEXIS 105 (1870); Turbeville v. Gibson, 52 Tenn. 565, 1871 Tenn. LEXIS 290 (1871); Wilson v. Eifler, 58 Tenn. 179, 1872 Tenn. LEXIS 244 (1872); Buchanan v. Kimes, 61 Tenn. 275, 1872 Tenn. LEXIS 370 (1872); Coward v. Culver, 59 Tenn. 540, 1873 Tenn. LEXIS 107 (1873); Lyle v. Longley, 65 Tenn. 286, 1873 Tenn. LEXIS 346 (1873); Sanders v. Everett, 3 Cooper's Tenn. Ch. 520 (1877); Smith v. Taylor, 79 Tenn. 738, 1883 Tenn. LEXIS 132 (1883); Lookout Bank v. Noe, 86 Tenn. 21, 5 S.W. 433, 1887 Tenn. LEXIS 19 (1887).

7. Ejectment on Unregistered Deed.

One may maintain ejectment on an unregistered deed, but if not registered the deed must be proven. Williams v. Williams, 25 Tenn. App. 290, 156 S.W.2d 363, 1941 Tenn. App. LEXIS 108 (Tenn. Ct. App. 1941).

8. Deed with Insufficient Description — Validity.

Deeds with insufficient description of property are not valid conveyances, and though registered, leave the property open to levy in favor of grantor's creditors. Phoenix Mut. Life Ins. Co. v. Kingston Bank & Trust Co., 172 Tenn. 335, 112 S.W.2d 381, 1937 Tenn. LEXIS 83 (1938).

NOTES TO DECISIONS

1. Jurisdiction.

The only essential facts to give jurisdiction are that an error has been committed by an officer mentioned and that the land lies in the county. Overton's Lessee v. Lackey, 3 Tenn. 193, 1 Cooke 193, 1812 Tenn. LEXIS 54.

Remedy is applicable whether petitioner be in or out of possession. American Asso. v. Williams, 166 F. 17, 1908 U.S. App. LEXIS 4831 (6th Cir. Tenn. 1908).

2. Wrong County.

Mistake in naming the county in which the land lies is not covered. Pile v. Crawford, 160 Tenn. 358, 24 S.W.2d 892, 1929 Tenn. LEXIS 113 (1929).

3. Correction of Grant.

Phrase “any deed of conveyance” used in this section includes “grant,” and this section covers correction of a grant. Dearing v. Brush Creek Coal Co., 182 Tenn. 302, 186 S.W.2d 329, 1945 Tenn. LEXIS 222 (1945).

In a proceeding under this section a grant could be corrected so as to include two calls within the courses and distances which were carried in original survey but omitted by mistake from grant, since omissions as well as commissions can be corrected. Dearing v. Brush Creek Coal Co., 182 Tenn. 302, 186 S.W.2d 329, 1945 Tenn. LEXIS 222 (1945).

4. Decree of Court As Evidence.

In ejectment proceeding a decree issued by circuit court correcting description in deed was properly read in evidence. Lewis v. Oakley, 57 Tenn. 483, 1873 Tenn. LEXIS 246 (1873).

5. Procedure.

Statute does not expressly provide for a bar to the validity of a deed of trust if the procedure for correction of errors is not followed. Tenn. State Bank v. Mashek, — S.W.3d —, 2020 Tenn. App. LEXIS 228 (Tenn. Ct. App. May 21, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 496 (Tenn. Oct. 7, 2020).

Collateral References.

Annuity agreement, mistake as ground for cancellation of deed given in consideration of. 131 A.L.R. 448.

Conscious ignorance of fact, as distinguished from mistake of fact, as ground for reformation of contract. 137 A.L.R. 908.

Measure and elements of damages recoverable from vendor where there has been mistake to amount to land conveyed. 94 A.L.R.3d 1091.

Reformation as against third persons of instrument mistakenly describing property as affected by its record. 44 A.L.R. 118, 79 A.L.R.2d 1180.

Survival to heir of grantor's right to maintain suit in equity to set aside his conveyance on ground of mistake. 2 A.L.R. 437, 33 A.L.R. 51.

NOTES TO DECISIONS

1. “Use of Mineral Interest.”

Trial court correctly concluded that appellant abandoned its interest, if any, in the separated mineral interests underlying a portion of appellee's property, and that the separated mineral interests reverted to appellee as appellant failed to show a use of the property in the 20 years preceding the filing of its statement of claim in 2008 because, if any payments were made during the statutory period, the payments could not constitute “royalties” as there was no dispute that no oil, gas, or minerals were ever produced by appellant from appellee's property; and there were no payments made at any time during the relevant period that could possibly constitute the payment of rentals regarding appellee's property. Currence v. Harrogate Energy, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 318 (Tenn. Ct. App. May 11, 2015).

66-5-201. General provisions.

This part applies only with respect to transfers by sale, exchange, installment land sales contract or lease with option to buy residential real property consisting of not less than one (1) nor more than four (4) dwelling units, including site-built and nonsite-built homes, whether or not the transaction is consummated with the assistance of a licensed real estate broker or salesperson. The disclosure statement referenced in § 66-5-202 is not a warranty of any kind by a seller and is not a substitute for inspections either by the individual purchasers or by a professional home inspector. The disclosure required by this part shall be provided to potential buyers for their exclusive use and may not be relied upon by purchasers in subsequent transfers from the original purchaser who received the property disclosure. The required disclosure shall be given in good faith by the owner or owners of property that is being transferred and shall be subject to the requirements of this part.

Acts 1994, ch. 828, § 1; 2000, ch. 771, § 1.

66-5-202. Required disclosures or disclaimers.

With regard to transfers described in § 66-5-201, the owner of the residential property shall furnish to a purchaser one of the following:

1. A residential property disclosure statement in the form provided in this part regarding the condition of the property, including any material defects known to the owner. Such disclosure form may be as included in this part and must include all items listed on the disclosure form required pursuant to this part. The disclosure form shall contain a notice to prospective purchasers and owners that the prospective purchaser and the owner may wish to obtain professional advice or inspections of the property. The disclosure form shall also contain a notice to purchasers that the information contained in the disclosure are the representations of the owner and are not the representations of the real estate licensee or sales person, if any. The owner shall not be required to undertake or provide any independent investigation or inspection of the property in order to make the disclosures required by this part; or
2. A residential property disclaimer statement stating that the owner makes no representations or warranties as to the condition of the real property or any improvements thereon and that purchaser will be receiving the real property “as is,” that is, with all defects which may exist, if any, except as otherwise provided in the real estate purchase contract. A disclaimer statement may only be permitted where the purchaser waives the required disclosure under subdivision (1). If the purchaser does not waive the required disclosure under this part, the disclosure statement described in subdivision (1) shall be provided in accordance with the requirements of this part.

Acts 1994, ch. 828, § 2.

66-5-203. Delivery of disclosure or disclaimer statement.

1. The owner of residential real property subject to this part shall deliver to the purchaser the written disclosure or disclaimer statement, if agreed upon by the purchaser required by this part prior to the acceptance of a real estate purchase contract. For purposes of this part, a “real estate purchase contract” means a contract for the sale, exchange or lease with option to buy of real estate subject to this part, and “acceptance” means the full execution of a real estate purchase contract by all parties. The residential property disclaimer statement or residential property disclosure statement may be included in the real estate purchase contract, in an addendum to the contract, or in a separate document.
2. Failure to provide the disclosure or disclaimer statement required by this part shall not permit a purchaser to terminate a real estate purchase contract; however, a purchaser shall not be restricted by this part from bringing such other actions at law or in equity that are otherwise permitted.

Acts 1994, ch. 828, § 3.

66-5-204. Liability for errors or omissions — Experts' reports.

1. The owner shall not be liable for any error, inaccuracy or omission of any information delivered pursuant to this part if:
   1. The error, inaccuracy or omission was not within the actual knowledge of the owner or was based upon information provided by public agencies or by other persons providing information as specified in subsection (b) that is required to be disclosed pursuant to this part, or the owner reasonably believed the information to be correct; and
   2. The owner was not grossly negligent in obtaining the information from a third party and transmitting it.
2. The delivery by a public agency or other person, as described in subsection (c), of any information required to be disclosed by this part to a prospective purchaser shall be deemed to comply with the requirements of this part, and shall relieve the owner of any further duty under this part with respect to that item of information.
3. The delivery by the owner of a report or opinion prepared by a licensed engineer, land surveyor, geologist, wood destroying insect control expert, contract or other home inspection expert, dealing with matters within the scope of the professional license or expertise, shall satisfy the requirements of subsection (a) if the information is provided to the owner pursuant to request therefor, whether written or oral. In responding to such a request, an expert may indicate, in writing, an understanding that the information provided will be used in fulfilling the requirements of this part and, if so, shall indicate the required disclosure or portions thereof, to which the information being furnished is applicable. Where such a statement is furnished, the expert shall not be responsible for any items of information, or portions thereof, other than those expressly set forth in this statement.

Acts 1994, ch. 828, § 4.

66-5-205. Liability for changed circumstances.

If information disclosed in accordance with this part is subsequently rendered or discovered to be inaccurate as a result of any act, occurrence, information received, circumstance or agreement subsequent to the delivery of the required disclosures, the inaccuracy resulting therefrom does not constitute a violation of this part; provided, however, that at or before closing, the owner shall be required to disclose any material change in the physical condition of the property or certify to the purchaser at closing that the condition of the property is substantially the same as it was when the disclosure form was provided. If, at the time the disclosures are required to be made, an item of information required to be disclosed is unknown or not available to the owner, the owner may state that the information is unknown or may use an approximation of the information; provided, that the approximation is clearly identified as such, is reasonable, is based on the actual knowledge of the owner and is not used for the purpose of circumventing or evading this part.

Acts 1994, ch. 828, § 5.

66-5-206. Duties of real estate licensees.

A real estate licensee representing an owner of residential real property as the listing broker has a duty to inform each such owner represented by that licensee of the owner's rights and obligations under this part. A real estate licensee representing a purchaser of residential real property or, if the purchaser is not represented by a licensee, the real estate licensee representing an owner of residential real estate and dealing with the purchaser has a duty to inform each such purchaser of the purchaser's rights and obligations under this part. If a real estate licensee performs those duties, the licensee shall have no further duties to the parties to a residential real estate transaction under this part, and shall not be liable to any party to a residential real estate transaction for a violation of this part or for any failure to disclose any information regarding any real property subject to this part. However, a cause of action for damages or equitable remedies may be brought against a real estate licensee for intentionally misrepresenting or defrauding a purchaser. A real estate licensee will further be subject to a cause of action for damages or equitable relief for failing to disclose adverse facts of which the licensee has actual knowledge or notice. “Adverse facts” means conditions or occurrences generally recognized by competent licensees that significantly reduce the structural integrity of improvements to real property, or present a significant health risk to occupants of the property.

Acts 1994, ch. 828, § 6.

66-5-207. Liability for nondisclosure of communicable diseases or criminal acts on property.

Notwithstanding any of the provisions of this part, or any other statute or regulation, no cause of action shall arise against an owner or a real estate licensee for failure to disclose that an occupant of the subject real property, whether or not such real property is subject to this part, was afflicted with human immunodeficiency virus (HIV) or other disease which has been determined by medical evidence to be highly unlikely to be transmitted through the occupancy of a dwelling place, or that the real property was the site of:

1. An act or occurrence which had no effect on the physical structure of the real property, its physical environment or the improvements located thereon; or
2. A homicide, felony or suicide.

Acts 1994, ch. 828, § 7.

66-5-208. Remedies for misrepresentation or nondisclosure.

1. The purchaser's remedies for an owner's misrepresentation on a residential property disclosure statement shall be either:
   1. An action for actual damages suffered as a result of defects existing in the property as of the date of execution of the real estate purchase contract; provided, that the owner has actually presented to a purchaser the disclosure statement required by this part, and of which the purchaser was not aware at the earlier of closing or occupancy by the purchaser, in the event of a sale, or occupancy in the event of a lease with the option to purchase. Any action brought under this subsection (a) shall be commenced within one (1) year from the date the purchaser received the disclosure statement or the date of closing, or occupancy if a lease situation, whichever occurs first;
   2. In the event of a misrepresentation in any residential property disclosure statement required by this part, termination of the contract prior to closing, subject to  § 66-5-204; or
   3. Such other remedies at law or equity otherwise available against an owner in the event of an owner's intentional or willful misrepresentation of the condition of the subject property.
2. No cause of action may be instituted against an owner of residential real property subject to this part for the owner's failure to provide the disclosure or disclaimer statement required by this part. However, such owner would be subject to any other cause of action available in law or equity against an owner for misrepresentation or failure to disclose material facts regarding the subject property that exists on July 1, 1994.
3. No cause of action may be instituted against a closing agent or closing attorney for the failure of an owner to provide the disclaimer or disclosure required by this part or for any misrepresentations made by a seller on the disclosure form supplied to the purchaser pursuant to this part.
4. 1. No cause of action may be instituted against a real estate licensee for information contained in any reports or opinions prepared by an engineer, land surveyor, geologist, wood destroying inspection control expert, termite inspector, mortgage broker, home inspector, or other home inspection expert. A real estate licensee may not be the subject of any action and no action may be instituted against a real estate licensee for any information contained in the form prescribed by § 66-5-210, unless the real estate licensee is signatory to such.
   2. Nothing in this subsection (d) shall be construed to exempt or excuse a real estate licensee from making any of the disclosures required by § 62-13-403, § 62-13-405 or § 66-5-206, nor shall it be construed to remove, limit or otherwise affect any remedy provided by law for such a failure to disclose.
5. The failure of an owner to provide a purchaser the disclosure or disclaimer required by this part shall not have any effect on title to property subject to this part and the presence or absence of such disclosure or disclaimer is not a cloud on title and has no effect on title to such property.

Acts 1994, ch. 828, § 8; 2003, ch. 263, § 1.

66-5-209. Exempt property transfers.

The following are specifically excluded from this part:

1. Transfers pursuant to court order including, but not limited to, transfers ordered by a court in the administration of an estate, transfers pursuant to a writ of execution, transfers by foreclosure sale, transfers by a trustee in bankruptcy, transfers by eminent domain and transfers resulting from a decree of specific performance;
2. Transfers to a beneficiary of a deed of trust by a trustor or successor in interest who is in default; transfers by a trustee under a deed of trust pursuant to a foreclosure sale; or transfers by a beneficiary under a deed of trust who has acquired the real property at a sale conducted pursuant to a foreclosure sale under a deed of trust or has acquired the real property by a deed in lieu of foreclosure;
3. Transfers by a fiduciary in the course of the administration of a decedent's estate, guardianship, conservatorship or trust;
4. Transfers from one (1) or more co-owners solely to one (1) or more co-owners. This subdivision (4) is intended to apply and only does apply in situations where ownership is by a tenancy by the entirety, a joint tenancy or a tenancy in common and the transfer will be made from one (1) or more of the owners to another owner or co-owners holding property either as a joint tenancy, tenancy in common or tenancy by the entirety;
5. Transfers made solely to any combination of a spouse or a person or persons in the lineal line of consanguinity of one (1) or more of the transferors;
6. Transfers between spouses resulting from a decree of divorce or a property settlement stipulation;
7. Transfers made by virtue of the record owner's failure to pay any federal, state or local taxes;
8. Transfers to or from any governmental entity of public or quasi-public housing authority or agency;
9. Transfers involving the first sale of a dwelling provided that the builder offers a written warranty;
10. Any property sold at public auction;
11. Any transfer of property where the owner has not resided on the property at any time within three (3) years prior to the date of transfer; and
12. Any transfer from a debtor in a chapter 7 or a chapter 13 bankruptcy to a creditor or third party by a deed in lieu of foreclosure or by a quitclaim deed.

Acts 1994, ch. 828, § 9; 2000, ch. 771, §§ 2-4.

66-5-210. Disclosure form.

Following is the form prescribed by the general assembly which is necessary to comply with this part. The form used does not have to be the one included in this section, but it is the intent of the general assembly that any such form includes all items contained in the form below with all acknowledgement provisions of such form:

Tennessee Residential Property Condition Disclosure The Tennessee Residential Property Disclosure Act states that anyone transferring title to residential real property must provide information about the condition of the property. This completed form constitutes that disclosure by the seller. This is not a warranty, or a substitute for any professional inspections or warranties that the purchasers may wish to obtain.  Buyers and sellers should be aware that any sales agreement executed between the parties will supersede this form as to any obligations on the part of the seller to repair items identified below and/or the obligation of the buyer to accept such items “as is.” Instructions to the Seller: Complete this form yourself and answer each question to the best of your knowledge. If an answer is an estimate, clearly label it as such. The seller hereby authorizes any agent representing any party in this transaction to provide a copy of this statement to any person or entity in connection with any actual or anticipated sale of the subject property. Property Address  City  Seller's Name(s)  Property Age  Date Seller Acquired the Property  Do You Occupy the Property?  If Not Owner-Occupied, How Long Has It Been Since the Seller Occupied the Property?  The property is a   site-built home   nonsite built-home (Check the one that applies) A. The Subject Property Includes the Items Checked Below:  Range  Oven  Microwave  Dishwasher  Garbage Disposal  Trash Compactor  Water Softener  220 Volt Wiring  Washer/Dryer Hookups  Central Heating  Heat Pump  Central Air Conditioning  Wall/Window Air Conditioning  Window Screens  Rain Gutters  Fireplace(s) (Number  )  Gas Starter for Fireplace  Smoke Detector/Fire Alarm  Burglar Alarm  Patio/Decking/Gazebo  Irrigation System  Sump Pump  Garage Door Opener(s) (Number of openers   )  Intercom  TV Antenna/Satellite Dish  Pool  Spa/Whirlpool Tub  Hot Tub  Sauna  Current Termite Contract  Access to Public Streets  Other   Other  Garage: Attached Not Attached Carport Water Heater:  Gas Solar Electric Water Supply: City Well Private Utility Other Waste Disposal: City Sewer Septic Tank Other Gas Supply: Utility Bottled Other Roof(s): Type   Age (approx.)  Other Items:  To the best of your knowledge, are any of the above NOT in operating condition?  YES  NO If YES, then describe (attach additional sheets if necessary): B. Are You (Seller) Aware of Any Defects/Malfunctions in Any of the Following? Interior Walls YES NO UNKNOWN Ceilings YES NO UNKNOWN Floors YES NO UNKNOWN Windows YES NO UNKNOWN Doors YES NO UNKNOWN Insulation YES NO UNKNOWN Plumbing YES NO UNKNOWN Sewer/Septic YES NO UNKNOWN Electrical System YES NO UNKNOWN Exterior Walls YES NO UNKNOWN Roof YES NO UNKNOWN Basement YES NO UNKNOWN Foundation YES NO UNKNOWN Slab YES NO UNKNOWN Driveway YES NO UNKNOWN Sidewalks YES NO UNKNOWN Central heating YES NO UNKNOWN Heat pump YES NO UNKNOWN Central air conditioning YES NO UNKNOWN If any of the above is/are marked YES, please explain:    C. Are You (Seller) Aware of Any of the Following? 1. Substances, materials or products which may be an environmental hazard such as, but not limited to: asbestos, radon gas, lead-based paint, fuel or chemical storage tanks and/or contaminated soil or water on the subject property? YES NO UNKNOWN 2. Features shared in common with adjoining land owners, such as walls, but not limited to, fences, and/or driveways, with joint rights and obligations for use and maintenance? YES NO UNKNOWN 3. Any authorized changes in roads, drainage or utilities affecting the property, or contiguous to the property? YES NO UNKNOWN 4. Any changes since the most recent survey of the property was done? YES NO UNKNOWN Most recent survey of the property:   (check here if unknown.)  5. Any encroachments, easements, or similar items that may affect your ownership interest in the property? YES NO UNKNOWN 6. Room additions, structural modifications or other alterations or repairs made without necessary permits? YES NO UNKNOWN 7. Room additions, structural modifications or other alterations or repairs not in compliance with building codes? YES NO UNKNOWN 8. Landfill (compacted or otherwise) on the property or any portion thereof? YES NO UNKNOWN 9. Any settling from any cause, or slippage, sliding or other soil problems? YES NO UNKNOWN 10. Flooding, drainage or grading problems? YES NO UNKNOWN 11. Any requirement that flood insurance be maintained on the property? YES NO UNKNOWN 12. Property or structural damage from fire, earthquake, floods or landslides? YES NO UNKNOWN If yes, has such damage been repaired?  13. Any zoning violations, nonconforming uses and/or violations of “setback” requirements? YES NO UNKNOWN 14. Neighborhood noise problems or other nuisances? YES NO UNKNOWN 15. Subdivision and/or deed restrictions or obligations? YES NO UNKNOWN 16. A Homeowners Association (HOA) which has any authority over the subject property? YES NO UNKNOWN Name of HOA:  HOA Address:  Monthly Dues:   Special Assessments:  17. Any “common area” (facilities such as, but not limited to, pools, tennis courts, walkways, or other areas co-owned in undivided interest with others)? YES NO UNKNOWN 18. Any notices of abatement or citations against the property? YES NO UNKNOWN 19. Any lawsuits or proposed lawsuits by or against the seller which affects or will affect the property? YES NO UNKNOWN 20. Is any system, equipment or part of the property being leased? YES NO UNKNOWN If yes, please explain, and include a written statement regarding payment information.  21. Any exterior wall covering of the structures covered with exterior insulation and finish systems (EIFS), also known as “synthetic stucco”? YES NO UNKNOWN If yes, has there been a recent inspection to determine whether the structure has excessive moisture accumulation and/or moisture related damage? (The Tennessee Real Estate Commission urges any buyer or seller who encounters this product to have a qualified professional inspect the structure in question for the preceding concern and provide a written report of the professional's finding.) YES NO UNKNOWN If yes, please explain. If necessary, please attach an additional sheet.    D. Certification: I/We certify that the information herein, concerning the real property located at  , is true and correct to the best of my/our knowledge as of the date signed. Should any of these conditions change prior to conveyance of title to this property, these changes will be disclosed in addendum to this document. Transferor (Buyer) Date Transferor (Buyer) Date Parties may wish to obtain professional advice and/or inspections of the property and to negotiate appropriate provisions in the purchase agreement regarding advice, inspections or defects. Transferee/Buyer's Acknowledgement: I/We understand that this disclosure statement is not intended as a substitute for any inspection, and that I/we have a responsibility to pay diligent attention to and inquire about those material defects which are evident by careful observation. I/We acknowledge receipt of a copy of this disclosure. Transferee (Buyer) Date Transferee (Buyer) Date  If the property being purchased is a condominium, the transferee/buyer is hereby given notice that the transferee/buyer is entitled, upon request, to receive certain information regarding the administration of the condominium from the developer or the condominium association, as applicable, pursuant to Tennessee Code Annotated, § 66-27-502.

Click to view form.

Acts 1994, ch. 828, § 10; 1998, ch. 727, § 1; 2000, ch. 771, § 5; 2008, ch. 766, § 2.

Law Reviews.

The Hazards of Taxing Contaminated Properties: Owners Beware! (Darlene Marsh, Byron Taylor and Andy Raines), 37 No. 5 Tenn. B.J. 21 (2001).

Collateral References.

Landlord's liability for injury or death of tenant's child from lead paint poisoning. 19 A.L.R.5th 405.

66-5-211. Disclosure of impact fees or adequate facilities taxes — Definitions.

1. In transfers involving the first sale of a dwelling, the owner of residential property shall furnish to the purchaser a statement disclosing the amount of any impact fees or adequate facilities taxes paid to any city or county on any parcel of land subject to transfer by sale, exchange, installment land sales contract, or lease with an option to buy.
2. For the purpose of this section, unless the context otherwise requires:
   1. “Adequate facilities tax” means any privilege tax that is a development tax, by whatever name, imposed by a county or city, pursuant to any act of general or local application, on engaging in the act of development;
   2. “Development” means the construction, building, reconstruction, erection, extension, betterment, or improvement of land providing a building or structure, or the addition to any building or structure or any part of any building or structure that provides, adds to, or increases the floor area of a residential or nonresidential use; and
   3. “Impact fee” means a monetary charge imposed by a county or municipal government pursuant to any act of general or local application, to regulate new development on real property. The amount of impact fees are related to the costs resulting from the new development and the revenues for this fee are earmarked for investment in the area of the new development.

Acts 2005, ch. 171, § 1.

66-5-212. Disclosure of known percolation tests or soil absorption rates — Disclosure of foundation move — Disclosure of presence of sinkhole.

1. In addition to any other disclosure required by this part, the seller shall, prior to entering into a contract with a buyer, disclose in the contract itself or in writing, including acknowledgement of receipt, the presence of any known exterior injection well and the results of any known percolation test or soil absorption rate performed on the property that is determined or accepted by the department of environment and conservation.
2. Prior to entering into a contract with a buyer on or after May 20, 2009, the seller shall, where such information is known to the seller, also disclose in the same manner whether any single family residence located on the property has been moved from an existing foundation to another foundation.
3. 1. In addition to any other disclosure required by this part, the seller shall, prior to entering into a contract with a buyer, disclose in the contract or in writing, including acknowledgment of receipt, the presence of a known sinkhole on the property.
   2. For purposes of this section, “sinkhole”:

Means a subterranean void created by the dissolution of limestone or dolostone strata resulting from groundwater erosion, causing a surface subsidence of soil, sediment, or rock; and

Is indicated through the contour lines on the property's recorded plat map.

Acts 2006, ch. 699, § 1; 2007, ch. 244, § 1; 2009, ch. 231, § 1; 2015, ch. 262, § 1.

Compiler's Notes Acts 2015, ch. 262, § 2 provided that the act, which added (c), shall apply to any contract entered into on or after July 1, 2015.

Amendments. The 2015 amendment added (c).

Effective Dates. Acts 2015, ch. 262, § 2. July 1, 2015.

66-5-213. Disclosure requirement where property is located in a planned unit development.

1. As used in this section, unless the context otherwise requires:
   1. “Bylaws” mean guidelines for the operation of a homeowner's association that define the duties of the various offices of the board of directors, the terms of the directors, the membership's voting rights, required meetings and notices of meetings and the principal office of the association, as well as other specific items that are necessary to run the homeowner's association as a business;
   2. “Planned unit development (PUD)” means an area of land, controlled by one (1) or more landowners, to be developed under unified control or unified plan of development for a number of dwelling units, commercial, educational, recreational or industrial uses, or any combination of these, the plan for which does not correspond in lot size, bulk or type of use, density, lot coverage, open space or other restrictions to the existing land use regulations; and
   3. “Restrictive covenant” means any written provision that places limitations or conditions on some aspect of use of the property, such as size, location or height of structures, materials to be used in structure exterior, activities carried out on the property or restrictions on future subdivision or land development.
2. In addition to any other disclosures required in this part with regard to transfers described in § 66-5-201, the owner of the residential property shall, prior to entering a contract with a buyer, disclose in the contract itself or in writing, including acknowledgement, if the property is located in a PUD, and make available to the buyer a copy of the development's restrictive covenants, homeowner bylaws and master deed upon request.

Acts 2009, ch. 112, § 1.

66-9-201. Short title.

This part shall be known and may be cited as the “Solar Access Law of 1979.”

Acts 1979, ch. 259, § 1; T.C.A., § 64-9-201.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-311.

Law Reviews.

The Easement in Gross Revisited: Transferability and Divisibility Since 1945, 39 Vand. L. Rev. 109 (1986).

66-9-202. Legislative findings and declarations.

The general assembly finds that the use of solar energy can help reduce reliance on depletable energy resources such as oil, natural gas and coal, and that solar energy development should, therefore, be encouraged. Further, that as the use of solar energy systems increases, the possibility of future shading of such systems by buildings or vegetation will also increase. Therefore, the general assembly declares that solar easements may be established to allow the owner of a solar energy system to negotiate for assurance of continued access to sunlight. The general assembly further finds that encouragement and protection of solar energy systems is a valid objective which counties and municipalities may consider in promulgating zoning regulations.

Acts 1979, ch. 259, § 2; T.C.A., § 64-9-202.

66-9-203. “Solar energy system” defined.

As used in this part, “solar energy system” means any device, mechanism, structure, apparatus, or part thereof, whose primary purpose is to collect solar energy and convert and store it for useful purposes including heating and cooling buildings or other energy saving processes, or to produce generated power by means of any combination of collecting, transferring, or converting solar generated energy.

Acts 1979, ch. 259, § 3; T.C.A., § 64-9-203.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-311.

66-9-204. Instruments creating solar easements — Contents.

1. Any instrument creating a solar easement shall include, but the contents need not be limited to:
   1. A description of the real property subject to the solar easement and a description of the real property benefiting from the solar easement;
   2. The vertical and horizontal angles, expressed in degrees or otherwise, at which the solar easement extends over the real property subject to the solar easement;
   3. Any terms or conditions, or both, under which the solar easement is granted or will terminate;
   4. Any provisions for compensation of the owner of the property benefiting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement; and
   5. The period of time for which the easement shall run.
2. The office of energy programs of the department of environment and conservation, pursuant to powers granted in §§ 4-3-510 and 4-3-512(8), is directed to prepare a sample solar easement instrument for use in this state.

Acts 1979, ch. 259, § 4; T.C.A. (orig. ed.), § 64-9-204; Acts 1983, ch. 429, § 24; 2016, ch. 743, § 17.

Amendments. The 2016 amendment rewrote (b), which read, “The division of energy of the department of economic and community development, pursuant to powers granted in §§ 4-3-708 and 4-3-710(8), is directed to prepare a sample solar easement instrument for use in Tennessee.”

Effective Dates. Acts 2016, ch. 743, § 18. April 7, 2016.

Cross-References. Protective easements authorized, title 11, ch. 15.

Statute of frauds, § 29-2-101.

66-9-205. Easement to run with the land — Abandonment of easement.

A solar easement shall be presumed to run with the land or lands benefited and burdened, unless the parties to the easement provide otherwise in writing, and shall be deemed to pass with the property when title is transferred unless stated to the contrary in § 66-9-204(a)(3). Any solar easements granted under this part may be abandoned in the same manner as other easements as provided by law.

Acts 1979, ch. 259, § 5; T.C.A., § 64-9-205.

66-9-206. Writing and recordation required.

Any easement obtained pursuant to this part shall be in writing and shall be recorded with the register of deeds in the county in which the land is situated.

Acts 1979, ch. 259, § 6; T.C.A., § 64-9-206.

Cross-References. Index of public records, title 10, ch. 7, part 2.

Statute of frauds, § 29-2-101.

Part 3
Conservation Easement Act of 1981

NOTES TO DECISIONS

1. Construction of Chapter.

Enforcement of a mechanic's or materialman's lien is a statutory right and strict compliance with title 66, ch. 11 is required. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

The mechanics' and materialmen's lien statute is to be construed liberally in favor of employees. First Nat'l Bank v. Prairie Corp., 547 F. Supp. 14, 1982 U.S. Dist. LEXIS 14720 (E.D. Tenn. 1982).

If the supplier fails to comply with the requirements of title 66, ch. 11, the supplier has no materialmen's lien against the owner's property; it is impermissible to circumvent these sections by allowing recovery against the “principal” under an agency theory upon showing only that the contractor had authority to purchase materials, although not on credit. Edmond Bros. Supply Co. v. Boyle & Adams, 44 S.W.3d 530, 2000 Tenn. App. LEXIS 737 (Tenn. Ct. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 363 (Tenn. Apr. 23, 2001).

T.C.A. §§ 66-11-101 — 66-11-146 set forth two types of liens, with the distinction between the two turning not on whether goods or services are supplied as the heading suggests, i.e., a “materialman's lien” or a “mechanic's lien,” but on whether the entity contracted directly with the owner of the real property as opposed to a contractor or a subcontractor. Durkan Patterned Carpet, Inc. v. Premier Hotel Dev. Group (In re Premier Hotel Dev. Group), 270 B.R. 234, 2001 Bankr. LEXIS 1576 (Bankr. E.D. Tenn. 2001).

From the use of the words “in direct privity of contract” in one section of the statute and “in contractual privity” in another section, it is fair to assume the legislature did not intend the two phrases to have the same meaning. Diaz Constr. v. Indus. Dev. Bd. of the Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2015 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 6, 2015).

2. Materialman or Furnisher.

This section contemplates that the delivery of materials giving rise to a furnisher's lien may be made to a contractor or subcontractor at a place other than the site of the improvement, if delivery is made with the intent that the materials will be later delivered without intermingling by the contractor or subcontractor to the job, and if they are later so delivered and used on the improvement. Dealers Supply Co. v. First Christian Church, 38 Tenn. App. 568, 276 S.W.2d 769, 1954 Tenn. App. LEXIS 142 (1954).

Where a race-car simulator was installed by plaintiff construction company as part of improvements it made to defendant's commercial property, plaintiff filed a notice of mechanic's lien against the property owner under T.C.A. § 66-11-101, et seq. in the amount of $ 70,583 for labor and/or material furnished to the leasehold; the trial court erred by awarding plaintiff a judgment against the simulator to satisfy its mechanic's lien. A secured party properly filed a financing statement and perfected its security interest in the simulator prior to the attachment of plaintiff's interest as a lien creditor. Metro Constr. Co., LLC v. Sim Attractions, LLC, — S.W.3d —, 2009 Tenn. App. LEXIS 320 (Tenn. Ct. App. June 9, 2009).

3. Improvement.

A road is neither a building, structure, erection, alteration, demolition, or excavation; therefore, complainant is not entitled to a lien upon the land of defendants for construction of a road leading to the residence of the defendants, the road not being an “improvement.” Britt v. McClendon, 213 Tenn. 232, 373 S.W.2d 457, 1963 Tenn. LEXIS 483 (1963).

Where there was no evidence that lumber was delivered by the supplier to the job site, that it was ever used in fabrication of window panels delivered to the job site or that it was specially selected and prepared for the job, there was no evidence, direct or circumstantial, which could satisfy a reasonable mind that the lumber was incorporated into the improvement, and thus the supplier had no lien against the property. McCoy Lumber Indus., Inc. v. Parkview Towers, Inc., 567 S.W.2d 475, 1978 Tenn. App. LEXIS 365 (Tenn. Ct. App. 1978).

4. Persons.

T.C.A. § 66-11-101 does not define a “person” for the purposes of the mechanics' lien law. In re Just for Fun of It, Inc., 7 B.R. 166, 1980 Bankr. LEXIS 4487 (Bankr. E.D. Tenn. 1980).

5. Furnished Materials.

In materialmen's liens, materials are not furnished until the materials are actually delivered to the job site, no matter when the transfer of the title to the goods occurs. “Furnished,” as used in the labor and material payment bond, also refers to the date that the goods are actually delivered to the job site. Andrews Distrib. Co. v. Oak Square at Gatlinburg, 757 S.W.2d 663, 1988 Tenn. LEXIS 274 (Tenn. 1988), overruled in part, Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

Materials are not “furnished” and the contract of the materialman does not expire for the purpose of T.C.A. § 66-11-115(b) until the materials are delivered to the job site, regardless of when the transfer of title from the materialman to the contractor or subcontractor occurs. Andrews Distrib. Co. v. Oak Square at Gatlinburg, 757 S.W.2d 663, 1988 Tenn. LEXIS 274 (Tenn. 1988), overruled in part, Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

Collateral References.

Attorney's compensation for services in matters involving mechanics' liens, amount of. 143 A.L.R. 796, 56 A.L.R.2d 13, 57 A.L.R.3d 475, 57 A.L.R.3d 550, 58 A.L.R.3d 317, 10 A.L.R.5th 448, 17 A.L.R.5th 366, 23 A.L.R.5th 241, 86 A.L.R. Fed. 866.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee. 74 A.L.R.3d 330.

Exclusion of liability for defects, liens, or encumbrances created, suffered, assumed, or agreed to by the insured. 87 A.L.R.3d 515.

Landlord's liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

“Owner,” scope and import of term in mechanics' lien statutes. 2 A.L.R. 794, 95 A.L.R. 1085.

NOTES TO DECISIONS

1. Construction.

The rule is that the statute must be strictly construed as to the parties who are entitled to the mechanic's lien, and the existence of the lien must be clearly established by proof of the facts necessary to constitute the lien, but when the existence of the lien is determined, and the party claiming the same is determined to be entitled to it, the statute will be liberally construed as regards the subject matter to which the lien should attach, and as to the remedy for its enforcement. Dunn v. McKee, 37 Tenn. 657, 1858 Tenn. LEXIS 89 (1858); Luter & Daniel v. Cobb, 41 Tenn. 525, 1860 Tenn. LEXIS 100 (1860); Kay v. Smith, 57 Tenn. 41, 1872 Tenn. LEXIS 392 (1872); Steger v. Arctic Refrigerating Co., 89 Tenn. 453, 14 S.W. 1087, 1890 Tenn. LEXIS 70, 11 L.R.A. 580 (Tenn. Dec. 1890); Thompson v. Baxter, 92 Tenn. 305, 21 S.W. 668, 1892 Tenn. LEXIS 77, 36 Am. St. Rep. 85 (1892); Nanz v. Cumberland Gap Park Co., 103 Tenn. 299, 52 S.W. 999, 1899 Tenn. LEXIS 108, 47 L.R.A. 273, 76 Am. St. Rep. 650 (1899); In re Am. Lime Co., 201 F. 433, 1912 U.S. Dist. LEXIS 1040 (E.D. Tenn. 1912); Chickasaw Hotel Co. v. C.B. Barker Constr. Co., 135 Tenn. 305, 186 S.W. 115, 1916 Tenn. LEXIS 28, 1916F L.R.A. (n.s.) 106 (1916); Richardson v. Lanius, 150 Tenn. 133, 263 S.W. 799, 1923 Tenn. LEXIS 70 (1923); Ford v. Whittle Trunk & Bag Co., 12 Tenn. App. 486, 1930 Tenn. App. LEXIS 91 (1930); Arnstein Realty Co. v. Williams, 163 Tenn. 69, 40 S.W.2d 1007, 1931 Tenn. LEXIS 89 (1931); Nicks v. W. C. Baird & Co., 165 Tenn. 89, 52 S.W.2d 147, 1931 Tenn. LEXIS 175 (1932).

The statute will not be extended by construction to draw in for protection those who are excluded. Pillow v. Kelly, 155 Tenn. 597, 296 S.W. 11, 1926 Tenn. LEXIS 84 (1926); Allen v. Brown, 14 Tenn. App. 405, 1932 Tenn. App. LEXIS 49 (Tenn. App. Mar. 19, 1932).

While statutes are to be construed strictly in determining right to a lien, they are to be construed liberally in respect to the remedy. Arnstein Realty Co. v. Williams, 163 Tenn. 69, 40 S.W.2d 1007, 1931 Tenn. LEXIS 89 (1931).

A mechanic's or materialman's lien should not be subjected to dangerous niceties in its enforcement, nevertheless the lien is purely statutory and it is not to be liberally construed to embrace others than those enumerated therein. Bell Bros. & Co. v. Arnold, 17 Tenn. App. 493, 68 S.W.2d 958, 1933 Tenn. App. LEXIS 84 (1933).

An unnoticed architectural lien is inferior to any mortgage; to limit the “any mortgage” language to any mortgage in place at the time the architectural lien attaches would unduly restrict T.C.A. § 66-11-102(c) in contravention of the intent of the legislature. CainRash Architectural Group, Inc. v. Premier Hotel Dev. Group (In re Premier Hotel Dev. Group), 271 B.R. 813, 2002 Bankr. LEXIS 36 (Bankr. E.D. Tenn. 2002).

2. Applicability.

T.C.A. § 66-11-102 does not contemplate protection for a person who voluntarily pays for materials ordered to take advantage of the deduction of sales tax for income tax purposes. Goodfriend v. United Am. Bank, 637 S.W.2d 870, 1982 Tenn. App. LEXIS 378 (Tenn. Ct. App. 1982).

3. Governmental Entities Excluded.

Governmental entities cannot avail themselves of the mechanic's and materialmen's statute. In re Just for Fun of It, Inc., 7 B.R. 166, 1980 Bankr. LEXIS 4487 (Bankr. E.D. Tenn. 1980).

4. Retroactive Application of Amendments.

Provisions added in 1982 relating to liens for architects were not applied retroactively because amendment was substantive, not procedural, and there was no legislative intent that it be applied retroactively. In re Airport-81 Nursing Care, Inc., 32 B.R. 960, 1983 Bankr. LEXIS 5408 (Bankr. E.D. Tenn. 1983).

5. Special Contract — Meaning — Necessity.

While the words “special contract” are construed to mean nothing more than an employment and undertaking to do the work or to furnish the materials, there must be a contract, which implies the mutual assent of persons competent to contract. Barnes v. Thompson, 32 Tenn. 313, 1852 Tenn. LEXIS 72 (1852); Alley & Bush v. Lanier, 41 Tenn. 540, 1860 Tenn. LEXIS 103 (1860), overruled in part, Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875); McLeod v. Capell, 66 Tenn. 196, 1874 Tenn. LEXIS 105 (1874); O'Malley v. Coughlin, 3 Cooper's Tenn. Ch. 431 (1877); Mills v. Terry Mfg. Co., 91 Tenn. 469, 19 S.W. 328, 1892 Tenn. LEXIS 16 (1892); Reed v. Estes, 113 Tenn. 200, 80 S.W. 1086, 1904 Tenn. LEXIS 16 (1904); McDonald v. Cady, 9 Tenn. App. 354, 1928 Tenn. App. LEXIS 244 (1928); Province v. Mitchell, 44 Tenn. App. 115, 312 S.W.2d 861, 1958 Tenn. App. LEXIS 136 (Tenn. Ct. App. Mar. 27, 1958).

One who agrees with the owner of a lot that he will erect improvements thereon and then turn the lot over to a purchaser from the owner is a contractor entitled to the lien. Haynes v. Holland, 48 S.W. 400, 1898 Tenn. Ch. App. LEXIS 100 (Tenn. Ch. App. 1898); Arnstein Realty Co. v. Williams, 163 Tenn. 69, 40 S.W.2d 1007, 1931 Tenn. LEXIS 89 (1931).

Where the owner ordered material from a dealer in materials who in turn ordered it from another materialman, the latter has no lien for the material though used in the construction of the building, he being without a special contract with the owner. Carolina Portland Cement Co. v. Hitt Lumber & Box Co., 141 Tenn. 210, 208 S.W. 336, 1918 Tenn. LEXIS 82 (1918).

Contractual privity is sufficiently established by proof that the erection of the building was a part of the property owner's lease and that the owner approved the specifications for the work. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

Where after defendant's building was damaged by fire, contractor commenced repair work without having submitted a specific estimate and later submitted estimate to insurance adjuster but not to defendant and insurance company thereafter issued check to defendant in the amount of the estimate, facts of case were not sufficient to establish contract between contractor and defendant and contractor was only entitled to recover on quantum meruit. Province v. Mitchell, 44 Tenn. App. 115, 312 S.W.2d 861, 1958 Tenn. App. LEXIS 136 (Tenn. Ct. App. Mar. 27, 1958).

6. Interest in Land Prerequisite to Lien.

In order to subject land to the mechanic's lien, there must be an ownership of some interest in the land, and the permission to occupy the land of another with portable machinery for the purpose of sawing his timber into lumber is not such interest in the land that may be subjected to the lien. Truxall v. Williams, 83 Tenn. 427, 1885 Tenn. LEXIS 62 (1885).

7. Estate or Title to Which Lien Attaches.

The mechanic's lien attaches to the existing title of the person having the improvements made, such as it was when the improvements were commenced. Gillespie v. Bradford, 15 Tenn. 167, 15 Tenn. 168, 1834 Tenn. LEXIS 33, 27 Am. Dec. 494 (1834); H.E. Daniel & Co. v. Weaver, 73 Tenn. 392, 1880 Tenn. LEXIS 147 (1880).

The lien attaches to whatever estate the furnishee has in the property. The lienor has a right to rely upon the record title of the property. Thomas v. Setliffe, 160 Tenn. 689, 28 S.W.2d 344, 1929 Tenn. LEXIS 143 (1930).

8. Effect of Lien as to Particular Estates and Property.

9. —Equitable Estates.

An equitable estate is subject to the lien, and its owner is the one to be served with notice. Niehaus v. C. B. Barker Const. Co., 135 Tenn. 382, 186 S.W. 461, 1916 Tenn. LEXIS 34 (1916).

10. —Homestead.

The mechanic's lien for material furnished for improvements on the land claimed as a homestead prevails over the homestead right. Thompson v. Wickersham, 68 Tenn. 216, 1877 Tenn. LEXIS 21 (1877).

The homestead is not exempt from sale for the satisfaction of any debt or liability contracted or legally incurred for improvements made thereon, although the creditor may have lost his lien as a mechanic. Miller v. Brown & Forsythe, 79 Tenn. 155, 1883 Tenn. LEXIS 31 (1883).

11. —Leasehold.

A leaseholder, the owner of a leasehold estate or lessee for a term of years, is an “owner” within the meaning of this statute, and the mechanic's lien attaches to such estate, in the hands of the lessee or his assignee. Alley & Bush v. Lanier, 41 Tenn. 540, 1860 Tenn. LEXIS 103 (1860), overruled in part, Prowell v. Fowlkes, 64 Tenn. 649, 1875 Tenn. LEXIS 148 (1875); Burr v. Graves, 72 Tenn. 552, 1880 Tenn. LEXIS 63 (1880); H.E. Daniel & Co. v. Weaver, 73 Tenn. 392, 1880 Tenn. LEXIS 147 (1880); Reed v. Estes, 113 Tenn. 200, 80 S.W. 1086, 1904 Tenn. LEXIS 16 (1904); Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916); Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

The purchaser under a proceeding to enforce mechanic's lien against leasehold estate will acquire only such estate therein as was held by the lessee, subject to all the terms and provisions of the lease. Reed v. Estes, 113 Tenn. 200, 80 S.W. 1086, 1904 Tenn. LEXIS 16 (1904).

Where the lessor by agreement allowed the lessee to make certain improvements on the leased premises, and agreed to contribute a certain sum towards the costs thereof, and accordingly paid the sum, the contractor making the improvements, under a contract with the lessee alone, has no lien upon the property of the lessor as the owner of the fee. Reed v. Estes, 113 Tenn. 200, 80 S.W. 1086, 1904 Tenn. LEXIS 16 (1904); Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916); Roehl v. Henck, 5 Tenn. App. 153, 1926 Tenn. App. LEXIS 141 (1926).

Where at time the contract was let the party held only a leasehold estate, but thereafter acquired a deed in connection with a parol trust, the fee was not so acquired as that a lien of a mechanic would attach and defeat the beneficiary of such trust. Roehl v. Henck, 5 Tenn. App. 153, 1926 Tenn. App. LEXIS 141 (1926).

Term “agent” as used in the statute in referring to special contract with owner or agent includes a lessee required by the terms of the lease to make permanent improvements on the leased premises. Knox-Tenn Rental Co. v. Sarbec Corp., 59 Tenn. App. 564, 442 S.W.2d 652, 1968 Tenn. App. LEXIS 359 (1968).

Under a lease requiring the lessee to make improvement the lessee is the agent of the lessor and the lien attaches but under a lease merely permitting the lessee to make improvements the lien does not attach. Knox-Tenn Rental Co. v. Sarbec Corp., 59 Tenn. App. 564, 442 S.W.2d 652, 1968 Tenn. App. LEXIS 359 (1968).

Where assignable lease provided but did not require that improvements could be made by lessee, contractor who made certain improvements pursuant to contract with sublessee could not impress mechanic's lien on fee. Kalthoff, Inc. v. Southside Leasing Co., 63 Tenn. App. 618, 477 S.W.2d 15, 1971 Tenn. App. LEXIS 235 (1971).

Where lessee of real property was free to select the contractor, make change orders without consulting lessors, and deal independently with the contractor, the lessor did not maintain sufficient control over the lessee's actions to establish an agency relationship which would enable the contractor to claim a lien on lessor's property for the unpaid balance due on the work. Venture Constr. Co. v. Apple Music City, Inc., 847 S.W.2d 509, 1992 Tenn. App. LEXIS 653 (Tenn. Ct. App. 1992).

12. — —Levy on Leasehold Estate.

The attachment may be levied on a leasehold estate without going on the premises or taking actual possession of the property, because a leasehold estate is real estate. Burr v. Graves, 72 Tenn. 552, 1880 Tenn. LEXIS 63 (1880).

13. —Life Estate.

A life tenant cannot by his contract for improvements bind the estate in remainder or reversion. Allen v. Brown, 14 Tenn. App. 405, 1932 Tenn. App. LEXIS 49 (Tenn. App. Mar. 19, 1932).

14. —Married Woman's Property.

The lien since the married woman's emancipation statute, § 36-3-504, attaches to the general or separate estate of a married woman, as if she were a feme sole. Gould v. Frost, 138 Tenn. 467, 196 S.W. 949, 1917 Tenn. LEXIS 57 (1917); Phillip Carey Co. v. Harrison, 138 Tenn. 697, 200 S.W. 829, 1917 Tenn. LEXIS 79 (1917).

A mechanic's lien or materialman's lien will attach to a married woman's land the same as if she were unmarried, but in order to create a lien there must have been a special contract with her or her agent for the erection of the building. Bell Bros. & Co. v. Arnold, 17 Tenn. App. 493, 68 S.W.2d 958, 1933 Tenn. App. LEXIS 84 (1933).

15. —Personalty Temporarily Used on Third Party's Land.

The mechanic's lien does not exist on mere personalty as such while being temporarily used on a third party's land by permission of the landowner. For illustration, a mechanic employed by the owner of a portable engine, boiler, and appurtenance, to take the same down from one place and remove and erect them temporarily upon the land of a third party, by his permission, is not entitled to a lien, either upon the land or the machinery. Truxall v. Williams, 83 Tenn. 427, 1885 Tenn. LEXIS 62 (1885).

16. —Trade Fixtures Owned by Lessee.

Mechanics' or furnishers' liens do not embrace trade fixtures owned by lessee, situated upon property in possession of lessee under a month to month tenancy. Liles v. Peiser, 173 F.2d 882, 1949 U.S. App. LEXIS 3538 (6th Cir. 1949).

17. Nonlienable Items.

A florist did not acquire a mechanic's lien against a hotel or its real property for landscaping the property under contract with the owner. Nanz v. Cumberland Gap Park Co., 103 Tenn. 299, 52 S.W. 999, 1899 Tenn. LEXIS 108, 47 L.R.A. 273, 76 Am. St. Rep. 650 (1899).

The statute formerly did not cover the boring of a well and the furnishing of pipes and pumps therefor. Pillow v. Kelly, 155 Tenn. 597, 296 S.W. 11, 1926 Tenn. LEXIS 84 (1926).

Temporary heating, telephone for contractor, temporary lights, tarpaulin for covering materials, plate glass insurance, contractor's stationery, water, and sharpening saws are not lienable items, nor is premium paid on contractor's bond. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

An architect's account for supplying plans and specifications for structural steel work for building and for superintending the placing of the steel in the building and the mixing and pouring of the concrete used affords no basis for maintenance of mechanic's lien. Howe v. Kaucher-Hodges & Co., 13 Tenn. App. 367, 1930 Tenn. App. LEXIS 144 (1930).

Moveable machinery placed on real property cannot be regarded as a permanent benefit to the real property within the meaning of this lien statute. Liles v. Peiser, 173 F.2d 882, 1949 U.S. App. LEXIS 3538 (6th Cir. 1949).

18. Furnishing for Improving Specified Property.

The furnisher of materials has no lien unless they are furnished to be used for improving certain specified property, and then the lien attaches to that property and the material so furnished. S.C. Gillespie & Co. v. Stanton, 67 Tenn. 284, 1874 Tenn. LEXIS 373 (1874); H.E. Daniel & Co. v. Weaver, 73 Tenn. 392, 1880 Tenn. LEXIS 147 (1880); Mills v. Terry Mfg. Co., 91 Tenn. 469, 19 S.W. 328, 1892 Tenn. LEXIS 16 (1892); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); In re Am. Lime Co., 201 F. 433, 1912 U.S. Dist. LEXIS 1040 (E.D. Tenn. 1912); Pidgeon-Thomas Iron Co. v. McKnight, 8 Tenn. Civ. App. 1 (1918).

A person, by contract furnishing and laying subterranean pipes in the streets of a city and connecting them with the plant of a factory, as a cold storage factory and plant, for the purpose of distributing its product, cold storage vapor, to its customers, has a lien upon the factor, plant, pipes, and the like, and upon the lot on which they are situated, as an entirety. Steger v. Arctic Refrigerating Co., 89 Tenn. 453, 14 S.W. 1087, 1890 Tenn. LEXIS 70, 11 L.R.A. 580 (Tenn. Dec. 1890).

Furnisher of lumber in good faith, believing that it was to be used in a permanent structure, is entitled to a lien, although the lumber was used in making forms for concrete, and at least 75 per cent was usable at another place, after completion of the work for defendants. York Lumber & Mfg. Co. v. McKnight & Merz, 139 Tenn. 687, 203 S.W. 254, 1918 Tenn. LEXIS 14 (1918).

A vacuum cleaning plant operated by electricity, requiring special wiring, and consisting of certain parts permanently attached at the theater, and other parts which are loose, but can be attached to and detached from the parts attached to the building, as the use of the plant requires, is material used in the construction, and constitutes a lien for its installation. Tuec Co. v. McKnight & Merz, 140 Tenn. 67, 203 S.W. 338, 1918 Tenn. LEXIS 20 (1918).

A trucking company that hauled stone to a construction site was entitled to a lien against the property where its activities relating to the spreading and compaction of the stone was work on the site of the improvement and qualified it as a laborer. Winter v. Smith, 914 S.W.2d 527, 1995 Tenn. App. LEXIS 553 (Tenn. Ct. App. 1995).

19. Use of Materials Immaterial.

It is not the actual use of the materials in the improvements by the owner that constitutes the furnisher's lien, and if the furnished materials are not used, the lien exists on the materials and the property to be improved, to the same extent as if the materials had been used. H.E. Daniel & Co. v. Weaver, 73 Tenn. 392, 1880 Tenn. LEXIS 147 (1880); Jonte v. Gill, 39 S.W. 750, 1897 Tenn. Ch. App. LEXIS 12 (Tenn. Ch. App. Feb. 8, 1897); Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904); S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907); Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910); York Lumber & Mfg. Co. v. McKnight & Merz, 139 Tenn. 687, 203 S.W. 254, 1918 Tenn. LEXIS 14 (1918).

20. Notice.

The giving of the legal notice required in order to acquire a lien for labor performed or material furnished is a prerequisite to the filing of a bill to enforce the lien. Conger Lumber & Supply Co. v. White, 17 Tenn. App. 206, 66 S.W.2d 999, 1933 Tenn. App. LEXIS 56 (1933).

The filing of a suit to enforce a materialman's lien, within the time prescribed by the statute for filing notice of lien, and the service of summons on defendant, are not a sufficient compliance with the requirements of the statutes as to the giving of written notice of intention to hold lien on the property for material furnished, within a prescribed time. Conger Lumber & Supply Co. v. White, 17 Tenn. App. 206, 66 S.W.2d 999, 1933 Tenn. App. LEXIS 56 (1933).

21. Parties.

22. —Owner of Record.

For the purpose of making an owner of property to be subjected a party to the attachment suit, a claimant is entitled to rely upon the record showing of ownership to show the ownership. Fischer Lime & Cement Co. v. Kaucher, 164 Tenn. 657, 51 S.W.2d 492, 1931 Tenn. LEXIS 66 (1931).

23. —Principal Contractor.

Since the principal contractor has the right to contest the indebtedness claimed by a subcontractor, to the foreclosure of the latter's lien, the principal contractor is a necessary party as one entitled to his day in court. Warner v. A.H. Yates & Co., 118 Tenn. 548, 102 S.W. 92, 1907 Tenn. LEXIS 62 (Tenn. Apr. 1907).

Error in failing to join the contractor as a party defendant may be waived. S. B. Luttrell & Co. v. Knoxville L. & J. R. Co., 119 Tenn. 492, 105 S.W. 565, 1907 Tenn. LEXIS 18, 123 Am. St. Rep. 737 (1907).

24. Tenant by Entireties — Consent to Improvement.

Where a materialman's lien is sought to be foreclosed upon land held by the husband and wife as tenants by the entireties, and the wife defends on the ground that she did not consent to the erection of the building or the furnishing of the material for the building, either in person or by her husband as her agent, the liability of her interest in the property is established by the fact that she took active part in supervising the construction of the building, and was glad to have it constructed on the land in which she had an interest as a tenant by the entireties, and joined her husband in executing a trust deed on the property, and did not object to the construction of the building. Bell Bros. & Co. v. Arnold, 17 Tenn. App. 493, 68 S.W.2d 958, 1933 Tenn. App. LEXIS 84 (1933).

25. Contractor as Agent of Owner.

The contractor may be agent of the owner where owner contracts that a building shall be erected on his land. Jonte v. Gill, 39 S.W. 750, 1897 Tenn. Ch. App. LEXIS 12 (Tenn. Ch. App. Feb. 8, 1897).

Where an owner sold lots to the contractor, with lien for purchase money retained on lot, but by agreement that the lot should be improved by the construction of a building and then sold, the expenses of construction paid, and the vendor's notes paid, any surplus to be the contractor's profit, the contractor was but an agent of the owner and the latter's lien was subject to the lien of mechanics and materialmen who aided in construction. In such case materialmen and laborers need not give notice within 30 days after completion. Jonte v. Gill, 39 S.W. 750, 1897 Tenn. Ch. App. LEXIS 12 (Tenn. Ch. App. Feb. 8, 1897).

A contractor or materialman, who had a contractual agreement with a lessee, did not have a lien on the lessor's interest in lessee's bankruptcy proceedings and was not an agent of the lessor where under the lease the lessor had no control over the lessee's equipment, did not require any improvements be made, there was no pass-through provision in the lease whereby the lessor agreed to pay for a lessee's improvements, and the lease specifically provided that the lessee, at its option, could remove any of the improvements made at the end of the lease. Hussmann Refrigeration, Inc. v. South Pittsburg Associates, 697 S.W.2d 588, 1985 Tenn. App. LEXIS 2941 (Tenn. Ct. App. 1985).

26. —Failure to Prove Contractor Agent of Owner — Effect.

Where complainant sought to establish a lien on real property for materials furnished a contractor as agent of the land owner but the evidence showed the contractor to be an independent contractor and not an agent of the owner, the suit was based on sale of materials to the owner through its agent and such suit failed because an essential fact was not proved. W.T. Hardison & Co. v. Harding Court Co., 36 Tenn. App. 98, 251 S.W.2d 829, 1952 Tenn. App. LEXIS 97 (1952).

27. Status of Mechanic's Lien as to Prior and Subsequent Liens.

The mechanic's lien will hold against a subsequent purchaser from owner and against a lien by subsequent judgment against him, but it is inferior to existing liens for purchase money, by mortgage, judgment, or otherwise. Gillespie v. Bradford, 15 Tenn. 167, 15 Tenn. 168, 1834 Tenn. LEXIS 33, 27 Am. Dec. 494 (1834); H.E. Daniel & Co. v. Weaver, 73 Tenn. 392, 1880 Tenn. LEXIS 147 (1880). But see § 66-11-110.

28. —Vendor's Lien.

Where unrecorded contract for sale of land was executed by vendor, although title was in vendor's grantor, and provided that purchaser was to construct building thereon, that balance due was to be secured by vendor's lien and that there was to be no liability on part of vendor for material or labor furnished and where vendor was on property during construction but did not inform furnishers or workmen of his rights under the contract, furnishers and workmen were entitled to lien against vendor superior to such vendor's lien where vendee disappeared after construction of building without paying any of the parties involved and vendor thereafter, recorded deed of his grantor and took possession. Rowland v. Lowe, 46 Tenn. App. 60, 326 S.W.2d 681, 1959 Tenn. App. LEXIS 88 (1959).

29. —Subsequent Mortgage.

The lien of a furnisher, which attached prior to the registration of a mortgage, has priority over the lien of the mortgage. Bristol-Goodson Elec. Light & Power Co. v. Bristol Gas, Elec. Light & Power Co., 99 Tenn. 371, 42 S.W. 19, 1897 Tenn. LEXIS 42 (1897).

A subsequently recorded mortgage whose holder was not provided written notice of the architectural lien has priority over an earlier in time unrecorded lien of an architect. CainRash Architectural Group, Inc. v. Premier Hotel Dev. Group (In re Premier Hotel Dev. Group), 271 B.R. 813, 2002 Bankr. LEXIS 36 (Bankr. E.D. Tenn. 2002).

30. —Subsequent Purchase.

A lienor may preserve the priority of a contractor's lien as to subsequent purchasers or encumbrancers within the meaning of T.C.A. § 66-11-112(a) by filing suit within 90 days of when work is completed. Don Huckaby Plumbing Co. v. Cardinal Industries Mortg. Co., 848 S.W.2d 57, 1993 Tenn. LEXIS 14 (Tenn. 1993), rehearing denied, 848 S.W.2d 57, 1993 Tenn. LEXIS 101 (Tenn. 1993).

31. Respective Rights of Conditional Vendee and Subsequent Mortgagee.

The rights of an innocent subsequent mortgagee prevail over the rights of the seller of machinery sold under conditional sale, with retention of title until paid for, where the machinery is put into the purchaser's building, and intended to be permanently attached to the freehold. Union Bank & Trust Co. v. Fred W. Wolf Co., 114 Tenn. 255, 86 S.W. 310, 1904 Tenn. LEXIS 86, 108 Am. St. Rep. 903, 4 Ann. Cas. 1070 (1904).

Where seller retained title to furnace installed by him in a private residence, and the furnace could be removed without serious injury to the realty, the seller's right was superior to that under mortgage of the realty executed before installation of the furnace. Lenois Land Co. v. Haynes Heating Co., 166 Tenn. 494, 63 S.W.2d 659, 1933 Tenn. LEXIS 105 (1933).

32. Respective Rights of Attorney and Lienor.

Fees to attorney for filing a bill to sell the property and adjust all liens and claims cannot have priority over a mechanic's lien that had previously attached. Steger v. Arctic Refrigerating Co., 89 Tenn. 453, 14 S.W. 1087, 1890 Tenn. LEXIS 70, 11 L.R.A. 580 (Tenn. Dec. 1890).

33. Mechanic Taking Property in Payment.

A mechanic who takes machinery in payment for his work loses priority to a bona fide mortgagee who advanced money on the property after, and in reliance on, such payment, and this though the title to the machinery failed and was repossessed by a title retainer. Action for breach of warranty on the part of the mechanic could not restore to him status for the priority as lienor. Garrett v. Adams, 39 S.W. 730, 1897 Tenn. Ch. App. LEXIS 6 (Tenn. Ch. App. Mar. 1, 1897).

34. Transfer of Title to Lienor as Security — Effect.

One contracting with owner to erect improvements on lot and then turn lot over to a purchaser from the owner has a lien under this section for his expenditures for labor and materials for one year and “until the decision of any suit that may be brought within that time for the debt due said mechanic or undertaker.” This lien is not affected by the transfer to him of title to the lot as security. It may be enforced in such case without attachment process. Arnstein Realty Co. v. Williams, 163 Tenn. 69, 40 S.W.2d 1007, 1931 Tenn. LEXIS 89 (1931).

35. Bankruptcy of Contractor — Effect.

The trustee in bankruptcy is bound by bankrupt contractor's agreement in respect of delay in time of completion made by him and the owner. Harrison v. Knafle, 128 Tenn. 329, 161 S.W. 1003, 1913 Tenn. LEXIS 52 (1913).

A discharge in bankruptcy by principal contractor does not bar holders of mechanic's lien from foreclosing their liens on the property involved where action to foreclose liens against principal contractor and owner was pending at the time the principal contractor filed bankruptcy petition. Chickasaw Hotel Co. v. C.B. Barker Constr. Co., 135 Tenn. 305, 186 S.W. 115, 1916 Tenn. LEXIS 28, 1916F L.R.A. (n.s.) 106 (1916).

36. Credit to Which Owner Entitled.

Under a contract to remodel a house, the owner is entitled to credit on the contract price for old material which belonged to her and was used in the improvement, and for the amount she expended to complete the improvement, after the contractors abandoned the work. Richardson v. Lanius, 150 Tenn. 133, 263 S.W. 799, 1923 Tenn. LEXIS 70 (1923).

37. Profits.

Contractor is not entitled to lien for amount representing profits under cost plus basis. Roehl v. Henck, 5 Tenn. App. 153, 1926 Tenn. App. LEXIS 141 (1926).

38. Interest.

Where judgment showed that the court had allowed a sum as interest on a mechanic's lien account but such judgment failed to set out the interest separately, since the complainant was entitled to interest, and as the decree showed on its face that interest had been computed and allowed, the same should not be set aside on that account. D.M. Rose & Co. v. Dysart, 8 Tenn. App. 325, 1928 Tenn. App. LEXIS 147 (1928).

As against the objection that interest should not be allowed on a lien claim because it would increase the amount beyond that of the contract price, the chancellor would not be held in error for that reason but on account of other facts in the particular case interest should not have been allowed. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

39. Estoppel to Assert Lien.

A contractor is estopped to assert his lien against the purchaser or encumbrancer of the encumbered property, where the purchaser was induced to buy and pay for the property upon the contractor's representation that no such lien existed against it. Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Bristol-Goodson Elec. Light & Power Co. v. Bristol Gas, Elec. Light & Power Co., 99 Tenn. 371, 42 S.W. 19, 1897 Tenn. LEXIS 42 (1897).

The claimant of mechanic's lien estops himself to assert his lien as against the innocent holders of mortgage bonds reciting that they are secured by first mortgage on the improved property, by suggesting the issue of such bonds, and offering to take part of the same as collateral security for part of his lien claim, and by assisting in the sale of the balance of such bonds to innocent purchasers, though the latter are not shown to have been directly influenced by his statements or assurances. Bristol-Goodson Elec. Light & Power Co. v. Bristol Gas, Elec. Light & Power Co., 99 Tenn. 371, 42 S.W. 19, 1897 Tenn. LEXIS 42 (1897).

Collateral References.

Amount for which mechanic's lien may be obtained where contract has been terminated or abandoned by consent of parties or without fault on contractor's part. 51 A.L.R.2d 1009.

Architect's services as within mechanics' lien statute. 31 A.L.R.5th 664.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold. 59 A.L.R.3d 278.

Charge of use of machinery, tools, or appliances used in construction as basis for mechanic's lien. 3 A.L.R.3d 573.

Church property as subject of mechanic's lien. 85 A.L.R. 953.

Contract against mechanics' liens, validity and effect of. 13 A.L.R. 1065, 102 A.L.R. 356, 76 A.L.R.2d 1087, 75 A.L.R.3d 505.

“Contractor,” within provisions of Mechanic's Lien Law which limits liens for material or labor furnished to contractor to amount earned but unpaid on contract, or gives such liens by subrogation. 83 A.L.R. 1152.

Delivery of material to building site as sustaining mechanic's lien — Modern cases. 32 A.L.R.4th 1130.

Demand for or submission to arbitration as affecting enforcement of mechanics' lien. 73 A.L.R.3d 1042.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee. 74 A.L.R.3d 330.

Fixture, heating plant, as basis for mechanic's lien. 126 A.L.R. 605.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanic's lien, or as extending time for filing such a lien. 51 A.L.R.3d 1087.

Landlord's liability to third party for repairs authorized by tenant. 46 A.L.R.5th 1.

Landscaping, grading, clearing, filling, evacuating, and the like, mechanic's lien. 39 A.L.R.2d 866.

Mechanic's lien for labor on material furnished under contract with vendor pending executory contract for sale of property as affecting purchaser's interest. 50 A.L.R.3d 944.

Mechanic's lien for services of person supervising construction of building, architect, etc. 60 A.L.R. 1257.

Municipal property as subject to mechanic's lien. 51 A.L.R.3d 657.

Payment in property other than money, mechanic's lien as affected by agreement for. 81 A.L.R. 766.

Person performing work only part of which is of a lienable character, extent of lien of. 149 A.L.R. 701.

Presumption and burden of proof in action involving mechanic's lien, as affected by delivery of material to building site. 32 A.L.R.4th 1130.

Removal or demolition of building or other structure as basis for mechanic's lien. 74 A.L.R.3d 386.

Right to mechanic's lien as for “labor” or “work,” in case of preparatory or fabricating work done on materials intended for use and used in particular building or structure. 25 A.L.R.2d 1370.

Right to mechanic's lien upon leasehold for supplying labor or material in attaching or installing fixtures. 42 A.L.R.2d 685.

Surveyor's work as giving rise to right to mechanic's lien. 35 A.L.R.3d 1391.

Swimming pool as lienable item within mechanic's lien statute. 95 A.L.R.2d 1371.

NOTES TO DECISIONS

1. Husband as Agent of Wife — Right of Wife to Claim Homestead.

Where husband contracted for construction of houses on two lots owned as tenants by the entirety by his wife and himself and where the wife knew of the character of her husband's business and participated in the execution of trust deeds on such lots to finance the construction of such improvements on the lots, the provisions of this section were applicable so that the husband was deemed to be the agent of the wife in the erection of the improvements and the wife was not entitled to claim homestead exemption on such lots superior to materialmen's and mechanics' liens. Wittichen v. Miller, 179 Tenn. 352, 166 S.W.2d 612, 1942 Tenn. LEXIS 30 (1942).

2. Wife Bound to Contract her Husband Signed.

Wife who did not sign construction contract, but whose husband did sign the construction contract, was bound to the arbitration provision contained in the construction contract because her husband signed the construction contract on his behalf and as her agent. Reagan v. Higgins, 88 S.W.3d 173, 2002 Tenn. App. LEXIS 159 (Tenn. Ct. App. 2002).

Collateral References.

Husband's contract of work performed or materials furnished as giving right to lien against wife's property. 4 A.L.R. 1025.

Ratification by wife. 4 A.L.R. 1052.

NOTES TO DECISIONS

1. Inception of Lien.

Inception of mechanic's and furnisher's lien is fixed and controlled by the statute. Williams Lumber & Supply Co. v. Poarch, 221 Tenn. 540, 428 S.W.2d 308, 1968 Tenn. LEXIS 483 (1968).

2. —Commencement of Operations.

A materialman's lien which meets the statutory prerequisites of creation and perfection relates back to the visible commencement of operations. Williams Lumber & Supply Co. v. Poarch, 221 Tenn. 540, 428 S.W.2d 308, 1968 Tenn. LEXIS 483 (1968).

Where lot owner commenced to lay foundation for house on certain date, corporation thereafter began construction of shell house and thereafter materialman furnished supplies to owner for completion of interior, starting of foundation was visible commencement of operations so that materialman's lien related back to that time and was superior to trust deed recorded after that time but prior to delivery of materials. Williams Lumber & Supply Co. v. Poarch, 221 Tenn. 540, 428 S.W.2d 308, 1968 Tenn. LEXIS 483 (1968).

Where mortgagee was under an obligation to advance additional sums up to total of $25,000 on construction loan after having loaned an initial $2,500 and did in fact make such additional advances over a period of months, lien of mortgagee for full amount of $25,000 related back to time of filing or original trust deed and was superior to mechanics' and materialmen's liens where no material was delivered and no labor was expended prior to the time the trust deed was executed and recorded and the original $2,500 loaned. Kemp v. Thurmond, 521 S.W.2d 806, 1975 Tenn. LEXIS 698 (Tenn. 1975).

Under a revised version of the lien statutes, a contractor's lien took “effect from the time of the visible commencement of operations,” which was in February 2007. Under either version of the statute, given that the date of visible commencement of operations was prior to a lender's recording of its Deed of Trust, the lender would have been aware that another party's lien could take priority over its Deed of Trust, and its substantive rights were not impaired by the liberal application of the amended lien statutes. Tri Am Constr., Inc. v. J & V Dev., Inc., 415 S.W.3d 242, 2011 Tenn. App. LEXIS 466 (Tenn. Ct. App. Aug. 30, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 109 (Tenn. Feb. 15, 2012).

Collateral References.

Abandonment of construction or of contract as affecting time for filing mechanics' lien or time for giving notice to owner. 52 A.L.R.3d 797.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanic's lien, or as extending time for filing such a lien. 51 A.L.R.3d 1087.

Time when contractor commenced work or time when labor or material for which lien is claimed was furnished as date of mechanic's lien. 83 A.L.R. 925.

What constitutes “commencement of building or improvement” for purposes of determining accrual of mechanic's lien. 1 A.L.R.3d 822.

NOTES TO DECISIONS

1. Status and Effect of Lien.

The mechanic's lien binds the land as a proceeding in rem, as against the owner's subsequent conveyance or other disposition of it, and as against subsequent adverse proceedings by attachment or otherwise. Furguson v. Ellis, 25 Tenn. 268, 1845 Tenn. LEXIS 77 (1845); Weller & Bell v. McNabb, 36 Tenn. 422, 1857 Tenn. LEXIS 24 (1857); Burr v. Graves, 72 Tenn. 552, 1880 Tenn. LEXIS 63 (1880); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Ruston v. Perry Lumber Co., 104 Tenn. 538, 58 S.W. 268, 1900 Tenn. LEXIS 27 (1900).

2. Sale of Property — Effect on Lien.

A sale by owner of the property does not prevent enforcement by suit of lienor if commenced within the year allowed. Furguson v. Ellis, 25 Tenn. 268, 1845 Tenn. LEXIS 77 (1845).

Where the purchaser of land under a parol contract procures a mechanic to make improvements thereon, and then sells the property and procures his parol vendor to make a deed to his (the parol purchaser's) vendee, who covenants to pay the mechanic's debt for the improvements, the mechanic's lien is not lost unless he relinquishes his lien. Furguson v. Ellis, 25 Tenn. 268, 1845 Tenn. LEXIS 77 (1845). See Weller & Bell v. McNabb, 36 Tenn. 422, 1857 Tenn. LEXIS 24 (1857).

3. Limitations — Extent of Period.

The suit for the enforcement of the lien must be commenced within one year after the work is finished or materials are furnished. Furguson v. Ellis, 25 Tenn. 268, 1845 Tenn. LEXIS 77 (1845); Barnes v. Thompson, 32 Tenn. 313, 1852 Tenn. LEXIS 72 (1852); Dunn v. McKee, 37 Tenn. 657, 1858 Tenn. LEXIS 89 (1858); Stout, Mills & Temple v. Swaney, 3 Shan. 93 (1879); H.E. Daniel & Co. v. Weaver, 73 Tenn. 392, 1880 Tenn. LEXIS 147 (1880); Ragon v. Howard, 97 Tenn. 334, 37 S.W. 136, 1896 Tenn. LEXIS 148 (1896).

Pursuant to one article of the architect agreement, the architectural firm was permitted to proceed in accordance with the law to comply with lien notice or filing deadlines, and the applicable law allowed the firm to bring a lien enforcement action up to one year after the improvement was complete; the notice of completion stated the date of October 21, 2008, and the firm filed suit within the one-year statute of limitations, such that the suit was timely. TWB Architects, Inc. v. The Braxton, LLC, — S.W.3d —, 2014 Tenn. App. LEXIS 703 (Tenn. Ct. App. Oct. 30, 2014), appeal denied, TWB Architects, Inc. v. Braxton, LLC, — S.W.3d —, 2015 Tenn. LEXIS 173 (Tenn. Feb. 12, 2015).

4. Beginning of Running of Statute.

Where the contract is entire, the statute of limitation begins to run against the lien when the building is substantially finished, and is treated by all the parties as completed, though something unimportant, or not of the essence of the contract may remain undone. Luter & Daniel v. Cobb, 41 Tenn. 525, 1860 Tenn. LEXIS 100 (1860).

In case of materialman, the time for acquiring the lien by filing notice begins to run from the delivery of the last materials. Bristol-Goodson Elec. Light & Power Co. v. Bristol Gas, Elec. Light & Power Co., 99 Tenn. 371, 42 S.W. 19, 1897 Tenn. LEXIS 42 (1897); Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

Where a materialman furnishes material, part of which the owner's inspector, after the delivery thereof, rejected as defective, the fact that the materialman thereafter furnished additional materials to be used in the place of the alleged defective materials, and so used, did not extend the time for his acquiring a lien for his materials previously furnished under the original contract, but the time for acquiring such lien began to run from the delivery of the last material under the original contract. Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

5. Acts Sufficient to Stop Running of Statute.

The lien is lost if the lienor fails to cause the attachment to be issued and levied within one year after the accrual of his right, and the mere commencement of suit in time, followed by the issuance and levy of the attachment after the expiration of one year will not preserve the lien. Ragon v. Howard, 97 Tenn. 334, 37 S.W. 136, 1896 Tenn. LEXIS 148 (1896).

It is sufficient to prevent loss of mechanic's lien if the bill against the owner is filed and the attachment is levied within the year, and other parties, without the issuance of another attachment, may be thereafter brought in by an amended and supplemental bill to test priorities. Ragon v. Howard, 97 Tenn. 334, 37 S.W. 136, 1896 Tenn. LEXIS 148 (1896).

6. Burden of Showing Lien Not Barred.

The person claiming the lien must show clearly, by satisfactory proof, that his suit was brought within one year from the completion of the work. Dunn v. McKee, 37 Tenn. 657, 1858 Tenn. LEXIS 89 (1858); Luter & Daniel v. Cobb, 41 Tenn. 525, 1860 Tenn. LEXIS 100 (1860); Kay v. Smith, 57 Tenn. 41, 1872 Tenn. LEXIS 392 (1872); Thompson v. Baxter, 92 Tenn. 305, 21 S.W. 668, 1892 Tenn. LEXIS 77, 36 Am. St. Rep. 85 (1892).

7. Waiver of Lien.

A furnisher by taking a note for his claim which note did not mature for more than the year allowed waived his lien to the extent of such note. The lien is not lost as to a note maturing within the year. Citizens' Bank v. H.A. Klyce Co., 127 Tenn. 669, 156 S.W. 1083, 1913 Tenn. LEXIS 9 (1913).

8. Subrogation of Creditor of Owner After Lapse of Lien.

When the time for the enforcement of a furnisher's lien has expired, a bank which furnished the owner money with which to pay the furnisher cannot be subrogated to the latter's claim of lien. Old Nat'l Bank v. Swearingen, 167 Tenn. 529, 72 S.W.2d 545, 1934 Tenn. LEXIS 11 (1934).

9. Loss of Lien as Ground to Contest Judgment.

A bona fide purchaser of land may successfully contest the claim of a creditor of the vendor, by virtue of a mechanic's lien fixed by attachment and judgment before a justice of the peace (now general session judge), by showing that the lien debt had been paid before the sale and judgment, and that the lien was lost by a failure to register the judgment as required by a statute then in force. Montgomery v. Rich, 3 Cooper's Tenn. Ch. 660 (1878).

Collateral References.

Dismissal of proceeding to enforce mechanic's lien because of delay in prosecuting it. 79 A.L.R. 847.

Removal or demolition of building or other structure as basis for mechanic's lien. 74 A.L.R.3d 386.

Time limitation in mechanic's lien statute as a limitation of the right or only of the remedy. 139 A.L.R. 903.

Waiver of failure to bring suit to enforce lien in time prescribed, by failure to raise objection by demurrer or answer. 93 A.L.R. 1462.

What amounts to bringing of suit within limited time required by mechanics' lien statute. 75 A.L.R. 695.

NOTES TO DECISIONS

1. Individual Mechanics — Rights.

This statute extends the mechanic's lien separately to each person who may do part of the work or furnish part of the materials. Gillespie v. Bradford, 15 Tenn. 167, 15 Tenn. 168, 1834 Tenn. LEXIS 33, 27 Am. Dec. 494 (1834); Furguson v. Ellis, 25 Tenn. 268, 1845 Tenn. LEXIS 77 (1845).

2. Proportioning Lien.

A furnisher of materials is entitled to a lien only in proportion that his claim bears to contract price, in view of this section and §§ 66-11-115 and 66-11-120 though the owner during progress of the work had paid claims of laborers whose liens had not been perfected and though furnisher's claim was less than the contract price. Richardson v. Lanius, 150 Tenn. 133, 263 S.W. 799, 1923 Tenn. LEXIS 70 (1923).

Where claims of furnishers of labor and materials exceeded the contract price and some furnishers of labor and materials had been paid in full, but others had not, the formula to be used to determine the pro rata share of each lien claimant is to divide the total contract price by the total lienable claims, both paid and unpaid, for material and labor used in constructing the improvement in accordance with the original contract, and the percentage thus determined is applied to each outstanding claim. Standard Glass & Supply Co. v. Sheley, 604 S.W.2d 36, 1980 Tenn. LEXIS 481 (Tenn. 1980).

3. Materials for Buildings on Separate Lots.

Where bricks were furnished for a block of buildings erected on two adjoining lots, the titles to which were derived from distinct and different sources, and which were subject to the distinct claims, liens, and equities of third persons, the furnisher's lien against one of the lots must be apportioned and limited, in a contest with such third persons, to the value of the brick furnished and used on that particular lot. Ragon v. Howard, 97 Tenn. 334, 37 S.W. 136, 1896 Tenn. LEXIS 148 (1896). See also § 64-1118.

Collateral References.

Amount of owner's obligation under his guaranty of subcontractor's or materialman's account, as deductible from amount otherwise due principal contractor, as against claims of other subcontractors or materialmen. 153 A.L.R. 759.

Oil and gas, priority of statutory lien for labor or material in developing property for. 122 A.L.R. 1182.

Subcontractor, right of one furnishing labor to, to priority of payment from sums owing to principal contractor for public improvement. 112 A.L.R. 824.

NOTES TO DECISIONS

1. Form and Sufficiency of Notice.

No particular form of written notice is prescribed by the statute, it only being provided that the mortgagee have written notice of the same before the work is begun and consent thereto. Neely v. Clarence Saunders Co., 169 Tenn. 30, 81 S.W.2d 390, 1935 Tenn. LEXIS 11 (1935).

Where mortgagee registered trust deed notes payable to bearer and before maturity negotiated notes to bank as collateral for preexisting indebtedness, notice to mortgagee of contract executed between mortgagor and holder of mechanic's lien for labor performed on real estate secured by notes was not notice to bank as a holder in due course, and holder of mechanic's lien was not entitled to priority over bank. Neely v. Clarence Saunders Co., 169 Tenn. 30, 81 S.W.2d 390, 1935 Tenn. LEXIS 11 (1935).

A mortgagee who sees a written contract between mortgagor and lien holder has “written notice” of the contract. Neely v. Clarence Saunders Co., 169 Tenn. 30, 81 S.W.2d 390, 1935 Tenn. LEXIS 11 (1935).

2. Intention of Parties.

A statutory lien does not take precedence in the absence of a clear intention to override a prior contractual lien. Nashville v. Weakley, 170 Tenn. 278, 95 S.W.2d 37, 1935 Tenn. LEXIS 132 (1936).

3. Mortgage Previously Registered.

Registry of the mortgage is sufficient notice. Reid v. Bank of Tennessee, 33 Tenn. 262, 1853 Tenn. LEXIS 40 (1853).

The mechanic's lien is inferior to that of a mortgage where the materials for which the lien is asserted were furnished after the registration of the mortgage and without notice to the mortgagee, though upon a contract with the mortgagor, made prior to the mortgage. Rawlings v. New Memphis Gaslight Co., 105 Tenn. 268, 60 S.W. 206, 1900 Tenn. LEXIS 76, 80 Am. St. Rep. 880 (1900). See Reid v. Bank of Tennessee, 33 Tenn. 262, 1853 Tenn. LEXIS 40 (1853); Pride v. Viles, 35 Tenn. 125, 1855 Tenn. LEXIS 27 (1855).

Where a college sold a lot and agreed to lend money for the construction of a building thereon, and the lot was actually conveyed and a trust deed executed by the grantee and registered, the lien of the college under the trust deed was superior to the lien of materialmen subsequently furnishing materials, although a contract was entered into between the purchaser and the college for the construction of the building, such contract being entered into in order to obtain a bond to protect the college. Kingsport Brick Corp. v. Bostwick, 145 Tenn. 19, 235 S.W. 70, 1921 Tenn. LEXIS 69 (1921).

A mechanic's lien is subordinate to that of a mortgagee, if the lien of the mortgagee is of record prior to the time the mechanic's lien attaches, unless the mortgagee has written notice of the contract with the mortgagor before the work is begun and the materials furnished and consents thereto. Kingsport Brick Corp. v. Bostwick, 145 Tenn. 19, 235 S.W. 70, 1921 Tenn. LEXIS 69 (1921). See Parker-Harris Co. v. Tate, 135 Tenn. 509, 188 S.W. 54, 1916 Tenn. LEXIS 44, 1916F L.R.A. (n.s.) 935 (1916).

Vendor taking contemporaneous trust deed to secure purchase money, which is recorded, has priority over mechanic's liens. Prichard Bros. v. Causey, 158 Tenn. 53, 12 S.W.2d 711, 1928 Tenn. LEXIS 123 (1929).

4. Subsequently Recorded Mortgage.

A lien for materials furnished is superior to the lien of a mortgage registered after the delivery of the materials was commenced under a contract with the owner. Bristol-Goodson Elec. Light & Power Co. v. Bristol Gas, Elec. Light & Power Co., 99 Tenn. 371, 42 S.W. 19, 1897 Tenn. LEXIS 42 (1897); Thomas v. Setliffe, 160 Tenn. 689, 28 S.W.2d 344, 1929 Tenn. LEXIS 143 (1930).

An original vendor's lien was retained, in registered deed, against the owner. Thereafter a trust deed was taken to secure the purchase money, but, before it was registered, materials for improvement of the property were furnished the owner. The furnisher's lien had priority over trust deed and purchaser thereunder. Thomas v. Setliffe, 160 Tenn. 689, 28 S.W.2d 344, 1929 Tenn. LEXIS 143 (1930).

Where the furnisher began furnishing materials before the execution and recordation of the mortgage, nothing further appearing, the furnisher has the superior lien. McDonnell v. Amo, 162 Tenn. 36, 34 S.W.2d 212, 1930 Tenn. LEXIS 60 (1931).

5. Subsequent Mortgagee — Right to Contest Lien.

A mortgagee who is a party defendant to a suit for the enforcement of a mechanic's lien, and whose mortgage is subordinated to the mechanic's lien, may contest, on appeal, the existence and regularity of the mechanic's lien, although the owner and mortgagor, by failing to appeal, has waived any right to complain, so far as he is concerned. Ragon v. Howard, 97 Tenn. 334, 37 S.W. 136, 1896 Tenn. LEXIS 148 (1896).

6. Loss of Priority over Subsequent Mortgagee.

A furnisher taking machinery in payment, loses his priority over a mortgagee thereafter advancing money, even though the title to the machinery fails, and it is replevined by its legal owner. Garrett v. Adams, 39 S.W. 730, 1897 Tenn. Ch. App. LEXIS 6 (Tenn. Ch. App. Mar. 1, 1897).

7. Amount of Advance under Prior Mortgage Immaterial.

In determining the priority of lien of a party lending money under a deed of trust and that of materialmen, it was wholly immaterial whether the party lending the money had advanced the entire amount at the time the material was furnished, if the obligation to advance the money existed. Kingsport Brick Corp. v. Bostwick, 145 Tenn. 19, 235 S.W. 70, 1921 Tenn. LEXIS 69 (1921).

8. Attorney's Lien.

The lien is paramount to attorney's lien for fees, where the owner of land, after the lien had attached thereto, made a general assignment of all his property for the benefit of his creditors, and thereafter a bill was filed by the assignee, for the purpose of selling the property and adjusting liens and claims of creditors, and contesting the lienor's claim, which the lienor, through his own counsel, successfully asserted over the assignee's resistance. Steger v. Arctic Refrigerating Co., 89 Tenn. 453, 14 S.W. 1087, 1890 Tenn. LEXIS 70, 11 L.R.A. 580 (Tenn. Dec. 1890).

9. Federal Law.

Where there was a question of whether a materialmen's claim took priority over a recorded deed of trust, the federal “first in time, first in right” rule was applied rather than the state statute. Adamsville Lumber Co. v. Rainey, 348 F. Supp. 373, 1972 U.S. Dist. LEXIS 14156 (W.D. Tenn. 1972).

Collateral References.

Constitutionality of statute giving to lien for alteration of property pursuant to public requirement or to mechanics' lien preference over preexisting mortgage or other lien. 121 A.L.R. 616.

Future advances, priority as between mortgage for, and mechanics' liens. 80 A.L.R.2d 179.

Priority as between mechanic's lien and mortgage not providing for future advances executed before effective date of mechanic's lien, as affected by fact that proceeds of the mortgage were paid, in whole or in part, after that date. 80 A.L.R.2d 179.

Purchase money mortgage and mechanics' lien, priority as between. 72 A.L.R. 1516, 73 A.L.R.2d 1407.

NOTES TO DECISIONS

1. Furnisher to Vendee with Title Bond.

Where a mechanic furnishes materials under a contract made with the owner who has only a bond for title from his vendor upon payment of the purchase money still unpaid, such mechanic is only entitled to enforce his lien against the vendee's equity, unless the vendor has waived his lien by acts and declarations. Gillespie v. Bradford, 15 Tenn. 167, 15 Tenn. 168, 1834 Tenn. LEXIS 33, 27 Am. Dec. 494 (1834); Rhea v. Allison, 40 Tenn. 176, 1859 Tenn. LEXIS 48 (1859); Prichard Bros. v. Causey, 158 Tenn. 53, 12 S.W.2d 711, 1928 Tenn. LEXIS 123 (1929).

2. Vendor's Agreement to Subordination of His Lien.

The fact that a vendor agrees with a vendee that his lien or mortgage for the purchase money may be subordinated to one for money borrowed to improve the property does not effect a subordination to mechanics' liens. Prichard Bros. v. Causey, 158 Tenn. 53, 12 S.W.2d 711, 1928 Tenn. LEXIS 123 (1929).

3. Improvements by Vendee under Contract with Vendor.

The mechanic's lien is superior to the vendor's lien, where, as an inducement to the sale and conveyance of the land, the vendor stipulated that certain buildings and improvements should be erected thereon by the vendee, according to certain plans and specifications, and at a fixed minimum price, and agreed to advance and lend a certain sum to the vendee for this purpose, the last instalment of which was not to be paid until the land was cleared of all liens other than the vendor's lien, and where the mechanic's lien was created in making the stipulated improvements. Lee v. Gibson, 104 Tenn. 698, 58 S.W. 330, 1900 Tenn. LEXIS 45 (1900).

4. Unrecorded Contracts and Conveyances.

Where unrecorded contract for sale of land was executed while record title was in vendor's grantor and provided that purchaser was to construct building thereon, that balance due was to be secured by vendor's lien and that there was to be no liability on part of vendor for material and labor furnished and where vendor was on property during construction but did not inform furnishers or workmen of his rights under the contract, furnishers and workmen were entitled to lien against vendor superior to vendor's lien where vendee disappeared after construction of building without paying any of the parties involved and vendor thereafter recorded deed of his grantor and took possession. Rowland v. Lowe, 46 Tenn. App. 60, 326 S.W.2d 681, 1959 Tenn. App. LEXIS 88 (1959).

Collateral References.

Fixtures, rights of seller of, retaining title thereto or a lien thereon, as against holder of mechanic's lien. 13 A.L.R. 448, 73 A.L.R. 748, 88 A.L.R. 1318, 111 A.L.R. 362, 141 A.L.R. 1283.

Priority of vendor's lien under executory contract for sale of realty, over mechanic's lien for labor or materials furnished purchaser. 58 A.L.R. 947, 102 A.L.R. 233.

NOTES TO DECISIONS

1. Construction.

Statutory provisions relating to materialmen are mandatory and a lien filed after period allowed thereby is void. Southern Blow Pipe & Roofing Co. v. Grubb, 36 Tenn. App. 641, 260 S.W.2d 191, 1953 Tenn. App. LEXIS 146 (1953).

This section makes a distinction between what is required of a furnisher as to subsequent purchasers or encumbrancers on the one hand and as to the owner of the premises on the other hand, and registration is required as to subsequent purchasers or encumbrancers but not as to owners. First State Bank v. Stacey, 37 Tenn. App. 223, 261 S.W.2d 245, 1952 Tenn. App. LEXIS 74 (1952), cert. denied, 195 Tenn. 386, 259 S.W.2d 863, 1953 Tenn. LEXIS 352 (1953), cert. denied, First State Bank v. Stacey, 195 Tenn. 386, 259 S.W.2d 863, 1953 Tenn. LEXIS 352 (1953); Streuli v. Brooks, 203 Tenn. 373, 313 S.W.2d 262, 1958 Tenn. LEXIS 313 (Tenn. Apr. 9, 1958).

A materialman's lien is statutory and, consequently, the requirements relating to its perfection are mandatory. Tindell Home Center, Inc. v. Union Peoples Bank, 543 S.W.2d 843, 1976 Tenn. LEXIS 483 (Tenn. 1976).

The phrase “demolished, altered or completed” does not include abandonment of a project. Concrete Supply Co. v. Union Peoples Bank, 540 S.W.2d 250, 1976 Tenn. App. LEXIS 240 (Tenn. Ct. App. 1976).

T.C.A. § 66-11-112 should not be interpreted to mean “99.5% completion” or “substantial completion,” for lienors would have no accurate standard by which to set the beginning of the 90-day period. Davis v. Smith, 650 S.W.2d 47, 1983 Tenn. App. LEXIS 557 (Tenn. Ct. App. 1983).

The occupation of part of a building is not conclusive of the completion of all of the building. Davis v. Smith, 650 S.W.2d 47, 1983 Tenn. App. LEXIS 557 (Tenn. Ct. App. 1983).

Although the language of T.C.A. § 66-11-112 is not entirely clear, Tennessee courts have construed this provision as providing the lienholder two different ninety-day periods in which to file a lien notice: the ninety days after the contract expires and the ninety days after the building is completed; where lienholder did not file its notice within either of these two ninety-day periods but rather during the space of time between the two ninety-day periods, the filing of the lawsuit by lienholder did not preserve its lien as to intervening encumbrances. Durkan Patterned Carpet, Inc. v. Premier Hotel Dev. Group (In re Premier Hotel Dev. Group), 270 B.R. 234, 2001 Bankr. LEXIS 1576 (Bankr. E.D. Tenn. 2001).

2. Form of Statement.

Neither T.C.A. § 66-11-112 nor T.C.A. § 66-11-117 prescribes the form of the sworn statement that must either accompany or be included in the notice of lien. D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 1990 Tenn. App. LEXIS 367 (Tenn. Ct. App. 1990).

Where notice contained the proper information and indicated that an appropriate representative of the partnership had “sworn to and subscribed” the statement before a notary public, there was substantial compliance with the general assembly's intention, and notice of lien met the statutory verification and registration requirements. D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 1990 Tenn. App. LEXIS 367 (Tenn. Ct. App. 1990).

3. Time of Filing.

If house is not completed materialman or furnisher is required to file lien within 90 days of termination of contract. First State Bank v. Stacey, 37 Tenn. App. 223, 261 S.W.2d 245, 1952 Tenn. App. LEXIS 74 (1952), cert. denied, 195 Tenn. 386, 259 S.W.2d 863, 1953 Tenn. LEXIS 352 (1953), cert. denied, First State Bank v. Stacey, 195 Tenn. 386, 259 S.W.2d 863, 1953 Tenn. LEXIS 352 (1953).

Where the owner/builder does not complete the improvements but abandons them, the materialman must file his notice of lien within 90 days from the completion or termination of his contract for it to be effective against subsequent bona fide purchasers or encumbrancers. Tindell Home Center, Inc. v. Union Peoples Bank, 543 S.W.2d 843, 1976 Tenn. LEXIS 483 (Tenn. 1976).

“Abandonment” is not included in the phrase “demolished, altered and/or completed” and therefore a materialman's lien must be filed within 90 days of delivery of last materials. Concrete Supply Co. v. Union Peoples Bank, 540 S.W.2d 250, 1976 Tenn. App. LEXIS 240 (Tenn. Ct. App. 1976).

A materialman's lien filed subsequent to deeds of trust given to a construction lender and within 90 days of the owner's subsequent abandonment of the project but more than 90 days from the materialman's last delivery of materials is not entitled to priority over the mortgagee lender's liens. Concrete Supply Co. v. Union Peoples Bank, 540 S.W.2d 250, 1976 Tenn. App. LEXIS 240 (Tenn. Ct. App. 1976).

A lienor may preserve the priority of a contractor's lien as to subsequent purchasers or encumbrancers within the meaning of T.C.A. § 66-11-112(a) by filing suit within 90 days of when work is completed. Don Huckaby Plumbing Co. v. Cardinal Industries Mortg. Co., 848 S.W.2d 57, 1993 Tenn. LEXIS 14 (Tenn. 1993), rehearing denied, 848 S.W.2d 57, 1993 Tenn. LEXIS 101 (Tenn. 1993).

4. Acknowledgment of Statement — Necessity.

The sworn statement, to affect the rights of a holder of a deed of trust must be acknowledged as required by §§ 66-22-101 and 66-22-108. Chattanooga Lumber & Coal Corp. v. Phillips, 202 Tenn. 266, 304 S.W.2d 82, 1957 Tenn. LEXIS 388 (1957).

In order to register notice of a lien so as to give lienholder priority over subsequent purchasers or encumbrancers for value, such lienholder must not only acknowledge his notice of lien, but must in addition verify the notice by sworn statement. Pulaski Lumber Co. v. Harpeth South, Inc., 501 S.W.2d 275, 1973 Tenn. LEXIS 533 (Tenn. 1973).

5. Lien Relates to Date of Visible Commencement of Work.

A mechanic's lien relates back to the date of the visible commencement of the work. Brown v. Brown & Co., 25 Tenn. App. 509, 160 S.W.2d 431, 1941 Tenn. App. LEXIS 137 (1941).

6. Work Done After Recordation of Deed of Trust.

A claim for work done under a separate contract with the owner of the property constitutes a lien though it is secondary to the lien of a deed of trust where the work was done after the recordation of the deed of trust. Brown v. Brown & Co., 25 Tenn. App. 509, 160 S.W.2d 431, 1941 Tenn. App. LEXIS 137 (1941).

7. Priorities Where Claim Filed After Period.

The priority of the mechanic's lien is dependent upon compliance by the lien claimant with the statutory requirements relating to the perfection and preservation of his lien, and that his priority may be lost and the lien of subsequent encumbrancers acquire superiority if the lien claimant fails to give notice to the owner or file a claim within the time prescribed by statute. Brown v. Brown & Co., 25 Tenn. App. 509, 160 S.W.2d 431, 1941 Tenn. App. LEXIS 137 (1941).

The lien of a deed of trust, acquired and perfected during the period within which the mechanic could have perfected his lien, is superior to the mechanic's lien filed after the lapse of ninety days. Brown v. Brown & Co., 25 Tenn. App. 509, 160 S.W.2d 431, 1941 Tenn. App. LEXIS 137 (1941).

The burden of proof rests upon the mechanic who did not perfect his lien during the 90-day period to show notice on the part of a purchaser who acquires title during the 90-day period. Brown v. Brown & Co., 25 Tenn. App. 509, 160 S.W.2d 431, 1941 Tenn. App. LEXIS 137 (1941).

8. Subsequent Purchasers.

Trustee in bankruptcy is a subsequent purchaser. In re Just for Fun of It, Inc., 7 B.R. 166, 1980 Bankr. LEXIS 4487 (Bankr. E.D. Tenn. 1980).

The lien of a supplier of materials for a new house, filed within 90 days after completion, was not extinguished by a conveyance of the property to purchasers before notice of the lien was filed, since the purchasers did not avail themselves of the provision for protection from unregistered liens. Owen Lumber & Millwork, Inc. v. National Equity Corp., 940 S.W.2d 66, 1996 Tenn. App. LEXIS 486 (Tenn. Ct. App. 1996).

Collateral References.

Sufficiency of designation of owner in notice, claim, or statement of mechanic's lien. 48 A.L.R.3d 153.

NOTES TO DECISIONS

1. Constitutionality.

There is no valid objection, upon constitutional grounds, to the provision of this section giving a mechanic's lien upon land in favor of subcontractors, as journeymen, laborers, and furnishers of material to the original contractor, to be used in making improvements upon such land under contract between him and the owner, for the owner contracts with reference to the law which gives the lien for work and materials furnished to his contractor by journeymen and others. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, 1891 Tenn. LEXIS 30 (1891); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Ruston v. Perry Lumber Co., 104 Tenn. 538, 58 S.W. 268, 1900 Tenn. LEXIS 27 (1900).

This section authorizing mechanics' liens and § 66-11-126 permitting attachments to enforce such liens meet federal and state due process requirements both because the landowner does not suffer a sufficiently significant deprivation of property rights by reason of a pre-judgment lien notice and attachment and because there are adequate procedural safeguards. Silverman v. Gossett, 553 S.W.2d 581, 1977 Tenn. LEXIS 585 (Tenn. 1977).

2. Construction.

This section should be construed in connection with the rest of this part dealing with original contracts. Richardson v. Lanius, 150 Tenn. 133, 263 S.W. 799, 1923 Tenn. LEXIS 70 (1923).

A uniform construction and application of the mechanic's lien statutes and § 12-4-201 providing for the protection of furnishers of materials in the construction of public works is desirable and given when possible. Nicks v. W. C. Baird & Co., 165 Tenn. 89, 52 S.W.2d 147, 1931 Tenn. LEXIS 175 (1932).

3. Nature of Lien.

This lien is purely statutory, being unknown to the common law. Carolina Portland Cement Co. v. Hitt Lumber & Box Co., 141 Tenn. 210, 208 S.W. 336, 1918 Tenn. LEXIS 82 (1918).

4. Retroactive Application of Amendment.

Retroactive application of notice of nonpayment provisions, enacted in an amendment to T.C.A. § 66-11-115 and § 66-11-145, to a materialman who already had a vested right to a materialman's lien for goods under T.C.A. § 66-11-115, and retroactive application of which effectively abolished that right, was not procedural and was impermissible. Standard Pipe & Supply, Inc. v. First City Serv. Corp., 833 S.W.2d 510, 1992 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1992), appeal denied, Standard Pipe & Supply, Inc. v. First City Service Corp., 1992 Tenn. LEXIS 384 (Tenn. May 26, 1992).

5. “Originally Contracted” — Meaning.

The words “originally contracted” refer to the person who originally contracted with the owner to do the work, as set forth in § 66-11-102. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, 1891 Tenn. LEXIS 30 (1891).

6. Strict Compliance — Necessity.

A subcontractor's lien exists from the date of the visible commencement of the work, however, to set up the lien against the owner a strict compliance with the statute as to notice, registration, and timely institution of suit is necessary. Hamilton Nat'l Bank v. Long, 189 Tenn. 562, 226 S.W.2d 293, 1949 Tenn. LEXIS 459 (1949); Brumit v. Graybeal Glass Co., 609 S.W.2d 521, 1980 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1980).

7. Necessity for Action on Claim.

In the absence of fraud or collusion, sound policy would counsel against requiring the lien claimant to institute, and the owner to defend, an action on a claim which the owner admits and is willing to pay. Hamilton Nat'l Bank v. Long, 189 Tenn. 562, 226 S.W.2d 293, 1949 Tenn. LEXIS 459 (1949).

Because real property against which a creditor filed a notice of lien was not property of the debtor's estate or of debtor, and because a lawsuit that creditor sought to file in state court to perfect and preserve its lien against real property was not in pursuit of a claim against debtor but rather, was a claim against property in which debtor had no interest, then the automatic stay did not apply. In re Bluff City Sheet Metal, — B.R. —, 2016 Bankr. LEXIS 3119 (Bankr. W.D. Tenn. Aug. 15, 2016).

8. Persons Constituting Lienors — Extent of Lien.

An architect has no mechanic's lien for the value of services rendered by him under contract with the owner for drawing plans, making estimates, soliciting bids for the buildings, and supervising or superintending their erection. Thompson v. Baxter, 92 Tenn. 305, 21 S.W. 668, 1892 Tenn. LEXIS 77, 36 Am. St. Rep. 85 (1892).

Laborers regularly employed to make brick for their employer were not entitled to lien on the house or houses for which their employer furnished and delivered the brick. Haynes v. Holland, 48 S.W. 400, 1898 Tenn. Ch. App. LEXIS 100 (Tenn. Ch. App. 1898).

One superintending the work of laborers is not a lienor, but it is not indicated that a laborer is to be denied a lien because he incidentally supervises other laborers. Harris v. Marable, 138 Tenn. 676, 200 S.W. 824, 1917 Tenn. LEXIS 76 (1917).

Under this section before its amendment in 1927, and other sections, it was held that, where the owner of a lot ordered material from a materialman, who in turn ordered it from another materialman, the latter materialman had no lien for the material so furnished and used, because he had no special contract with the owner or his agent, and was not a person protected, the statute at that time giving a lien to one employed by “mechanic, founder, or machinist” to furnish labor or materials. Carolina Portland Cement Co. v. Hitt Lumber & Box Co., 141 Tenn. 210, 208 S.W. 336, 1918 Tenn. LEXIS 82 (1918).

A timekeeper has no lienable claim. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

Profits and commissions ordinarily are not lienable items unless included in the contract price, also in the reasonable worth of the labor or materials furnished, no lien may be allowed for profits or commissions not earned. Hamilton Nat'l Bank v. Long, 189 Tenn. 562, 226 S.W.2d 293, 1949 Tenn. LEXIS 459 (1949).

A furnisher has a lien on real property for the value of materials furnished provided he complies with the provisions of this section. Fussell v. Vowell & Sons, 60 Tenn. App. 397, 447 S.W.2d 113, 1969 Tenn. App. LEXIS 321 (1969).

Materials are not “furnished” and the contract of the materialman does not expire for the purpose of T.C.A. § 66-11-115(b) until the materials are delivered to the job site, regardless of when the transfer of title from the materialman to the contractor or subcontractor occurs. Andrews Distrib. Co. v. Oak Square at Gatlinburg, 757 S.W.2d 663, 1988 Tenn. LEXIS 274 (Tenn. 1988), overruled in part, Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

In materialmen's liens, materials are not furnished until the materials are actually delivered to the job site, no matter when the transfer of the title to the goods occurs. “Furnished,” as used in the labor and material payment bond, also refers to the date that the goods are actually delivered to the job site. Andrews Distrib. Co. v. Oak Square at Gatlinburg, 757 S.W.2d 663, 1988 Tenn. LEXIS 274 (Tenn. 1988), overruled in part, Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

9. Reliance on Lien — Necessity.

The furnisher of materials to a contractor to be used in building a certain house, and so used, is entitled to a statutory lien upon the property so improved, for the value of the materials, although the furnisher relied for payment of his claim upon the personal responsibility of the contractor, and not upon any lien upon the property. Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Christie v. Williamsom, 4 Tenn. Civ. App. 161 (1914).

10. Contract to Do Work — Necessity.

The liens of subcontractors, workmen, and furnishers of the original contractor exist against the improved property without contract with the owner, but there must be a contract with the owner's contractor, if there is none with the owner, that the material furnished is to be used in erecting the particular building, or in repairing or improving the property against which the lien is sought to be enforced, in order to create the furnisher's lien. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Bedford Stone Co. v. Board of Publication, 91 Tenn. 200, 18 S.W. 406, 1891 Tenn. LEXIS 94 (1891); Mills v. Terry Mfg. Co., 91 Tenn. 469, 19 S.W. 328, 1892 Tenn. LEXIS 16 (1892); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Christie v. Williamsom, 4 Tenn. Civ. App. 161 (1914); Pidgeon-Thomas Iron Co. v. McKnight, 8 Tenn. Civ. App. 1 (1918).

11. Owner's Agreement with Original Contractor.

This statute does not prevent the owner from contracting for the erection of improvements on his land, upon any terms that may be agreed upon between him and his contractor, except that contracts for payment wholly in cash, or within the time allowed subcontractors to perfect and enforce their liens, are noneffective as against the liens of subcontractors. The owner's contract for payment to his contractor upon such conditions, and at such times extending beyond the period for the acquisition and enforcement of the liens of subcontractors, as may be agreed upon and stipulated, cannot be rendered ineffective at the suit of subcontractors. McCrary Bros. v. Bristol Bank & Trust Co., 97 Tenn. 469, 37 S.W. 543, 1896 Tenn. LEXIS 168 (1896).

Where materialmen dealt with the “owner,” there was no requirement of giving notice under T.C.A. § 66-11-115. In re Just for Fun of It, Inc., 7 B.R. 166, 1980 Bankr. LEXIS 4487 (Bankr. E.D. Tenn. 1980).

When the lien dispute is limited to between the owner and the supplier, written notice alone to the owner is sufficient to perfect the lien as between those two parties. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

12. Purchaser under Executory Contract as Owner.

The purchaser is not the agent or contractor of his vendor, but the “owner” of the property where he is allowed by the vendor to take possession of a lot and treat it as his own under an executory contract of sale and purchase, which leaves the legal title in the vendor to secure the unpaid purchase money, but which contemplates that the purchaser shall erect a building thereon, and, after clearing the property of all liens of mechanics and furnishers, shall receive an advance or loan from the vendor upon a mortgage to be executed on the property. Ragon v. Howard, 97 Tenn. 334, 37 S.W. 136, 1896 Tenn. LEXIS 148 (1896); Lee v. Gibson, 104 Tenn. 698, 58 S.W. 330, 1900 Tenn. LEXIS 45 (1900).

13. Purchaser Pending Improvement — Status.

The purchaser of property during the progress of work thereon takes the property subject to the liens for the full amount due to subcontractors and furnishers upon completion of their contracts, although he purchased without actual notice of such claims, and before they had been perfected as liens by notice and registration, where the liens are subsequently, and within the time prescribed by the statute, perfected by notice and registration as therein prescribed. Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893).

A purchaser by recorded deed of property undergoing improvement is, with respect to subsequently and separately furnished items of material, entitled to notice. Pidgeon-Thomas Iron Co. v. McKnight, 8 Tenn. Civ. App. 1 (1918).

14. Public Property.

There is no lien on property for materials furnished in cases where public improvements are made on land owned by a county nor is there any liability on the part of the county to the party who furnished such materials to the contractor. Air Temperature, Inc. v. Morris, 63 Tenn. App. 90, 469 S.W.2d 495, 1970 Tenn. App. LEXIS 313 (Tenn. Ct. App. 1970).

15. Contractor and Subcontractor — Basis and Status of Respective Liens.

The liens of the subcontractors, furnishers, and workmen of the owner's contractor depend upon the statute, and are not derived from the right of the contractor, nor are they dependent upon the existence or nonexistence of the contractor's lien, nor are they subject, to any extent, to his power or control, and the estoppel of the contractor to assert his mechanic's lien against the property is not operative against the rights or liens of the subcontractors, furnishers, and workmen of the original contractor. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Hanks & McGuire v. Barron Bros., 95 Tenn. 275, 32 S.W. 195, 1895 Tenn. LEXIS 84 (1895).

The contractor comes into a lien by reason of a special contract with the owner, the subcontractors and materialmen come in by reason of his contract relation to the contractor, and his claim is pro tanto substitutionary to that of the latter, by a species of subrogation. Phillip Carey Co. v. Harrison, 138 Tenn. 697, 200 S.W. 829, 1917 Tenn. LEXIS 79 (1917).

16. Payment to Contractor — Effect on Subcontractor.

The lien in favor of the subcontractors, furnishers, and workmen of the original contractor is not defeated, if the notice is given within the prescribed time, although payment in full may have been made by the owner to the original contractor before notice. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

17. Accruing of Subcontractor's Lien.

Where the lien is perfected by notice within the prescribed time, it relates back to the time of its beginning, so as to prevent its impairment by the owner's sale or encumbrance of the improved property, or by levies of execution or attachment thereon at the instance of the creditors of the owner, after the lien commenced and before notice of suit. Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Ruston v. Perry Lumber Co., 104 Tenn. 538, 58 S.W. 268, 1900 Tenn. LEXIS 27 (1900).

The liens of the subcontractors, furnishers, and workmen of the owner's contractor begin when the work or delivery of the materials begins. The effect of the statute embraced in the above section is not to postpone the beginning of the lien, but to postpone the time when the notice may be given of the intent to claim or rely upon the lien. Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Hanks & McGuire v. Barron Bros., 95 Tenn. 275, 32 S.W. 195, 1895 Tenn. LEXIS 84 (1895); Bristol-Goodson Elec. Light & Power Co. v. Bristol Gas, Elec. Light & Power Co., 99 Tenn. 371, 42 S.W. 19, 1897 Tenn. LEXIS 42 (1897); Rawlings v. New Memphis Gaslight Co., 105 Tenn. 268, 60 S.W. 206, 1900 Tenn. LEXIS 76, 80 Am. St. Rep. 880 (1900).

18. Subcontractor — Priority of Lien.

Persons working for the contractor or furnishing him materials under contract with him are entitled to the lien in preference to him, provided written notice is given to the owner. Greenwood v. Tennessee Mfg. Co., 32 Tenn. 130, 1852 Tenn. LEXIS 33 (1852); Brown v. Crump's Adm'r, 32 Tenn. 531, 1852 Tenn. LEXIS 110 (1852); McLeod v. Capell, 66 Tenn. 196, 1874 Tenn. LEXIS 105 (1874).

The lien of a subcontractor is superior where the contest is between a creditor of the contractor, who can succeed only to the rights of the contractor, and the subcontractor had a valid, subsisting lien when a garnishment notice was served by the creditor. Hamilton Nat'l Bank v. Long, 189 Tenn. 562, 226 S.W.2d 293, 1949 Tenn. LEXIS 459 (1949).

19. Subcontractor's Lien on Garnishee's Property.

Where a subcontractor's lien has attached to a garnishee's property, the garnishee has a right to pay these outstanding claims for labor and materials out of the garnished fund due the debtor contractor. Hamilton Nat'l Bank v. Long, 189 Tenn. 562, 226 S.W.2d 293, 1949 Tenn. LEXIS 459 (1949).

20. Subcontractor Performing Before Payment Due Contractor.

A subcontractor who has performed his contract cannot enforce his lien for the balance due him, by sale of the property before the completion or acceptance of the building erected thereon, when by the terms of their contract the balance due to the contractor from the owner is not payable until the completion and acceptance of the building, but he can recover against the contractor a decree for his debt, and have a declaration of his lien against the property, to be thereafter enforced, by proper proceedings, when the building has been completed and accepted, or reasonable time for its completion shall have elapsed. McCrary Bros. v. Bristol Bank & Trust Co., 97 Tenn. 469, 37 S.W. 543, 1896 Tenn. LEXIS 168 (1896).

21. Application of Payment to Other Debts.

Subcontractor was not entitled to lien where owner paid contractor, and contractor in turn paid subcontractor with directions to apply the payment on the job done for such owner, and the subcontractor at first so credited the payment, but later removed such credit and applied the payment to other indebtedness owing by contractor to subcontractor. Weaver v. Ogle, 2 Tenn. App. 563, 1926 Tenn. App. LEXIS 57 (1926).

22. Trivial Acts After Completion or Abandonment — Effect.

Subsequent trivial repairs, made after the completion of the building, such as stopping a leak in the roof, will not arrest the running of the statute of limitation. Dunn v. McKee, 37 Tenn. 657, 1858 Tenn. LEXIS 89 (1858); Luter & Daniel v. Cobb, 41 Tenn. 525, 1860 Tenn. LEXIS 100 (1860).

The doing of a trifling amount of work on the building something like two years after the building was practically completed and work was stopped, and by way of afterthought, cannot avail to extend the time for notice and enforcement. Wood v. Haney, 41 S.W. 1072, 1897 Tenn. Ch. App. LEXIS 22 (Tenn. Ch. App. 1897).

A lien cannot be revived or affected by the doing of an insignificant act not originally contemplated. Wood v. Haney, 41 S.W. 1072, 1897 Tenn. Ch. App. LEXIS 22 (Tenn. Ch. App. 1897); East Lake Lumber Box Co. v. Simpson, 5 Tenn. App. 51, 1927 Tenn. App. LEXIS 34 (1927).

Mere trivial imperfections, requiring corrective adjustments do not prevent a construction project from being substantially complete for lien purposes, and the correction of such imperfections is not a furnishing of labor or materials for which a charge may be made or a lien claimed. Cooper v. Hunter, 569 S.W.2d 852, 1978 Tenn. App. LEXIS 298 (Tenn. Ct. App. 1978).

Minor imperfections disclosed by the inspection of a public inspector will not toll the running of time for perfecting a lien, especially when the owner had no knowledge of the alleged imperfections and did not demand their correction. Cooper v. Hunter, 569 S.W.2d 852, 1978 Tenn. App. LEXIS 298 (Tenn. Ct. App. 1978).

23. Attempt to Revive Lien.

There is no statutory authority for reviving a lien upon the filing of another notice of completion. Post-Tensioned Sys. v. Collins & Hobbs, Inc., 640 S.W.2d 576, 1982 Tenn. App. LEXIS 415 (Tenn. Ct. App. 1982).

24. Practice and Procedure.

Procedure is according to chancery, in whatever court. De Soto Lumber Co. v. Loeb, 110 Tenn. 251, 75 S.W. 1043, 1903 Tenn. LEXIS 55 (1903).

Practice as to parties, issuance of process and trial. Warner v. A.H. Yates & Co., 118 Tenn. 548, 102 S.W. 92, 1907 Tenn. LEXIS 62 (Tenn. Apr. 1907); Christie v. Williamsom, 4 Tenn. Civ. App. 161 (1914).

To maintain a suit under this section to establish a lien, complainant must allege and prove: (1) A contract between the main contractor and the landowner to erect a building upon the specific land, or to put improvements thereon; (2) a contract between the lien claimant and the principal contractor whereby the claimant sold the principal contractor materials to be used in the construction work covered by the original contract; (3) that notice of claiming the lien was given by the claimant to the owner pursuant to the statute. W.T. Hardison & Co. v. Harding Court Co., 36 Tenn. App. 98, 251 S.W.2d 829, 1952 Tenn. App. LEXIS 97 (1952).

25. —Nature of Proceedings.

Proceedings to enforce a mechanic's lien are quasi in rem only, not strictly in rem; and mere seizure of the property is not sufficient notice to the owner, who is a necessary party to the attachment suit. Fischer Lime & Cement Co. v. Kaucher, 164 Tenn. 657, 51 S.W.2d 492, 1931 Tenn. LEXIS 66 (1931).

Section 66-11-126, requiring liens to be enforced by attachment only, applies to proceedings under this section against the owner. Knoxville Structural Steel Co. v. Jones, 46 Tenn. App. 518, 330 S.W.2d 559, 1959 Tenn. App. LEXIS 111 (1959), overruled, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977), overruled on other grounds, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

26. —Notice.

In order to preserve or perfect his lien, the furnisher of work or materials to a contractor must give the owner notice of his claim of lien within the time prescribed. Brown v. Crump's Adm'r, 32 Tenn. 531, 1852 Tenn. LEXIS 110 (1852); Shelby v. Hicks, 37 Tenn. 197, 1857 Tenn. LEXIS 105 (1857); McLeod v. Capell, 66 Tenn. 196, 1874 Tenn. LEXIS 105 (1874); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893).

No right of action for enforcement of the lien accrues until the notice required by this section has been given. Conger Lumber & Supply Co. v. White, 17 Tenn. App. 206, 66 S.W.2d 999, 1933 Tenn. App. LEXIS 56 (1933).

Insofar as a dispute between the owner and furnisher is concerned the statute does not provide for filing of notice with the county register and written notice is sufficient to perfect the lien between the furnisher and the owner. Walker Supply Co. v. Corinth Community Dev., Inc., 509 S.W.2d 514, 1974 Tenn. App. LEXIS 147 (Tenn. Ct. App. 1974).

An attachment issued and levied within 90 days of a void notice is void. Eatherly Constr. Co. v. DeBoer Constr., Inc., 543 S.W.2d 333, 1976 Tenn. LEXIS 477 (Tenn. 1976).

It is unnecessary, when compliance has been had with §§ 66-11-115 and 66-11-117, to go further and file the notice of abstract pursuant to § 20-3-101. Moore-Handley, Inc. v. Associates Capital Corp., 576 S.W.2d 354, 1978 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1978).

No one is required, in addition to complying with every requirement of the mechanic's and materialmen's statute, to file lis pendens pursuant to § 20-3-101. Moore-Handley, Inc. v. Associates Capital Corp., 576 S.W.2d 354, 1978 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1978).

Actual knowledge by a property owner that a materialman has filed a notice of lien in the register's office does not meet the notice requirement of T.C.A. § 66-11-115(b). Andrews Distrib. Co. v. Oak Square at Gatlinburg, 757 S.W.2d 663, 1988 Tenn. LEXIS 274 (Tenn. 1988), overruled in part, Spence v. Allstate Ins. Co., 883 S.W.2d 586, 1994 Tenn. LEXIS 251 (Tenn. 1994).

27. — —Acknowledgement.

Where it was necessary that notice to owner of claim be recorded in order to preserve furnisher's lien, such notice of claim was required to be acknowledged as required by §§ 66-22-101 and 66-22-108. Chattanooga Lumber & Coal Corp. v. Phillips, 202 Tenn. 266, 304 S.W.2d 82, 1957 Tenn. LEXIS 388 (1957).

28. — —Object.

The object of the notice is to protect the owner against the hazard of being compelled to pay the money twice. Brown v. Crump's Adm'r, 32 Tenn. 531, 1852 Tenn. LEXIS 110 (1852).

Where the owner of the building filed a bill to ascertain the lien of mechanics and furnishers, to fix the rights of the parties, and to hold the bondsman liable, the filing of an intervening petition therein by a furnisher within required days after the completion of the building, does not give him a lien where no valid notice of his claim had been served as required by this statute. Bird Bros. v. Southern Sur. Co., 139 Tenn. 11, 200 S.W. 978, 1917 Tenn. LEXIS 82 (1917).

Purchaser of property undergoing improvement must be given notice as to subsequently and separately furnished items of material. Pidgeon-Thomas Iron Co. v. McKnight, 8 Tenn. Civ. App. 1 (1918).

29. — —Service of Notice.

The notice required is not process, but is merely a private instrument of writing, and may, therefore, be served by a private individual, or nonofficial person as well as by an officer, except that the officer's return proves the service, while the service by the nonofficial must be proved as other facts. Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743, 1893 Tenn. LEXIS 15 (1893); Henry Weis Mfg. Co. v. Jones, 4 Tenn. App. 374, — S.W. —, 1926 Tenn. App. LEXIS 191 (Tenn. Ct. App. 1926).

Where the property improved is conveyed to a new corporation which was owner at the time the claimant sought to give notice of his claim, and it appears that the vendor and vendee corporations had the same individuals as officers, notice served upon one of these was sufficient notice to the new or vendee corporation. Fischer Lime & Cement Co. v. Kaucher, 164 Tenn. 657, 51 S.W.2d 492, 1931 Tenn. LEXIS 66 (1931).

Because the automatic stay did not apply, a Bankruptcy Code provision that tolled the effect of the automatic stay for a statutorily determined period was not applicable and thus, it did not toll the running of the 90-day period under Tennessee law for filing a state court action to protect and preserve a lien. In re Bluff City Sheet Metal, — B.R. —, 2016 Bankr. LEXIS 3119 (Bankr. W.D. Tenn. Aug. 15, 2016).

30. — — —Proof of Service.

An officer's return indorsed showing service of the notice is sufficient proof of service. Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743, 1893 Tenn. LEXIS 15 (1893).

31. — — —Sufficiency of Descriptions.

The furnisher's notice to the owner that he claims the statutory lien upon the property for work and materials furnished to the contractor, and used in the erection of the improvement, if sufficient in other respects, is not bad for failure to give a specific description of the work and materials furnished. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893).

Examples of furnisher's notice to the owner that are held to be sufficient in description of the property and of the work and materials furnished. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893).

The general rule is that failure to describe particularly the property or the building or improvement on which the lien is claimed, or a mistake in the description of the property, may be corrected by amendment at least as long as the amended description keeps within the bounds included by the original. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

Where there is a positive or unambiguous description of the wrong piece of property and not of property which the lien may properly attach, the description is obviously insufficient to create or preserve a lien. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

32. — —Time for Notice.

The subcontractor, or furnisher, must give the required notice to the owner after the completion of his contract in doing work or furnishing materials for the owner's contractor, and within the allowed time after the delivery of the last materials or performance of his work, though given before the contractor's completion of the building. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Cole Mfg. Co. v. Falls, 92 Tenn. 607, 22 S.W. 856, 1893 Tenn. LEXIS 17 (1893); Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904); Mattei v. Clark Hdwe. Co., 155 Tenn. 184, 290 S.W. 977, 1926 Tenn. LEXIS 34 (1926).

Notice given within required days after the completion of the contract of the subcontractor, or furnisher, and before the contractor's completion of the improvement, is in proper time. Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Cole Mfg. Co. v. Falls, 92 Tenn. 607, 22 S.W. 856, 1893 Tenn. LEXIS 17 (1893); Hercules Powder Co. v. Knoxville, L. & J. R. Co., 113 Tenn. 382, 83 S.W. 354, 1904 Tenn. LEXIS 32, 106 Am. St. Rep. 836, 67 L.R.A. 487 (1904).

Notice given more than allowed days after the completion of his contract by the subcontractor, or furnisher, and before the contractor's completion of the building or improvement, is not in proper time, and is insufficient. Cole Mfg. Co. v. Falls, 92 Tenn. 607, 22 S.W. 856, 1893 Tenn. LEXIS 17 (1893).

Notice given within allowed days after the contractor's completion of the building or improvement, though more than allowed days after the completion of his contract by the subcontractor, or furnisher, is sufficient. Cole Mfg. Co. v. Falls, 92 Tenn. 607, 22 S.W. 856, 1893 Tenn. LEXIS 17 (1893).

A furnisher of brick to a contractor on terms specifying no time for delivery except that brick should be delivered in such quantities and at times as required and ordered by the contractor, and who gave notice of his lien before the building was finished but within the statutory time after completion of the walls, though not within statutory time after the last of such brick were furnished, has a lien on the structure, since the furnisher was subject to be called on for further brick and the contract was one for continuing supply, not expiring until actual completion. Bristol Brick Works v. King College, 41 S.W. 1069, 1896 Tenn. Ch. App. LEXIS 107 (Tenn. Ch. App. 1896).

Under this statute, the notice of lien must be served upon the owner within the time specified after the building is completed, or within required number of days after the contract of the laborer, mechanic, or workman shall expire; and in the case of a furnisher of material, he must serve his notice within required number of days after the last material is furnished, or within required number of days after the building is completed; and a notice served by the furnisher is void, if served more than required number of days after the last material is furnished, and before the completion of the building; and it will be seen that two periods are fixed for the service of such notice, namely, within required number of days after the last material is supplied, and within required number of days after the building is completed; and if given more than required number of days after the last material is furnished, it is too late, and falls without the first period; and if given before the building is completed, it is premature and without the second period. Bird Bros. v. Southern Sur. Co., 139 Tenn. 11, 200 S.W. 978, 1917 Tenn. LEXIS 82 (1917); East Lake Lumber Box Co. v. Simpson, 5 Tenn. App. 51, 1927 Tenn. App. LEXIS 34 (1927); Oliver King Sand & Lime Co. v. Sterchi, 7 Tenn. App. 647, 1928 Tenn. App. LEXIS 92 (1928).

It is the performance of the work that is controlling in determining the time for filing notice of a lien, and a request by an owner of property for a contractor to correct or complete his work has no bearing on when the lien should be filed. Brumit v. Graybeal Glass Co., 609 S.W.2d 521, 1980 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1980).

33. — — —Suit Barred by Delay.

Where warrant was not issued within 90 days after the service of the notice of his claim of lien by a subcontractor, the suit before a justice of the peace (now general sessions judge) was barred. Warner v. A.H. Yates & Co., 118 Tenn. 548, 102 S.W. 92, 1907 Tenn. LEXIS 62 (Tenn. Apr. 1907).

Where construction company failed to file its notice of lien within 90 days after it ceased work, the lien was void and the company had no cause of action. Eatherly Constr. Co. v. DeBoer Constr., Inc., 543 S.W.2d 333, 1976 Tenn. LEXIS 477 (Tenn. 1976).

Where construction company failed to issue and levy attachment within 180 days of completion of work upon the property subject to the lien, it could not amend its complaint so as to incorporate the attachment not levied within the time limitations. Eatherly Constr. Co. v. DeBoer Constr., Inc., 543 S.W.2d 333, 1976 Tenn. LEXIS 477 (Tenn. 1976).

Where July 11 was considered by the trial court as the date of completion of the building, and the subcontractor's lien was filed on October 10, which is 91 days, the lien was not timely filed. Brumit v. Graybeal Glass Co., 609 S.W.2d 521, 1980 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1980).

Where a subcontractor failed to file suit for the enforcement of the lien within 90 days after the filing, the lien was lost. Brumit v. Graybeal Glass Co., 609 S.W.2d 521, 1980 Tenn. App. LEXIS 344 (Tenn. Ct. App. 1980).

Materialman's lien was extinguished when a writ of attachment was not issued within 90 days of notice of the lien. C.O. Christian & Sons Co. v. Nashville P.S. Hotel, Ltd., 765 S.W.2d 754, 1988 Tenn. App. LEXIS 573 (Tenn. Ct. App. 1988).

34. — — —Beginning Date of Period for Filing Notice.

The right of the furnisher of materials to a contractor, to fix his lien for the materials begins when the last material is delivered under the contract, whether it is used in the building or not, and the time for acquiring the lien by filing notice thereof will begin to run from the date of the delivery of the last material. Voightman & Co. v. Southern R. Co., 123 Tenn. 452, 131 S.W. 982, 1910 Tenn. LEXIS 17 (1910).

Under a contract for the construction of a building, including the installation of a sprinkler system, to be approved by the state inspection bureau, the building is not completed, as regards the allowed days thereafter for giving notice of the lien, till the work required by the bureau, on its inspection, is done. Harrison v. Knafle, 128 Tenn. 329, 161 S.W. 1003, 1913 Tenn. LEXIS 52 (1913).

Where no time is prescribed for delivery of materials, but same are to be delivered at such times as required and ordered, notice may be reckoned and given from completion of building. Bristol Brick Works v. King College, 41 S.W. 1069, 1896 Tenn. Ch. App. LEXIS 107 (Tenn. Ch. App. 1896).

35. — — —Amendment of Notice.

Where a lawsuit to enforce a materialman's lien was initiated and attachment of wrong property was levied within 90 days of the notice of lien, however, not until after 110 days from the notice of lien was the error in property description corrected by amendment of plaintiff's petition and defendant's improved property properly attached, the amended complaint describing and attaching the correct improved property did not relate back to the time the suit was originally filed, which was within the required 90 days of notice of lien and thus plaintiff's lien enforcement was dismissed. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

36. — — —Amendment of Contract — Effect on Time for Notice.

Within this statute, claimants have specified number of days from the completion of the work as enlarged by amendment of the contract between the owner and contractor, though part of their material was furnished before such amendment and all of it was for the work previously provided for by the contract. Harrison v. Knafle, 128 Tenn. 329, 161 S.W. 1003, 1913 Tenn. LEXIS 52 (1913).

37. — —Suit in Lieu of Notice.

Where the furnisher employed by the contractor fails to give the notice within the prescribed time, but institutes an injunction suit against the owner and contractor before the owner's payment to the contractor, such suit operates as notice. Brown v. Crump's Adm'r, 32 Tenn. 531, 1852 Tenn. LEXIS 110 (1852). See Bassett v. Bertorelli, 92 Tenn. 548, 22 S.W. 423, 1893 Tenn. LEXIS 12 (1893); Crumley v. Reicon Co., 4 Tenn. Civ. App. (4 Higgins) 645 (1913).

Suit to enforce lien and service of process serves in lieu of notice. Brantingham v. Beasley, 2 Tenn. App. 598, — S.W. —, 1926 Tenn. App. LEXIS 60 (Tenn. Ct. App. 1926). See B. E. Buffaloe & Co. v. Jones, 6 Tenn. App. 316, — S.W. —, 1927 Tenn. App. LEXIS 146 (Tenn. Ct. App. 1927).

The filing of a bill of attachment and the service of process within the statutory period does not fulfill the requirement of written notice to the owner. Conger Lumber & Supply Co. v. White, 17 Tenn. App. 206, 66 S.W.2d 999, 1933 Tenn. App. LEXIS 56 (1933). But see General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

Although attachment was issued within the ninety day period where it was not levied until after such time the bill was properly dismissed. Knoxville Structural Steel Co. v. Jones, 46 Tenn. App. 518, 330 S.W.2d 559, 1959 Tenn. App. LEXIS 111 (1959), overruled, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977), cert. denied, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

Where lien claimant filed timely complaint, and where clerk immediately issued writ of attachment to sheriff and defendant had timely notice of the complaint, the suit was properly brought within the 90-day period despite a delay in enforcement of the writ till the ninety-fifth day. General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

38. —Parties.

In an action to enforce the lien of a subcontractor, the owner of the property at the time the action is brought, whether he be the contracting owner or his vendee, is a necessary party. This rule works no hardship on the claimant. Fischer Lime & Cement Co. v. Kaucher, 164 Tenn. 657, 51 S.W.2d 492, 1931 Tenn. LEXIS 66 (1931).

The contractor and owner must both be made parties to the suit. East Lake Lumber Box Co. v. Simpson, 5 Tenn. App. 51, 1927 Tenn. App. LEXIS 34 (1927).

39. — —Amendment as to Parties.

An amended bill, making the trustees under a prior mortgage parties defendant, filed after the expiration of the 90 days, in which no active relief was sought against the trustees, will be treated as relating back to the original bill, so that the trustees cannot defeat the bill on the plea of limitation of 90 days. Niehaus v. C. B. Barker Const. Co., 135 Tenn. 382, 186 S.W. 461, 1916 Tenn. LEXIS 34 (1916).

40. —Pleading.

Defendant owner may not file cross bill making contractor and surety on bond parties to enforce bond liability against objection of lienor. McRae v. University of S., 52 S.W. 463, 1898 Tenn. Ch. App. LEXIS 157 (Tenn. Ch. App. 1898).

A description of the property, in a bill to enforce, supplies the place of description in the attachment. Crumley v. Reicon Co., 4 Tenn. Civ. App. (4 Higgins) 645 (1913).

41. —Burden of Proof.

The owner has the burden of showing that the amount paid to the contractor was, by the latter, paid to the lienors where the effort is to hold recovery within the contract price. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927); Traylor v. Sims, 5 Tenn. App. 594, 1927 Tenn. App. LEXIS 97 (1927).

The burden is on the lien claimant to show contract with contractor, the materials furnished, and their use or delivery therefor. Christie v. Williamsom, 4 Tenn. Civ. App. 161 (1914).

42. —Proof.

Where items of a claim are so confused or indefinite that it is impossible to determine what materials were used in a particular improvement, the entire claim is disallowed. Pidgeon-Thomas Iron Co. v. McKnight, 8 Tenn. Civ. App. 1 (1918).

43. —Defenses.

Action by owner in notifying lienors that the building was completed on a premature date does not waive existing defense to the proper fixing of liens. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

Agreement of materialman not to charge materials furnished to builder to landowners did not amount to waiver of right to assert materialman's lien against the property for materials furnished builder and not paid for although such agreement would have protected landowner in action ex contractu by materialman for materials furnished. Fussell v. Vowell & Sons, 60 Tenn. App. 397, 447 S.W.2d 113, 1969 Tenn. App. LEXIS 321 (1969).

44. —Personal Judgment.

In action to establish mechanic's lien, plaintiff, seller of the materials, was entitled to personal judgment against the contractor who purchased the supplies irrespective of whether or not the materials were delivered to or used on the property on which the lien was sought to be fixed. A.J. Cook & Co. v. Seaton, 6 Tenn. App. 81, 1927 Tenn. App. LEXIS 119 (1927).

45. Completion of Work.

Facts indicating a building is complete are: the building is substantially finished; the contractor has abandoned work on the building; the owner or tenant has taken possession and begun to use the building, and only minor work, not of the essence of the contract, remains to be done. In re D. L. Bouldin Constr. Co., 6 B.R. 288, 1980 Bankr. LEXIS 4385 (Bankr. E.D. Tenn. 1980).

Facts indicating that a building is not complete are: the contractor abandons the job after a dispute with the owner and before completing his contract; the building has serious defects; and some work that is of the essence of the contract remains to be done. In re D. L. Bouldin Constr. Co., 6 B.R. 288, 1980 Bankr. LEXIS 4385 (Bankr. E.D. Tenn. 1980).

A claim of defect or defects themselves do not make a building incomplete for the purposes of the lien statutes. In re D. L. Bouldin Constr. Co., 6 B.R. 288, 1980 Bankr. LEXIS 4385 (Bankr. E.D. Tenn. 1980).

Collateral References.

Abandonment of construction or of contract as affecting time for filing mechanics' liens. 52 A.L.R.3d 797.

Continuing contract, transaction or account, what constitutes, as regards time for filing mechanic's lien. 97 A.L.R. 780.

“Cost plus” contract, requisites and sufficiency of notice of mechanics' lien in case of. 26 A.L.R. 1328.

Effect of bankruptcy of principal contractor upon mechanic's lien of a subcontractor, laborer, or materialman as against owner of property. 69 A.L.R.3d 1342.

Examination, repair, or servicing of fixtures, machinery, or attachments in building, labor in, as extending time for filing mechanic's lien. 51 A.L.R.3d 1087.

Existence of more than one contract between owner and contractor as affecting sufficiency of notice or claim of mechanic's lien by materialman or subcontractor. 175 A.L.R. 353.

Filing of mechanics' lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Formal requisites of notice of intention to claim mechanic's lien. 158 A.L.R. 682.

Notice by owner of nonresponsibility for work or improvement on his property, statute as to necessity of, to prevent attachment of lien, as applicable as between mortgagor and mortgagee. 85 A.L.R.2d 949.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman. 75 A.L.R.3d 505.

Removal by, or return to, claimant of part of material furnished as affecting time for filing claim. 122 A.L.R. 755.

Removal or demolition of building or other structure as basis for mechanic's lien. 74 A.L.R.3d 386.

Sale of real property as affecting time for filing notice of or perfecting mechanic's lien as against purchaser's interest. 76 A.L.R.2d 1163.

Substitution or replacement of material as affecting time for filing mechanic's lien. 54 A.L.R. 984.

Sufficiency of claim, statement, or notice of lien where only part of work is of lienable character. 149 A.L.R. 715.

Sufficiency of designation of owner in notice, claim, or statement of mechanic's lien. 48 A.L.R.3d 153.

Sufficiency of notice, claim or statement of mechanic's lien with respect to nature of work. 27 A.L.R.2d 1169.

Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien. 85 A.L.R.2d 949.

Who is the “owner” within mechanic's lien statute requiring notice of claim. 76 A.L.R.3d 605.

NOTES TO DECISIONS

1. Rights Affected.

Failure to register notice pursuant to this section affects only the rights of furnisher as to subsequent purchaser or lienor, and as between furnisher and owner, written notice is sufficient as this section is not applicable. Walker Supply Co. v. Corinth Community Dev., Inc., 509 S.W.2d 514, 1974 Tenn. App. LEXIS 147 (Tenn. Ct. App. 1974).

Collateral References.

Construction and application of provision of lien statute as to quantity or area of land around improvement which may be subjected to lien. 84 A.L.R. 123.

Single mechanic's lien under entire contract, against two or more separate buildings on different lots in same ownership. 15 A.L.R.3d 73.

Single mechanic's lien upon several parcels as enforceable against less than all the parcels. 130 A.L.R. 423.

NOTES TO DECISIONS

1. Amended Property Description.

The general rule is that failure to describe particularly the property or the building or improvement on which the lien is claimed, or a mistake in the description of the property, may be corrected by amendment at least as long as the amended description keeps within the bounds included by the original. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

Where there is a positive or unambiguous description of the wrong piece of property and not of property which the lien may properly attach, the description is obviously insufficient to create or preserve a lien. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

2. Untimely Amendment.

Correcting an improper description of the property against which the lien is asserted after the time for filing has passed would amount to making an entirely new claim of lien. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

Collateral References.

Amendment of statement of claim or mechanic's lien as to designation of owner of property. 81 A.L.R.2d 681.

Right to amend notice of claim after expiration of time for filing claim. 81 A.L.R. 360.

NOTES TO DECISIONS

1. Construction.

This section and § 66-11-115 should be construed in connection with the sections dealing with original contractors, for all their provisions are means of securing compensation to the original contractors and laborers and materialmen, within the limits fixed by the statute. Richardson v. Lanius, 150 Tenn. 133, 263 S.W. 799, 1923 Tenn. LEXIS 70 (1923).

This section was intended to benefit the owner by enabling him to protect himself against double liability. Thomas v. Noe, 42 Tenn. App. 234, 301 S.W.2d 391, 1956 Tenn. App. LEXIS 126 (1956).

Contractor did not willfully and grossly exaggerate the contractor's lien claim because, (1) at trial, the contractor's motion to reduce the claim was granted, and (2) a project owner showed no resulting harm. Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 2016 Tenn. App. LEXIS 637 (Tenn. Ct. App. Aug. 30, 2016), appeal denied, Beacon4, LLC v. I & L Invs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 950 (Tenn. Dec. 15, 2016).

2. Enforcement of Liens in Full.

Unless sufficient amount of contract price previously paid by the owner can be directly traced to lienors, the latters' lien will be enforced in full. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

3. Payment of Full Contract Price — Effect.

Where owner has paid full contract price which has been applied to payment of lien claims, he cannot be required to pay other lien claims up to the amount of the contract price. Thomas v. Noe, 42 Tenn. App. 234, 301 S.W.2d 391, 1956 Tenn. App. LEXIS 126 (1956).

4. Possibility of Double Liability.

The lien law places an owner in such position that he may be subjected to double payment, unless he exercises caution to prevent it. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

5. Pro Rata Payments.

Where claims are allowed in excess of the contract price, they should be pro rated. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

The claims are to be paid on pro rata basis where allowable liens exceed the contract price; but, where a smaller sum was actually paid in satisfaction of a claim, that will be adopted in arriving at the rights of other lienors. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

The fact that total payments to labor and material furnishers exceeded the original contract price will not prevent those labor and material furnishers who have not been paid from enforcing their lien for their pro rata share. Standard Glass & Supply Co. v. Sheley, 604 S.W.2d 36, 1980 Tenn. LEXIS 481 (Tenn. 1980).

6. Burden of Proof.

The burden is on the owner to show that the amount which had been paid to the contractor was by him paid to lienors or to others for labor and materials furnished in the construction. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

In action by owner, seeking to bring in all lien claimants, and to pay them pro rata because the amount of outstanding claims exceeded the contract price, the burden was on plaintiff to show the contract price and that after paying all other valid liens on the property, there was not enough of the contract price remaining to satisfy the claim of the particular defendant. Traylor v. Sims, 5 Tenn. App. 594, 1927 Tenn. App. LEXIS 97 (1927).

The defense of T.C.A. § 66-11-120 is not available to the owner unless he can trace payments equal to or in excess of the contract price directly into the hands of furnishers of material and labor. Standard Glass & Supply Co. v. Sheley, 604 S.W.2d 36, 1980 Tenn. LEXIS 481 (Tenn. 1980).

7. Interest.

The contention that it was improper to allow interest which would increase the amount of recovery beyond the contract price was stated to be of merit but case was reversed on other grounds. Variety Fire Door Co. v. Hanson-Worden Co., 10 Tenn. App. 254, 1929 Tenn. App. LEXIS 30 (1929).

NOTES TO DECISIONS

1. Notice Required.

The notice required by this section is notice to the assignee of the debt. Bell Bros. & Co. v. Arnold, 17 Tenn. App. 493, 68 S.W.2d 958, 1933 Tenn. App. LEXIS 84 (1933).

If the debt is assigned, the lien may be preserved by notice thereof to the assignee. Bell Bros. & Co. v. Arnold, 17 Tenn. App. 493, 68 S.W.2d 958, 1933 Tenn. App. LEXIS 84 (1933).

2. Assignor and Assignee of Lien Note — Respective Rights.

The assignee of a lien note, taken with notice of the lien, may enforce the lien within the time limited for the life of the lien; and if the assignor takes up the note, he again may enforce it within the limited time prescribed. Burr v. Graves, 72 Tenn. 552, 1880 Tenn. LEXIS 63 (1880).

No lien may be enforced in behalf of a lienor who took a note in payment, and transferred it to a holder not in court, though he be liable as indorser. Garrett v. Adams, 39 S.W. 730, 1897 Tenn. Ch. App. LEXIS 6 (Tenn. Ch. App. Mar. 1, 1897).

NOTES TO DECISIONS

1. Notes Transferred — Lienor's Rights.

Where notes taken by lienor in payment for his work were transferred by him, no lien can be enforced by him as payee where holder is not before the court, though lienor was indorser on one, and stayor of a judgment on the other. Garrett v. Adams, 39 S.W. 730, 1897 Tenn. Ch. App. LEXIS 6 (Tenn. Ch. App. Mar. 1, 1897).

2. Surety as Assignee — Subrogation.

Surety of a contractor paying material claims and taking assignment thereof for his protection is subrogated to the rights of the owner of the claim, and his rights are superior to those of an assignee of the principal. Miller Bros. Co. v. Standard Plumbing & Heating Co., 15 Tenn. App. 102, 1931 Tenn. App. LEXIS 118 (1931).

NOTES TO DECISIONS

1. Constitutionality.

Section 66-11-115 authorizing mechanics' liens and this section permitting attachments to enforce such liens meet federal and state due process requirements both because the landowner does not suffer a sufficiently significant deprivation of property rights by reason of a pre-judgment lien notice and attachment and because there are adequate procedural safeguards. Silverman v. Gossett, 553 S.W.2d 581, 1977 Tenn. LEXIS 585 (Tenn. 1977).

2. Construction.

A materialman may not enforce his lien as created under this chapter by attachment and subsequent sale of the property of a home owner where the home owner has made no contract with the purported materialman and the contractor is not before the court on personal service. Jordan v. Deitz, 201 Tenn. 77, 296 S.W.2d 866, 1956 Tenn. LEXIS 468 (1956), superseded by statute as stated in, Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966). But see, Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966).

The right to enforce a mechanic's lien is a statutory right. Jordan v. Deitz, 201 Tenn. 77, 296 S.W.2d 866, 1956 Tenn. LEXIS 468 (1956), superseded by statute as stated in, Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966).

The clear intention of the legislature in enacting the 1957 amendment to this section was to change the Jordan  case (Jordan v. Deitz, 201 Tenn. 77, 296 S.W.2d 866, 1956 Tenn. LEXIS 468 (1956)) so that in a suit to enforce a mechanic's lien by one who is not in privity of contract with the landowner, the contractor is no longer a necessary and indispensable party to the suit. Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966).

3. Prerequisites to Attachment.

This section has no specific directive as to who must make the oath to the complaint; therefore lienholder's attorney could make the affidavit in support of an attachment to enforce a materialman's lien for payment for plumbing supplies. Smith v. Chris-More, Inc., 535 S.W.2d 863, 1976 Tenn. LEXIS 589 (Tenn. 1976).

Requirement that the complaint be filed under oath means that the claimant or the claimant's attorney must state under oath that the allegations in the complaint are true. D.T. McCall & Sons v. Seagraves, 796 S.W.2d 457, 1990 Tenn. App. LEXIS 367 (Tenn. Ct. App. 1990).

4. Personal Judgment.

The materialman who does not have a contractual relationship with the owner is not entitled to a personal judgment against the owner but is only entitled to an attachment of the property. Jordan v. Deitz, 201 Tenn. 77, 296 S.W.2d 866, 1956 Tenn. LEXIS 468 (1956), superseded by statute as stated in, Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966). But see, Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966), holding that suit in quantum meruit will lie in appropriate circumstances.

5. Failure to Have Attachment Issued in Time.

In action against owner of property where attachment was not both issued and levied within the period prescribed by § 66-11-115, the action was properly dismissed. Knoxville Structural Steel Co. v. Jones, 46 Tenn. App. 518, 330 S.W.2d 559, 1959 Tenn. App. LEXIS 111 (1959), overruled, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977), overruled on other grounds, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

6. Delay in Enforcement of Attachment.

Where lien claimant filed timely complaint, and where clerk immediately issued writ of attachment to sheriff and defendant had timely notice of the complaint, the suit was properly brought within the 90-day period despite a delay in enforcement of the writ till the 95th day. General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

Materialman's lien was extinguished when a writ of attachment was not issued within 90 days of notice of the lien. C.O. Christian & Sons Co. v. Nashville P.S. Hotel, Ltd., 765 S.W.2d 754, 1988 Tenn. App. LEXIS 573 (Tenn. Ct. App. 1988).

7. Unjust Enrichment.

Before recovery can be had against landowner on unjust enrichment theory, the furnisher of the materials and labor must have exhausted his remedies against the person with whom he contracted and still not have received the reasonable value of his services. Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966).

Where a materialman or subcontractor furnishes labor or materials which benefit the property of a person with whom there is no privity of contract, an action on quantum meruit may lie against the landowner to recover the reasonable value of the labor or materials furnished. Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 1966 Tenn. LEXIS 505 (1966).

8. Persons Constituting Lienors — Extent of Lien.

There is no lien on property for materials furnished in cases where public improvements are made on land owned by a county nor is there any liability on the part of the county to the party who furnished such materials to the contractor. Air Temperature, Inc. v. Morris, 63 Tenn. App. 90, 469 S.W.2d 495, 1970 Tenn. App. LEXIS 313 (Tenn. Ct. App. 1970).

Collateral References.

Demand for or submission to arbitration as affecting enforcement of mechanics' lien. 73 A.L.R.3d 1042.

Enforceability of single mechanic's lien against less than the total number of parcels covered. 68 A.L.R.3d 1300.

Filing of mechanics' lien or proceeding for its enforcement as affecting right to arbitration. 73 A.L.R.3d 1066.

Nonresidence or absence of defendant from state as suspending running of limitations against action to foreclose mechanic's lien. 119 A.L.R. 372.

Personal judgment as essential to enforcement of mechanic's lien. 147 A.L.R. 1099.

Pleadings, verification of, by agent or attorney in action to enforce. 7 A.L.R. 13.

Redemption by lienor from own sale. 108 A.L.R. 996.

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards the improvement but not as regards the land, where it is impossible or impracticable to remove the improvement. 107 A.L.R. 1012.

What constitutes claim or demand against estate within statute disqualifying witness. 54 A.L.R.2d 1103.

Who is contractor or subcontractor, as distinguished from materialman, for purposes of filing or enforcement of mechanic's lien. 141 A.L.R. 321.

NOTES TO DECISIONS

1. Married Women — Decisions Before Modification of Section by 1932 Code.

Plaintiff was not entitled to recover possession of material from defendant, a married woman, where material was not specifically described and there was no proof that material was still in the possession of the defendant. Woodruff Hdwe. Co. v. Haverly, 4 Tenn. Civ. App. (4 Higgins) 547 (1913).

Under the express provisions of the statute, a furnisher's lien on the real estate of a married woman, whether her separate or general estate, could not be established, when there was no contract evidenced by a writing signed by her; and, where the one furnishing the goods for which the lien was sought to be established knew that the right and title to the realty was in her, he had no right to remove the goods. City Lumber Co. v. Barnhill, 129 Tenn. 676, 168 S.W. 159, 1914 Tenn. LEXIS 158 (1914).

2. —Inexcusable Ignorance of Title.

Where a lumber company furnished a husband lumber used in the erection of two houses on the lots of his wife who was the owner thereof by a duly registered deed, the lumber company could not remove materials from the lots because of the furnisher's ignorance of the wife's right or claim, because the statute applied only to cases of excusable ignorance, and the lumber company could have discovered the registered ownership of the lots by the slightest inquiry; and the registration was constructive notice. City Lumber Co. v. Temple, 138 Tenn. 88, 195 S.W. 1127, 1917 Tenn. LEXIS 8 (1917). See Baker v. Stone, 58 S.W. 761, 1896 Tenn. Ch. App. LEXIS 128 (Tenn. Ch. App. 1896).

NOTES TO DECISIONS

1. “Superior Titles or Liens” — Meaning.

The expression “superior titles or liens” must necessarily include the title of the lessor. Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916).

2. Ignorance of Superior Title — Necessity.

When it is given its proper effect, the statute limits the right of removal to those acting in ignorance of the “superior title.” Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916).

3. Lienor's Notice of Lessor's Title and Rights.

Under a lease providing that all improvements shall be the property of the lessor at the expiration of the lease, and that the property shall not be subjected to any lien for improvements, the maker of improvement for the lessee or his assignee, with knowledge of the lessor's title and rights, was not entitled to remove such improvements. Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916).

4. Lessor's Notice of Improvements.

The fact that the president of the lessor company was an officer and director of the lessee company and knew of the work being done by those claiming the lien did not adversely affect the rights of the lessor company, where its president did nothing to mislead the claimants of such liens, and his action was consistent with the lease contract with the lessees. Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916).

Improvements are made on leasehold property with knowledge of the estate and rights of the lessor, where the leases under which the lessees were operating were of record in the county; and no right of removal exists. Thomas & Turner v. National Conservation Exposition Co., 137 Tenn. 1, 191 S.W. 348, 1916 Tenn. LEXIS 48 (1916).

NOTES TO DECISIONS

1. Nature of Action.

A proceeding under this section is a suit in the nature of a general creditor's bill. Tennessee United Paint Store, Inc. v. D.H. Overmyer Whse. Co., 62 Tenn. App. 721, 467 S.W.2d 806, 1971 Tenn. App. LEXIS 207 (1971).

2. Intervention.

The filing of an intervening petition within the time limit does not give lien where there was no valid service of notice. Bird Bros. v. Southern Sur. Co., 139 Tenn. 11, 200 S.W. 978, 1917 Tenn. LEXIS 82 (1917).

Where contractor filed his bill against and attached the wrong lots, another lienor filed against and attached the proper lots, and the contractor corrected his original bill by amendment, all within the statutory period, the contractor's bill was treated as a subsequent petition in order to sustain his lien. Reed v. Fuller, 16 Tenn. App. 47, 65 S.W.2d 841, 1932 Tenn. App. LEXIS 26 (1932).

3. Separate Suits.

Where property was never brought into court because attachment was not levied within the period prescribed by § 66-11-115, complainant could not obtain the benefit of this section where he neither joined with other claimants in bringing suit nor filed his petition in the suit already filed, but instituted his own separate suit. Knoxville Structural Steel Co. v. Jones, 46 Tenn. App. 518, 330 S.W.2d 559, 1959 Tenn. App. LEXIS 111 (1959), overruled, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977), overruled on other grounds, General Electric Supply Co. v. Arlen Realty & Development Corp., 546 S.W.2d 210, 1977 Tenn. LEXIS 515 (Tenn. 1977).

4. Attorneys' Fees.

Under the established case law a complainant who files a bill in the nature of a general creditor's bill is not entitled to attorneys' fees unless the action creates or preserves some fund for the benefit of creditors and fees thus allowed must come from the fund or assets thus preserved and not from any surplus over and above the amount necessary to satisfy the claims of creditors. Tennessee United Paint Store, Inc. v. D.H. Overmyer Whse. Co., 62 Tenn. App. 721, 467 S.W.2d 806, 1971 Tenn. App. LEXIS 207 (1971).

The fact that this section fails to specifically provide for an attorney's fee to complainants' attorney does not bar the award of such a fee which is otherwise allowable. Tennessee United Paint Store, Inc. v. D.H. Overmyer Whse. Co., 62 Tenn. App. 721, 467 S.W.2d 806, 1971 Tenn. App. LEXIS 207 (1971).

NOTES TO DECISIONS

1. Transfer from Law to Chancery Court.

Where the suit to enforce the lien was commenced by attachment in a court of law, it was the proper exercise of discretion in that court to transfer the case to the chancery court, where a bill for a like purpose was pending, in order that all the questions arising might be there determined. Hillman & Bros. v. Anthony, 63 Tenn. 444, 1874 Tenn. LEXIS 289 (1874).

NOTES TO DECISIONS

1. Purpose.

The reason of the first paragraph of subsection (b) is, perhaps, that the date of the commencement of the lien not being fixed by the judgment of the justice (now general sessions judge), which only determines the amount due, it was deemed advisable to give notice by registration, so as to put purchasers upon inquiry. Montgomery v. Rich, 3 Cooper's Tenn. Ch. 660 (1878).

2. Jurisdiction.

A justice (now general sessions judge) has jurisdiction to enforce the mechanic's lien for any sum within his jurisdiction. Reeves v. Henderson, 90 Tenn. 521, 18 S.W. 242, 1891 Tenn. LEXIS 35 (1891); Phillips-Burtoff Mfg. Co. v. Campbell, 93 Tenn. 469, 25 S.W. 961, 1893 Tenn. LEXIS 74 (1894); De Soto Lumber Co. v. Loeb, 110 Tenn. 251, 75 S.W. 1043, 1903 Tenn. LEXIS 55 (1903).

3. Warrant — Contents.

In a suit before a justice (now general sessions judge) by a subcontractor to enforce a mechanic's and furnisher's lien, the warrant should contain a brief statement of the facts constituting his right to recover against the principal contractor and to a lien against the property of the owner, and should show upon its face that an attachment had been sued out to enforce the lien claimed. Warner v. A.H. Yates & Co., 118 Tenn. 548, 102 S.W. 92, 1907 Tenn. LEXIS 62 (Tenn. Apr. 1907).

4. Procedure before Lower Court.

No form of procedure for enforcing the lien, before justices of the peace (now general sessions courts), is prescribed by statute, and the proceedings must be according to the course of the common law, as near as possible. There must be a suit brought by the party seeking to enforce the lien, and an attachment sued out against the property, upon which the lien is claimed, simultaneously with the issuance of the warrant. Warner v. A.H. Yates & Co., 118 Tenn. 548, 102 S.W. 92, 1907 Tenn. LEXIS 62 (Tenn. Apr. 1907).

5. Circuit Court's Jurisdiction.

Circuit court has no jurisdiction where amount involved does not exceed $50.00. Phillips-Burtoff Mfg. Co. v. Campbell, 93 Tenn. 469, 25 S.W. 961, 1893 Tenn. LEXIS 74 (1894).

6. Prerequisites to Circuit Court's Order of Sale.

In action before a justice (now general sessions judge) where attachment was levied on the land, but no execution issued by the justice, a sale under the circuit court's venditioni was void. Gentry v. Gunkel, 62 S.W. 355, 1901 Tenn. Ch. App. LEXIS 45 (Tenn. Ch. App. 1901).

NOTES TO DECISIONS

1. Constitutionality.

The provision in this section authorizing the owner who has been compelled to pay the subcontractors, mechanics, or materialmen in discharge of their liens on the property, to take judgment over by motion against the contractor upon his indemnity bond, does not render the statute unconstitutional, for it does not subject the contractor to liability without his day in court, because notice is required by necessary implication. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, 1891 Tenn. LEXIS 30 (1891).

Mechanic's lien laws are not rendered unconstitutional by the fact that they create liens that may take precedence over the rights of others that would otherwise prevail. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, 1891 Tenn. LEXIS 30 (1891); Green v. Williams, 92 Tenn. 220, 21 S.W. 520, 1892 Tenn. LEXIS 66, 19 L.R.A. 478 (1893); Ruston v. Perry Lumber Co., 104 Tenn. 538, 58 S.W. 268, 1900 Tenn. LEXIS 27 (1900).

2. Nature and Effect.

The provision giving the owner the right to require the indemnity or refunding bond is but declarative of a legal right already existing. The owner is not required to exact the bond, but is permitted to do so. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, 1891 Tenn. LEXIS 30 (1891).

3. Rights of Contractor.

The provision giving the contractor the right to contest the legality of the claim shows affirmatively that it was contemplated that he should have notice of the motion, and an opportunity to make defense. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045, 1891 Tenn. LEXIS 30 (1891).

4. Subcontractor's Bond to Indemnify against Other Subcontractors.

An indemnity bond, made to the owner by subcontractors, to indemnify him against the claims and liens of other subcontractors, where the obligated subcontractors had mechanic's liens, with ample time to give the requisite notice, and gave the bond in consideration of receiving from the owner, through his contractor, payment for their claim and lien, is not given under this section, and is without consideration and unenforceable. Hanks & McGuire v. Barron Bros., 95 Tenn. 275, 32 S.W. 195, 1895 Tenn. LEXIS 84 (1895).

5. Accruing of Right to Recover on Bond.

Such bond, under the statute, implies that right of recovery thereon does not accrue until liens are satisfied. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

6. Pleading — Effect on Right of Recovery.

In suit by subcontractor in which contractor's surety was made a defendant, no decree should be rendered in favor of owner where there is no pleading seeking such relief. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

7. Costs.

Costs adjudged against an owner in action to establish liens are included in the penalty of the bond unless expressly excluded. Richmond Screw Anchor Co. v. E. W. Minter Co., 156 Tenn. 19, 300 S.W. 574, 1927 Tenn. LEXIS 82 (1927).

Collateral References.

Validity and effect of provision in contract against mechanic's lien. 75 A.L.R.3d 505.

NOTES TO DECISIONS

1. Constitutionality.

This section is not unconstitutional on the ground that it is meaningless and so ambiguous as to be incapable of being well understood by the courts and the public. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951).

This section applies equally to all contractors and does not violate the “law of the land” provision of Tenn. Const., art. I, § 8. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

This section and § 66-11-140 in making proof of payments of the nature prohibited by this section prima facie evidence of intent to defraud did not violate provisions of Tenn. Const., art. I, § 9, relative to trial by impartial jury with presumption of innocence. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

Provisions of Tenn. Const., art. I, § 11, relative to ex post facto laws, was inapplicable to this section and facts developed. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

2. Purpose.

It is common knowledge to all lawyers that over a period of years, and especially during a building boom, there are hardly enough precautions that can be taken by the lender of money or the property owner to protect himself against improper application of funds paid in certain instances to certain unscrupulous contractors or those doing business on a shoe string. It was probably by reason of this fact that this section was adopted by the general assembly at the instance of the reputable contractors and others of the state. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951).

A statute of this nature is intended to make the payments to the contractor trust funds for payment of labor and materials and to afford protection against contractors who receive money for construction or repair of buildings and divert it to other uses prior to payment of claims for labor, materials or other charges in connection with the work on the building. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

The legislative purpose of this section is to punish for a fraudulent conversion and not for failure to comply with a contractual obligation. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

3. Construction.

This section must be read in conjunction with § 66-11-140. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

T.C.A. § 66-11-138 does not create an express trust. Witt Bldg. Material Co. v. Barker, 14 B.R. 852, 1981 Bankr. LEXIS 3365 (Bankr. E.D. Tenn. July 15, 1981).

4. Applicability.

Although the classic misapplication of contract payments undoubtedly occurs when the owner of real property pays money to a contractor for improvement of the payor's property, the language of this section does not restrict application of the statute to owner-payors. State v. Patterson, 755 S.W.2d 815, 1984 Tenn. Crim. App. LEXIS 2848 (Tenn. Crim. App. 1984).

This section makes the misapplication of construction funds a criminal offense; it does not create an express or technical trust for purposes of establishing a fiduciary relationship or obligation within the meaning of 11 U.S.C.A. § 523(a)(4). In re White, 106 B.R. 501, 1989 Bankr. LEXIS 1876 (Bankr. E.D. Tenn. 1989).

5. Nature of Offense.

The gist of the offense charged under this statute is that a person exercising a contractual relation shall obtain funds for a specific purpose and shall divert those funds to his own use, leaving outstanding obligations for which a creditor would have a lien upon the property owned by the payor of such funds. This very closely approaches embezzlement. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951); Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966); Steel Structures, Inc. v. Star Mfg. Co., 466 F.2d 207, 1972 U.S. App. LEXIS 8068 (6th Cir. 1972).

This section does not divide the offense created into degrees depending upon the amount misappropriated by the party charged. It makes him guilty of a felony irrespective of the amount so misappropriated. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951).

Where, at time contractor received funds from real estate owner, there were amounts of money for which he was liable for materials furnished in performance of the contract, it was a violation of this section for him to retain a portion of such funds for labor performed by himself under the contract. Miller v. State, 206 Tenn. 103, 332 S.W.2d 179, 1960 Tenn. LEXIS 348 (1960).

Although payment made by contractor to supplier was first applied, on instructions from the contractor, to the account for defendant's house, where the funds from which the contractor made such payment where the proceeds from a loan received on another lot it was not improper for the contractor to request and the supplier to transfer such credit from defendant's account to the account for the lot on which the loan was secured. Hammer-Johnson Supply, Inc. v. Curtis, 51 Tenn. App. 72, 364 S.W.2d 496, 1962 Tenn. App. LEXIS 95 (1962).

6. Sufficiency of Indictment.

It is unnecessary for an indictment under this section to state the amount misappropriated. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951).

An indictment laid in substantially the language of this section is not too vague and indefinite because it does not specify the amount unpaid by defendant for labor or materials and the particular persons whom he has failed to pay. State v. Overton, 193 Tenn. 171, 245 S.W.2d 188, 1951 Tenn. LEXIS 343 (1951).

7. Constructive Trusts.

While several states have statutes explicitly making funds paid to a contractor a trust for the benefit of laborers and materialmen, Tennessee only has this section which imposes criminal liability for misapplication of contract payments before debts to subcontractors have been satisfied. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

To prevent construction payments from becoming part of a bankrupt contractor's property in the absence of a state builders trust fund statute, courts generally will set up either an equitable lien or a constructive trust for subcontractors who possess valid mechanics liens or inchoate liens that are still capable of becoming valid within the prescribed state statutory time limits and requirements. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

Constructive trusts will be established to ensure that direct payments from the landowner to the materialmen or laborers either pursuant to a prior agreement or in exchange for an agreement not to file a lien are not held to be voidable preferences under the federal bankruptcy act. Sequatchie Concrete Service, Inc. v. Cutter Laboratories, 616 S.W.2d 162, 1980 Tenn. App. LEXIS 424 (Tenn. Ct. App. 1980).

Where bankrupt general contractor failed to pay suppliers, T.C.A. § 66-11-138 did not create a constructive trust for the benefit of suppliers against funds owing from the general contractor to subcontractors, and the funds were the property of the general contractor's bankruptcy estate. In re Null's Serv., Inc., 109 B.R. 301, 1990 Bankr. LEXIS 28 (Bankr. W.D. Tenn. 1990).

8. Bankruptcy Proceedings.

The trust created by T.C.A. § 66-11-138 on funds paid to a contractor for the benefit of subcontractors will not be given effect in a bankruptcy proceeding. Noland Co. v. Edmondson (In re Cedar City Elevator & Refrigeration Co.), 14 B.R. 623, 1981 Bankr. LEXIS 2929 (Bankr. M.D. Tenn. Sep. 22, 1981).

The proceeds of a construction loan made to the defendant contractor did not constitute trust funds by virtue of T.C.A. § 66-11-138 so that the failure of the contractor to apply those funds to the construction project resulted in a nondischargeable debt for bankruptcy purposes. Witt Bldg. Material Co. v. Barker, 14 B.R. 852, 1981 Bankr. LEXIS 3365 (Bankr. E.D. Tenn. July 15, 1981).

T.C.A. § 66-11-138 does not establish a construction fund trust within the meaning of the Bankruptcy Code 11 U.S.C. § 523(a) (4) providing that debt resulting from fraud and defalcation while acting in a fiduciary capacity is nondischargeable in bankruptcy, and thus state court judgment resulting from alleged misuse of funds provided by plaintiffs to debtor, a contractor/builder, for construction of residence was a dischargeable debt. In re Blalock, 15 B.R. 33, 1981 Bankr. LEXIS 3112 (Bankr. E.D. Tenn. 1981).

The fact that a bankrupt contractor's eligibility for pretrial diversion was at one time apparently contingent upon his restitution for an obligation from which he had been discharged in bankruptcy does not establish a prima facie case of bad faith on the part of the prosecution in attempting to prosecute the contractor under T.C.A. § 66-11-138 for misapplication of contract payments. In re Wilson, 30 B.R. 91, 1983 Bankr. LEXIS 6395 (Bankr. E.D. Tenn. 1983).

T.C.A. § 66-11-138 is not an explicit state builders trust fund statute; rather, it is merely a statute making the misapplication of construction funds a criminal offense. Were any trust deemed created under the statute, such a trust would clearly be only a trust ex maleficio, arising only upon occurrence of the unlawful act of misapplication. This statute does not create an express or technical trust necessary to establish a fiduciary relationship within the contemplation of 11 U.S.C. § 523(a)(4) (1979). In re Mettetal, 41 B.R. 80, 1984 B.R. LEXIS 5648 (Bankr. E.D. Tenn. 1984).

In dispute between internal revenue service and material supplier to debtor over rights in balance due under a construction contract, because Tennessee law does not impose a trust on construction funds for the benefit of mechanic or material lienors, contractor's subcontract with debtor did not include a retainage provision, and supplier had no contract with contractor who hired debtor, IRS's lien attached to the balance due the debtor. Therefore, the funds were not excludable from the bankruptcy estate. Hayes v. First Am. Nat'l Bank (In re Serv. Corp. of Am.), 115 B.R. 602, 1990 Bankr. LEXIS 1332 (Bankr. M.D. Tenn. 1990).

Debtors (contractors) violated the Tennessee Consumer Protection Act (TCPA) by representing that a county impact fee was required and by accepting payment from the creditors for an unnecessary fee that debtors never paid. This entitled the creditors to reasonable attorney fees and costs and to treble damages, and those amounts were nondischargeable in debtors'  bankruptcy. Poole v. Batson (In re Batson), 568 B.R. 281, 2017 Bankr. LEXIS 549 (Bankr. M.D. Tenn. Feb. 28, 2017).

9. Notice.

The duty to credit the particular account of a third party applies where the materialman or mechanic knows the source from which the money comes or is in possession of such facts as reasonably imputes notice to him of the source. Hayes Pipe Supply, Inc. v. McKendree Manor, Inc., 695 S.W.2d 174, 1985 Tenn. LEXIS 607 (Tenn. 1985).

Even if a supplier does not have actual knowledge of the source of funds offered as payment by a contractor, the supplier may still be required to properly allocate the payments if it has knowledge of facts from which it reasonably should know the source. Alside Supply Center v. Vinson, 802 S.W.2d 632, 1990 Tenn. App. LEXIS 682 (Tenn. App. 1990).

10. Sufficient Evidence.

Evidence was insufficient to show that defendant violated a condition of his probation where the evidence did not preponderate in favor of a finding that defendant violated any criminal laws; under T.C.A. § 66-11-138(a), the state did not prove in its case how defendant used any misapplied funds, if there were any, and there was not evidence in the record to establish the crime of theft. State v. Kendrick, 178 S.W.3d 734, 2005 Tenn. Crim. App. LEXIS 685 (Tenn. Crim. App. 2005).

Subcontractor was denied damages because the evidence did not preponderate against the finding that the general contractor did not intend to defraud the subcontractor as the balance of the general contractor's operating account, following fund transfers, exceeded the amount of any payment that was allegedly owed to the subcontractor during the vast majority of the life of the subcontract. Nat'l Door & Hardware Installers v. Mirsaidi, — S.W.3d —, 2014 Tenn. App. LEXIS 389 (Tenn. Ct. App. June 30, 2014).

Collateral References.

Validity and construction of statute providing criminal penalties for failure of contractor who has received payment from owner to pay laborers or materialmen. 78 A.L.R.3d 563.

NOTES TO DECISIONS

1. Applicability.

T.C.A. § 66-11-139 only applies to the lienor's claim for a lien and not to the claim for the debt. Where the statute says no “recovery may be allowed thereon, in the discretion of the court” it refers back to the beginning of the section to “any action to enforce the lien.” Dotson v. Gaidos, 736 S.W.2d 119, 1987 Tenn. App. LEXIS 2801 (Tenn. Ct. App. 1987).

Contractor did not willfully and grossly exaggerate the contractor's lien claim because, (1) at trial, the contractor's motion to reduce the claim was granted, and (2) a project owner showed no resulting harm. Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 2016 Tenn. App. LEXIS 637 (Tenn. Ct. App. Aug. 30, 2016), appeal denied, Beacon4, LLC v. I & L Invs., LLC, — S.W.3d —, 2016 Tenn. LEXIS 950 (Tenn. Dec. 15, 2016).

2. Falsification.

Furnisher of materials to contractor must act in good faith. If he falsifies his account, or connives with the contractor to defraud the owner, he loses his right to lien. Pidgeon-Thomas Iron Co. v. McKnight, 8 Tenn. Civ. App. 1 (1918).

There was no merit to the developer's affirmative defense of willful exaggeration of the lien because both the president and the developer's chief manager testified that payments were given the president individually as loans and not as payment on the architect's fees. TWB Architects, Inc. v. Braxton, LLC, — S.W.3d —, 2018 Tenn. App. LEXIS 58 (Tenn. Ct. App. Jan. 31, 2018), rev'd, TWB Architects, Inc. v. Braxton, LLC, — S.W.3d —, 2019 Tenn. LEXIS 293 (Tenn. July 22, 2019), rev'd, 578 S.W.3d 879, 2019 Tenn. LEXIS 296 (Tenn. July 22, 2019).

NOTES TO DECISIONS

1. In General.

A contractor receiving payments from a landowner is under a very strict statutory duty to apply those payments properly and not to divert them so as to leave the landowner exposed to the possibility of a lien. Alside Supply Center v. Vinson, 802 S.W.2d 632, 1990 Tenn. App. LEXIS 682 (Tenn. App. 1990).

Any use of funds by a contractor or supplier for any purpose other than payment of an account for materials or labor used to improve property of the one making payment, is prima facie evidence of intent to defraud. Alside Supply Center v. Vinson, 802 S.W.2d 632, 1990 Tenn. App. LEXIS 682 (Tenn. App. 1990).

2. Constitutionality.

Prima facie presumption of intent to defraud as provided herein does not violate provisions of Tenn. Const., art. I, § 9, relative to trial by impartial jury with presumption of innocence. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

3. Construction.

Section 66-11-138 must be read in conjunction with this section. Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 1965 Tenn. LEXIS 612 (1965), appeal dismissed, Daugherty v. Tennessee, 384 U.S. 435, 86 S. Ct. 1601, 16 L. Ed. 2d 671, 1966 U.S. LEXIS 1416 (1966).

4. Bankruptcy Proceedings.

This section provides that the mere use alone of proceeds by a contractor for any purpose other than payment of labor and materials on the project constitutes prima facie evidence of intent to defraud; to the extent that this statutory presumption conflicts with federal law, it cannot be considered in the context of determining dischargeability in bankruptcy. In re Mettetal, 41 B.R. 80, 1984 B.R. LEXIS 5648 (Bankr. E.D. Tenn. 1984).

Although T.C.A. § 66-11-140 created a prima facie case of intent to defraud where debtors (contractors) used creditors'  retainer to pay other bills and personal expenses, that did not suffice for a finding of nondischargeability under the Bankruptcy Code. However, facts that supported a finding of a false representation or false pretenses by debtors also supported a finding of fraudulent intent, as debtor wife knew when she reassured creditors that the retainer would be set up in house for the creditors'  project that her statement was not true because they never did business that way. Poole v. Batson (In re Batson), 568 B.R. 281, 2017 Bankr. LEXIS 549 (Bankr. M.D. Tenn. Feb. 28, 2017).

5. Evidence.

Whether defendant's disavowal of intent is sufficient to overcome state's proof is a question of fact for the jury. State v. Patterson, 755 S.W.2d 815, 1984 Tenn. Crim. App. LEXIS 2848 (Tenn. Crim. App. 1984).

Subcontractor was denied damages because the evidence did not preponderate against the finding that the general contractor did not intend to defraud the subcontractor as the balance of the general contractor's operating account, following fund transfers, exceeded the amount of any payment that was allegedly owed to the subcontractor during the vast majority of the life of the subcontract. Nat'l Door & Hardware Installers v. Mirsaidi, — S.W.3d —, 2014 Tenn. App. LEXIS 389 (Tenn. Ct. App. June 30, 2014).

6. Notice.

Even if a supplier does not have actual knowledge of the source of funds offered as payment by a contractor, the supplier may still be required to properly allocate the payments if it has knowledge of facts from which it reasonably should know the source. Alside Supply Center v. Vinson, 802 S.W.2d 632, 1990 Tenn. App. LEXIS 682 (Tenn. App. 1990).

When a contractor uses progress payments to pay his supplier, whom he owes for other materials as well as for materials used on the job generating those payments, then those payments must be applied to the debts for materials used on that job, because the contractor owes a duty to the owner to pay that debt. The result does not depend on whether the supplier knew or had reason to know the source of the money used as payment. Alside Supply Center v. Vinson, 802 S.W.2d 632, 1990 Tenn. App. LEXIS 682 (Tenn. App. 1990).

NOTES TO DECISIONS

1. Suit to Enforce a Lien.

Where the trial court rendered a final judgment in a subcontractor's suit for payment of work performed on a hotel, a second suit for injunctive relief on the performance bond was barred by res judicata; bank's filing of the performance bond pursuant to T.C.A. § 66-11-142 was simply one more step in the series of closely related and interconnected events and transactions giving rise to the first lawsuit. Smith Mech. Contrs., Inc. v. Premier Hotel Dev. Group, 210 S.W.3d 557, 2006 Tenn. App. LEXIS 468 (Tenn. Ct. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1166 (Tenn. Dec. 18, 2006).

NOTES TO DECISIONS

1. Purpose.

The evident purposes of subsection (d) were: (1) to provide for timely notice to the owner(s) and purchaser(s) of improved real estate of unregistered claims against it and to fix a time period in which the owner(s) and purchaser(s) would receive notices of such claims; and (2) to extinguish claims of which the owner(s) and purchaser(s) received no notice within the time period so fixed. In re Gasteiger, 471 F. Supp. 13, 1977 U.S. Dist. LEXIS 14324 (E.D. Tenn. 1977).

2. Construction.

T.C.A. § 66-11-143 provides a drastic procedure whereby a bona fide furnisher of labor or materials may be deprived of his statutory lien by the simple device of recording a certificate of completion; it should be construed strictly to avoid its abuse. Davis v. Smith, 650 S.W.2d 47, 1983 Tenn. App. LEXIS 557 (Tenn. Ct. App. 1983).

“Substantial completion” does not satisfy the requirements of T.C.A. § 66-11-143. Davis v. Smith, 650 S.W.2d 47, 1983 Tenn. App. LEXIS 557 (Tenn. Ct. App. 1983).

3. Application.

The statute allows of no exception where the person, firm, or corporation to which parties entitled to the benefits of this chapter, may send notice of such claims is also a claimant. In re Gasteiger, 471 F. Supp. 13, 1977 U.S. Dist. LEXIS 14324 (E.D. Tenn. 1977).

4. Invalid Notice of Completion.

Notice of completion was invalid where project was not complete and where signer of notice falsely represented that he was the general contractor. In re Just for Fun of It, Inc., 7 B.R. 166, 1980 Bankr. LEXIS 4487 (Bankr. E.D. Tenn. 1980).

5. Sworn Statement.

The sworn statement referred to in T.C.A. § 66-11-143 can be included in the same statement as the acknowledgment referred to in T.C.A. § 66-11-111. In re Just for Fun of It, Inc., 7 B.R. 166, 1980 Bankr. LEXIS 4487 (Bankr. E.D. Tenn. 1980).

6. Unregistered Mechanic's Lien.

The express reference to T.C.A. § 66-11-117 in T.C.A. § 66-11-143 makes the holder of an unregistered mechanic's lien subject to the ten-day period. Post-Tensioned Sys. v. Collins & Hobbs, Inc., 640 S.W.2d 576, 1982 Tenn. App. LEXIS 415 (Tenn. Ct. App. 1982).

The lien of a supplier of materials for a new house, filed within 90 days after completion, was not extinguished by a conveyance of the property to purchasers before notice of the lien was filed, since the purchasers did not avail themselves of the provision for protection from unregistered liens. Owen Lumber & Millwork, Inc. v. National Equity Corp., 940 S.W.2d 66, 1996 Tenn. App. LEXIS 486 (Tenn. Ct. App. 1996).

7. Acknowledgment Required.

A notice of completion cannot be considered legally registered without an acknowledgment. First Nat'l Bank v. Prairie Corp., 547 F. Supp. 14, 1982 U.S. Dist. LEXIS 14720 (E.D. Tenn. 1982).

8. Attempt to Revive Lien.

There is no statutory authority for reviving a lien upon the filing of another notice of completion. Post-Tensioned Sys. v. Collins & Hobbs, Inc., 640 S.W.2d 576, 1982 Tenn. App. LEXIS 415 (Tenn. Ct. App. 1982).

9. Proof of Completion.

A completion notice is only prima facie evidence of the truth of the statements therein, including the completion date, and other evidence is allowed to prove that the work was actually completed on another date. In re Johnson, 25 B.R. 889, 1982 Bankr. LEXIS 5272 (Bankr. E.D. Tenn. 1982).

The occupation of part of a building is not conclusive of the completion of all of the building. Davis v. Smith, 650 S.W.2d 47, 1983 Tenn. App. LEXIS 557 (Tenn. Ct. App. 1983).

10. Filing Notice of Claim.

The ten-day written notice requirement runs from and after the date of the filing of the notice of completion in the register's office and not the date of completion stated in the notice of completion. Noland Co. v. Crye, 726 S.W.2d 531, 1986 Tenn. App. LEXIS 3457 (Tenn. Ct. App. 1986).

NOTES TO DECISIONS

1. Retroactive Application of Section.

Retroactive application of notice of nonpayment provisions, enacted in an amendment to T.C.A. § 66-11-115 and this section, to a materialman who already had a vested right to a materialman's lien for goods under T.C.A. § 66-11-115, and retroactive application of which effectively abolished that right, was not procedural and was impermissible. Standard Pipe & Supply, Inc. v. First City Serv. Corp., 833 S.W.2d 510, 1992 Tenn. App. LEXIS 195 (Tenn. Ct. App. 1992), appeal denied, Standard Pipe & Supply, Inc. v. First City Service Corp., 1992 Tenn. LEXIS 384 (Tenn. May 26, 1992).

2. Sufficiency of Notice.

Subcontractor's lien notices were sufficient, as required by T.C.A. § 66-11-145, because a home builder was both the owner and general contractor of a project. Williamson County Ready Mix, Inc. v. Pulte Homes Tenn. Ltd. P'ship, — S.W.3d —, 2008 Tenn. App. LEXIS 800 (Tenn. Ct. App. Dec. 15, 2008).

Trial court properly granted summary judgment in favor of a project owner, a prime contractor, remote contractors, and an employer in a subcontractor's action to enforce a mechanic's lien because subsection (a) required the subcontract to notify both the owner and the prime contractor of the project of nonpayment; as the entity in charge of the overall project, the prime contractor had to be given the opportunity to resolve the subcontractor's claim of nonpayment by the employer. Diaz Constr. v. Indus. Dev. Bd. of the Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2015 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 6, 2015).

Subcontractor did not substantially comply with the notice requirements because it failed to notify the prime contractor of its claim; notification of the proper parties goes right to the heart of the purpose of the statute, which is to give the owner and prime contractor an opportunity to resolve payment issues in a timely fashion. Diaz Constr. v. Indus. Dev. Bd. of the Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2015 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 6, 2015).

3. Construction.

Only reasonable interpretation of the statute is that the legislature intended remote contractors to give notice to the prime contractor upstream from them. Diaz Constr. v. Indus. Dev. Bd. of the Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2015 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 6, 2015).

From the use of the words “in direct privity of contract” in one section of the statute and “in contractual privity” in another section, it is fair to assume the legislature did not intend the two phrases to have the same meaning. Diaz Constr. v. Indus. Dev. Bd. of the Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2015 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 6, 2015).

NOTES TO DECISIONS

1. Unregistered Liens.

The lien of a supplier of materials for a new house, filed within 90 days after completion, was not extinguished by a conveyance of the property to purchasers before notice of the lien was filed, since the purchasers did not avail themselves of the provision for protection from unregistered liens. Owen Lumber & Millwork, Inc. v. National Equity Corp., 940 S.W.2d 66, 1996 Tenn. App. LEXIS 486 (Tenn. Ct. App. 1996).

2. Residential Real Property Status.

Since record owners did not intend to use property as their residence, and subsequently conveyed the property to another person, the property was not residential real property; thus, the subsequent owner was not immune from materialman's lien. C & C Aluminum Builders Supply v. Rynd, 4 S.W.3d 191, 1999 Tenn. App. LEXIS 331 (Tenn. Ct. App. 1999).

NOTES TO DECISIONS

1. Construction and Interpretation.

Trial court properly applied revised T.C.A. § 66-11-148 to a claim that arose prior to the revision, liberally construing the mechanic's and materialmen's liens statutes to permit a contractor to amend its complaint in order to cure procedural defects. A later lienholder's rights were not retroactively impaired by the liberal application of the statutes. Tri Am Constr., Inc. v. J & V Dev., Inc., 415 S.W.3d 242, 2011 Tenn. App. LEXIS 466 (Tenn. Ct. App. Aug. 30, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 109 (Tenn. Feb. 15, 2012).

2. Substantial Compliance.

Subcontractor did not substantially comply with the notice requirements because it failed to notify the prime contractor of its claim. Diaz Constr. v. Indus. Dev. Bd. of the Metro. Gov't of Nashville & Davidson County, — S.W.3d —, 2015 Tenn. App. LEXIS 107 (Tenn. Ct. App. Mar. 6, 2015).

66-11-201. Short title.

This part shall be known and may be cited as the “Truth in Construction and Consumer Protection Act of 1975.”

Acts 1975, ch. 364, § 1; T.C.A., § 64-1152.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Lis Pendens, § 6.

Law Reviews.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 160, 193 (1979).

66-11-202. Part definitions.

As used in this part, unless the context or subject matter indicates another meaning, the words and phrases defined in § 66-11-101, as amended and as may from time to time be amended, have the same meaning as set out in that section and such § 66-11-101 as amended and as may from time to time be amended is incorporated in this part by reference.

Acts 1975, ch. 364, § 2; T.C.A., § 64-1153.

Law Reviews.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 160, 193 (1979).

66-11-203. Notice to owner.

Any contractor who is about to enter into a contract, either written or oral, for improving residential real property, as that term is defined by § 66-11-146, with the owner or owners thereof shall, prior to commencing the improvement of the residential real property or making of the contract, deliver, by registered mail or otherwise, to the owner or owners of the residential real property to be improved written notice in substantially the following form:

Delivered this  day of  , 20 , by  , Contractor.

The above-captioned contractor hereby gives notice to the owner of the property to be improved, that the contractor is about to begin improving the property according to the terms and conditions of the contract and that under the provisions of the state law (§§ 66-11-101 — 66-11-141) there shall be a lien upon the real property and building for the improvements made in favor of the above-mentioned contractor who does the work or furnishes the materials for such improvements for a duration of one (1) year after the work is finished or materials furnished.

Contractor

Acts 1975, ch. 364, § 3; 1977, ch. 456, § 1; T.C.A., § 64-1154; Acts 1994, ch. 587, § 1; 2020, ch. 749, § 12.

Compiler's Notes. Acts 2020, ch. 749, § 42 provided that the act, which amended this section, applies to actions occurring and contracts entered into, amended, or renewed on or after July 1, 2020.

Amendments. The 2020 amendment, in the first paragraph, inserted “residential” three times, and “, as that term is defined by § 66-11-146,”; redesignated former (1) to the end of the present third paragraph, following “state law (§§ 66-11-101 - 66-11-141)”; in the present third paragraph, inserted “above-mentioned” and deleted “, mechanic, laborer, founder or machinist,” preceding “who does the work”; and deleted former (2) and (3) which read: “(2)  Except as modified by § 66-11-146, every person contracted with or employed to work on the buildings or to furnish materials for the same with the above-named contractor shall have a lien on the property for that person's work or material; provided, that such person notify the owner in writing within ninety (90) days after the completion of the improvement, which lien will continue for ninety (90) days after such notice; (3) Except as modified by § 66-11-146, these liens can be enforced even though the contractor has been paid in full if the contractor has not paid the persons who furnished the labor or materials for the improvement.”

Effective Dates. Acts 2020, ch. 749, § 42. July 1, 2020.

Cross-References. Certified mail instead of registered mail, § 1-3-111.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-701.

Law Reviews.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 160, 193 (1979).

66-11-204. Rejection of contracts.

An owner of residential real property may reject a contract by notifying the contractor by written notice by registered mail within three (3) days after receipt of the notice required in § 66-11-203; otherwise the contract is affirmed.

Acts 1975, ch. 364, § 4; 1977, ch. 456, § 2; T.C.A., § 64-1155; Acts 2020, ch. 749, § 13.

Compiler's Notes. Acts 2020, ch. 749, § 42 provided that the act, which amended this section, applies to actions occurring and contracts entered into, amended, or renewed on or after July 1, 2020.

Amendments. The 2020 amendment inserted “of residential real property”.

Effective Dates. Acts 2020, ch. 749, § 42. July 1, 2020.

Cross-References. Certified mail instead of registered mail, § 1-3-111.

Law Reviews.

Mechanics' Liens in Tennessee — Recent Developments, 6 Mem. St. U.L. Rev. 519 (1976).

66-11-205. Contractor's notice to owner that all liens have been paid — Guarantee — Form.

Upon completion of the contract or improvement and upon receipt of the contract price, the prime contractor shall deliver by registered mail or otherwise to the owner or owners of the real property a sworn affidavit and receipt substantially in the following form:

State of Tennessee

County of

On this   day of  , 20 , before me personally appeared  (if a corporation use “  President (or other officer) of (Corporate Name) a corporation”), prime contractor, to me personally known, who being duly sworn by oath, did say that all of the persons, firms, and corporations, including the prime contractor and all remote contractors and laborers, who have furnished services, labor, or materials according to the plans or specifications, or extra items used in the construction or repair of buildings and improvements on the real estate hereinafter described, have been paid in full or will be paid in full no later than ten (10) days from the date a bill is rendered for such services, labor, or materials and that such work has been fully completed and accepted by the owner, and further that such owner has paid the contract price in full, the receipt of which is hereby acknowledged. Affiant further says that no claims have been made to affiant by, nor is any suit pending on behalf of the prime contractor or any remote contractors or laborers, and further that no chattel mortgages or conditional bills of sale have been given or are now outstanding as to any materials, appliances, fixtures, or furnishings placed upon or installed in the aforementioned premises. Affiant as a party does for a valuable consideration hereby agree and guarantee to hold the owner of the real estate, the owner's successors, heirs and assigns, harmless against any lien, claim, or suit by any remote contractor or laborer and against chattel mortgages or conditional bills of sale in conjunction with the construction of such buildings or improvements on such real estate.

The real estate and improvements referred to herein are situated in the County of  , State of Tennessee, and are described as follows: (give street address)

Prime Contractor

Sworn to and subscribed before me

on the date above first written.

Notary Public

My Commission Expires:

Acts 1975, ch. 364, § 5; 1977, ch. 456, § 3; T.C.A., § 64-1156; Acts 2020, ch. 749, § 14.

Compiler's Notes. Acts 2020, ch. 749, § 42 provided that the act, which amended this section, applies to actions occurring and contracts entered into, amended, or renewed on or after July 1, 2020.

Amendments. The 2020 amendment substituted “prime contractor” for “contractor” three times; inserted “substantially” in the first paragraph; and in the form, substituted “including the prime contractor and all remote contractors and laborers,” for “including general contractors and all subcontractors,” in the first sentence, in the second sentence, substituted “the prime contractor or any remote contractors or laborers” for “any contractors, subcontractors, laborers or materialmen” and substituted “any remote contractor or laborer” for “any general contractor, subcontractor, mechanic or materialman” in the third sentence.

Effective Dates. Acts 2020, ch. 749, § 42. July 1, 2020.

Cross-References. Certified mail instead of registered mail, § 1-3-111.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 8-707.

Law Reviews.

Mechanics' Lien in Tennessee — Recent Developments, 6 Mem. St. U.L. Rev. 519 (1976).

66-11-206. Noncompliance by contractor — Misdemeanor — Penalties — Owner remedies.

1. In the event that any materialmen's liens or mechanics' liens are perfected, filed or enforced under part 1 of this chapter against any real estate for transactions covered under §§ 66-11-203 and 66-11-205 and the contractor has not complied with §§ 66-11-203 and 66-11-205 or if having technically complied with this part has willfully, knowingly and unlawfully falsified any statements or fraudulently obtained any permission, the contractor commits a Class B misdemeanor.
2. Nothing contained in this part shall abrogate the right of any person who is materially or personally damaged or injured by any contract covered by this part to seek such person's remedies against the responsible person in the courts.
3. Noncompliance with §§ 66-11-203 and 66-11-205 shall in no way affect the lien rights of a contractor, actually performing the work and having a contract directly with an owner, or the owner's agent, to enforce a lien as provided in § 66-11-102.

Acts 1975, ch. 364, § 6; 1977, ch. 456, § 4; T.C.A., § 64-1157; Acts 1982, ch. 941, §§ 1, 2; 1989, ch. 591, § 112; 2020, ch. 749, § 15.

Compiler's Notes. Acts 2020, ch. 749, § 42 provided that the act, which amended this section, applies to actions occurring and contracts entered into, amended, or renewed on or after July 1, 2020.

Amendments. The 2020 amendment substituted “or the owner’s agent” for “or the contractor’s agent” in (c).

Effective Dates. Acts 2020, ch. 749, § 42. July 1, 2020.

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

Law Reviews.

Survey of Tennessee Property Law, VII. Registration of Instruments (Toxey H. Sewell), 46 Tenn. L. Rev. 160, 193 (1979).

Collateral References.

Validity and construction of statute providing criminal penalties for failure of contractor who has received payment from owner to pay laborers or materialmen. 78 A.L.R.3d 563.

66-11-207. Effect on other laws.

This part shall not operate to repeal or affect any of the laws of the state relating to mechanics' and materialmen's liens, specifically part 1 of this chapter, but shall be held and construed as ancillary and supplemental thereto.

Acts 1975, ch. 364, § 7; T.C.A., § 64-1158.

Law Reviews.

Mechanics' Liens in Tennessee — Recent Developments, 6 Mem. St. U.L. Rev. 519 (1976).

66-11-208. Real estate improvement contracts — Certain venue provisions prohibited.

1. Except as provided in subsection (b), a provision in any contract, subcontract or purchase order for the improvement of real property in this state is void and against public policy if it makes the contract, subcontract or purchase order subject to the substantive laws of another state or mandates that the exclusive forum for any litigation, arbitration or other dispute resolution process is located in another state.
2. The prohibition of subsection (a) shall not apply to any contract, subcontract or purchase order for the improvement of real property which is located partially in this state and partially in another state or states. Venue in a dispute over such contract may be in any state in which part of the property is located.

Acts 1993, ch. 37, § 1.

Compiler's Notes. Acts 1993, ch. 37, § 2 provided that this section shall apply to all contracts, subcontracts or purchase orders to which this section applies entered into on or after July 1, 1993.

Law Reviews.

Avoiding Unnecessary Punches: Skillful Crafting of Alternative Dispute Resolution Contract Clauses (David K. Taylor), 36 No. 4 Tenn. B.J. 20 (2000).