DANIEL, HODGE, BLANTON land controversy Feb 1871

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DANIEL, HODGE, BLANTON land controversy
Feb 1871 - SUPREME COURT DECISIONS December Term...
SUPREME COURT DECISIONS December Term Nashville, 1870. Joseph B. Helskell, Attorney-tien-enal and Reporter. No. 28. B. A, Hopkins vs. 8. B. 3purlock. OPIHIOK. The bill In this case was filed to enjoin a suit at law in which defendant was seeking to collect from complainant a note of $130, made by one Cummings and to which complainant was security. It is alleged that Cummings was indebted to complainant for two notes one for $120 and the other for $200, on both of which complainant was security; that complainant who lived at McMinnville, finding out Cummings was about removing removing to Missouri, with his property, procured procured a letter to be written to defendant then in Nashville, notifying him that Cummings would pass through Nashville at a specified time with his property, and that he must make the money out of Cummings, and that he need not look to complainant to pay the debts of Cummings. Cummings. It is further alleged, that defendant defendant had admitted that he collected from Cummings $500, as he passed through Nashville, which he had appropriated appropriated in payment of other debts due defendant from Cummings, and that Cummings had means to pay. Upon these allegations complainant insists, that he is discharged from the payment of the note for $130 sued on. Defendant admits, in his answer, that he held the two notes of $130 and of $200 on Cummings, with complainant as security, as alleged, as well as others on which complainant was liable, and tnat Cummings had paid the $200 note and all the others except the one tor 160. lie admits he received a letter from complainant, complainant, requesting him especially, to secure the debt of $200 on which complainant alone was security, but he does not admit that the $130 note was referred to. He answers, that after using strict vigilance and diligence he succeeded in collecting $500 from Cummings, which he appropriated appropriated to several notes due defendant, on each of which complainant was liable, and amongst them was the $200 note specified in the letter and that he was unable to collect from Cummings the $130 note, after employing all necessary diligence diligence and exhausting all remedies at law or otherwise. The only testimony in the case is found in the deposition of A. W. Hopkins, who states that she wrote a letter to defendant at the iequest of complainant in which he notified him that Cummings would pass through Nashville, and that he must make his money out of him on the notes on which complainant was security, as Cummings Cummings had means to pay it and it could be made of him. There is no other proof, the letter re ferred to not being in the record. It is well settled that if a surety to a note notifies the the holder to sue the principal, when by so doing the money could be made, his failure V) sue may be insisted on by tae surety as a discharge of his liability. 10 Yerg, 362. But, to make the discharge effective, it mnsi rot only appear that the holder of the note failed to sue, but that the money could have been made by proper diligence. In this case, the notice to make the money is shown, and it is also shown that $500 was collected; but the allegation is that it was appropriated to other debts. The answer is responsive, that all the money was appropriated to debts on which complainant complainant was liable, including the $200 note on which complainant alone was se curity, and which was specified in the letter as the debt to tie specially paid. There is nothing either in the answer or m the letter, or remembered by the writer of it, which shows that there was any special direction as to paying the $130 note. It is alleged that Cummings had means to pay all the debts on which complainant was liable. The defendant answers the allegation, by saying, that he was unable to collect the $1?0 note after exhausting all remedies by law or otherwise. There is no proof contradicting this statement. We do not think the facts bring the case within the rule of law before stated stattd, as to the discharge of a surety. The decree of the Chancellor will therefore therefore be affirmed with costs. Nioholsos. A true copy : F. C. DrxsiNGTON, Clerk of Supreme Court. No. 30. W. A. and John Hickereon vs. WUUs Blanton A Co. ( the 11th of December, 1857, Wm. Hodge sold and conveyed the land in con troversy to James P. Daniel for $1,600, and took his notes payable at one, two and three years, for the payment of which a lien was retained in the deed. Daniel failed to have his deed registered until the 5 ih of October, 1850, The deed and notes were written by Willis Blanton, who was a euoscriiung witness to the det-d and who proved its execution before the Clerk of the County Court on the 4th of January, 18o9. Two of the notes of Dan'el were transferred by Hodge to complainants, who have obtained judg ments thereon, and who now claim that they are entitled to the vendor's lien on the land. This claim is contested by Willis Blan ton on two grounds: First, On the 8th of March, 1861, Blanton bought the land from Daniel, took his deed with cove nants of warranty, and w nt into postes-sion postes-sion under this deed. Second, Oa the 8th of September, 1859, Hodgi confessed three judgments before a Justice of the Peace in favor of Blanton, in which exe cutions issued on the 9th of September, laoy, wiocn were levied oa the land in controversy on the 12th of September, lata, iuc land was condemned at the January term, I860, of the Circuit Court, auu soia on tne za oi April, i860, when WiUis liiantoE was the purchaser, and on the 25th of November, 1865, the Sheriff executed a deed to Blanton for the land. He now claims to hold the land under the Sheriff's deed. It is manifest that Blanton cannot re sist the lien of complainants by virtue of his deed of March, 1861. lie was not an innocent purchaser without notice. He wrote the deed from Hodge to David, was a subscribing witness to it, and was affected with notice of the lien retained on its face. But if the lien of Blanton's levies on tbe land on the 12th of September, 1859, was superior to complainants' lien by reason of the non-registration of the deed of Hodge to Daniel until the 5ih of October, October, 1859, the validity of his superior lien would be lost by his afterwards buying the land from Daniel and by his holding and claiming title under such subsequent purchase. This fact, together with the other circumstances circumstances of the case, amount to a waiver and estoppel of his claim under his purchase at the Sheriff's sale. Perry vs. Calhoun; 8 Head, 651. Another question, question, however, is, whether the judgments on which Blanton procured to be levied on and sold, were fraudulent as against complainants under section 1,759 of the Code. In that section it is enacted that "every btd, sui', judgment or execution had, or made and contrived, of malice, fraud, covin, collusion or guile, to the intent intent or purpose to delay, hinder or defraud creditors of their just, and lawful actions, suits, debts, accounts, damages, penalties, penalties, forfeitures gp, be deemed and taken only as against the person, bis heirs, successors, executors, administrators and assigns, whose debt3, suits, demands, esta'es, or intes'ate, by such guileful and covinous practices as aforesaid, shall or might b' in any wise disturbed, hindered, delayed or defrauded, defrauded, to be clearly and utteily void ; any pretense, color, feigned consideration expressing expressing of use or any other matter or thing, to the contrary notwithstanding." The law sa- cti n3 and c 'mmamls diligence diligence and vigilance on the part of creditors, creditors, in securing their just demands. But in the race amongst them for priority, it discountenances and forbids all resorts to covinous, guiieful or fraudulent devices or practices. The section of the Code quoted, which is a copy of the act of 1801, was intended to secure entire fairness fairness amongst creditors in their efforts to secure their debts. Did Hodge, Daniel and Blanton collude together, and by covinous covinous and fraudulent devices and practices, practices, procure the judgments to be rendered rendered against Hodge with the purpose of hindering or delaying or defeating complainants complainants in the enforcement of their lien on the land in controversy ? The facts proven satisfy us that this question must be answered in the affirmative. Complainants were known to Blanton and Hodge and Daniel as owners of tbe notes for the purchase money of the lano". It was known to them that one of tbe notes was in a judgment and that tbe other would be in judgment soon. It appears that Blanton held three notes on Hodge one due and the other not due. For the avowed purpose of preventing complainants from reaching the land by levy he proposed to Hodge to give up to him his two notes not due, to deduct the interest and take new notes; and that Hodge should immediately confess judgments judgments and that executions should be immediately immediately levied on the lard as Hodges' pioperty. This would defeat the lien of complainants as Hodges 'deed for the land to Daniel had not then been registered. Blanton said to Hodge that his object was to prevent complainants from levying levying on the land and thereby befriend Hodge and Daniel. And in March afterwards afterwards he took a conveyance from Daniel of the same laud knowing that Daniel had not paid the purchase money. It would be difficult to conceive a more artfully artfully contrived device than was in this way attempted to be practiced by all three of the parties to defeat the superior hen of complainants. Hodge has been twice paid for his land. Daniel pockets the money received from Blanton, if any was paid, which beloLgs of right to complainants, and Blanton has secured a bad debt and bec ms the owner of the land, leaving ccnplainauts with worthless executions against the in -solvent men. These are tbe results of Blanton's contrivances to befriend I lodge and Blanton, to procure the land for himsef and to overreach and defeat the lien of complainants, which was his avowed object. The Chancellor s decree annuls and va cates the conveyances resorted to for effectuating tbe scheme of fraud and re stores complainants to their lien. We affirm his decree, with coats. Nicholson. A true copy. Jesse G. Fbazer, Clerk. 1 IT SAVED MY LIFE!" Allen's Lung Balsam Is warranted to break np the most tronbtesome Oongh In an lncredlblj sbort time. There is no remedv that can show more evidence of real merit than this BALSAM, for enring Consumption, Coughs, Golds, Asthma, Group, eto. BEAD THE FOLLOWING: Mabike Orrr, Mich., July 27, 1870. J. X. Hah sis A Co. Dear Sirs: Tbe Allen's Laos Balsam has arrived. I would not like to be without It, for It has saved mi life. I to k a bad cold, and a cough, and finally consumption was BeatMl uron me. I was In a very bad state, I tried everything that was reoommendrd, and nent s great deal of money and got no help. had the Allen's Lung Balsam tor sale, but I knew nothing of its merits. 1 did not use to use it without knowing more about it. I had not sol'l a bottle. When jonr agent callod on me I told him I could noi sell a medicine I knew nothing about. He uraeit me tn try it myself. I did so and to my grateful surprise the first bottle stopped my congti, and before the third bottle was taken my lungs were healed and well, and I can now spek knowingly to my friends and customers of the qualities of Allen's Lang Balsam. 1 remain respectfully, L. a COTTREXL, Druggist. It is harmlev) to the most delicate child It contains no opium in any form ! CAUTION. Do not be deceived bv unorlnjlotod dealers who irisv offer you other remedies offered for sale on the great merits of Allen's Lung Balsam. Gail for and be sure you receive Aliens Lang Ba ssm. J. II M It 1 & CO., Proprietors. CINCINNATI, O. Bold by BERRY, DEMOVTLLK A CO., Nashville. EWIN, PENDLETON A CO., do LITTEREB A CABLES, do K. J. BASFOBD A CO., KnoiTiUe. B A ROBINSON" h CO., Louisville. JanS dtTKAwlam GREAT REDUCTION PRICE OF IRON. Encourage Home Manufactures. HiLLHAX, bbo. & mm JJ AYE REDUCED THS PRICn" OF THEIR Kentucky and Tennessee Iron approximating to ihe prices of the IM KIUIIU IKI sold In IMP market, which enablf them to meet the competition. They also keep s full stock of Nails, Horse and Male Shoes, Horse-shoe Nails, Steel Axles, Springs, Steel Plow Plate, and a full stock of Wood Work, etc., etc. HILLMAN, BBO. A SONS, Jsn5-tf S3 and 54 North Market street. Tbe Nashville Gun Factory FOR SA.LE. THIS VALCABLK PROPERTY WILL BE SOLD at public auction to the highest bidder, on WEDNESDAY, APRIL 19, 1871, nnlesR sold at private sale before that time. This Factory wss built with the ultimate design of es-tabllshl' es-tabllshl' g a nrst-clsss l otion Factory, and i admirably sdspted for thst or any other manufacturing manufacturing puprert. Tbe main builiing is three stories high and fronts 19 feet on College street, and Is is feet wide; bnUt of brick In the moot substantial manner. The eU bull'tlng is one storv high, and ttt feet leng, and Is 45 feet wide. Tbe lot cf ground upon which these builgings stand fronts 188 feet on College stret, running back 276 feet to Cherry street, and fronting 85 feet on Cheny street. In the rear of the main building Is an engine room ;! feet square, which Is attached attached to a Superb Smoke Ntsscfc, 9 1 feet high, and 15 feet at the base, bnilt of brick, which Is connected with aU parts of the buildings with underground flues, making a most complete es-tabllhmenl es-tabllhmenl for manufacturing purposes of any kind. TERMS. This va'nable property will b sold on a credit of 1, i snd S years, wtth interest, except except th". snm of 15,000, wtich most be paid In cash. Goofl sod sat sfsctory persnnal security wUl be required on the first note, and a lien retained retained on . he balance. J. M. HAMILTON, Trustee, No. 23 PubUc Square, feb9 2w6w Nashville, Tenn. State of Tennessee, Davidson County, ORIGINAL ATTACHMENT. George A. Dickel A Go. vs. Messrs. J. W. Sciuggn Go. THE PL4INTIFF ON AFFIDAVIT THAT the defrndants are non residents of the State aforesaid, having obtained from me an original original attachment, having been returned as levied on defendants' personal property, and defendant not to be found In this county J therefore It is ordered that publication be ms-le in the Union and American, American, a newspaper pabUsbed ia the city of Nssh-vUle, Nssh-vUle, for four consecutive weeks, requiring the ssld ScruggR A Co. to sppeer at my office, No. 12 Deaderick street. In the city of Nashville, in said county, on Friday, the 24th day of February, 18"1, at 10 o'clock a. at , and defend this en! , or the same will be heard ex parte, Jan. 24, 1871. W. H. WILKI SON, Jan25 law4t Justice of the Psoe. R. E Groomes & Co., JUNEKAl. rtVDEKTAKERS and dea'ersln first c!ass Me'allic Burial Cases ajd Gasket. Special attention given lo disinterring, removing snd shipping of bodies. All orders promptly attended, with the finest Hearses for both ailults and children. B. H. UKOOMES A GO , Nos. 4' snd 44 North c herTy Street, Jan6 Sm Nsshvlde, Tenn. OweHing lor Rent. THE BSSXTKNCS AT PRE-LXT OCCrPIW) by 'he Misses Barry, on North Summer street, between Church and Union, will be renteU for tbe ensuing year. a D. MORGAN, eot-tf No. 16 Morth Summer street,

Clipped from Nashville Union and American11 Feb 1871, SatPage 3

Nashville Union and American (Nashville, Tennessee)11 Feb 1871, SatPage 3
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  • DANIEL, HODGE, BLANTON land controversy Feb 1871

    jtswitzer64 – 25 Oct 2014

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