Marlin v. Merrill , 25 Tenn. App. 328 ( 1941 )

FELTS, J.

This is an action of replevin by Mrs. Marlin against Mrs. Merrill for possession of an automobile, which each of them claims as a gift from William F. Gardner, deceased brother of Mrs. Marlin. The court of general sessions adjudged that the car be restored to Mrs. Merrill and in default of which she recover $425 of Mrs. Marlin and the surety on her replevin bond. Mrs. Marlin appealed to the circuit court. That court, holding the case could be brought up only by certiorari, dismissed the appeal. The Supreme Court, holding an appeal the proper remedy, reversed and remanded the case. Marlin v. Merrill, 176 Tenn., 63, 138 S. W. (2d), 418.

On the remand Bracey-Welsh Company and Dr. Bate Dozier filed an intervening petition on behalf of themselves and all other creditors of William F. Gardner, deceased. This petition alleged that William F. Gardner died March 13, 1939, and Mrs. Marlin qualified as his administratrix; that the assets of the estate, as shown by her inventory, amounted to only $121, while the claims filed against the estate amounted to $615.15; that the estate was insolvent; and that the bills of sale under which Mrs. Marlin and Mrs. Merrill claimed the automobile were without consideration and were “null and void as a fraud on the creditors of W. F. Gardner, deceased. ’ ’ The prayer was “that said bills of sale to plaintiff, Mrs. J. D. Marlin, and to defendant, Mrs. Ella Merrill, as described above, be decreed null and void and set aside, and said automobile be declared a part of the estate of said W. F. Gardner. ’ ’

Mrs. Marlin, in her capacity as administratrix, was not made a party. Nor did she answer the petition in her individual capacity. Mrs. Merrill filed a plea that the court had no jurisdiction of the subject matter of the petition, since the “court cannot set aside a conveyance for fraud, mistake or duress.” She also demurred to the petition upon the grounds that it did not show that the insolvency of the estate had been suggested, and that the administratrix was not a party. She also filed an answer alleging that W. F. Gardner had given her the automobile, denying that Mrs. Marlin was ever the owner of it, and denying that the creditors had any right to take it from her.

The circuit judge overruled the plea and the demurrer. Hearing the ease, without a jury, upon the testimony of witnesses called by Mrs. Marlin and Mrs. Merrill, the court dismissed the petition, affirmed the judgment of the court of general sessions and rendered judgment that Mrs. Merrill recover $425 of Mrs. Marlin and the surety on her replevin bond, the judgment to be satisfied by the return of the property replevied. The costs were also adjudged against Mrs. Marlin and her surety.

Mrs. Marlin and the petitioning creditors appealed in error. She insists that the court should have upheld the gift to her and awarded her the ear. They insist that the court should have held that both gifts, being without consideration, were fraudulent and void as to creditors, and should have awarded them possession of the car, and directed that it be sold for the payment of the claims of themselves and the other creditors.

W. F. Gardner' had been employed for many years by the Bell Telephone Company at Louisville, Kentucky. Shortly before January, 1937, the company retired him on a pension. A short time before his retirement he and his wife separated in Louisville. He made a property settlement with her and she obtained a divorce and the custody of their daughter. The daughter is now 21 years of age. He came to Nashville in January, 1937, to live in the home with his only sister, Mi-s. Marlin. At this time he seems to have owed ho debts and to have had some money on hand.

On March 27, 1937, he went to Louisville, Kentucky, and bought the automobile here in question, a Ford sedan, paying cash therefor and having the seller execute a bill of sale reciting that the car was transferred to “Mrs. John D. Marlin, 309 Russell Street, Nashville, Tennessee.” He brought the car to Mrs. Marlin’s home. Her testimony is that he gave her the keys and insisted that she and her husband drive the car to see how well it ran and that they did drive it to Gallatin and back that night. On April 2, 1937, Gardner went to the court house in Nashville and had the car registered in the name of Mrs. Marlin. She had no garage at her home and Gardner rented a garage in the neighborhood, where the ear was kept. She kept one set of keys and he kept the other, both of them using the car. Her testimony is that when she did not want him to use the car (usually when he was drinking), she would make him give her his keys to the car. On March 16, 1938, he had the car registered in his own name; but Mrs. Marlin says this was done without her knowledge.

In the spring of 1938, Gardner began to drink to excess. On the night of June 12, 1938, he came home under the influence of drink, and Mrs. Marlin’s son “got after him for drinking and using bad language in the presence of his mother.” Gardner “got mad and left the house that night, ’ ’ taking the car with him. He went to board with a Mrs. Kirkpatrick for a short time. Later he bought a “restaurant on wheels,” located on Fourth Avenue, South, Nashville, and lived in a room on the back end of the restaurant. Mrs. Merrill worked for him at the restaurant during the daytime, using the car to go to her home on 'Woodland Street in the afternoons and to return to the restaurant in the mornings.

Mrs. Marlin did not hear from her brother from June 12, 193.8, until February 1, 1939, when she learned that he was sick at the Merchants Hotel on Broad Street. She went there to see him, found him seriously ill, called a doctor and had him removed to Dozier’s Hospital. Here he was operated on, but his condition was found to be such that the operation could do him no good and it was seen that he could live only a short while. Mrs. Marlin wrote Gardner’s daughter to come to see him. Mrs. Marlin says she saw Mrs. Merrill at the hospital and asked her “to send my car back home, as Mary Floyd (Gardner’s daughter) will want to use the car in going back and forth from the hospital to see her father.” Mrs. Merrill says that Mrs. Marlin asked her to send “her brother’s ear over to her home” for the daughter’s use.

However, the car was not sent. That day or the next day Gardner executed a bill of sale of the ear to Mrs. Merrill, which was witnessed by two nurses at the hospital, and which recited a consideration of $10 cash paid. But this was not paid, and Mrs. Merrill claims the ear as a gift. The date of this bill of sale was February 9, 1939. ■On the next day Mrs. Merrill had the license transferred to her. Mrs. Marlin did not learn of the gift of the car to Mrs. Merrill until after her brother’s death.

A few days after the operation upon Gardner, Mrs. Marlin, at his request, took him to her home and nursed him until his death on March 13, 1939.

Mrs. Marlin qualified as his administratrix. His estate consisted of $101 cash in bank and certain wearing apparel of no money value. The debts filed against the estate aggregate $615.15. The claim of Bracey-Wells Company for $392.87 was for the funeral expenses. The claim of Dr. Bate Dozier for $16, and the claim of D. S. Tatum for $25^ were for doctors’ bills and expenses incident to Gardner’s last illness. His former wife, Mrs. Aline G. Gardner, filed a claim for $175, which was for some telephone stock which he had sold for her about six months before his death and had never sent her the money. The other claim was that of the Gulf Refining Company for $6.28.

Replevin is a possessory action, and it is unnecessary to prove title. But plaintiff must prove his right of possession. Young v. Harris-Cortner Co., 152 Tenn., 34, 39, 268 S. W., 1120. If the right of the property or its possession is in defendant or in a stranger, plaintiff will be defeated. Lieberman, Loveman & O’Brien v. Clark, 114 Tenn., 117, 126, 127, 85 S. W., 258, 69 L. R. A., 732; Robb v. Cherry, 98 Tenn., 72, 76, 38 S. W., 412. As stated, Mrs. Marlin asserted no right to the ear as administratrix. The only right asserted by her to support her action to recover possession of the car was that her brother had made a valid gift of it to her. The burden was on her to establish such a gift. If the evidence failed to establish the gift, the judgment against her was correct, irrespective of whether Mrs. Merrill or the petitioners were entitled to possession of the car.

To constitute a valid gift the evidence must show not only an intention on the part of the donor to make the gift but also a delivery by him of the subject of the gift to the donee. There is no delivery unless dominion and control of the subject of the gift, to the fullest extent consistent with its nature, is renounced and relinquished by the donor and acquired by the donee. Williams v. Thornton, 160 Tenn., 229, 232, 22 S. W. (2d) 1041; Chandler v. Roddy, 163 Tenn., 338, 350, 43 S. W. (2d), 397; Dietzen v. American Trust & Banking Co., 175 Tenn.,-49, 54, 131 S. W. (2d), 69, 71; Dodson v. Matthews, 22 Tenn. App., 49, 54, 117 S. W. (2d), 969, 972.

We think the evidence fails to sustain a valid gift of the ear to Mrs. Marlin. Gardner’s taking the bill of sale in her name and registering the ear in her name, and the other circumstances shown are insufficient to establish delivery of the car to her. They both used the ear. He kept one set of the keys himself. On March 16, 1938, he had the car registered in his own name. On June 12, 1938, when he left Mrs. Marlin’s home, he took the car with Mm and kept it continuously thereafter. These circumstances negative the idea that he ever completely surrendered to her his dominion and control of the car so as to effect a valid gift. It is true Mrs. Marlin testified that she would make him give her his keys when she did not want him to use the car, and Mrs. Kirkpatrick testified that she had heard him say it belonged to Mrs. Marlin; but their testimony is insufficient to establish a completed gift, especially in view of these circumstances showing his retention of control and dominion of the car. Atchley v. Rimmer, 148 Tenn., 303, 312, 255 S. W., 366, 30 A. L. R., 1481; Chandler v. Roddy, supra.

Petitioners insist that the gift of the car to Mrs. Merrill was void as to them; that it was wholly without consideration and was a transfer or conveyance which rendered the donor insolvent and was fraudulent and void as to creditors of the donor. Code, sees. 7271-7280. Petitioners could have maintained a bill in equity to set aside the gift. Code, sec. 10358; Armstrong v. Croft, 71 Tenn. (3 Lea), 191; Pitt, Adm’r, v. Poole, 91 Tenn., 70, 17 S. W., 802. But can they maintain their intervening petition in this action to recover possession of the car?

Under Code, sec. 7279, and at common law a creditor whose claim is matured has either of two remedies to reach property fraudulently conveyed by his debtor. He may file a bill in equity and have the conveyance set aside; or he may reject the aid of equity, disregard the conveyance, levy execution or attachment at law on the property in the hands of the conveyee, as though no conveyance had been made. Baker et al. v. Penecost et al., 171 Tenn., 529, 534, 106 S. W. (2d), 220, 222. But this does not mean that a creditor who has no judgment, no execution and no attachment of the property can maintain an action of replevin against such a conveyee to recover possession of the property. Such a creditor, if there had been no conveyance by his debtor, could not take the property of his debtor in an action of replevin. The mere fact that one has a debt against another does not give him any right to the other’s property. He can take such property only by an execution based upon a judgment or by an attachment upon a showing of some one of the grounds authorizing issuance of an attachment.

But petitioners are not judgment creditors and have no execution; nor have they proceeded by attachment. If their petition may be sustained, it can only be as a bill to set aside a fraudulent conveyance. This seems to have been the theory upon which the petition was filed and this was the relief prayed. However, it is clear that in this case the circuit court had no jurisdiction to grant this relief. The only jurisdiction which the circuit court had in this case was appellate and not original; that is, only such jurisdiction as the court of general sessions had. New York Cas. Co. v. Lawson, 160 Tenn., 329, 339, 340, 24 S. W. (2d), 881, and cases there cited. The court of general sessions has only the jurisdiction of a justice of the peace. Sec. 2, Ch. 12, Private Acts of 1937. A justice of the peace has no jurisdiction to entertain a bill in equity to set aside a fraudulent conveyance. The chancery court has exclusive jurisdiction of such a bill. Code, secs. 10349-10363; Gibson’s Suits in Chancery (4 Ed.), see. 30, subsec. 2.

For these reasons, the judgment of the circuit court must be affirmed. Judgment will here be entered that defendant, Mrs. Merrill, recover $425 of Mrs. Marlin and the surety on her replevin bond, the judgment to be satisfied by the return of the automobile to Mrs. Merrill. The costs below will remain as adjudged by the circuit court. The .costs of the appeal in error are adjudged one-half against Mrs. Marlin and her surety and the other one-half against the petitioning creditors.

Crownover, P. J., and Howell, J., concur.