Williams v. Palmer , 61 Tenn. 488 ( 1873 )

McFarlANH, J.,

delivered the opinion of the Court.

Upon the death of Blount Jordan, and the death of one of his children, unmarried and without issue, his three remaining children became entitled to his lands in Butherford county. Thomas M., one of his heirs, conveyed his interest in the estate to Alexander Winn. Said Winn and John M. Jordan, and Eliza J., the wife of John C. Bostick, the two latter being the other two children of Blount Jordan, were then the owners of the land. The widow of said Blount Jordan, Laura C., who married' James Hamilton, was entitled to dower. A proceeding was instituted in tbe Chancery Court for the sale of the lands. John M. Jordan was a minor, and the petition was answered by his regular guardian, ‘Williamson Jordan. The petition charged that it would be to the interest of all parties to sell the land as a •whole, and pay the widow a fixed sum in lieu of dower. A decree was pronounced for the assignment of dower, and assuming from the proof that after the assignment of dower the land could not be partitioned without injury, directs a sale. The dower was not assigned for the „ reason, as it seems, that Alexander Winn, Williamson Jordan and John C. Bostick, purchased from Mrs. Hamilton her dower interest, giving their notes for $1,000 for the same. , The land, however, was sold. One part was purchased by J. P. Miller, the other part by Alexander Winn. Their notes, with security, were given in accordance with the terms of sale, and the sale was confirmed, but the title not then vested. It is now conceded that Alexander, in making his purchase, did so for the joint benefit of himself, Williamson Jordan and John C. Bostick. Soon after their purchase they resold the land bought by them in two parcels, making a large profit. On this re-sale they received $1,100, but the remainder óf the notes given by their sub-vendees remained unpaid for some time, and the proceeds were brought under the control of the Court in the present case, the attorney who had collected the money being made a party. The note given by Winn, Bostick and Williamson Jordan, for the purchase of the dower, was paid out of this fund, but the notes given by Winn upon the purchase of the land remained unpaid. Williamson Jordan, Winn and Bostick all died, the latter having been declared a bankrupt before his death. In this attitude, and while the first cause still remained in Court, the present bill is filed by the administrator of Williamson Jordan to settle the rights of the parties to the fund. The personal representatives of Winn and Bostick, and the assignee in bankruptcy of the latter, are made defendants, as well as John M. Jordan and Eliza J. Bostick. Erom the decree of the Chancellor, settling the rights of the parties, the complainant, the administrator of Williamson Jordan, alone has appealed. That part of the decree which affects his rights is to the effect that at the time Williamson Jordan purchased a part of the lands, he was the guardian of John M. Jordan; he had, with others, instituted the proceeding for the sale of the land; he used no funds of his own in making the purchase; that he could not make a profit while it was his duty to protect the interest of his ward; and, therefore, John M. Jordan had the election to take the benefit of the purchase made by his guardian, and that he is entitled, in receiving his share of the proceeds of the land, to have the benefit of all profit made by Williamson Jordan upon the re-sale, crediting him with any sum paid for the purchase of the land.

We think this proposition is manifestly correct, in fact, we have been furnished with no argument by the learned counsel of the complainant against the correctness of this conclusion. It would be a startling doctrine to announce that under sucb circumstances the guardian could purchase for his own benefit. See Story’s Equity Jur., Section 322.

It is argued, however, that the Chancellor erred in decreeing to' Mrs. Bostick one-third of the fund arising from the sale. It is argued that the confirmation of the sale converted the land into personalty, and although the money was not reduced into possession by John C. Bostick, still his rights attached, if not to the whole fund, at least to that part constituting the profit upon the re-sale, as it is maintained the relation of husband •to Mrs. Bostick did not prevent him from purchasing for his own interest.

We express no opinion upon these questions, for the reason that we do not regard them as before us. Neither the assignee in bankruptcy, or the personal representative of Bostick, have appealed. If Mrs. Bos-tick is not entitled to the fund, then it must belong either to the assignee or administrator. If they are content with the decree it must stand. It being a case involving wholly separate and distinct rights between different parties, depending upon different questions, it is not a case - where the appeal of one party brings up all matters involved in the case. If the parties interested in the decree upon this question are content, it can not be disturbed at the instance of one having no interest. But it is argued that the complainant has an interest in the share of Bostick as an attaching creditor. The ground of this is as follows: “The bill in this case, after setting forth the facts, uses this language: “If this view of tbe question be tbe correct one, tben -tbe said A. W. Moss, as assignee in bankruptcy, is tbe owner of said John C. Bostick’s part of tbe proceeds of tbe sale, and certainly bis part of tbe profits, unless indeed tbe same should be, as your orator believes and charges tbe same are, bound by tbe lien of an attachment or attachments from tbe Chancery Courts at Franklin, in tbe, case of your orator, as administrator of Williamson Jordan against Narcissa J. Winn, et ais., etc.

This is the - only allusion to tbe subject, except, as part of tbe prayer, be asks that bis rights against Bos-tick’s share be declared and enforced. Tbe answers take no notice of this allegation, and tbe record of tbe cases referred to are not read as evidence ' upon the hearing, nor was there any evidence or notice taken of this statement. We think it very clear that upon this record we can make no adjudication in regard to tbe attachment proceeding thus incidentally referred to. The complainants claim, its nature, justness, or amount is not put in issue, there is no attachment in the present case, and surely we can not determine tbe validity or effect of tbe attachment in tbe case referred to. We are fully satisfied that we can make no decree on this question. As to tbe state, therefore, of tbe fund claimed to have belonged to • John C. Bostick, we bold that* tbe complainant has no interest, and tbe question is not brought up by bis appeal.. John M. Jordan is not entitled in this case to a decree against complainant, as administrator of bis guardian, for bis share of tbe $1,100, collected by him in bis lifetime. He filed no cross bill asking this relief. He will have to pursue another remedy as to this.

No other question being made, the decree of the Chancellor will be affirmed, with costs.