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machinery. The removal of two sheets from the
side of the building would not materially im-
pair it, as they could be replaced at a trifling
cost. The lessee made rents and royalties a
lien on the leasehold, fixtures, and improve-
ments, and the lessor retained a lien on future
acquired property brought on the premises.
Held, that if the machinery was a fixture, it
was a "trade fixture," so that the seller's right
to take possession of and remove the machinery

was superior to that of the lessor.
2. LANDLORD AND TENANT 246(5) — LAND-
LORD'S LIEN SUBSEQUENTLY ACQUIRED
PROPERTY.

A clause, retaining a lien on future acquired property brought on the premises, was good as between the lessor and lessee, regardless of whether the property became a fixture.

Appeal from Chancery Court, Claiborne County; Hugh G. Kyle, Chancellor.

Suit by F. D. Hart, Jr., and others against the Appalachian Washed Coal Company and others. The decree of the chancellor was reversed by the Court of Civil Appeals upon appeal of the Goodman Manufacturing Company, intervener, and plaintiffs appeal. Af

firmed.

Montgomery & Montgomery, of Tazewell, for American Ass'n. J. H. S. Morison, of Cumberland Gap, for General Creditors. John M. Thornburgh, of Knoxville, and N. R. Patterson, of Pineville, Ky., for Goodman Mfg. Co.

NEIL, C. J. The question for disposition arises on the intervening petition of Goodman Manufacturing Company in a general creditors' proceeding filed in the chancery court of Claiborne county. The facts necessary to raise the points of law to be determined are these:

On the 1st day of May, 1907, the American Association, Incorporated, leased to the Nichoison Coal Company a coal mine in Claiborne county. Section 5 of the lease reads:

"The lessee further covenants and agrees that all rents and royalties herein agreed to be paid shall be deemed and considered as created for the rent of land, and shall be a lien on this leasehold and the fixtures and improvements thereon, and on the personal property of the lessee, and on the coal mined from and coke made on said premises for twelve months after said rents and royalties fall due, and until the termination of any suit commenced within that time for said rents and royalties."

Section 22:

covenants and agrees that the lessor shall have the right and preference to purchase, at an appraisal of fair market value, all or any of the machinery and other personal property of the lessee above allowed to be removed, should the lessor desire to do so at the expiration or sooner termination of this lease in lieu of allowing removal."

years after the execution of the lease, the On the 23d of January, 1911, nearly four Goodman Manufacturing Company sold to Nicholson Coal Company, which was the predecessor in title and interest of the Appalachian Washed Coal Company, the machinery involved in the present litigation, consisting of one 16x16 McEwen center crank en

gine and one 100 K. W. Thompson Ryan Generator, for which the coal company balance due, the amount of which is not conagreed to pay $4,419.34, and there is still a tested. At the time the machinery was furnished, there was a contract in writing retaining title until the debt should be paid. The machinery was placed on the leased premises in a sheet iron building, and on a concrete foundation constructed therein, to which it was bolted by nine bolts. It was not embedded in the concrete, but the bolts were so embedded, and they were run through prepared holes, and the machinery was then confined to the bolts by nuts. The evidence shows that it can be removed from the building at an expense of not more than $5; it being necessary only to unscrew the nuts, detach the machinery from the bolts, and remove two sections of the sheet iron wall or siding, the door of the building being too small to pass the machinery. The removal of the two sheets from the side of the building would not materially impair it, as they could be replaced at a trifling cost.

The Goodman Manufacturing Company filed its intervening petition alleging the maturity of the purchase-money debt and the failure to pay, and sought the chancellor's permission to take possession of the machinery and remove it. The lessor filed an answer relying on the lease contract, and claiming its lien by virtue thereof, as prior and superior to the claims of the Goodman Manufacturing Company. The general creditors also filed an answer contesting the right of removal. The evidence shows that at the time these proceedings were begun there was "The lessee further covenants and agrees at a balance of more than $3,000 due the lessor the expiration of this lease to leave and sur- for unpaid royalties. Pending this litigation render to the lessor the premises herein demised, the royalties have increased so that they with the improvements, fixtures, buildings and now reach a total of about $14,000. In no dwellings thereon, and with all of the mines, en- event can there be realized out of the proptries, openings, tramways, inclines, chutes, tracks, rails, and appurtenances inside and out- erty here involved anything for the general side of the mines in good working order and creditors; so the question rests wholly becondition (but on such termination the working tween the lessor and the Goodman Manutools and instruments used in mining, machinery, engines, boilers, pumps, ropes, and weigh- facturing Company. The chancellor decided ing scales and other personal property placed in favor of the lessor's contention, and thereupon said premises by the lessee shall be and re- upon the Goodman Manufacturing Company main the property of lessee, and may be removed by the lessee in case all rents and royal- appealed to the Court of Civil Appeals. ties be paid and agreements of this lease fully That court reversed the chancellor. complied with): Provided, however, the lessee case is now before us for determination. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The

based on a line of cases which appear to us to rest largely on technical grounds. The later cases in that jurisdiction seem to confess that the state of the law there is not satisfactory on this subject, but recognize that only legislation can change it.

We are of opinion there is no error in the decree of the Court of Civil Appeals, and it is therefore affirmed.

HAMMOCK v. QUALLS. (Supreme Court of Tennessee. Feb. 23, 1918.) 1. JUSTICES OF THE PEACE 135(3)—EXECUTIONS-LIENS.

[1, 2] The question has been much debated | It does not need extended reasoning to prove as to whether the machinery constituted a that the American rule is fundamentally fixture, and, if so, whether it could be law-sound and just. The English rule seems fully removed. On this subject it is sufficient to say that if a fixture at all, it was a trade fixture, and hence, as between lessor and lessee, nothing else appearing, removable by the latter; the rule being very liberal towards the lessee's right of removal when it does not appear that such action is contrary to any prevailing usage or that it would cause any material injury to the estate, and it appearing that the machinery can be detached without losing its essential character or value as a personal chattel. Cubbins v. Ayres, 4 Lea (72 Tenn.) 329; McDavid v. Wood, 5 Heisk. (52 Tenn.) 95, 96; Saunders v. Stallings, Id. 65, 72. The real question arises on the provision in the lease retaining a lien on all of the personal property that might be subsequently placed on the leased land. The clause forbidding removal of the machinery prior to the payment of the royalties was not intended to confer title on the lessor, but only as a means of securing the enforcement of the lien. The clause retaining a lien on future acquired property brought on the premises was good as between the lessor and lessee, whether becoming fixtures or not. As to whether things attached to the land should be held fixtures would be largely a question of intention. Cubbins v. Ayres, supra; McClung v. Carriage & Wagon Co., 117 Tenn. 250, 96 S. W. 960. But, whatever the intention of the lessor and lessee, it would not bind the interests of a third party selling personal property to the lessee retaining title.

The

The levy of an execution from a justice's judgment upon land creates a lien in favor of the judgment creditor.

2. EXECUTION 266-LIENS-DATE.
If the levy of an execution from a justice's
judgment is followed by condemnation and issue
of venditioni exponas by the circuit court, the
sale had in pursuance thereof relates back to
the date of the levy, and the legal title conveyed
by the sheriff's deed operates from that date.
3. EXECUTION 145 REAL ESTATE-EFFECT
OF LEVY.

The levy of an execution upon real estate does not transfer the title to the land, nor create lien upon the land for the payment of the debt. any interest in the sheriff, but merely fixes a 4. EXECUTION 108-LIS PENDENS-EFFECT.

While the record of the condemnation in the circuit court after levy of execution on a sheriff's sale, the order of condemnation is not justice's judgment is constructive notice of the a judgment establishing a lien, but only a mode of executing the levy.

5. EXECUTION 108-LIS PENDENS-EFFECT.
The record of condemnation in the circuit
court after levy of execution under a justice's
judgment merely continues the lien of the levy to
which the purchaser's title will relate when he
procures a deed from the sheriff.
6. EXECUTION 108-LIS PENDENS-EFFECT.
to enforce with diligence the collection of a
The only proper use of an execution being
debt, the creditor cannot use it merely as secu-
rity for his debt by a levy on the property which
creates merely a secret lien.

7. VENDOR AND PURCHASER 231(11)-PRI-
ORITY OF DEEDS-LIS PENDENS.

In all cases subject to the registration laws, the deed first registered has priority over con structive notice of lis pendens.

8. LIENS 15-SECRET LIENS.

The principles that governed in the case of Union Bank v. Wolf, 114 Tenn. 255, 86 S. W. 310, 108 Am. St. Rep. 903, 4 Ann. Cas. 1070, would not control here. The claimant against the right there asserted in behalf of the conditional vendor was a subsequent mortgagee who was held to be an innocent purchaser, and also protected by the policy of our registration laws. question presented in the case now before us was reserved in that case. 114 Tenn. 270, 86 S. W. 310, 108 Am. St. Rep. 903, 4 Ann. Cas. 1070. Here the lessor, at best, can stand only in the position of a prior mortgagee or lienee, asserting a lien on subsequently acquired property of the mortgagor, or lienor. He could claim only such rights Reasonable diligence is required of the puras his lessee acquired in the subsequently chaser at an execution sale in perfecting his title, which should be recorded. placed property, which, in the present case, 10. VENDOR AND PURCHASER 239(3) was but an equity, unless, indeed, it should RIGHTS OF PURCHASER-REASONABLE DILIappear that the removal of the machinery GENCE. from its attachment to the land would indeed, unexplained, should defeat the title of the Ordinary negligence in procuring a sheriff's jure the latter; but this does not appear. execution purchaser as against one who buys in The English authorities take a contrary good faith and without notice of the title claimview. But the American authorities over-ed by the execution purchaser. whelmingly sustain the rule which we have 11. EXECUTION 307–Rights of PurchasER-REASONABLE DILIGENCE. just announced. 1 British Ruling Cases, pp. No positive rule can be stated as to what 678-686, note. The cases are there collected. constitutes such delay of an execution sale pur

Secret liens are not favorites of the law. 9. EXECUTION 315-RIGHTS OF PURCHASER -REASONABLE DILIGENCE.

chaser in getting a sheriff's deed as will destroy the right to lis pendens, but one relying upon the rule must understand that his claim is strictissimi juris.

12. EXECUTION 146(1)—VENDOR AND PURCHASER 239(3)-RIGHTS OF PURCHASERREASONABLE DILIGENCE.

Where the purchaser at a sale under condemnation by the circuit court after levy of a justice's judgment delayed getting a sheriff's deed for over eight years, his delay was a gross negligence, amounting to an abandonment of his lien, and a subsequent purchaser without notice, who recorded his deed, had superior title, though the purchaser finally took a deed; such deed not relating back to the levy.

Certiorari to Court of Civil Appeals. Bill by E. M. Hammock against A. B. Qualls. To review judgment of the Court of Civil Appeals reversing the decree of the chancellor sitting as a jury, in favor of defendant, defendant petitions for certiorari. Writ granted, decree of Court of Civil Appeals reversed, and decree of chancellor affirmed.

E. C. Knight, of Livingston, for Hammock. W. R. Officer and E. A. Qualls, both of Livingston, for Qualls.

LANSDEN, J. This case is before us upon petition for writs of certiorari to the judgment of the Court of Civil Appeals reversing the decree of the chancellor. The bill is filed by Hammock for the purpose of having a claim of Qualls to an undivided one-fifth interest in a certain tract of land in Overton county removed as a cloud upon his title. The common source of title is one Bilbrey, who held by descent from his father. After the death of Bilbrey's father, complainant Hammock sued Bilbrey before a justice of the peace, and recovered a judgment. An execution issued thereon July 11, 1908. An order of condemnation and sale were had upon the justice's proceedings in the circuit court of Overton county November 3, 1908, and deed of the sheriff pursuant thereto October 17, 1916. After the sale, and before the execution of the deed by the sheriff, defendant purchased the same land from Bilbrey by deed dated November 1, 1915, which was registered in Overton county on the same day. The defendant interposed as defenses to complainant's action that he purchased the land without notice of complainant's purchase at the sheriff's sale, or his levy lien, and the inexcusable and unexplained delay upon the part of complainant in taking his deed from the sheriff.

The case was heard by the chancellor sitting as a jury, who found that the defendant purchased from Bilbrey without notice in fact of the proceedings under which complainant There is evidence to support this

claims. finding.

up by a return of the papers into the circuit court and a condemnation of the land, and venditioni exponas is issued by order of the circuit court, the sale, had in pursuance thereof, will relate back to the date of the levy so as to make the legal title conveyed by the sheriff's deed operate as of the date of the levy lien. Parker v. Swan, 1 Humph. 83, 34 Am. Dec. 619; Zook v. Smith, supra; Keaton v. Thomasson, 2 Swan, 139, 58 Am. Dec. 55.

[3] The levy of an execution upon real estate does not transfer the title to the land nor create any interest thereto in the sheriff. It merely fixes a lien upon the land for the payment of the debt. Keaton v. Thomasson, supra.

[4] The Court of Civil Appeals was of opinion that the record of the condemnation in the circuit court was constructive notice to the defendant of the sheriff's sale, and of complainant's equity in the land by virtue of a lis pendens growing out of the condemnation proceedings. This is correct as a general proposition of law, but the order of condemnation is not a judgment, but only a mode of executing the levy. Mann v. Roberts, 11 Lea, 59; Ashworth v. Demier, 1 Baxt. 323; Zook v. Smith, supra.

[5] In Mann v. Roberts, supra, it is stated that the record of condemnation "is not notice to third persons, nor would it be if a judgment; the notice implied from a pending litigation ceasing with its determination." It merely continues the lien of the levy to which title of the purchaser at the sale will relate when he procures a deed from the sheriff.

said the court in Mann v. Roberts, supra, “is [6] "The only proper use of an execution," to enforce the collection of a debt, and to enforce it, so far as the rights of third persons are concerned, with reasonable diligence. The creditor cannot use it merely as a security for his debt by a levy on property, for the lien thus created is a secret lien, and may operate to the prejudice of innocent third persons if the debtor be left in possession of the property." This we conceive to be an accurate statement of the nature and purpose of an execution upon a justice's judgment when levied upon real estate. Our registration statutes have been enacted for the purnotice to a prospective purchaser of the manpose of preserving titles to land and giving ner in which they are held. Our Code, at section 3751 (Shannon) expressly provides as fol

lows:

"Any of said instruments first registered or noted for registration shall have preference over one of earlier date, but noted for registration afterwards, unless it is proved in a court of equity, according to the rules of said court, that the party claiming under the subsequent instrument had full notice of the previous instrument." Wilkins v. McCorkle, 112 Tenn. 688, 80 S. W. 834.

[1, 2] The levy of an execution from a justice's judgment upon land creates a lien in [7] In all cases to which our registration favor of the judgment creditor. Zook v. laws have application, the deed first regisSmith, 6 Baxt. 213. If the levy is followed tered must be given priority over the con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

structive notice of lis pendens. The doc-stroy the right to lis pendens, and the questrine of notice by lis pendens by which a tion must be determined upon the facts of bona fide purchaser without notice is held each particular case. Robinson v. Bierce, bound by the result of a suit as though he 102 Tenn. 428, 52 S. W. 992, 47 L. R. A. 275, had notice is held, in Mann v. Roberts, su- 17 R. C. L. 1038. The cases generally hold pra, to be one of public policy, and neces- that the rule of lis pendens is a harsh and sary to bring litigation to an end. In Shel- oppressive one when given operation against ton v. Johnson, 4 Sneed, 680, 70 Am. Dec. a bona fide purchaser without notice. One 265, it was thought the doctrine should be relying upon the rule must understand that placed upon the ground of notice, either ac- his claim is strictissimi juris. 25 Cyc. 1452, tual or constructive, but it was also said 17 R. C. L. 1038, 1039. that the rule is founded more upon the necessity for it to give effect to the proceedings of courts than upon any presumption of notice. All of the authorities agree that the rule is necessary, and that without it all suits for specific property might be rendered abortive by successive alienations of the property in suit. Authorities infra.

[12] In the case under consideration the complainant waited for more than eight years before procuring a deed from the sheriff. Everything that was to be done in the condemnation proceedings, or in the suit before the justice, had been done, and more than likely the book containing the record of the condemnation had long since been re[8-10] As shown heretofore by our cases, tired in the clerk's office. While it is true the condemnation proceedings is not a judg-under our cases that the defendant had conment, nor does it fix a lien, but it is intend-structive notice of the condemnation proed merely to continue the lien fixed by the levy of the execution upon the land, which until condemnation is a secret one. Secret liens are not favored, and it was designed by the Legislature, in passing our condemnation statutes, to preserve of record proceedings had before justices of the peace by which the lien of the levy of the execution was obtained. The date between final order of sale, the sale and the return thereof, and the execution of a deed by the sheriff, does not create a hiatus in the operation of the lis pendens of the condemnation proceeding. The lis pendens is operative for a reasonable time after sale until deed of the sheriff is obtained, and purchasers in good faith without notice are bound to take notice of the levy lien so recorded. But reasonable diligence is required of the purchaser at the execution sale in perfecting his title, which should be recorded. In Mann v. Roberts, supra, the opinion was expressed that the lien will not "perhaps" be impaired by ordinary negligence, and will only be lost by unusual and unreasonable delay. In so far as this refers to delay which may be explained, we assent to it, but we think that ordinary negligence in procuring a sheriff's deed, unexplained, should defeat the title of the execution purchaser as against one who buys in good faith and without notice of the title claimed by the execution purchaser.

[11] No positive rule can be laid down as to what constitutes such delay as will de

ceedings, the conduct of the complainant toward the lien procured by the levy of his execution was such as warranted the defendant in assuming in law that the complainant had abandoned his lien, and did not intend to take a deed from the sheriff. This delay, unexplained as it is, is gross negligence upon the part of complainant, and amounts to an abandonment of his lien. This being so, the deed which he finally took from the sheriff could not be said to have relation to the lien because it was abandoned. It should be borne in mind that the lien was secret until condemnation proceedings were had, and it never conferred any title upon complainant, but merely gave him the right to proceed according to law, and ripen his lien into a title. In order to do this, so as to overreach the rights of subsequent purchasers without notice who have registered their deeds, the levy lienor must follow up his execution with reasonable diligence and ripen his lien into a title. The law gives a creditor such relief against his debtor, but it was not intended that such a proceeding could be suspended for an unreasonable length of time and then affect the rights of innocent third parties. Such we think is the holding of our cases as well as those of other jurisdictions.

The result is that the writ is granted, and the decree of the Court of Civil Appeals is reversed, and that of the chancellor is affirmed.

KILGROW et ux. v. WEST et al.
(Supreme Court of Tennessee. Feb. 12, 1918.)
INJUNCTION 28-ACTS OF JUVENILE COURT
OFFICERS.

A court of equity has no jurisdiction to restrain officers of a juvenile court established under Acts 1911, c. 58, from carrying out a threat to make a child a ward of the court, whether the proceeding is civil, criminal, or semicriminal, because the juvenile court is one of record, and no property rights are involved, and if the juvenile court will not do justice, there is a remedy by appeal.

Certiorari to Court of Civil Appeals. Bill by Robert Kilgrow and wife to restrain Mary B. West and others as officers and agents of the juvenile court of the city of Memphis from carrying out threats to take from complainants their child and detain her as a ward of the court. From a decree of the Court of Civil Appeals, reversing a decree of the chancellor, dismissing the bill, defendants bring certiorari. Decree of the Court of Civil Appeals reversed, and that of the chancellor affirmed.

L. H. Graves, of Memphis, for complainants. Julian G. Strauss, of New York City, for defendants.

and informed complainants that they (the defendants) did not like the location of complainants' home, and notified them that unless they immediately removed their place of abode that they would take from them their daughter, and keep her as a ward of the court. This action was threatened, notwithstanding the location of the home was proper, and that the juvenile court had no complaint to make as to either the dependency or delinquency of the child.

Complainant, Adeline Kilgrow fearing that the juvenile court would carry out its threats and yielding to the fears of her little daughter, rented a room about a block away from their home, and dwelt there alone with her child while complainant, Robert Kilgrow, remained at the home on Nettleton street alone to safeguard the property. This mode of living being unbearable and desiring to return to her home and her husband, and fearing that if she did the juvenile court would carry out its threats, complainant sought to enjoin the defendants from compelling them to move and from taking away from them their child.

We are of opinion that the chancellor held and enforced the correct view, and that the decree of the Court of Civil Appeals to the contrary is erroneous.

WILLIAMS, J. The bill of complaint was filed by Kilgrow and wife seeking to The defendants are proceeded against as restrain the officers and agents of the juve-officers of the juvenile court, which was es nile court of the city of Memphis from carry-tablished by and is operating under the proing out certain threats claimed to have been made by said officials to take from complainants their 13 year old daughter and detain her as a ward of that court, unless complainants should move from their residence, the location of which was declared to be undesirable by the defendant officials.

The defendants interposed a motion to dismiss the bill, assigning as grounds the lack of jurisdiction in the chancery court to entertain it. The chancellor was of opinion that he was without jurisdiction, and sustained defendants' motion and dismissed the bill, from which action there was an appeal to the Court of Civil Appeals where the decree of the chancellor was reversed and the injunction decreed to issue.

visions of Acts 1911, c. 58. That court is one of record and its officers will not be interfered with by a court of equity by means of injunctive process sued out for the purpose of controlling their actions, where it appears, as in the present case, that no property rights are involved or directly affected. Hawkins v. Kercheval, 10 Lea (78 Tenn.) 535, 540, and authorities cited; Delaney v. Flood, 183 N. Y. 323, 76 N. E. 209, 2 L. R. A. (N. S.) 678, 111 Am. St. Rep. 759, 5 Ann. Cas. 480.

In substance the chancery court was asked to stay the hands of the juvenile court, and to determine the illegality of the action sought to be taken by officers of the latter tribunal. We think that on the face of the bill of complaint the illegality of the steps threatened may be assumed; that it is, is not even controverted by the defendants. Their insistence is that the jurisdiction to so determine and declare is with the juvenile court, and not the chancery court.

The allegations of the bill, in substance, are as follows: Robert Kilgrow and his wife, Adeline Kilgrow, elderly persons, have resided in Memphis for about 50 years, living at the date the suit was brought with their daughter, Ruth, at No. 22 Nettleton street. The Court of Civil Appeals made the quesThey have lived there continuously for more tion of jurisdiction of the chancery court to than 5 years, renting the property from the turn upon the point that such a proceeding Illinois Central Railroad Company, from in the juvenile court is (as it conceives) civil whom they have leased the premises for life and not criminal in nature. Regardless of at a small monthly rental. The location of the nature of such a proceeding, whether it their home is in a respectable neighborhood, be purely civil, or semicriminal in certain asfar removed from anything evil or immoral. pects, we think the governing principle is, There they lived contented until about 4 that the province of equity is not to usurp weeks prior to the filing of the bill, when a the functions of a court of law in such a juvenile court officer appeared at their home case. The illegality of the course sought to

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