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machinery. The removal of two sheets from the covenants and agrees that the lessor shall have side of the building would not materially im- the right and preference to purchase, at an pair it, as they could be replaced at a trifling appraisal of fair market value, all or any of the cost. The lessee made rents and royalties a machinery and other personal property of the lien on the leasehold, fixtures, and improve- lessee above allowed to be removed, should the ments, and the lessor retained a lien on future lessor desire to do so at the expiration or soonacquired property brought on the premises. er termination of this lease in lieu of allowing Held, that if the machinery was a fixture, it removal.” was a “trade fixture," so that the seller's right to take possession of and remove the machinery years after the execution of the lease, the

On the 23d of January, 1911, nearly four was superior to that of the lessor. 2. LANDLORD AND TENANT Om 246(5) — LAND- Goodman Manufacturing Company sold to

LORD'S LIEN SUBSEQUENTLY ACQUIRED Nicholson Coal Company, which was the pred-
A clause, retaining a lien on future acquired chian Washed Coal Company, the machinery

ecessor in title and interest of the Appalaproperty brought on the premises, was good as between the lessor and lessee, 'regardless of involved in the present litigation, consistwhether the property became a fixture.

ing of one 16x16 McEwen center crank enAppeal from Chancery Court, Claiborne gine and one 100 K. W. Thompson Ryan

Generator, for which the coal company County; Hugh G. Kyle, Chancellor. Suit by F. D. Hart, Jr., and others against balance due, the amount of which is not con

agreed to pay $4,419.34, and there is still a the Appalachian Washed Coal Company and tested. At the time the machinery was furothers. The decree of the chancellor was re- nished, there was a contract in writing reversed by the Court of Civil Appeals upon taining title until the debt should be paid. appeal of the Goodman Manufacturing Com- The machinery was placed on the leased pany, intervener, and plaintiffs appeal. Af- premises in a sheet iron building, and on a firmed.

concrete foundation constructed therein, to Montgomery & Montgomery, of Tazewell, which it was bolted by nine bolts. It was for American Ass'n. J. H. S. Morison, of not embedded in the concrete, but the bolts Cumberland Gap, for General Creditors. were so embedded, and they were run John M. Thornburgh, of Knoxville, and N. R. through prepared holes, and the machinery Patterson, of Pineville, Ky., for Goodman was then confined to the bolts by nuts. The Mfg. Co.

evidence shows that it can be removed from

the building at an expense of not more than NEIL, C. J. The question for disposition $5; it being necessary only to unscrew the arises on the intervening petition of Good-nuts, detach the machinery from the bolts, man Manufacturing Company in a general and remove two sections of the sheet iron creditors' proceeding filed in the chancery wall or siding, the door of the building becourt of Claiborne county. The facts neces- ing too small to pass the machinery. The sary to raise the points of law to be deter- removal of the two sheets from the side of mined are these:

the building would not materially impair it, On the 1st day of May, 1907, the American as they could be replaced at a trifling cost. Association, Incorporated, leased to the Nich The Goodman Manufacturing Company filoison Coal Company a coal mine in Claiborne ed its intervening petition alleging the macounty. Section 5 of the lease reads:

turity of the purchase-money debt and the “The lessee further covenants and agrees

failure to pay, and sought the chancellor's that all rents and royalties herein agreed to be permission to take possession of the machinpaid shall be deemed and considered as created ery and remove it. The lessor filed an anfor the rent of land, and shall be a lien on this leasehold and the fixtures and improvements

swer relying on the lease contract, and thereon, and on the personal property of the claiming its lien by virtue thereof, as prior lessee, and on the coal mined from and coke and superior to the claims of the Goodman made on said premises for twelve months after Manufacturing Company. The general credisaid rents and royalties fall due, and until the tors also filed an answer contesting the right termination of any suit commenced within that time for said rents and royalties."

of removal. The evidence shows that at the Section 22:

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, entries, openings, tramways, inclines, chutes, event can there be realized out of the proptracks, 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, machin

The chancellor decided ery, engines, boilers, pumps, ropes, and weigh- facturing Company. 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. The complied with): Provided, however, the lesseel case is now before us for determination.

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[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 suffi- based on a line of cases which appear to us cient to say that if a fixture at all, it was to rest largely on technical grounds. The a trade fixture, and hence, as between lessor later cases in that jurisdiction seem to conand lessee, nothing else appearing, remov- fess that the state of the law there is not able by the latter; the rule being very liber satisfactory on this subject, but recognize al towards the lessee's right of removal that only legislation can change it. when it does not appear that such action is We are of opinion there is no error in the contrary to any prevailing usage or that it decree of the Court of Civil Appeals, and it would cause any material injury to the es- is therefore affirnied. tate, and it appearing that the machinery can be detached without losing its essential character or value as a personal chattel.

HAMMOCK v. QUALLS. Cubbins v. Ayres, 4 Lea (72 Tenn.) 329; Mc. (Supreme Court of Tennessee. Feb. 23, 1918.) David v. Wood, 5 Heisk. (52 Tenn.) 95, 96; Saunders v. Stallings, Id. 65, 72. The real


TIONS-LIENS. question arises on the provision in the lease The levy of an execution from a justice's retaining a lien on all of the personal prop- judgment upon land creates a lien in favor of erty that might be subsequently placed on

the judgment creditor. the leased land. The clause forbidding re


If the levy of an execution from a justice's moval of the machinery prior to the pay- judgment is followed by condemnation and issue ment of the royalties was not intended to of venditioni exponas by the circuit court, the confer title on the lessor, but only as sale had in pursuance thereof relates back to means of securing the enforcement of the the date of the levy, and the legal title conveyed

by the sheriff's deed operates from that date. lien. The clause retaining a lien on future 3. EXECUTION 145-REAL ESTATE-EFFECT acquired property brought on the premises OF LEVY. was good as between the lessor and lessee, The levy of an execution upon real estate whether becoming fixtures or not. As to

does not transfer the title to the land, nor create whether things attached to the land should lien upon the land for the payment of the debt.

any interest in the sheriff, but merely fixes a be held fixtures would be largely a question 4. EXECUTION 108—LIS PENDENS-EFFECT. of intention. Cubbins v. Ayres, supra; Mc While the record of the condemnation in Clung v. Carriage & Wagon Co., 117 Tenn. the circuit court after levy of execution on a 250, 96 S. W. 960. But, whatever the inten- sheriff's sale, the order of condemnation is not

justice's judgment is constructive notice of the tion of the lessor and lessee, it would not a judgment establishing a lien, but only a mode bind the interests of a third party selling of executing the levy. personal property to the lessee retaining ti. 5. EXECUTION Om 108_LIS PENDENS-EFFECT, tle. The principles that governed in the court after levy of execution under a justice's

The record of condemnation in the circuit case of Union Bank v. Wolf, 114 Tenn. 255, judgment merely continues the lien of the levy to 86 S. W. 310, 108 Am. St. Rep. 903, 4 Ann. which the purchaser's title will relate when he Cas. 1070, would not control here. The procures a deed from the sheriff. claimant against the right there asserted in 6. EXECUTION Ow108-LIS PENDENS–EFFECT. behalf of the conditional vendor was a sub- to enforce with diligence the collection of a

The only proper use of an execution being sequent mortgagee who was held to be an debt, the creditor cannot use it merely as secuinnocent purchaser, and also protected by rity for his debt by a levy on the property which the policy of our registration laws. The

creates merely a secret lien. question presented in the case now before us


ORITY OF DEEDS-LIS PENDENS. was reserved in that case. 114 Tenn. 270, In all cases subject to the registration laws, 86 S. W. 310, 108 Am. St. Rep. 903, 4 Ann. the deed first registered has priority over con: Cas. 1070. Here the lessor, at best, can structive notice of lis pendens. stand only in the position of a prior mort. 8. LIENS O15—SECRET LIENS. gagee or lienee, asserting a lien on subse

Secret liens are not favorites of the law. quently acquired property of the mortgagor,


--REASONABLE DILIGENCE. 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 tiplaced property, which, in the present case,

tle, which should be recorded.

PURCHASER C 239(3) was but an equity, unless, indeed, it should

RIGHTS OF PURCHASER-REASONABLE DILIappear that the removal of the machinery from its attachment to the land would in- deed, 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 O307—RIGHTS OF PURCHAS

ER-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. I constitutes such delay of an execution sale pur



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chaser in getting a sheriff's deed as will destroy , up by a return of the papers into the circuit the right to lis pendens, but one relying upon court and a condemnation of the land, and the rule must understand that his claim is stric- venditioni exponas is issued by order of the tissimi juris. 12. EXECUTION Eww146(1)—VENDOR AND PUR- circuit court, the sale, had in pursuance there

CHASER 239(3)-RIGHTS OF PURCHASER- of, will relate back to the date of the levy REASONABLE DILIGENCE.

so as to make the legal title conveyed by the Where the purchaser at a sale under con- sheriff's deed operate as of the date of the demnation by the circuit court after levy of a justice's judgment delayed getting a sheriff's levy lien. Parker v. Swan, 1 Humph. 83, 34 deed for over eight years, his delay was a gross Am, Dec. 619; Zook v. Smith, supra; Keaton negligence, amounting to an abandonment of his

v. Thomasson, 2 Swan, 139, 58 Am. Dec. 55. lien, and a subsequent purchaser without notice,

[3] The levy of an execution upon real eswho recorded his deed, had superior title, though the purchaser finally took a deed; such deed not | tate does not transfer the title to the land relating back to the levy.

nor create any interest thereto in the sheriff. Certiorari to Court of Civil Appeals.

It merely fixes a lien upon the land for the Bill by E. M. Hammock against A. B. payment of the debt. Keaton v. Thomasson, Qualls. To review judgment of the Court of supra. Civil Appeals reversing the decree of the

[4] The Court of Civil Appeals was of opinchancellor sitting as a jury, in favor of de- ion that the record of the condemnation in fendant, defendant petitions for certiorari. the circuit court was constructive notice to Writ granted, decree of Court of Civil Ap- the defendant of the sheriff's sale, and of peals reversed, and decree of chancellor af- complainant's equity in the land by virtue of tirmed.

a lis pendens growing out of the condemna

tion proceedings. This is correct as a general E. C. Knight, of Livingston, for Hammock. proposition of law, but the order of condemW. R. Officer and E. A. Qualls, both of Liv-nation is not a judgment, but only a mode of ingston, for Qualls.

executing the levy. Mann v. Roberts, 11 Lea,

59; Ashworth v. Demier, 1 Baxt. 323; Zook LANSDEN, J. This case is before us upon

v. Smith, supra. petition for writs of certiorari to the judgment of the Court of Civil Appeals reversing that the record of condemnation “is not no

[5] In Mann v. Roberts, supra, it is stated the decree of the chancellor. The bill is filed tice to third persons, nor would it be if a by Hammock for the purpose of having a judgment; the notice implied from a pending claim of Qualls to an undivided one-fifth in- litigation ceasing with its determination." It terest in a certain tract of land in Overton merely continues the lien of the levy to which county removed as a cloud upon his title. title of the purchaser at the sale will relate The common source of title is one Bilbrey, when he procures a deed from the sheriff. who held by descent from his father. After the death of Bilbrey's father, complainant said the court in Mann v. Roberts, supra, "is

[6] "The only proper use of an execution," Hammock sued Bilbrey before a justice of

to enforce the collection of a debt, and to enthe peace, and recovered a judgment. An

force it, so far as the rights of third persons execution issued thereon July 11, 1908. An

are concerned, with reasonable diligence. order of condemnation and sale were had up- The creditor cannot use it merely as a securon the justice's proceedings in the circuit ity for his debt by a levy on property, for the court of Overton county November 3, 1908, lien thus created is a secret lien, and may and deed of the sheriff pursuant thereto Octo-operate to the prejudice of innocent third ber 17, 1916. After the sale, and before the

persons if the debtor be left in possession of execution of the deed by the sheriff, defend the property." This we conceive to be an acant purchased the same land from Bilbrey curate statement of the nature and purpose by deed dated November 1, 1915, which was of an execution upon a justice's judgment registered in Overton county on the same day. when levied upon real estate. Our registra

The defendant interposed as defenses to tion statutes have been enacted for the purcomplainant's action that he purchased the land without notice of complainant's pur- notice to a prospective purchaser of the man

pose of preserving titles to land and giving chase at the sheriff's sale, or his levy lien, ner in which they are held. Our Code, at secand the inexcusable and unexplained delay Ition 3751 (Shannon) expressly provides as folupon the part of complainant in taking his

lows: deed from the sheriff.

“Any of said instruments first registered or The case was heard by the chancellor sit- noted for registration shall have preference over ting as a jury, who found that the defendant one of earlier date, but noted for registration purchased from Bilbrey without notice in fact afterwards, unless it is proved in a court of of the proceedings under which complainant equity, according to the rules of said court, that

the party claiming under the subsequent instruclaims. There is evidence to support this ment had full notice of the previous instrufinding.


Wilkins y. McCorkle, 112 Tenn. 688, 80 [1, 2] The levy of an execution from a jus- S. W. 834. tice'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

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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 ne [12] In the case under consideration the cessity for it to give effect to the proceedings complainant waited for more than eight of courts than upon any presumption of no- years before procuring a deed from the shertice. All of the authorities agree that the iff. Everything that was to be done in the rule is necessary, and that without it all condemnation proceedings, or in the suit besuits for specific property might be rendered fore the justice, had been done, and more abortive by successive alienations of the than likely the book containing the record of property in suit. Authorities infra.

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 ceedings, the conduct of the complainant tolevy of the execution upon the land, which ward the lien procured by the levy of his until condemnation is a secret one. Secret execution was such as warranted the deliens are not favored, and it was designed fendant in assuming in law that the comby the Legislature, in passing our condemna- plainant had abandoned his lien, and did not tion statutes, to preserve of record proceed intend to take a deed from the sheriff. This ings had before justices of the peace by delay, unexplained as it is, is gross negliwhich the lien of the levy of the execution gence upon the part of complainant, and was obtained. The date between final order amounts to an abandonment of his lien. of sale, the sale and the return thereof, and This being so, the deed which he finally took the execution of a deed by the sheriff, does from the sheriff could not be said to have not create a hiatus in the operation of the relation to the lien because it was abanlis pendens of the condemnation proceeding. doned. It should be borne in mind that the The lis pendens is operative for a reasonable lien was secret until condemnation proceedtime after sale until deed of the sheriff is ings were had, and it never conferred any obtained, and purchasers in good faith with title upon complainant, but merely gave him out notice are bound to take notice of the the right to proceed according to law, and levy lien so recorded. But reasonable dili- ripen his lien into a title. In order to do gence is required of the purchaser at the this, so as to overreach the rights of subseexecution sale in perfecting his title, which quent purchasers without notice who have should be recorded. In Mann v. Roberts, su- registered their deeds, the levy lienor must pra, the opinion was expressed that the lien follow up his execution with reasonable diliwill not "perhaps" be impaired by ordinary gence and ripen his lien into a title. The negligence, and will only be lost by unusual law gives a creditor such relief against his and unreasonable delay. In so far as this debtor, but it was not intended that such a refers to delay which may be explained, we proceeding could be suspended for an unreaassent to it, but we think that ordinary neg- sonable length of time and then affect the ligence in procuring a sheriff's deed, unex- rights of innocent third parties.

Such we plained, should defeat the title of the execu- think is the holding of our cases as well as tion purchaser as against one who buys in those of other jurisdictions. good faith and without notice of the title The result is that the writ is granted, and claimed by the execution purchaser.

the decree of the Court of Civil Appeals is [11] No positive rule can be laid down as reversed, and that of the chancellor is afto what constitutes such delay as will de-firmed.

and informed complainants that they (the KILGROW et ux. v. WEST et al. defendants) did not like the location of com(Supreme Court of Tennessee. Feb. 12, 1918.) plainants' home, and notified them that un

less they immediately removed their place INJUNCTION 28-ACTS OF JUVENILE COURT OFFICERS.

of abode that they would take from them A court of equity has no jurisdiction to re- their daughter, and keep her as a ward of strain officers of a juvenile court established un- the court. This action was threatened, notder Acts 1911, c. 58, from carrying out a threat withstanding the location of the home was to make a child a ward of the court, whether the proceeding is civil, criminal, or semicriminal, be- proper, and that the juvenile court had no cause the juvenile court is one of record, and no complaint to make as to either the dependproperty rights are involved, and if the juvenile ency or delinquency of the child. court will not do justice, there is a remedy by

Complainant, Adeline Kilgrow fearing that appeal.

the juvenile court would carry out its threats Certiorari to Court of Civil Appeals.

and yielding to the fears of her little daughBill by Robert Kilgrow and wife to restrain ter, rented a room about a block away from Mary B. West and others as officers and their home, and dwelt there alone with her agents of the juvenile court of the city of child while complainant, Robert Kilgrow, reMemphis from carrying out threats to take mained at the home on Nettleton street alone from complainants their child and detain her to safeguard the property. This mode of as a ward of the court. From a decree of living being unbearable and desiring to rethe Court of Civil Appeals, reversing a deturn to her home and her husband, and fearcree of the chancellor, dismissing the bill, ing that if she did the juvenile court would defendants bring certiorari. Decree of the

carry out its threats, complainant sought to Court of Civil Appeals reversed, and that of enjoin the defendants from compelling them the chancellor affirmed.

to move and from taking away from them L. H. Graves, of Memphis, for complain their child. ants. Julian G. Strauss, of New York City, We are of opinion that the chancellor held for defendants.

and enforced the correct view, and that the

decree of the Court of Civil Appeals to the WILLIAMS, J. The bill of complaint contrary is erroneous. 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 esnile court of the city of Memphis from carry- tablished by and is operating under the proing out certain threats claimed to have been visions of Acts 1911, c. 58. That court is one made by said officials to take from com- of record and its officers will not be interplainants their 13 year old daughter and de- fered with by a court of equity by means of tain her as a ward of that court, unless com- injunctive process sued out for the purpose plainants should move from their residence, of controlling their actions, where it appears, the location of which was declared to be as in the present case, that no property undesirable by the defendant officials.

rights are involved or directly affected. The defendants interposed a motion to dis- Hawkins v. Kercheval, 10 Lea (78 Tenn.) 535, miss the bill, assigning as grounds the lack 540, and authorities cited; Delaney v. Flood, of jurisdiction in the chancery court to en- 183 N. Y. 323, 76 N. E. 209, 2 L. R. A. (N. S.) tertain it. The chancellor was of opinion 678, 111 Am. St. Rep. 759, 5 Ann. Cas. 480. that he was without jurisdiction, and sus In substance the chancery court was asked tained defendants' motion and dismissed the to stay the hands of the juvenile court, and bill, from which action there was an appeal to determine the illegality of the action to the Court of Civil Appeals where the de- sought to be taken by officers of the latter cree of the chancellor was reversed and the tribunal. We think that on the face of the injunction decreed to issue.

bill of complaint the illegality of the steps The allegations of the bill, in substance, threatened may be assumed; that it is, is are as follows: Robert Kilgrow and his not even controverted by the defendants. wife, Adeline Kilgrow, elderly persons, have Their insistence is that the jurisdiction to so resided in Memphis for about 50 years, living determine and declare is with the juvenile at the date the suit was brought with their court, and not the chancery court. 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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