exists upon a replevin bond given in case of an attachment, notwithstanding the death or destruction of the property by act of God. Barry v. Frayser (1872) 10 Heisk. (Tenn.) 206. And in Epperson v. Van Pelt (1876) 9 Baxt. (Tenn.) 73, it was held that where property which has been attached is replevied, the bond represents the debt, and stands in lieu of the property, so that upon proof of the destruction of the latter, whether due to plaintiff's fault or not, a judgment for the value of the property as stated in the bond is proper, without being in the alternative for a return of the property. And see Kuhn v. Spellacy (1879) 3 Lea (Tenn.) 282, as set out infra.

But, as above intimated, the Tennessee courts have reached a different conclusion in cases other than those involving attached property, but in which the loss or destruction was not the fault of the person unable to deliver up replevied property according to his bond. Thus, in Bobo v. Patton (1871) 6 Heisk (Tenn.) 172, 19 Am. Rep. 593, applying the principle that if a bond possible of performance becomes impossible by the act of God the obligation will be saved, and evidently regarding the provisions of the general statute above set out as subject thereto, it was held that since a plaintiff in replevin, who takes possession of property pending litigation, does so with a view to litigating the title, if during such possession the property be lost or destroyed by the act of God, or without the plaintiff's fault, he is not liable for its value. Here the replevied animal died without the fault of the giver of the bond. And in this connection, the early case of Mosely v. Baker (1854) 2 Sneed (Tenn.) 362, although not strictly a replevin action, is of interest. In this case one claiming slaves under a bill of sale obtained an injunction forbidding their sale, and, upon giving a forthcoming bond, obtained possession to abide the decree of court, and the slaves having died of cholera while so held, the court, proceeding upon the theory that the plaintiff acted in good faith, although

without sufficient legal cause, held that the death of the slaves, occurring, as it did, without any want of proper care upon his part, was an act of God, which operated to make the performance of the condition of redelivery in the bond impossible, and, therefore, excused the obligors from its performance. And the principle of Bobo v. Patton (Tenn.) supra, was recognized in Epperson v. Van Pelt (Tenn.) supra, but was declared not to apply on account of the special statute relating to attachment cases. And again in Kuhn v. Spellacy (1879) 3 Lea (Tenn.) 278, a case of the replevy of attached property, the court said that if a forthcoming bond be construed as a common-law, rather than a statutory, bond, then, if the return of the property becomes impossible by act of God, the obligors are released.

In Jennings v. Sparkman (1892) 48 Mo. App. 246, the court, in discussing the question of the liability of a defendant in replevin, said, arguendo, that there could be recovery of damages as for a total depreciation in value, in case the plaintiff "should be able to show that the death happened through the negligence or other fault of the defendant."

In the early Texas case of Porter v. Miller (1852) 7 Tex. 468, the Texas supreme court indicated that, in its opinion, the question of liability or nonliability, in case of the death or destruction of property replevied, would depend upon the good faith of the person seizing the same; that is, if the taking was in good faith under a belief of right and title, the death or destruction of the property without his fault, while in his possession, would relieve him of liability, but if he was a wilful wrongdoer his liability would be absolute.

In Badlam v. Tucker (1823) 1 Pick. (Mass.) 284, although not discussing the question of the loss or destruction of replevied property so as to bring the case within the scope of the present annotation, the court used the following language: "Where the condition of the bond is possible at the time it is made and before the same can be

tended both lots to stand as security for the deferred payments of the entire consideration. On or about April 10, the plaintiff, Owenson, completed negotiations with Harbke for the purchase of lot 8, paying the latter $115 in cash, and giving his note to the bank for $125, which was substituted for Harbke's note. Owenson's name was inserted in the Wilcox deed as grantee of lot 8, and the deed delivered to him, and by him left at the bank for safe-keeping. (The delivery at this time is disputed, but, under all the evidence, it was delivered the 3d of May following.) The cashier of the bank testified that Owenson could have had the deed any time, as his note was good for the $125. When the defendant Bradley learned of the negotiations regarding lot 8, he caused a notice of lis pendens to be filed in the office of the register of deeds on April 28, 1916, which notice is entitled "E. R. Bradley v. Rhoda L. Kumrine," and states that such an action is pending in the district court of Foster county for specific performance, requiring the defendant to convey to the plaintiff lot 8 in block 11, etc. On May 1, 1916, Rhoda L. Kumrine conveyed to E. R. Bradley lot 8 for a consideration of $225, and Bradley placed the deed of record on the same day. At about this time Owenson began excavating preparatory to constructing a building on the lot, and on May 3 he recorded his deed. On Sunday, the 7th of May, early in the morning, Bradley moved a cook car on the back end of the lot, took the trucks from under it, and began to occupy the premises by living there. In the evening of that day an altercation ensued between Owenson and Bradley, resulting in the latter being forcibly ejected. Thereafter an action was instituted in which a restraining order was obtained, which prevented further interference by Bradley with plaintiff's possession. Owenson proceeded with the construction of his building, which is a brick building one story high. Sometime later

Bradley ascertained that the concrete foundation and brick wall of this building encroached upon lot 9, and he caused an affidavit to that effect to be filed of record. The building erected is 60 feet long, and encroaches upon lot 9 as follows: The concrete foundation below the grade line extends into lot 9 at one end 3 inches, and progressively further toward the other end of the building to an extreme of 16 inches, and the brick wall above the grade line encroaches in a similar manner from 2 inches to 7 inches. The parties who had purchased the hotel property on lot 9 having defaulted in their contract, Bradley purchased the property from Mrs Kumrine, and later moved the hotel building to another lot. Owenson having started this action to determine adverse claims to lot 8, the defendants Bradley and Rhoda Kumrine answered separately, the former setting up his title derived from Mrs. Kumrine in the manner stated above, and also the encroachment of the building on lot 9. The relief demanded in Bradley's answer is that his title to lot 8 be quieted, and that he recover the reasonable value of the use and occupation during the period covered by the plaintiff's possession, and that, in the event such relief be not granted, he recover of the plaintiff the reasonable value of the use and occupation of that portion of lot 9 trespassed upon by the wall of the building erected on lot 8; that the extent of the encroachment be determined, and that plaintiff be required to remove the same from lot 9 forthwith. In addition there was a prayer for general equitable relief. Rhoda L. Kumrine died before the trial of the action, and the defendant Bradley, as her administrator, was substituted. Her answer is consistent with the claims of Bradley, and, for additional relief, claims damages to the hotel property by reason of shutting out the light.

In our opinion there can be no serious question as to the correct

ciency of record.

Hence,

ness of the trial court's findings and conclusions with respect to the title to lot 8. In Cloud-suffi- fact, the contention of the defendants is such as to defeat Bradley's right to this lot under his so-called "option" contract. The defendants contend that the contract between Rhoda Kumrine and Harbke was intended to embrace both lots 8 and 9, whereas the description in the written contract is limited to lot 9. If it be true that it was intended to embrace both lots, Bradley had no interest therein, for the reason that his "option" contract provided that, in the event the purchaser desired to purchase both lots 8 and 9, his commission should be $225 instead of a conveyance of lot 8. Bradley's title to lot 8, through the so-called "option" contract, is defeated by his own contentions. We are also of the opinion that the title of Rhoda Kumrine and Bradley to lot 8 is disproved by the evidence in the case. It is clear that the name of Rhoda Kumrine was never inserted in the deed as grantee, and it nowhere appears that the sale to her was so far completed that she could demand the delivery of the deed. On the contrary, she apparently assented to a repayment of the amount that she originally paid ($100) toward the purchase of this lot, and to a surrender to her of her note representing the balance of the purchase price, and to the substitution for this note of the note of Harbke with the deed remaining in the bank. We are of the opinion that, under the evidence, the bank was justified in holding the Wilcox deed subject alone to the payment of the Harbke note, and not subject to the full performance by Harbke of the contract for the purchase of the hotel property. From this it follows that, when later the bank took Owenson's note in lieu of Harbke's, and inserted the name of Owenson as grantee in the deed, title was conveyed to the latter, and that Rhoda Kumrine never acquired

title and consequently never conveyed it to Bradley.

It is next argued by the appellant that the judgment of the trial court is erroneous, in that the damages awarded to Bradley are not adequate, and in that no damages were awarded to Mrs Kumrine. As the question of the proper award of damages to Bradley is involved with the removal of the wall, we shall consider it in that connection. As to the damages to Mrs Kumrine on account of the encroachment of the wall on lot 9 during the period of her ownership, there can be no doubt that she did sustain some damage. It is not evident, however, in view of the short period of her ownership following the construction of the wall, that her damage was more than nominal. She is clearly not entitled to damages on account of the shutting off of the light from the hotel. See 1 R. C. L. 399; 1 C. J. pp. 1127 to 1231. In view of the result, this court will not modify the judgment to make a merely nominal award of damages.

The principal contention on this appeal concerns the relief to be granted on account of the encroachment of the wall upon lot 9. It appears that this was due to a mistake of the contractors in measurAt any ing from a certain stake. rate, it appears not to have been the result of any intentional trespass. While there is much said in the briefs with respect to the bad feeling between Bradley and Owenson, we fail to see wherein this feeling contributed to the location of the wall over the line, as the adjoining property was at that time owned by Mrs Kumrine. The record shows that the hotel has been removed from lot 9, and, consequently, that this wall, through the mistake of Owenson and his contractor, extends a few inches over on a vacant lot, the whole of which does not exceed in value $250. The removal of the wall would require an expenditure of about $1,500. Under these facts the appellant asserts that the only question is whether or not a court