text:
    Brooks P. DOUGLASS and wife, Eva B. Douglass, Appellants, v. Melvin L. ROWLAND and wife, June D. Rowland, Appellees.
    Court of Appeals of Tennessee, Western Section.
    April 19, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      Russell Rice, Jackson, for appellants.
    James F. Butler, Jackson, for appellees.
   NEARN, Judge.

On appeal, the controversy is between Douglass et ux. and Rowland et ux. who will hereafter be referred to in the singular.

Plaintiff Douglass and defendant Rowland are adjoining landowners. Douglass filed suit against Rowland seeking an injunction to halt the diversion of surface water from defendant’s land to that of the plaintiff and for the removal of alleged encroachments upon plaintiff’s land.

The Chancellor heard the case without intervention of a jury and enjoined the defendant from diverting surface waters upon plaintiff’s land and held that plaintiff was estopped to claim that the common boundary between the parties was other than a concrete block retaining wall which constituted the physical barrier between the lands.

Only the plaintiff has appealed, and the appeal is from that portion of the decree which applies the doctrine of estoppel to plaintiff’s right to dispute the concrete block retaining wall as being the common boundary line.

Six Assignments of Error are made to this Court, but they raise but two issues for our consideration. They are:

I
Did the Chancellor err in applying the doctrine of estoppel?
II
Did the Chancellor err in refusing to permit plaintiff to amend the complaint to seek monetary damages for the “unjust enrichment” received by defendant?

In 1948 the lands of both plaintiff and defendant were under the single ownership of Wilson. However, this single ownership in Wilson was acquired in two tracts by two deeds. The east-west line dividing the north tract from the south tract was described as running “N 86° 30' W”. Over the years the land has been divided by its various owners into smaller parcels. The lands of the plaintiff and the defendant were divided by a line which the deeds refer to as “N 86° 30'W” and running parallel to the old line running in an easterly direction between the Wilson tracts. It now appears that this directional call of “N 86° 30' W” in the various deeds was erroneous and should have been N 82° 3'W; at least, the Chancellor so found. This error has created the disputed area along the common north-south boundary lines of the parties. The area is pie-shaped with the widest part being 36 feet at the rear or west line and narrowing to the undisputed common point in the east line of the parties.

Plaintiff acquired his land in 1965; defendant acquired his in 1968.

Everything went along smoothly until the Spring of 1972 when defendant decided to fill his land to road level so that commercial use could be made of it. Defendant began to place dirt fill on his land as well as on the pie-shaped parcel in dispute. On April 7, 1972, defendant received a letter from plaintiff’s attorney complaining that the caterpillar tractors in use by defendant were damaging plaintiff’s drive and parking area by running over it, and that some radio cable lines had been hit by the tractors. He also complained that unless defendant built a retaining wall, serious drainage problems would be inflicted on plaintiff. No boundary line complaint was made. Evidently the defendant satisfied plaintiff’s complaint about the trespass on the driveway for the matter is never mentioned again.

In April of 1973, the plaintiff had changed lawyers but had not greatly changed his complaint. Defendant was still in the process of filling the land when plaintiff, through his lawyer by letter dated April 13, 1973, complained about the water being diverted on plaintiff’s land and a possible encroachment at the toe of the dirt fill being made by defendant. To buttress the claim of encroachment and water diversion, a survey of the common boundary line was enclosed showing the toe of the dirt fill a few inches on plaintiff’s land and an area of standing water on plaintiff’s side of the line. It was suggested that a concrete retaining wall be built within the lines as shown on the survey which was the “N 86° 30'W” boundary line. Defendant built the concrete retaining wall within the boundary as shown on the survey, surfaced the filled area with asphalt and built a drive-in type restaurant upon it. Some six months after the aforesaid line survey was made, with the aid of another surveyor, plaintiff discovered the error in the old deed call which had been carried forward in the line survey given to defendant. Upon this discovery plaintiff filed suit for the restoration of his 36 foot pie-shaped parcel and to enjoin the alleged water diversion.

The Chancellor held, and we believe correctly, that plaintiff was estopped to deny that the dividing line was “N 86° 30'W”. In addition to the fact that plaintiff gave defendant a line survey indicating where the retaining wall should be constructed (which survey defendant followed), in 1968 when defendant purchased his land, in order to avoid any boundary dispute, plaintiff had the boundary line between plaintiff and defendant staked by his surveyor, with the stakes running exactly where the retaining wall now stands. On at least one other occasion plaintiff had the property restaked exactly where the retaining wall now stands.

Also, in 1972 there was a gathering of several landowners at or about the old “N 86° 30'W” line between the parties’ lands, and defendant pointed out where he thought the line to be and where he planned his wall, that is along the stakes of the “N 86° 30'W” line. The plaintiff made no objection.

In Duke v. Hopper (1972 Tenn.App., W.S.) 486 S.W.2d 744 this Court observed as follows regarding estoppel:

“There are three kinds of estoppel; viz: (1) by record, (2) by deed, and (3) by matter in pais. Denny v. Wilson County (1955) 198 Tenn. 677, 281 S.W.2d 671. Estoppel in pais is an estoppel that does not arise from a record or written instrument, but arises from the conduct or silence of a party and is sometimes referred to as equitable estoppel. In the true sense, all matters of estoppel arise in equity, for the purpose of the existence of the doctrine is to prevent inconsistency and fraud resulting in an injustice. When a man has been misled by the untruth propounded by another, and acted to his detriment in reliance upon the misrepresentation, the misleading party will be estopped to show that the true facts are contrary to those he first propounded. In the words of Lord Coke, this is so ‘because a man’s owne act or acceptance stoppeth, or closeth up his mouth to alleage or plead the truth.’ The English used may be dated, but the thoughts embodied therein have withstood the test of time and are the basis for all three kinds of estoppel.”

In the case now before us we are concerned with a matter in pais.

Counsel for appellant argues that in order for the doctrine of estoppel to be applied, there must have been actual or constructive knowledge on the party to be es-topped of the falsity of the statement made and relied upon by the other. Or stated another way, there must be a showing of an intent to deceive. Since there is no such showing in this case, the doctrine is unavailable. Strong reliance is placed upon the case of Callahan v. Town of Middleton (1954 W.S.) 41 Tenn.App. 21, 292 S.W.2d 501, for this proposition.

We are of the opinion counsel’s reliance is misplaced. In the Callahan case, supra, the court was not concerned with any requirement of “guilty knowledge” on the part of the party to be estopped. The issue appears to have been one of reliance by the party seeking to apply the estoppel. In overruling appellant’s contention that it had acquired an easement by prescription or es-toppel, the Court gave the entire general statement of the general elements of estop-pel as found in 19 Am.Jur., Estoppel. Sec. 42 pp. 642-643, which is as follows:

“The essential elements of an equitable estoppel as related to the party estopped are said to be (1) Conduct which amounts to a false representation or concealment of material facts or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) Intention, or at least expectation that such conduct shall be acted upon by the other party; (3) Knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel they are (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) Reliance upon the conduct of the party estopped; and (3) Action based thereon of such a character as to change his position prejudicially.”

Generally, the Am.Jur. reference had application to the issue before the Callahan court, supra. However, the general statement contained in “(3)” relating to the party estopped is not altogether accurate.

In the ease of Fowler v. Tankersley (1946 W.S.) 32 Tenn.App. 264, 222 S.W.2d 395, the court was faced with the same issue as we are now, that is, whether the orator must be aware of the falsity of the statement made, and be in possession of the true facts before the doctrine of estoppel will apply. Judge Anderson speaking for the Court stated that estoppel may be applied in cases of misrepresentations and deceitful actions, but then observed:

“It is sometimes said that actual fraud must be present before an estoppel can be set up against the owner of the legal title to land. But this is inaccurate. As used in this connection, the term ‘fraud’ is virtually synonymous with ‘unconscien-tious’ and ‘inequitable’. It consists of the effort to repudiate conduct by which the other party has been induced to act. This is altogether different from saying that the conduct itself was accompanied by an actual intent to deceive. [Authorities cited.]
The principle of this rule is that underlying all equitable estoppel. This is, that when one of two innocent persons must suffer, he shall suffer who, by his own acts, occasioned the confidence and loss. Hence, if it could be assumed that the sale of the land in the present case were void, it is no answer to say that at the time he made the representations the complainant was unaware of his rights in general and that fact in particular, and therefore was guilty of no actual fraud in the sense that his misrepresentations were made with an actual intent to deceive.”

We believe that Judge Anderson properly pointed out the confusion sometimes created by the general statement and gave the more precise definition of the requirements. It should be further noted that in the later Am.Jur.2d, an entire new section has been added to account for the exceptions to the broad general statement contained in requirement “(3)”. In the later Am.Jur. edition, 28 Am.Jur.2d, Estoppel and Waiver § 40 at page 646 in footnote (9), we find reference to the case of Titus v. Morse, 40 Me. 348, which we believe also contains the proper analysis of the requirement as follows:

“If a party, when ignorant of his rights, induces others, equally ignorant, by his active interference, to pursue a particular course, he ought not afterward to be permitted to allege facts inconsistent with, and injurious to, the rights acquired at his instigation and by his procurement. He is estopped in that case, not on the ground of fraud, but on the ground that when one of the innocent persons must suffer, the loss should fall upon the one by whom it was occasioned.”

We hold that it is not necessary that the party against whom the estoppel is charged should have intended to deceive; it is sufficient if he intended that his conduct should induce another to act upon it.

From the facts of the case we conclude that the only reason in the world that plaintiff tendered the line survey to the defendant showing (a) the toe encroachment and (b) standing water was to have defendant (1) remove the toe encroachment and get himself and his proposed retaining wall south of the line as shown, and (2) stop dumping water on the land north of that line. Defendant performed (1), and the Chancellor ordered (2). The clear purpose of that instrument was not only to induce but to require defendant to act according to it.

Counsel for appellant submits that the line survey showing the toe encroachment and standing water was not the act of the plaintiff but the erroneous act of the engineer in whom both parties had misplaced their trust. For the purposes of this dispute, the engineer was not the agent of both but was the agent of the plaintiff. The defendant had no say so in his hiring and had no knowledge of it until after the fact.

In short, we believe and hold that the factual elements necessary for the application of the doctrine of estoppel are present and any Assignment of Error directed to the first issue set forth at the beginning of this Opinion is overruled.

We hold the Chancellor erred in not permitting the plaintiff to amend his pleadings to seek monetary damages in the event injunctive relief would be denied. Rule 15 Tennessee Rules of Civil Procedure provides that amendments after responsive pleadings have been filed may be given “by leave of court; and leave shall be freely given when justice so requires”. Also see Branch v. Warren (1975 Tenn.) 527 S.W.2d 89 and Karash v. Pigott (1975 Tenn.) 530 S.W.2d 775.

A court of equity in equity matters is not bound by the rigidity of law in forming its judgments. We believe that equity should afford plaintiff some relief from his own error when that relief will cause no injustice to defendant, who has benefited from it. We are of the opinion that an equitable conclusion to this matter requires that the cause be remanded for an amendment allowing plaintiff to seek monetary damages, and for an assessment of those damages based on the value of the pie-shaped wedge of land under the usual formula of a bargained-for price reached between a willing buyer and a willing seller, with no allowance for any decrease in value of plaintiff’s land caused by the decrease in size.

Therefore, the Assignment of Error directed to the issue of the allowance of an amendment is sustained, and the cause is remanded to the Chancery Court of Madison County for further proceedings consistent with this Opinion.

Costs of appeal will be adjudged equally between the parties.

So order.

CARNEY, P. J., and MATHERNE, J., concur.


source: Caselaw Access Project

author: NEARN, Judge.

license: Public Domain

text:
    Eugene W. LAMBERT, Sr., and wife, Bonnie D. Lambert, Appellants, v. Joe E. JONES and Mid-South Title Company, Inc., Appellees.
    Court of Appeals of Tennessee, Western Section.
    April 30, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      Joe W. Darden, Longstreet Heiskell, Memphis, for appellants.
    Hal Gerber, Joe B. Jones, Memphis, for appellees.
   NEARN, Judge.

Plaintiffs Eugene W. Lambert and wife Bonnie D. Lambert are the makers of a set of purchase money notes secured by a trust deed on real property which trust deed and notes were executed on September 20,1972. Defendant Joe E. Jones is the owner of the notes and trust deed executed by plaintiffs, having purchased same from Aaron and Mary P. Willey, the former owners of the real estate and original owners of the trust deed and notes. Mid-South Title Company is a nominal defendant only, as it is named as trustee in the mentioned trust deed and will not hereafter be considered.

In the trust deed securing the purchase money notes, the Lamberts reserved a partial release privilege and that privilege is what the case is all about. The privilege as found in the trust deed is as follows:

“The privilege is reserved and given so that the parties of the first part, their heirs, or assigns, may at any time subsequent to January 1, 1973, and from time to time, obtain a release or releases from the lien of this deed of trust of part or parts of the aforedescribed real property upon payment to the owner and holder of the indebtedness secured hereby, either by way of obligatory payments or by way of prepayments, of the sum of $1,500.00 per acre to be released; provided, however, that no release tract shall contain less than 10 acres; provided further, however, that each release tract subsequent to the first tract released shall be contiguous to a tract previously released; provided further, however, that all accrued interest upon any principal sum paid pursuant to this release clause shall be paid at the time of such payment; and provided further, however, that the release payments shall apply upon the next maturing note or notes secured hereby.”

The property purchased by the plaintiffs was unimproved land. When the first note came due it was paid, and no request for a partial release was made. By the time the second note came due, October 15, 1974, plaintiffs had commenced a plan of development for a portion of the tract for apartment purposes. Plans had been drawn and loan commitments obtained. When payment of the second note was tendered to Jones, there was also submitted to Jones a partial release deed which on its face conformed to the terms of the partial release privilege in that it released the appropriate number of acres for the proper dollar amount. However, the acreage sought to be released was carved out of what Jones believed to be the most valuable portion of the tract. Believing that if the release deed were signed, he, Jones, would be left with land inadequate in value to secure the balance owed, Jones refused to sign. The Lamberts refused to pay. Jones commenced foreclosure proceedings. The Lam-berts filed their complaint with the Chancellor seeking (1) a temporary injunction to halt the foreclosure, (2) an order requiring Jones to release under the terms of the partial release provisions and (3) damages caused by Jones’ refusal. The amount then due on the notes was tendered into Court with the filing of the complaint. The Chancellor temporarily enjoined the foreclosure, and the matter came on to be heard before the Chancellor and a jury.

At the close of the plaintiff’s proof the Chancellor directed a verdict for the defendant. He held “that the provision in the trust deed granting the plaintiffs the right to select acreage to be released upon partial payment of the debt is so ambiguous as to enable the plaintiffs to take an unconscionable advantage of the defendant and is therefore unenforceable.”

The Assignments of Error are to the effect the Chancellor erred in so holding.

In his findings of fact and conclusions of law, the Chancellor wrote as follows:

“The cases on this point are annotated in 41 A.L.R.3rd beginning at page 7.
“The Annotation at page 19, has this to say:
‘Problems in connection with the identification or designation of those portions of mortgaged premises to be released in accordance with a partial release provision have usually centered on the issue of whether or not the provision in question was sufficiently definite and certain with respect to its description of the portions intended to be released or releasable to enable a court to direct specific performance thereof. Broadly speaking, it would seem that the courts have, in most cases, been astute in construing clauses containing ambiguous or uncertain property designations or descriptions seeking thereby to insure that neither party to the mortgage or other security instrument containing such clause should by reason of such an ambiguity or uncertainty, secure an unconscionable advantage over the other.’
“Applying this principle to the facts herein it appears from the phrase authorizing release ‘of part or parts of the aforedescribed real property’ it is limited only by the limitation of a minimum of ten (10) acres and the second or any later part released had to be contiguous to a tract previously released.
“Since the release sought in this case is the first, the question of contiguity is not involved.
“An acre is a measurement of quantity without reference to shape or dimension, and, while in this case the part sought to be released is generally rectangular, there is no prohibition in the release as to location or dimension. It is argued by Defendant’s counsel that the Plaintiff could have demanded a strip along the highway and left the Defendant without any access to a road.
“Applying the further test of whether or not the instrument contained such an ambiguity or uncertainty as would enable the mortgagor to obtain an unconscionable advantage over the mortgagee it will be seen that, under the facts as they existed on October 15, 1974, it surely did do so.
“While the testimony indicates a different picture, the action of Jones at the time in question has to be viewed in the light of the facts then known to him.
“In the first place, the release covered the most valuable part of the land. The north end had some potential value, but the south end had no real value except as an adjunct to the contemplated improvements by Lambert.”

The prime issue before this Court, as indicated in the Chancellor’s findings and in the briefs filed, is whether a partial release agreement which gives to the mortgagor the right to select which part of the property is to be released, is unenforceable for uncertainty as a matter of law when all other conditions as set forth in the agreement are met.

We hold that such agreements are not as a matter of law uncertain and unenforceable.

The Chancellor was seemingly impressed with the case of Lawrence v. Shutt (1969) 269 Cal.App.2d 749, 75 Cal.Rptr. 533, and found mentioned in the annotated cases dealing with the subject Mortgage-Partial Release Provisions reported in 41 A.L.R.3rd 7. While Shutt may or may not be the law of California, we hold it is not expressive of what the law is or should be of this state. We use the conditional in describing Shutt for we note that it is an Opinion of the Court of Appeals and appears to be apposite to an earlier California Court of Appeals case to which it makes no reference whatsoever, i. e., Sacramento Suburban Fruit Lands Co. v. Whaley (1920) 50 Cal.App. 125, 194 P. 1054. In addition we note the release agreement in Shutt is both lengthy and quite specific as to the description of the property to be released; yet the California Court holds the description to be uncertain and fails to point out where lies the uncertainty.

It seems to us to be the ruling in California that unless the release agreement itself contains a metes and bounds description of the land to be released, it is unenforceable. We do not choose to follow the lead of the California Court of Appeals.

It is self-evident truth that security agreements are for the benefit of the mortgagee and partial release agreements are for the benefit of the mortgagor. The borrower has no need for a mortgage which in fact is a burden to him and only has need for a partial release agreement when the lender is granted security. The lender has no need at all for a partial release agreement and is better off without one. Reason impels one to the conclusion that partial release clauses are bargained for by the borrower and are paid for by him in one manner or the other. Therefore, we see no reason in law or in fact for such clauses to be construed as if they were designed to protect the lender. The case of Galbraith v. Roddy (1934 E.S.) 19 Tenn.App. 572, 92 S.W.2d 419, is strongly supportive of this reasoning.

Simply because the result of permitting the borrower to obtain what he evidently bargained to obtain, (the right to select any part released from the mortgage his heart may desire) will seemingly cause harsh results to the lender, is no cause to declare the agreement unenforceable. See Galbraith v. Roddy, supra; Bailey v. Union Planters Title Guaranty (1949 W.S.) 33 Tenn.App. 439, 232 S.W.2d 309. It may be that the borrower harshly paid for that privilege.

We do not believe that the release agreement before us is so indefinite in description of the land to be conveyed (released) that the agreement is unenforceable. If the agreement itself shows that some particular tract was intended, then the release deed is admissible to show the location and boundaries of the tract mentioned. Dobson v. Litton (1868) 45 Tenn. 616. The fact that the tract to be released must be found in the total acreage mortgaged is not of itself a showing that a particular part thereof was intended. But, when the lender agrees that whatever the borrower may choose or intend be released will be released, he also agrees that the lender’s intention as to the particular part to be released will be considered the same as that of the borrower and he should not be heard to say otherwise. The tract chosen under those circumstances by the borrower is the tract intended.

Provided the borrower’s choice meets all other requirements of the agreement, absent a showing of fraud, mistake or some other equitable defense other than harsh results, the lender may not deny that choice. If the lender may not; certainly the lender’s assignee may not.

The Chancellor erred in directing a verdict for the defendant and the cause is remanded for a new trial.

Costs are adjudged against the appellee.

CARNEY, P. J., and MATHERNE, J., concur.

      . We note a dearth of authority for the proposition that a mortgage which contains no partial release provision is unenforceable because of harsh or unconscionable results to the borrower.


author: MATHERNE, Judge.

text:
    The EDMINSTON CORPORATION, Appellee, v. Estelle CARPENTER et al., Appellants.
    Court of Appeals of Tennessee, Western Section.
    May 13, 1976.
    Certiorari Denied by Supreme Court Aug. 30, 1976.
    Rosenfield, Borod, Bogatin & Kremer, P. C., Memphis, for appellants.
    Walker T. Tipton, Covington, for appel-lee.
   MATHERNE, Judge.

The plaintiff sued for a mandatory injunction requiring the defendants to remove certain fences constructed on an alleged thirty-foot easement which connects the plaintiff’s land with a public road. The chancellor held for the plaintiff and issued the injunction requiring the removal of all fences and obstructions encroaching upon the thirty-foot easement and perpetually enjoined any further interference therewith.

The defendant Carpenter appeals under three assignments of error: (1) the court erred in decreeing that the plaintiff had a thirty-foot easement over the lands of the defendant; (2) the court erred in holding that regardless of how narrow the existing road is, that no change in the original thirty-foot easement had occurred; and (3) the court erred in decreeing that the defendant was encroaching upon the easement of the plaintiff and, in ordering the removal of the defendant’s fence.

I.

There is little or no dispute as to the-material facts, and we adopt the statement of facts as set out in the appellee’s brief, as follows:

“Prior to March 7,1916, the property now owned by the appellant and the appellee was a part of a larger tract which constituted a portion of the estate of W. R. Hill, deceased. By decree of the County Court of Tipton County, Tennessee, in the cause of J. W. Hill, et. al. v. Mattie Lee Hill, et. al. the real estate of the said W. R. Hill, deceased, was partitioned in kind by said Court. At the time of the entry of the decree all of the heirs at law of W. R. Hill were a party to said lawsuit.

“The decree of partition set apart a tract to W. R. Hill’s widow known as the Clyde Hill dower tract, and in addition thereto set apart a tract to Neiva Prichard. The decree of the County Court, in the partition suit referred to above, also set apart out of the Clyde Hill dower tract an easement 30 feet in width as a means of ingress and egress for the Neiva Prichard tract and a tract known as the Joe Hill tract.

“By subsequent conveyances the Neiva Prichard tract was sold first to Charles and Bessie Edminston and then by Bessie Ed-minston to the plaintiff, Edminston Corporation. Each of said conveyances conveyed the 30 foot easement across the Clyde Hill dower tract allotted in the partition decree as a means of egress and ingress to the so called Neiva Prichard tract. The roadway across the Clyde Hill dower tract has remained in its present state since the partition except for one slight deviation around a wash in the year 1938 which was acquiesced in by the then owner of the Clyde Hill dower tract.

“After the demise of Mrs. Clyde Hill the owners of the tract known as the Clyde Hill dower tract, which was encumbered by the decree of the County Court in the cause of J. W. Hill v. Mattie Hill with the 30 foot easement in favor of the tract now owned by the appellee, sold the tract to a land developer. The land developer then subdivided the Clyde Hill dower tract into smaller tracts which abutted the 30 foot easement granted in favor of the property owned by the appellee. By various subsequent conveyances the appellant, Estelle Carpenter, became the owner of one of said tracts which abuts the 30 foot easement upon the north side. The legal description to the tract ultimately conveyed to the appellant goes to the center of the roadway but makes no exception therefrom for the right of way occupied by said road.”

The chancellor found, and we agree, that the south line of the defendant’s tract is the center line of the now existing road and that the tract owned by the defendant is encumbered by that part of the thirty-foot easement, being 15 feet in width, which lies north of the center line of the road.

II.

The defendant advances the following arguments: (1) the County Court had no authority to set aside the easement in the partition lawsuit, (2) the thirty-foot easement was decreed as an easement by necessity; and, therefore, under T.C.A. § 54-1901, the road could not have exceeded fifteen feet in width; defendant insists further that there has been a reversion of a portion of the original thirty-foot easement under T.C.A. § 54-1917, (3) and, that if the decree in the partition suit in fact established a county road, the maintenance by the County of a road narrower than the width of the easement has resulted in a discontinuance of the public easement over the portion of the land not maintained as an actual roadbed.

The right to have partition of land is given by T.C.A. §§ 23-2101 through 23-2152. By Section 23-2106, the county court is given concurrent jurisdiction to effect partition. There is no express statutory authority for a court to declare easements in a partition lawsuit. It is rather apparent, however, that situations will arise in a partition which require that easements for the purposes of ingress and egress be created to insure that the recipients of their allotted tracts receive the full benefit and enjoyment of their property. We are not cited to a Tennessee decision on the question, but we adopt the reasoning in the early case of Cheswell v. Chapman (1859) 38 N.H. 14, wherein the court, after noting that none of the statutes specifically vested power in any of .the courts making a partition to grant an easement, went on to state that the authority “is necessarily implied in the grant of jurisdiction to make partition . because in numerous cases, a judicious and convenient partition could not be had without it.” We conclude that the County Court of Tipton County had the authority and jurisdiction to grant the easement.

The defendant argues that the rights of the plaintiff are governed by the statutes prescribing the mode and method of obtaining an easement by necessity. There was no attempt by anyone to obtain an easement by necessity. The easement was created pursuant to partition, and it is not in any manner limited or restricted by the statutes [T.C.A. § 54-1901 through 54-1917] governing easements by necessity.

We hold that the easement set out by the county court decree is, in effect, an easement by grant. T.C.A. § 23-2123 provides in relevant part, as follows:

Confirmation of Report — Decree—Upon the coming in of the report, unless set aside for good cause shown, upon exception, the court shall confirm the same, and divest and vest title according to its terms.

No exception to the Commissioner’s report is shown. When the decree was entered divesting and vesting title to the various parcels as partitioned and declaring the thirty-foot easement across the dower tract in favor of the tract now owned by the plaintiff, that decree created an easement by grant the same as if it had been conveyed by an owner of the dower tract. The defendant claims her tract through successive conveyances from the parties to the partition lawsuit, and she has no standing to now collaterally attack the decree which is the source of her title.

The defendant’s insistence that there has been an abandonment of that area of the thirty-foot easement not encompassed within the present 15 foot wide roadbed is without merit. “Mere nonuser, however long continued, affords no sufficient evidence of abandonment of an easement created by express grant.” Boyd v. Hunt (1899) 102 Tenn. 495, 52 S.W. 131. The abandonment of an easement like the abandonment of any property right, must be accompanied by the requisite intent to abandon. State ex rel Phillips v. Smith (1950) 34 Tenn.App. 488, 241 S.W.2d 844; Cottrell v. Daniel et al (Tenn.App.1947) 205 S.W.2d 973. The proof totally fails to establish an abandonment of the thirty-foot easement. To the contrary, the easement has been continuously used for the purposes for which it was created in 1916. For the past 10 to 15 years the county has graded, graveled and maintained a road about 15 feet wide on the easement. It is not necessary that the entire thirty-foot width be actual roadbed.

It results that the decree of the chancellor is affirmed. This lawsuit is remanded to the Chancery Court sitting in Tipton County, Tennessee for the enforcement of the decree there entered. The cost of this appeal is adjudged against the defendant-appellant, for which execution may issue.

CARNEY, P. J„ and NEARN, J., concur.


text:
    Bobby WILSON, Appellee, v. David RENFROE and Audie Renfroe, Appellants.
    Court of Appeals of Tennessee, Western Section.
    May 21, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.
    Hewitt P. Tomlin, Jr., James D. Todd, Jackson, for appellants.
    Joe C. Davis, Lexington, for appellee.
   NEARN, Judge.

Bobby Wilson sued Audie and David Renfroe for personal injuries and property damage allegedly caused by the negligence of David Renfroe while driving the car of his father Audie Renfroe. The jury awarded plaintiff the sum of $25,000 and defendants appeal.

By their Assignments of Error, defendants claim that the Trial Judge erred in (1) failing to exclude certain evidence on the ground of irrelevance, (2) failing to direct a verdict for the defendants at the close of all the proof on the ground that there was no material evidence to support a verdict for the plaintiff and (3) failing to set aside the verdict rendered on the ground of jury misconduct.

There were no witnesses to the actual collision other than the drivers of the vehicles. Plaintiff sustained head injuries in the collision and testified that his only memory of the occurrence was that he was driving along and was hit from the rear. A plaintiff’s witness, Mrs. Davis, testified, that minutes before the accident she was chopping cotton in a field adjacent to the highway about one mile from the accident when she observed plaintiff turn around and proceed in a northwardly direction down the road at about 20 or 25 miles per hour. Then, as plaintiff went out of sight defendant was observed going in a north-wardly direction “ — going pretty fast, about 60, 65 something like that I’d say — he almost ran off the road, and his car was kind of fishtailing.” The defendant’s vehicle then passed from view, and Mrs. Davis did not see the collision.

Defendant testified that plaintiff was not proceeding northwardly down the road at the time of the collision but was backing up off the road just beyond the crest of a hill and was first observed by defendant in this position when defendant topped the hill and therefore, defendant claims, he was unable to avoid the collision. On cross-examination defendant denied any erratic driving on his part in the vicinity about the time of the collision.

Counsel for appellant insists that the testimony of Mrs. Davis should not have been introduced as the testimony was of events so utterly remote as to be of little or no pertinent value to the issues in the case; counsel cites Whitfield v. Loveless (1925 M.S.) 1 Tenn.App. 377; Mason v. James (1935 M.S.) 19 Tenn.App. 479, 89 S.W.2d 910, et al.

Counsel for appellee does not argue with the cited cases but contends that their ultimate holding is that the question of remoteness is dependent on the facts of each case and rests largely in the sound discretion of the Court. See also Ritter v. State (1970) 3 Tenn.Cr.App. 372, 462 S.W.2d 247.

We concur in counsel for appellee’s construction of the cases and believe that under the circumstances of this case, the Trial Judge correctly exercised his discretion in admitting the testimony of Mrs. Davis. That testimony, due to its proximity of time and place, could tend to corroborate the testimony of plaintiff that he was travel-ling northwardly and was struck from the rear and could, because of the time sequence, tend to discredit defendant’s testimony to the effect that plaintiff had stopped in the road and was backing up into an intersecting road at the time of the collision.

In cross-examination, David Renfroe was asked if he had not run off the road in front of the house of Mr. Wilson (plaintiff’s uncle) and torn down some bushes before the accident. The defendant denied the event. On rebuttal Mr. Wilson testified that he lived about a mile and one-half from the accident scene, but on a different road, and that about 30 or 40 minutes prior to the accident while he was plowing his field, the defendant ran off the road in front of Wilson’s property. Wilson testified that the Renfroe vehicle “ — hit that rock and went in that ditch and got in some old roses. Before I got there he left there like a bullet — .”

It is argued that testimony of the “running off the road” event is too remote in time and distance to be admissible, and even if not, such testimony, if admissible at all, should have been introduced as part of the plaintiff’s proof in chief. Appellant contends that it was error for the Trial Judge to admit such in rebuttal.

The “running off the road” event may or may not be too remote to qualify as proper evidence but, since the question concerning the event was asked on cross-examination without objection and the event was denied by the defendant, we believe it was admissible as rebuttal on the issue of credibility, which issue was of considerable importance in the case.

The first Assignment of Error is overruled.

What we have previously said concerning the first Assignment of Error obviates the necessity of any further discussion regarding appellant’s contention that there is no material evidence to support a verdict as to liability. However, it is also insisted that there is no material evidence to support a verdict in the amount of $25,000.00. There is. Plaintiff’s proof shows that he suffered a blow to the head which required the insertion of a plate and an impairment of vision and incurred medical expenses in the amount of $6,030.76. Further, there is proof that the effects of the injuries are permanent.

The second Assignment of Error is overruled.

The alleged jury misconduct is that “there was substantial and blatant discussion about liability insurance in the case, and the discussion of liability insurance and its effect on the defendant materially affected the verdict and resulted in great prejudice to the defendants.”

Neither during plaintiff’s proof nor defendants’ proof did the presence of or lack of insurance by either party enter into the trial. During the presentation of proof, neither counsel nor witness used the word “insurance.” However, during voir dire examination the jurors were asked about possible relationships with liability insurance companies.

In support of the charge of misconduct, counsel for defendant filed the affidavits of two jurors. In response to that, counsel for plaintiff obtained the counter affidavit of nine jurors. At the hearing on the motion for new trial, the two jurors who signed the affidavits presented in behalf of the defendant gave oral testimony, but that testimony was mostly a repetition of the contents of their affidavits. Counsel for plaintiff did not adduce proof at that hearing, but elected to stand on the contents of his affidavits as filed.

The affidavit of Ruth Ann Lindsey is to the effect that “all” jurors agreed the plaintiff’s car was crosswise in the road when struck by the Renfroe car; that “all” jurors agreed that Wilson was guilty of negligence; and that affiant and “some” of the jurors were convinced that Wilson and Renfroe were equally negligent in causing the accident. Further, the “members of the jury” did not understand the law and affi-ant “first voted ‘no’ to returning this verdict.” But affiant was advised by “one member” of the jury that unless affiant went along with the verdict, they would be there indefinitely. Since affiant had a sick child at home and “for other personal reasons” affiant voted to return a verdict with which she did not agree. Further that “When the judge asked each juror if that was his verdict, I hesitated and then said ‘yes’. I wanted to, and almost did, tell the Judge that I did not agree with the verdict but I did not tell him since I did not know what to do.” The affidavit also alleges that the subject of insurance was mentioned many times in the jury deliberations and that “I am convinced that the jury would not have returned this verdict if there had not been the discussion about insurance. All of the jurors believed that an insurance company would pay the verdict that we returned.”

The affidavit of juror Carol Jennings closely parallels that of Ruth Ann Lindsey with the addition that

“I, along with two other jurors, did not think that the others understood the instructions given by the Judge. However, I let the others talk me into voting for a verdict of $25,000.00. I did not at that time, and I do not now, think that was the proper verdict.
“I am convinced beyond any doubt that the jury believed the judgment would be paid by insurance. The topic was discussed at length and everyone based his decision upon that fact. If we had not considered insurance, the verdict would not have been rendered.”

However, Carol Jennings does not give any reason whatsoever why she answered “yes” to the Judge’s query when the jury was polled.

The counter affidavit of nine other jurors is to the effect that they reached their verdict solely from the evidence heard from the witness stand and the charge of the Court and that each considered David Renf-roe the proximate cause of the accident and the injuries sustained. The affidavit further provides:

“That there was no evidence introduced on the trial of the case to the effect that the defendants had automobile insurance to protect them, and in so far as affiants know no juror knew whether or not the defendants had such insurance, and the verdict of the jury was certainly not based on the fact that the defendants had insurance, if in fact they did have.
“Affiants further state that the matter of insurance may have been casually mentioned in the jury room, but no one knew whether or not the defendants had insurance, and no verdict was based on such.”

We note that we have the affidavits of eleven jurors. We assume the twelfth was either unavailable or took the position of “a pox on both your houses” and declined to be further involved.

Counsel for appellant in his appellate brief states “_Defendants respectfully assert that the Court erred in refusing to grant a new trial upon the basis that the jury had improperly considered the fact that Defendants had liability insurance.” If such assertion be an admission that the defendants are protected by liability insurance, it is the first time that such “fact” has been made known to anyone in this record, including the Trial Judge, the jury and this Court. None of the affidavits indicate a knowledge of such “fact” on the part of the jury. The affidavits do indicate that the matter of insurance was mentioned, but to a disputed degree and significance.

The affidavit of Ruth Lindsey is to the effect that insurance was discussed at length in the jury room. However, a fair reading of her affidavit impels the conclusion that such discussion affected her verdict not one iota. Ruth Lindsey gives her reason for voting “yes” as, “I had a very small child who was sick the night before and I knew that I could not stay into the night or come back the next day. Therefore, for other personal reasons and the fact that I had a sick child I voted to return a verdict with which I did not agree.” It would seem that according to Ruth Lindsey she would have voted either “yes” or “no”, whichever would be required to end the matter rather than be further delayed.

A fair reading of the affidavit of Carol Jennings is to the effect that Carol Jennings was affected by the insurance discussion in the jury room.

The affidavit of the nine is that there “may” have been such discussion but that it did not affect their verdict. We therefore conclude that mention or discussion of insurance was made during jury deliberation.

Then, at this point the question is whether the mention or discussion of insurance in jury deliberations, sua sponte, without the matter having been mentioned during trial, entitles a party to a new trial when one juror swears such discussion affected his or her verdict?

Counsel for appellant relies strongly upon the case of Marshall v. North Branch Transfer Co. (1932) 166 Tenn. 96, 59 S.W.2d 520 as authority for us to answer the question in the affirmative. In Marshall the Supreme Court stated:

“[1] A juror will not be permitted to impeach a verdict by his affidavit that he assented to it because of facts or reasons other than the evidence and law submitted in open court. Hughes v. State, 126 Tenn. 40, 91-94, 148 S.W. 543; Lee v. State, 121 Tenn. 521, 553, 116 S.W. 881, and cases therein cited.
“[2] We think, however, that when improper conduct on the part of the jury is otherwise shown, the affidavits of jurors that such misconduct influenced or induced them to agree to the verdict may and should be considered by the court or judge in determining what effect should be given to the misconduct complained of. Particularly is this true in view of the statutory and procedural rule, that a new trial will not be ordered by an appellate court for any error in procedure, unless it shall affirmatively appear that the error complained of has affected the results of the trial.”

Based on the affidavits in that case, the Supreme Court granted a new trial.

The two affidavits of Lindsey and Jennings, in so far as they emphasize the averred amount of discussion in the jury room concerning insurance, are similar to those discussed in the Marshall Opinion, supra. However, we believe Marshall is distinguishable from the instant case. In Marshall four affidavits averring jury misconduct regarding insurance discussions were filed. (Four just happens to be the number of affidavits filed. We do not intimate that the number of affidavits has any particular significance as the Courts will not play a “numbers game” with jury affidavits.) No counter affidavits were filed. The affiants were not orally examined at the hearing on the motion for new trial. Nothing was done by affidavit or otherwise to offset or contradict the statement of facts made in the four affidavits. Therefore, as noted by the Marshall Court, “We have no discretion therefore but to accept the affidavits as correctly representing the proceedings in the jury room.” In this case counter affidavits have been filed. A jury verdict was rendered in this case for the plaintiff. The jury individually expressed their satisfaction with the verdict. Later, some jurors aver that their verdict individually as well as collectively was improperly given. Other jurors aver to the. contrary.

Since counter affidavits are filed we cannot presume that those “facts” averred or testified to which are contrary to the verdict and the counter affidavits are true. We must presume that such controverted averments are not true. Otherwise, every verdict will be subject to a later trial by affidavits with a resulting opportunity for great mischief.

The only significant matter not controverted by the counter affidavits is that mention of insurance was made in the jury room. Had this been the only uncontro-verted evidence in Marshall, supra, the Court would not have reversed in that case for it was observed: “The case before us involves more than mere comment by the juror on the fact of insurance.” We are of the opinion that the ruling in Marshall constitutes no ground for reversal of this case. Also compare Littrell v. Smith (1957) 203 Tenn. 282, 311 S.W.2d 204, wherein extraneous evidence was received by the jury from a third party. For a case more analogous on the facts see Harbin v. Elam (1925 W.S.) 1 Tenn.App. 496.

We hold the Trial Judge did not err in failing to set aside the jury verdict.

The result is the judgment below is affirmed with costs of appeal adjudged against appellant and surety.

CARNEY, P. J. and MATHERNE, J., concur.


text:
    GREEN MEADOW PARK INC. et al., Appellants, v. AMERICAN HERITAGE LIFE INSURANCE COMPANY, Appellee.
    Court of Appeals of Tennessee, Western Section.
    June 3, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      Francis W. Headman, Knoxville, for Green Meadow Park.
    Joe C. Gamble, Maryville, for Bank of Maryville, for appellants.
    John A. Walker, Jr., Knoxville, for appel-lee.
   NEARN, Judge.

The principal question below was whether or not defendant American Heritage Life was obligated to fund or loan to plaintiff Green Meadow Park, Inc. the remaining unloaned balance of $75,000 of an original loan commitment of $400,000. The Chancellor held, inter alia, that the defendant Heritage was not so obligated, and the plaintiff Green Meadow has appealed. The Bank of Maryville, another named plaintiff also appealed, but it is admitted that its rights are derivative and it can prevail only if Green Meadows prevails. Therefore, only the rights of Green Meadows will be discussed.

This matter was heard without intervention of a jury.

Before discussing the merits of the appeal we must first consider the motions of Heritage to (1) dismiss the appeal because of improper appeal bond and (2) strike the Bill of Exceptions because of untimely filing.

On the issue of the appeal bond, counsel for appellee insists that the appeal bond should have been for “the whole debt, damages, and costs,” as required by T.C.A. § 27-315. It is also insisted that even if the cost bond that has been filed is considered sufficient, that bond was not timely filed as required by T.C.A. § 27-312.

This suit was in the nature of one for a declaratory judgment, i. e., for an ascertainment of the rights and obligations under various written instruments or contracts executed by the parties. No judgment for a dollar amount was entered by the Court below. The order sets out the rights of the parties and the amounts due under various instruments to bring them current, but no judgment for which execution may issue is given. T.C.A. § 27-315 is applicable to those cases specified therein where a money judgment subject to execution is given; thus, the statute does not apply here.

The late filing of an appeal bond does not deny the tardy a right of review. The matter may be reviewed as on writ of error. See Ward v. North American Rayon Corporation (1963) 211 Tenn. 535, 366 S.W.2d 134.

A party is entitled to a writ of error as a matter of right, if timely filed. Cockrill v. Peoples Savings Bank (1927) 155 Tenn. 342, 293 S.W. 996; T.C.A. § 27-601. This matter has reached this Court within the time allowed to file a writ of error. We see nothing to be gained by a dismissal of this appeal and requiring the appellant to formally re-file this appeal as a petition for writ of error. The matter is here and we are requested to review as on writ of error; we will do so.

However, whether the matter is before us on simple appeal, appeal in the nature of a writ of error, or on writ of error, if reliance is to be made on the contents of a Bill of Exceptions, that Bill of Exceptions must be filed in accordance with T.C.A. § 27-111.

On February 25, 1975, the Chancellor filed his memorandum opinion which provided that Heritage was not obligated to loan to the plaintiff the remaining $75,000 of the $400,000 commitment. On March 18, 1975, an order was signed by the Chancellor and entered based on the memorandum opinion that provided “the plaintiffs are hereby granted 90 days from the entry of this judgment within which to file a bill of exceptions.” On April 3,1975, the plaintiff filed a motion for a new trial. On July 9, 1975, the Trial Judge granted in part the motion for a new trial by modifying in part the judgment of March 18,1975. That part modified was a relatively minor part of the previous order. As to the remainder of the order of March 18, 1975, the Trial Judge overruled the motion for a new trial. The July 9, 1975, order provided:

“To the foregoing action, in overruling the other matters contained in the plaintiffs’ motion for a new trial, the plaintiffs excepted and now except and pray an appeal to the next term of the Court of Appeals at Knoxville, which appeal is granted upon the plaintiffs executing appropriate appeal bond and the plaintiffs are given thirty (30) days from date hereof within which to prepare, tender, settle and file their Bill of Exceptions.”

On September 10, 1975, two things were done. A Bill of Exceptions approved by the parties was filed with the Clerk, and a written motion for relief from judgment was filed by counsel for Green Meadow. On September 30, 1975, an order on the motion for relief was filed which provided as follows:

“In this case, through oversight, it appears that the time for filing the Bill of Exceptions was limited to thirty (30) days which was in error, the court having allowed ninety (90) days for filing said Bill of Exceptions, IT IS, THEREFORE, ORDERED that the prior order of this court entered July 8, 1975, be amended and corrected to show that the plaintiffs were granted ninety (90) days from said date within which to file their Bill of Exceptions.
“This Order is entered Nunc Pro Tune as of July 8, 1975, this September 29, 1975.”

Under prior procedural rules, a motion for a new trial was unknown to Chancery practice. The proper procedure was to file a petition for a rehearing when a reconsideration of the matter by the Chancellor was sought. See, e. g., Brannan v. Cunningham (1945 M.S.) 28 Tenn.App. 465, 191 S.W.2d 446; Gibson’s Suits in Chancery (5th ed.) §§ 1279 et seq. Since the adoption of the new rules the petition for a rehearing has been abolished and in lieu thereof has been substituted the motion for a new trial. Rule 59 Tennessee Rules of Civil Procedure. A motion for a new trial is not a prerequisite for appellate review in non-jury cases. T.C.A. § 27-303; American Insurance Company v. Taylor (1962 M.S.) 51 Tenn.App. 325, 367 S.W.2d 300. However, when filed it has had the same effect in both jury and non-jury cases; it “suspended the judgment and preserved the Trial Judge’s jurisdiction until he disposed of the motion; and when he overruled it he could then grant an appeal or an appeal in error and allow time for perfecting it and for filing a bill of exceptions, for these purposes the judgment being regarded as entered at the time of overruling the motion for a new trial.” Ragsdale v. Hill (1954 M.S.) 37 Tenn.App. 671, 269 S.W.2d 911; T.C.A. §§ 27-110-112, 27-312.

Since both the order of March 18, 1975, and the order overruling the motion for a new trial are appealed from, the appeal should be considered as a broad one; but even if it were not so, such fine distinction is moot when the matter is accepted as on writ of error. Ragsdale v. Hill, supra.

Since the date of the order overruling the motion for a new trial, July 9,1975, is to be considered the date of judgment, Ragsdale v. Hill, supra, the procedural question remaining is whether the Trial Court may correct an error in that order regarding the time allowed for filing a Bill of Exceptions.

As we interpret Rule 60.01 the Trial Court may do so, so long as it is an error that is being corrected and not an extension of time being given. T.C.A. § 27-111 provides that any extension of time for that initially given for filing a Bill of Exceptions mast be granted within 30 days from the original granting. Any order of extension granted thereafter is void. Norris v. Richards (1958 M.S.) 45 Tenn.App. 100, 320 S.W.2d 730. However, in this case the Trial Judge has stated that he allowed 90 days for the filing of a Bill of Exceptions when the motion for a new trial was in part granted and in part denied, but from oversight the order was entered using the number 30 instead of 90 for the days he had allowed. We must accept the word of the Trial Judge that there was error in the content of the order and that such order did not recite his ruling. Compare Lester v. Atherton (1971 Tenn.App., W.S.) 483 S.W.2d 727. Rule 60.01 states that such errors in judgments may be corrected at any time prior to the docketing of the case in an appellate court and even subsequent to appeal with permission of the appellate court.

The order of September 30, 1975, correcting the error in the July 9, 1975, order was properly entered nunc pro tunc which allowed no more than the statutory maximum of 90 days from the entry of the order which occasioned the filing of the Bill of Exceptions, which order was the order of July 9, 1975, overruling the motion for a new trial. The Bill of Exceptions was filed within that period. So, even though the Bill of Exceptions was physically lodged almost six months after the order dated March 18, 1975, it was nonetheless lodged within the 90 day period set out in T.C.A. § 27-111.

Appellee’s motions are overruled.

In February 1972 Green Meadows sought a $400,000 loan from Heritage. Negotiations were had at the time the loan was sought and made. A commercial type structure was in the process of being built on the Green Meadows property at that time. The Green Meadows property consisted of a mobile home park with 180 mobile home sites with concrete pads, recreation area with swimming pool, tennis courts and play area and the commercial building under construction. In March 1972, Green Meadows executed a note in the amount of $400,000 and a trust deed conveying the real property as security for the note. Numerous other documents were also executed at the same time. Among them was one headed “Loan Agreement”. This agreement acknowledged receipt of the $400,000 by Green Meadows and the return of same to Heritage to be re-disbursed to Green Meadows upon certain conditions. Paragraph three of the agreement set out a number of the requirements such as a valid title policy, survey, etc., including an architect’s certificate that the commercial building could be completed for no more than $75,000. Paragraph four required Green Meadows to complete the commercial building in accordance with the specifications attached to the agreement as Exhibit 2 within 180 days. Further on in the agreement it provided that when the requirements of Paragraph three were met, the sum of $325,000 would be disbursed to Green Meadows. The balance of the $400,-000 was to be disbursed to Green Meadows upon Heritage receiving an architect’s certificate that the commercial structure had been completed according to the plans and specifications of Exhibit 2, and proof that there was no mechanic’s lien and that the building could be occupied and used for the purposes contemplated.

The conditions for the disbursement of the $325,000 were met and that amount disbursed by Heritage to Green Meadow.

In April 1972 Green Meadows secured a temporary construction loan from the Bank of Maryville for $75,000 to complete the commercial building, but before the Bank would loan the temporary construction money, it required that Heritage subordinate its mortgage to the Bank’s on the “commercial building” portion of the property. This Heritage did.

In July 1973, after the completion of the “commercial building”, Green Meadows sought the remaining $75,000. Heritage refused to disburse on the grounds that Green Meadows had not met the requirements of the loan agreement. This suit is the result of that refusal.

The first Assignment of Error is to the effect that the Trial Judge erred in finding that Heritage was not required to disburse the remaining $75,000. We do not find that the evidence preponderates against the Trial Judge’s finding that Green Meadows breached its agreement. Exhibit 2 of the Loan Agreement showed that the “commercial building” was to be constructed for use as a beauty shop, grocery store, barber shop and hardware store. The building was not so used nor constructed. The building was occupied by a metal processing plant, a steel fabricator and warehouse and a pet food distributor. The building was not insulated as required by the plans. The outside material was not as provided by the plans. The parking area was not paved nor was there a concrete sidewalk as required by the plans. In addition, the building was not completed in the 180 days agreed upon. Since the evidence does not preponderate against the factual finding of a breach of the agreement by Green Meadows, there was no error in holding that Heritage was not required to disburse the remaining $75,000.

By the second Assignment of Error counsel faults the Trial Judge for the manner in which he attempted to do equity between the parties. The note as executed by Green Meadows was in the amount of $400,000 and provided for a monthly amortized repayment completed on that amount for 187 months. Since the Court’s holding in effect reduced the face amount owed by Green Meadows to Heritage to $325,000, the Court ordered that payments be made on a monthly amortized basis of $325,000 for 187 months. Heritage does not complain, but Green Meadows complains that the Trial Judge did not take into consideration interest previously paid when fixing the date of the first payment due, August 1, 1973, and is thereby requiring Green Meadows to pay double interest.

In our opinion the Trial Judge acted properly, and we find the Court did take into consideration interest previously paid. There is no “double” payment of interest. The second Assignment of Error is overruled.

The third Assignment of Error argues that the Trial Judge erred in permitting Heritage to retain its mortgage on the commercial building when it had not advanced the $75,000 for its construction. This argument overlooks the fact that Heritage has only a second mortgage on the “commercial building” portion of the property, it having subordinated to the Bank of’ Maryville. Further, without the commercial portion of the land as security, Heritage’s security for the $325,000 might be seriously impaired through no fault of Heritage. In the appraisal submitted to Heritage to obtain the $400,000 loan, Green Meadows valued the commercial building at $260,000.

We believe the Trial Judge reached equitable results, and the decree below is affirmed.

Costs will be adjudged against the appellant.

CARNEY, P. J., and MATHERNE, J., concur.


author: WALKER, Presiding Judge.

text:
    Cleveland C. SHAW et al., Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 12, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      James C. Vance, Nashville, for Shaw. Robert H. Schwartz, Nashville, for Mack. James W. Rutherford, Nashville, for Dunn.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Aaron Wyckoff & Sterling P. Gray, Asst. Dist. Attys. Gen., Nashville, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

Cleveland C. Shaw, James Mack and Frank James Dunn, the defendants below, appeal in error from their convictions of robbery accomplished by means of a deadly weapon and their respective sentences of 40, 10 and 25 years in the penitentiary.

All complain that the trial court erred by permitting an amendment to the indictment on their objection. In part, the indictment as returned by the grand jury reads:

“The Grand Jurors for the State of Tennessee, . . present: That: Cleveland C. Shaw. James Mack, and Frank James Dunn heretofore, and prior to the finding of this indictment, to-wit, on the_day of January. 1974, with force and arms, in the County aforesaid, unlawfully and feloniously did make an assault upon the body of one William C. they Rose and Michael Reeves, and xxx the said _, then and there unlawfully and feloniously put in fear and danger of their lives xxxxxxxx, and then and there unlawfully, feloniously, and violently did steal, take, and carry away from the person and against the will of the said William C. Rose and Michael Reeves certain personal property, to-wit:

After the jury was sworn and the defendants had pled not guilty to the indictment, they moved that the proof be restricted to the offense of assault and battery, contending that this is the only offense alleged in the indictment. The court thereupon permitted the indictment to be amended by striking the words “they the said” and adding the word “them” so that it read, in pertinent part:

“. . . (U)nlawfully and feloniously did make an assault upon the body of one William C. Rose and Michael Reeves, and _ _, then and there unlawfully and feloniously put them in fear and their lives danger of xxxxxxxx, and then and there unlawfully, feloniously, and violently did steal, take, and carry away . . . . ”

The defendants argue that it would be necessary to recommit the indictment to the grand jury to make the changes they claim material or for them to consent under TCA 40-1713 to the amendment. The state relies on Murff v. State, 221 Tenn. 111, 425 S.W.2d 286, where an arrest warrant was amended.

In State v. Brown, 50 Tenn. 1 (1870), a similar question to that before us was raised when the trial judge sustained a demurrer to an indictment which, after charging the defendants by name, with an assault and battery on the prosecutor, proceeded “they, the said,” omitting to repeat their names, and then continued with the allegations. The Supreme Court reversed the trial court and held that the indictment was sufficiently precise as drawn. In sustaining the indictment, it said:

“. . . (I)t was not necessary to repeat the names of the defendants in the indictment, although the words ‘the said’ would seem to indicate that such was the purpose of the draughtsman; that those words may be rejected as surplusage, and that the word ‘they,’ which immediately precedes them, has distinct reference to, and upon any correct rule of grammatical construction can only mean, the defendants, whose names are stated in the previous part of the indictment. The words —‘they, the said, having in their possession certain pistols,’ &c. — so evidently refer to the persons previously named, that the meaning can not be considered as doubtful; and ‘clerical or grammatical errors will not vitiate an indictment, unless the meaning is obscured.’ ”

In the case before us, the indictment as originally drawn was sufficient under TCA 40-1802, the amendment was surplus-age and the immaterial amendment was not prejudicial. This assignment is without merit.

The state’s evidence shows that on January 9,1974, about 9:30 p. m., Dunn and Shaw, armed with pistols, forced Michael Reeves and William Rose, employees of the Brown Derby Liquor Store, into the back room of that Nashville store, struck them with pistols, robbed them of their personal property and locked them in a bathroom. A passing officer’s attention was attracted when he saw Mack standing in the store with his hands in the cash register. The officer, knowing that Mack did not work there, called for assistance and then went in the store. On his arrival, Mack went into the back of the store and returned, saying that he came to buy some whiskey but no one was there. At this time, the officer ordered Mack to lie down on the floor and Shaw came from the rear and shot his carbine at the officer. There was an exchange of fire between those in the rear and the officer. Mack jumped up from the floor, leaped the counter, and ran into the rear of the building. A heated gun battle ensued until the three defendants surrendered. Mack said, “I want to give up.” Shaw had Reeves’ wallet in his pocket. Mack had no weapon or unusual amount of money. The money taken from the cash register was in a brown bag in the rear of the store.

None of the defendants testified. Mack showed by an officer he had no previous record and Dunn’s father testified he had had no previous trouble.

Dunn and Shaw were positively identified by Reeves and Rose as robbers. Mack had his hands in the cash register. His conduct in going to the rear of the store when the officer entered, then returning to the front and saying that nobody was there, followed by Shaw’s entrance with the carbine, supports the conclusion that he went to the rear to alert Dunn and Shaw to the officer’s presence and that he was participating in the robbery. This evidence sustains the verdict as to all defendants. Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743.

The verdicts were within the limits fixed by statute and were not excessive as claimed by Shaw and Dunn. Likewise without merit is their contention that the evidence of the gun battle was inadmissible. This was part of the res gestae. Further, they did not object at trial. This assignment is overruled.

Shaw and Dunn also claim they were denied a speedy trial. They were arrested January 9, 1974, indicted July 24, 1974, and tried January 20, 1975, one year and 11 days after the offense.

They say they should have been brought to trial within one year of the offense. They made no speedy trial demand and show no prejudice. This was not an unreasonable delay. See McGowen v. State, 221 Tenn. 442, 427 S.W.2d 555. Under the rules for considering speedy trial issues laid down in State v. Bishop, Tenn., 493 S.W.2d 81, this assignment is meritless.

All assignments are overruled and the judgment is affirmed.

RUSSELL and DUNCAN, JJ., concur.


author: DWYER, Judge. O’BRIEN, Judge

text:
    Robert E. JACKSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 30, 1976.
    Certiorari Denied by Supreme Court Aug. 2, 1976.

      John K. Kyle, Asst. Public Defender, Nashville, for plain tiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Edward M. Yar-brough, Asst. Dist. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

DWYER, Judge.

This appeal flows from convictions for violating T.C.A. 39-2601, kidnapping, with punishment of confinement for not less than nor more than two years, and for violating T.C.A. 39-3802, escape, with punishment of confinement for not less than nor more than one year. The trial court, in overruling the plaintiff-in-error’s motion for a new trial ordered that the judgments entered on the verdicts were to run consecutively.

The plaintiff-in-error, referred to hereafter as the defendant, urges that the two offenses charged involve but one intent, one violation and one transaction. He relies upon Young v. State, Tenn., 487 S.W.2d 305. He further urges there is no proof that the victim was secretly confined or that he had any intent to secretly confine the victim. He directs his attention to the kidnapping and does not contest the escape conviction to which he pled guilty and the jury assessed punishment.

The evidence, from our review, reveals that the defendant and another inmate were in a “trusty” status at the State Penitentiary. They were assigned to the supply department outside the “walls”. On the event date in May 1972, a female employee of the penitentiary, was going to her car in the parking lot of the penitentiary for the purpose of going to lunch. She was accosted by the defendant and his cohort at knife-point and directed to get into her car and told if she did as they instructed she would not be harmed. The inmates concealed themselves from view in the car and ordered the victim to drive from the vicinity of the penitentiary and was directed to drive them to the vicinity of 28th Avenue in Nashville, where they alighted after admonishing her not to report the abduction-escape. The defendant was later apprehended and returned from San Francisco in 1974.

The defendant, testifying in his own behalf, stated that he did not take her car because that would have been a larceny. He acknowledged the escape, use of the knife, admonitions to the victim, but maintained that his only intent was to escape. His reasoning is that the escape and kidnapping constitute a single episode in which the only intent formed was making good their escape, hence only the punishment for escape can stand.

The defendant’s reliance on Young v. State, supra, is misplaced because it has been limited to facts as delineated in State v. Scates, Tenn., 524 S.W.2d 929 (1975).

The defendant’s contentions have been ventilated by Duchac v. State, Tenn., 505 S.W.2d 237 (1973). Under that authority, we think that both convictions can stand. The abduction of the victim no doubt was done for none other than to make good his escape. Nonetheless, when he abducted the victim with the threat of force and demanded her to transport him away from the prison grounds, there comes into play an additional fact which is not necessary to prove the escape. In other words, the fact that some of the same evidence would be necessary in the proof of each, that fact is not controlling when there is the above additional fact which distinguishes the offenses as separate and distinct. The offenses being separate and distinct and neither a lesser degree of the other, the two convictions may stand.

In conclusion, it is true that T.C.A. 39-2601 requires a “secret” confinement. While she was not locked in some remote ramshackle cabin, the confinement to her car, forcibly and against her will known only to her and her captors, we feel, was sufficient to sustain this offense as a matter of law. Cowan v. State, 208 Tenn. 512, 347 S.W.2d 37, 39 (1961). The assignment being overruled, the judgment of the trial court is affirmed.

GERALD L. EWELL, Special Judge, concurs.

O’BRIEN, Judge

(dissenting).

This appeal is from convictions on two separate indictments charging escape from the penitentiary and kidnapping, respectively. Defendant was sentenced to one year on the escape charge and two years on the kidnapping charge, with the sentences to run consecutively.

Four assignments of error are made:

(1) There is no evidence to support the verdict of the jury.
(2) The evidence introduced at trial preponderated against guilt and in favor of the innocence of the defendant.
(3) The element of intent to commit the crime of kidnapping in violation of T.C.A. Sec. 39-2601 was not sustained by the proof because both charges arose out of one transaction and involyed one intent.
(4) It was error to consolidate the two indictments for trial.

The first two assignments are clearly without merit on the basis of the State’s proof, and defendant’s own testimony that he and another penitentiary inmate accosted Miss Norma Marie Hand on the grounds of the State Penitentiary at Nashville and required her, at knife point, to drive them from the penitentiary grounds into the city where they got out of the car and left her.

I am of the view that there was no legal inhibition to consolidating the two indictments for trial in this case. Consolidating separate indictments for trial is procedural, and a matter which is within the discretion of the trial court. Bruce v. State, 213 Tenn. 666, 378 S.W.2d 758. Our appellate courts have routinely upheld the trial of separate indictments if they both arise out of the same transaction. Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105; Epstein v. State, 211 Tenn. 633, 366 S.W.2d 914; Hayes v. State, 4 Tenn.Cr.App. 360, 470 S.W.2d 950; and have reversed for failure to grant separate trials if the crimes did not arise out of the same or related acts, Bruce v. State, supra.

I believe only one conviction can stand for reasons fully set forth in State v. Black, 524 S.W.2d 913 (Tenn.1975). Whether the convictions are considered under the “same transaction” rule or the “same evidence” rule, the offenses with which defendant was charged are part and parcel of each other. Under the facts of this case, one could not be accomplished without the other, nor could proof of one be established without evidence of the other.

The accepted rule is that when only one of two judgments is good, the judgment for the greater offense should be allowed to stand. The judgment for kidnapping in which the sentence was fixed at two years should be affirmed. The judgment for escape in which the sentence was one year should be reversed.


text:
    James Andrew HAYNES, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    May 12, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      Jean Y. Humphrey and Kim A. Tollison, Legal Aid Clinic, University of Tenn., Knoxville (at trial), Kim A. Tollison, Knoxville (on appeal), for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., William L. Waters and John W. Gill, Jr., Asst. Dist. Attys. Gen., Knoxville, for defendant in error.
   OPINION

WALKER, Presiding Judge.

The defendant below appeals in error from his conviction of (1) rape and sentence to 75 years in the penitentiary and (2) kidnapping and sentence to two to five years concurrent with the rape sentence. He challenges the sufficiency of the evidence.

The defendant and Vivian Faye Haynes, parents of two children, were divorced February 1, 1974. The state’s evidence showed that on August 2,1974, he went to the place she worked in Knoxville, threw her into her own car, threatened her with a knife, drove to a rural field where he forced a beer bottle into her vagina. He then removed the bottle and forced her through fear to have sexual intercourse with him and to smoke marijuana. He then forced her to engage in unnatural sex acts. When he returned to Knoxville and released her, she made prompt complaint.

The defendant testified that they had been voluntarily engaging in sexual intercourse since their divorce and had discussed remarriage. On this occasion he said he went to her place of employment because he suspected her of cutting the brake line on his car and that he struck her for that reason and told her she was going to buy a new brake line for him. He says he shoved her into the car but had no knife and she wanted to ride around. By his testimony she consented to sexual intercourse and he did not force or threaten her.

Four of Mrs. Haynes’ co-workers saw the defendant violently push her into her car. The jury believed her testimony that he forced her by threats and a knife to have sexual intercourse with him. Consent is a question for the jury. King v. State, 210 Tenn. 150, 357 S.W.2d 42. The evidence does not preponderate against the verdicts for kidnapping and rape. See Cowan v. State, 208 Tenn. 512, 347 S.W.2d 37.

The defendant contends the court erred by failing to order a mental examination under TCA 33-708 and 33-604 and in failing to give him a jury trial on that issue.

The court ordered a mental examination and a psychological examiner of the Helen Ross McNabb Center testified that he was competent to stand trial and that he was not dangerous to himself.

The defendant argues that TCA 33-708(b) requires that he be given the hospitalization hearings set out in TCA 33-604. The statute, however, specifically makes these proceedings dependent on the court determining by an initial showing that the defendant is dangerous or incompetent to stand trial because of mental illness. With the evidence before him, the trial judge found the defendant competent to stand trial. He did not err by denying the petition for further examination. The defendant was not entitled to a jury trial on the question of whether or not the petition should be granted. The jury trial may be had on the issues at the TCA 33-604 hearing once the petition has been granted. This assignment is overruled.

The defendant says the court should have dismissed the jurors present when the assistant district attorney general in addressing them remarked that one of the defense counsel was pregnant and might use that to sway the jury. These facetious remarks were obviously not intended to prejudice the jury and no juror would take them seriously. The court’s comments dissipated any possible prejudice.

All assignments are overruled and the judgments are affirmed.

DWYER and DUNCAN, JJ., concur.