# Marlin v. Merrill

> Court of Appeals of Tennessee · May 24, 1941 · 25 Tenn. App. 328

URL: https://www.frixlaw.com/law-library/cases/9826820

## Case

- **Full name:** Marlin v. Merrill.
- **Court:** Court of Appeals of Tennessee
- **Decided:** May 24, 1941
- **Citations:** 25 Tenn. App. 328; 156 S.W.2d 814; 1941 Tenn. App. LEXIS 113
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Crownover, Howell
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9826820

## Opinion text

On Petitions for Rehearing.
. The Braeey-Welsh Company and Dr. Bate Dozier petition for a rehearing upon the grounds that the Court overlooked Code, section 8623, and that this section entitled them to intervene and subject the ear in this suit. This section is as follows: “In actions for the recovery of property, any person not a party thereto, on showing himself interested in the subject-matter of the suit, may be allowed to appear as defendant therein.”
To enable one to intervene under this section, he must show himself “interested in the subject-matter of the suit.” He must have an interest in the property itself, a title to it, a lien on it, or a right to its possession. Without such an interest in the property, he cannot come in under this statute. Haynes v. Rizer, 82 Tenn. (14 Lea), 246; Stretch v. Stretch, 2 Tenn. Ch., Cooper, 140. That one as a creditor might have a right to attach the property, or to reduce his debt to. judgment and have execution levied on. the property, is not enough to entitle him to intervene under this statute. Stretch v. Stretch, supra. In that ease a bill was filed against a husband, seeking *336 to set up for his wife a resulting trust in his stock of merchandise, upon the ground that he had used trust funds belonging to her in buying the stock. Two of his creditors sought to come in as defendants under this statute, to resist the wife’s claim. They alleged that he was indebted to them for merchandise sold to him in the line of his trade, and that they believed that none of the wife’s money had been used in purchasing the stock, but that the bill was filed for the fraudulent purpose of hindering and delaying the husband’s creditors. Chancellor Cooper held that they were not entitled' to intervene under this statute, because they showed no right in themselves to the property in suit. In this connection he said: “. . . Whether a bill filed to set up a resulting trust would be an action for the recovery of property, within the meaning of the statute, might be doubtful; but, conceding it to bp so, the applicant ought certainly to show an interest in the property itself. But these petitioners do not show either a jus in re or a jus ad rem. There is neither title to the property nor a lien upon it. All that they say is that they believe the property belongs to the defendant in the suit, and that they have ‘equities’ in it. Upon the face of the petition, even if we treat ‘belief’ of a fact as equivalent to an averment of the fact believed, they have neither a legal nor an equitable interest in the property. This may be in a condition to acquire a lien thereon, but they have not done so, nor can they, without exhausting their remedy at law by judgment and execution, or by suing out an attachment, which can only be done by positive allegations not contained in the petition, and by giving bond and security as required by law. To allow them to assert such a right, by intervening as a defendant, would be to give them the benefit of an attachment without the prerequisites of the law.”
The same is true of petitioners in this suit. They do not show any right 'in themselves to the automobile involved. They have no title to it, no lien on it, and no right to its possession. Upon the authority of the cases above cited, and for the reasons stated in our former opinion, we think their petition cannot be maintained.
Their petition for a rehearing is denied at their cost.
Mrs. Marlin has filed a petition for a rehearing upon our holding that there was no gift of the car to her because there had been no delivery of it to her. Her petition insists that delivery of the bill of sale to her was sufficient, without delivery of the car to her, to constitute a valid gift; that there is a distinction, as to the necessity of delivery, between a gift of a chattel by parol and a gift of it by deed,.or other formal written instrument transferring title; and that in the former delivery is essential, but in the latter it is not, delivery of the instrument being equivalent to delivery of the subject of the gift. This distinction was not made by counsel upon the former *337 bearing and we overlooked it. However, it is well settled by decisions in tbis state and elsewhere.
In Caines v. Marley, 10 Tenn. (2 Yerg.), 582, "Wright by bill of sale gave slaves to Jones, but reserved in himself for his lifetime the possession and use of the slaves and provided that at his death Jones .should have possession of the slaves. The Court first held that the gift failed for want of delivery of the slaves to Jones; but on a re-argument the Court upheld the gift as a gift of the remainder interest in the slaves, subject to the life estate of the donor.
In McEwen v. Troost, 33 Tenn. (1 Sneed), 186, Dr. Troost made a deed of gift to his son and daughter, giving them his mineralogical and geological collections, manuscripts, library, engravings, maps, and the furniture containing these articles. The deed was made June 22, 1840, and was acknowledged and registered in October, 1840. The donor retained possession of all the articles until his death in 1850. Their value at that time was between $15,000 and $20,000. The administrator filed a bill against the donees and the widow of Dr. Troost to obtain an adjudication of whether the gift was valid and whether the property belonged to the donees or to the estate. It was urged that the gift was void because the articles were not delivered to the donees but remained in the possession of the donor. The Court rejected this view and upheld the gift. The Court said:
“It is true, that delivery is essential to the validity of a-parol gift of a chattel or chose in action, whether it be a gift inter vivos or causa mortis; and without delivery and a transfer of the possession, the title does not pass to the donee. The delivery must be according to the nature of the thing, as the actual delivery of a sum of money, the delivery of the key of a trunk, of a room, and the like. The effect of a valid delivery is to place the subject of the gift under the control and dominion of the donee, and his title and right to possession become absolute and irrevocable. Noble v. Smith, 2 Johns. [N. Y., 52], 55 [ 3 Am. Dec., 399 ] ; Ewing v. Ewing, 2 Leigh [Va., 337], 340; Bunn v. Markbram, 2 Taunt., 224; 2 Bl. Com., 441; 2 Kent. Com., 438. But a gift by deed is valid at the common law though there be no actual delivery of the thing given. Irons v. Smallprew, 2 Barn. & Aid. 552; Caines v. Marley, 2 Yerg., 582 .
“The execution and delivery of the deed are considered to be equivalent to the delivery of the subject of the gift. By our law the deed of gift is required to be registered, by which notice of the gift is given to creditors and purchasers; 1831, ch. 90, sec. 1. No inconvenience, therefore, can result in the practical operation of the rule. As between the parties, there can be no reason why the deed should not be conclusive as to the intention of the donor, and the fact that the gift was made. Its execution is a deliberate act, indicating the purpose of the donor as clearly as if there had been an actual delivery of the subject of the gift. Now, in the present case *338 there was no actual delivery of the cabinet and library; they remained in the possession and use of the donor until the time of his death; but the donees say it was with their consent. If the gift were in parol it would be clearly invalid. But the gift is by deed, and may therefore, be valid without actual delivery of the subject of the gift.”
McBwen v. Troost was followed in Davis v. Garrett, 91 Tenn., 147 , 18 S. W., 113 , where a father by deed gave a slave to his daughter, retaining possession of the slave. In this case the Court said: ‘‘ The gift of a chattel or a slave by deed duly executed and delivered is valid at the common law, though there be no actual delivery of the thing given. This has long been regarded as settled by our decisions. Caines v. Marley, 2 Yerg., 582 ; McEwen v. Troost, 1 Sneed, 186 .”
See collection of cases in the Annotation in 63 A. L. R., 537; compare Royston v. McCulley (Tenn. Chy. Apps.), 59 S. W., 725 , 52 L. R. A., 899.
The bill of sale transferring the automobile to Mrs. Marlin was as follows:
“State of Kentucky )
“County of Jefferson]
“Know all men by these presents:
“That the ownership of the following described motor vehicle is hereby transferred free from any mortgage or other incumbrance . . . by the midersigned to Mrs. John D. Marlin, 309 Russell St., Nashville, Tennessee . . . for and in consideration of $1.00 cash or equivalent. (Here follows description of motor vehicle.)
“Louisville Motors, Inc.
“By Clien Elmer Stuter
“(Signature of Vendor).”
It was acknowledged before a notary public of Jefferson County, Kentucky, on March 27, 1937; but it does not appear to have been registered in the Register’s Office of Davidson County or elsewhere.
Under the authorities above cited, this bill of sale operated as a conveyance to Mrs. Marlin of the title to the ear, without delivery of the car to her, the delivery of the instrument to her being equivalent to the delivery of the car. Thereafter her brother’s possession of the car was for her and not for himself. Royston v. McCulley (Tenn. Chy. Apps.), 59 S. W., 725 , 52 L. R. A., 899, 905; Wilson v. Wilson, 151 Tenn., 486, 494 , 267 S. W., 364 ; Chandler v. Roddy, 163 Tenn., 338, 352 , 43 S. W. (2d), 397 .
'It is true our recording acts required that this bill of sale be registered in the county where the property was, in order to be effective against creditors of, or bona fide purchasers without notice from, the maker of the instrument. Code sections 7621 (sub-secs. 5 and 7), 7626, 7668. But it was effective against all other persons, without being recorded. Wright v. Black, 159 Tenn., 254 , 17 S. W. (2d), 917 , 65 A. L. R., 357. The maker of the instrument *339 was the Louisville Motors, Inc. Title passed directly from it to Mrs. Marlin. Ownership of the car was never in her brother, W. F. Gardner. So the only person who could take advantage of the failure to register the bill of sale would be a creditor of, or bona fide purchaser from, the Louisville Motors, Inc.
Nor do we think this conveyance of the car to Mrs. Marlin falls within Code section 7833. This section, taken from section 2, chapter 25, Acts of 1801, with immaterial modification, is as follows: ' ‘ If a conveyance be of goods or chattels, and be not on consideration deemed valuable in law, it shall be taken to be fraudulent, unless the same be by will duly proved and recorded, or by bill of sale or other instrument acknowledged or proved and registered according to law, or unless possession remain with the donee. ’ ’
While the bill of sale to Mrs. Marlin was not registered and possession of the car did not remain with her, the consideration for the conveyance was valuable. It was the full price of the car. It is true Mrs. Marlin’s brother furnished this consideration, but that fact does not bring the sale within the condemnation of this statute. In Dillard v. Dillard, 22 Tenn. (3 Humph.), 41, 46, a father procured a third person to make a bill of sale conveying a slave to his daughter, he advancing the money for the purchase and retaining possession of the slave. The bill of sale was not registered. Later he became insolvent and one of his creditors seized the slave by execution. The daughter was allowed to recover the slave. It was held that the want of registration could affect the title in favor of creditors of the grantor only, and the father’s creditors eoidd not object to it on that account. It was also held that the father was not so involved in debt at the time of the transaction that equity would not permit him to advance the purchase money for his daughter. But Mrs. Merrill’s position is not as strong as would be that of a creditor of Gardner. She gave no consideration for the car. ITis effort to give it to her failed because he had no title and could pass none to her. He seems to have owed no debts at the time of purchasing the car for his sister. However, the question whether a creditor of his could subject the car by bill in equity, is not before us.
For these reasons her petition for a rehearing is granted. The judgment heretofore entered by this court is set aside, and judgment will be entered, reversing the judgment of the circuit court, sustaining the replevin, awarding the car to Mrs. Marlin and adjudging the costs below and one-half the costs of the appeal against Mrs. Merrill and the other half of the costs of the appeal against the intervening petitioners, the Bracey-Welsh Company and Dr. Bate Dozier.
Crownover, P. J., and Howell, J., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9826820. Public record. Not legal advice.