Railroad Co. v. Johnson, 30 N. H. 390; Livesey v. Hotel Co., 5 Neb. 56; Railroad Co. v. Veazie, 39 Me. 571. Another equally conclusive is that complainant does not aver or rely upon the rule of estoppel or the doctrine of waiver in any of its bills. It results that the decree of the court of chancery appeals is reversed, and that these bills must be dismissed.

BRIDGEPORT WOODEN-WARE MFG. CO. v. LOUISVILLE & N. R. CO. et al. (Supreme Court of Tennessee. Nov. 15, 1899.) TRIAL-AGREED STATEMENT OF FACTS-TAKING CASE FROM JURY-DEMURRER TO EVIDENCE-APPEAL AND ERROR-BILL OF EXCEPTIONS.

1. Where an action is tried on an agreed statement of facts, in which it is stipulated that, if the plaintiff is entitled to recover, then the measure of damages is a specific sum, the facts should not be submitted to a jury.

2. Where a case is tried on an agreed statement of facts, a demurrer to the evidence is improper, as the function of such a demurrer is to test the strength of the plaintiff's case on his own evidence, and not upon the evidence of both parties.

3. A pleading which states that the party demurs to the evidence, and offers to admit of record that the testimony and proof introduced by plaintiff, contained in a paper attached thereto, marked "Exhibit 1" and made part of the demurrer, are true, is defective, and will not be considered, when such exhibit is not in the record, or is not in any way identified if it is, and the facts demurred to are not otherwise set forth in the demurrer, although the case is submitted on a written agreement of facts.

Appeal from circuit court, Hamilton county; Floyd Estell, Judge.

Action by the Bridgeport Wooden-Ware Manufacturing Company against the Louisville & Nashville Railroad Company and the Nashville, Chattanooga & St. Louis Railroad Company. From rulings on defendants' demurrers to the evidence, plaintiff and defendant Louisville & Nashville Railroad Company appeal. Affirmed.

Garnett Andrews, for Louisville & N. R. Co. Williams & Lancaster, for Bridgeport Wooden-Ware Mfg. Co. Brown & Spurlock, for Nashville, C. & St. L. R. Co.

WILKES, J. This action was instituted in the circuit court of Hamilton county upon a contract of freight carriage from Bridgeport, Ala., to Midvale, Penn. The defendants were brought before the court by summons in the usual way; the summons being served on one defendant, and acknowledged by the other. No pleadings were filed by either party, but it appears an "agreed statement of facts" was substituted for pleadings and evidence. The first clause of the agreed statement is in these words: "In this case it is agreed that the following statement of facts is to be introduced as a substitute for all proof, whether written or oral. No additional proof is to be taken, except by the unanimous consent in writing of all the parties to this record."

Then follows a lengthy agreement of facts. It does not appear from the record when this agreement was signed, nor that it was ever filed. There was no demand for a jury, so far as the record shows, but a minute entry is found in the transcript, which recites as follows: "It is ordered that the case be assigned to the heels of the jury docket call, for trial, by consent." This order was entered February 20, 1899. Thereafter, on March 24th, the cause was continued by order of the court. On June 24, 1899, each defendant filed separately what is called a "demurrer to the evidence." These demurrers are in substantially the following words: "The defendant railroad comes and demurs to the evidence of the plaintiff, and offers to admit of record that the following testimony and proof introduced by the plaintiff, contained and set out in the paper writing hereto attached, marked Exhibit No. 1,' and made a part of this demurrer, and which contains all the evidence introduced by the plaintiff, are true, and further admits as true all proper and legal deductions and inferences therefrom in law. And defendant offers to admit that the facts so stated are the facts in the case, and were proven entirely by the plaintiff, and does now aver that the facts so stated present no ground for the recovery against it, under the pleadings in this case, and this it is ready to verify. Wherefore defendant prays the court to allow the demurrer, and direct the plaintiff to join therein, and prays judgment of the court accordingly, and that plaintiff may be barred against having or maintaining his action against it, or further prosecuting the same." It will be seen that this paper is modeled very largely upon the form found in the case of Hopkins v. Railroad Co., 96 Tenn. 418, 34 S. W. 1029. In that case, however, the testimony and all evidence introduced by the plaintiff were set out in full in the demurrer. Here it is only referred to as "Exhibit No. 1." But there is no paper designated in the record as "Exhibit No. 1." Presumably the agreement of facts, which is designated as "Agreed Statement of Facts," is the paper intended as Exhibit No. 1. But this paper is not only not marked "Filed," and not identified by the demurrer, nor set out in it, but it is not made part of the record by bill of exceptions, and there is no bill of exceptions in the record. The judgment entry on July 1, 1899, recites that' the parties, by their attorneys, and a jury of good and lawful men, appeared in open court, and that the jury was duly elected, tried, and sworn the truth to speak upon the issues joined. It proceeds to further recite that on a former day of the term the jury heard all the testimony introduced by plaintiff, whereupon the defendants each presented to the court their demurrers to the plaintiff's evidence, which were ordered filed by the court, and in which the plaintiff joined; that the demurrers were argued before the court, and the jury was respited; and that the court there

upon was of opinion that the demurrer of the Chattanooga road was well taken, and sustained the same, but that the demurrer filed by the Louisville road was not well taken, and overruled the same; and thereupon the jury returned into open court, "and, having received the charge of the court, do say they find the issues in favor of the plaintiff against the L. & N. R. R., and assess the damages at $282.56 principal, and $31.54 interest, or a total of $314.10." Then follows judgment in favor of the Chattanooga road for its costs, and against the Louisville & Nashville Railroad for the sum of $314.10 and all unadjudged costs. The Louisville & Nashville Railroad excepted to the action of the court in overruling its demurrer and submitting the case to the jury, and prayed an appeal; and the plaintiff excepted to the action of the court in sustaining the demurrer filed by the Chattanooga road, and refusing to submit the issues involved to the jury, and prayed an appeal. Both appeals were granted, and both parties have assigned errors.

It

No charge of the court appears in the record, and the issues which are said to have been submitted to the jury do not appear, so that we are entirely at sea as to what was submitted to the jury, unless we assume that it was the assessment of damages. In the paper styled "Agreed Statement of Facts," one stipulation is that, if the plaintiff is entitled to recover at all, then $286.56 is the measure of damages, which was the amount of principal for which judgment was rendered. will be seen from this recital that, in the conduct of the case below, the usual rules of proceeding and practice have not been followed. In the first place, after the facts had been agreed upon, and the measure of damages fixed in the event the court should be of opinion there was liability, then there was nothing for a jury to do. The question became then one of law for the court,-as to whether, under the facts, there was legal liability. There were no controverted facts, no issues, and the jury could have no office to perform. Neither was a demurrer to evidence proper in such case. That practice exists only when the plaintiff has presented his evidence, and the defendant deems it insufficient to authorize any recovery. But a demurrer to evidence is not proper practice when the parties have agreed upon the facts. In such cases the only proper and correct practice is to invoke the judgment of the court as to the law upon the facts thus agreed upon. The office and function of a demurrer to evidence is to test the strength of plaintiff's case upon his own testimony, and not upon the testimony of both parties, nor upon facts agreed to by both parties. But, if a demurrer to evidence could be allowed in such case, the present demurrer is defective, in that it does not set out the facts proven. It refers to an exhibit, stated to be made a part of it, it is true, and marked "Exhibit No. 1"; but Exhibit No. 1 does not

appear in the record, or, if it does, it is in no way identified. It follows, since the facts are not set out in the demurrer, and are not made part of the record by bill of exceptions, that this court cannot revise the judgment of the court below. All that we can see from the record is that the court below had before it facts from which it found liability, and the verdict of a jury as to the amount of damages, against the Louisville & Nashville Railroad, but no liability as to the Chattanooga road; and this court cannot question the correctness of this holding, and the judgment must be affirmed. The costs will be equally divided between the plaintiff and the Louisville & Nashville Railroad Company.

GORDON et al. v. WEAVER et al. (Court of Chancery Appeals of Tennessee. Jan. 28, 1899.)

STATES ACTIONS EFFECT OF OVERRULING DEMURRER ΤΟ BILL VENDOR AND PURCHASER-AVERMENT OF EVICTION-CAVEAT EMPTOR-RECOVERY OF PURCHASE MONEY -CONCLUSIVENESS OF JUDGMENT.

1. During proceedings by the state under an act of the legislature to wind up the Bank of Tennessee, land came into the hands of the receiver, and was sold to complainant. He was evicted from a portion of it by paramount title. and sued the receiver to recover the money paid into the general trust fund. Held, that the action was not against the state, as it merely had a claim on the trust fund for what might be due from the bank to it.

2. Where the supreme court on appeal has reversed an order sustaining a demurrer to a bill, and an answer has been filed, and proof taken, the court on second appeal may still inquire into the legal sufficiency of the averments of the bill.

3. The receiver of a bank sold to complainant land which had come into his hands as assets. Complainant was ignorant of any defect in the title, but was subsequently ejected by para mount title. Held, that the doctrine of caveat emptor did not apply, and complainant was entitled to recover the amount paid by a suit in equity.

4. A bill averring that one J. B. filed a bill against complainants to recover possession of said tract of land by paramount title, and a decree was rendered declaring said deed null and void, and ordering a writ of possession to eject complainants, and setting out the metes and bounds of the land, and a copy of the decree, sufficiently avers eviction.

5. Under Shannon's Code, § 5000 (Acts 185152, c. 152; Code, § 3983), providing that a judg ment in ejectment shall be conclusive as to the party against whom it is rendered and all parties claiming under him, such judgment against a purchaser at a trustee's sale does not bind the trustee.

6. Complainant having bought land at a trustee's sale, and paid the money into the general trust fund, is entitled, on failure of his title, to recover the money paid, despite the claims of creditors, as he is not recovering anything that ever really belonged to the trust fund.

7. Where complainant bought land at a trustee's sale, and was subsequently evicted from part of it, the fact that what he retained became worth more than he paid for all does not affect his recovery of the payment for the lost portion.

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bill in equity by Willie Gordon, whose real name appeared to be Willie Goodon, and others, against Thomas S. Weaver and others. From a decree sustaining the bill, defendants appeal. Affirmed.

The following is the opinion on demurrer to the bill, referred to in the opinion.

(March 4, 1896.)

"NEIL, J. The questions made in this case arise on bill and demurrer. The bill charges: That on February 16, 1866, an act was passed by the legislature of Tennessee to wind up and settle the affairs of the Bank of Tennessee, and for that purpose directed the president and directors to execute a deed of trust or assignment; that accordingly, on May 4, 1866, the said president and directors executed a deed of trust to one Samuel Watson conveying all the assets of the bank to him for purposes set forth in the act of the legislature'; that on May 16, 1866, the state of Tennessee, or Samuel Watson, trustee, in obedience to said act, filed a bill in the chancery court of Davidson county against the president and directors of the Bank of Tennessee and others for the purpose of winding up the said bank and distributing the funds among the creditors in accordance with the said deed of trust, the cause being styled "The State of Tennessee vs. The Bank of Tennessee,' and that it is still pending in said chancery court; that the said Watson died in the year 1876, and thereupon Robert Ewing was appointed 'receiver' of the assets of said bank, and upon the expiration of his term of office as clerk and master Thomas W. Wrenne, his successor, was appointed receiver, and upon the expiration of his term his successor, Geo. K. Whitworth, was appointed receiver, and upon his death the defendant Thomas Weaver became receiver, and is now occupying that position; that on the 31st day of December, 1868, there were conveyed to said Watson, as trustee, as aforesaid, certain tracts of land lying in Benton county, Tennessee, described in the bill, containing 4,240 acres, the deed having been executed by R. P. Cole, assignee of Jonathan S. Dawson; that on May 4, 1883, the said Ewing, as receiver, filed his report in said cause of the State of Tennessee against The Bank of Tennessee, setting out in detail the assets of said bank, including therein the above described land; that thereupon a decree was rendered directing him to advertise and sell all the real estate belonging to said fund, and that each sale should be made at the court-house door of the county where the property was situated; that in accordance with the directions contained in said decree the said tract of 4,240 acres was sold on February 1, 1885, to one H. Rushing, at the price of $1,670, which he has fully paid, and that he was put into possession of said land, | and a deed was executed to him April 15, 1886, by Thos. W. Wrenne, clerk and master; that, subsequent to the execution of this deed

and the payment of the purchase money, one Jeannette Buchanan filed her bill in the chancery court of Benton county against complainants in this case and the heirs at law of said Rushing seeking to recover possession of said tract of land, claiming it by paramount title; that said bill was defended by complainants herein, but that on November 7, 1890, a decree was rendered in said case declaring that the said deed of Thomas W. Wrenne, clerk and master, to H. Rushing, was a cloud upon the title of Jeannette Buchanan as to 2,000 acres of said land, and was null and void, and ordering a writ of possession to issue to eject these complainants herein from said 2,000 acres; that this decree was affirmed upon appeal to the supreme court on June 11, 1891, and complainants were ejected from the land (said 2,000 acres described in the bill as claimed by said Jeannette Buchanan), and compelled to pay the costs; that H. Rushing died in 1887, intestate, and complainants are his heirs at law; that they filed their bill, by leave of the court first had and obtained, against the defendant Thos. S. Weaver, as receiver of the Bank of Tennessee, and clerk and master of the chancery court of Davidson county, to recover the value of said 2,000 acres of land, and the costs and expenses to which they have been subjected in defending the title; that there is now in the hands of the defendant a fund belonging to the Bank of Tennessee amounting to some $3,000 or $4,000. The defendant demurred to the bill, and assigned the following causes: (1) That it appears from the allegations of the bill that the sale complained of was a judicial sale, fully executed, and the rule of caveat emptor applies, no fraud being charged; (2) that the sale was in gross, and there is no allegation that the portion of the land left after taking off the 2,000 acres was worth less than the amount paid by complainants' ancestor; (3) that the bill contains no allegation that the rents and profits, use and occupation, from which complainants were evicted amounted to less than the price paid for such portion; (4) that the bill contains no statement that complainants' ancestor, at the date of his purchase, was ignorant of said infirmity of title as to the 2,000 acres. The chancellor sustained the demurrer, and complainants have appealed and assigned errors.

"Complainants base their right to relief upon section 4880, Mill. & V. Code Tenn. This section is under a chapter entitled 'Of the Judicial Tribunals and their Relative Rights.' The sections immediately preceding are as follows:

"'4877. In all suits instituted according to law, to sell the real estate of decedents for the payment of debts, or to sell lands for partition, the court may decree a sale of lands lying in any part of the state.

"4878. The courts of this state having jurisdiction to sell lands, instead of ordering parties to convey, may divest and vest title

directly by decree, or empower the clerk to make title.

"4879. The decree or deed of the clerk, as the case may be, shall have the same force and effect as a conveyance by the party, and shall be registered.

4880. And in such cases, where the sale is made at the voluntary instance of parties, the decree or deed by the clerk shall imply a covenant of seizin and warranty of title by the parties whose interest is sold, their heirs and representatives, unless otherwise provided in the face of the decree.'

"Section 4877 was taken from chapter 170, Acts 1848, and sections 4878 and 4879 were taken from chapter 176, Acts 1838. Section 4880 originated with the Code of 1858.

"The first question that arises is, to what class of cases does section 4880 apply? Does it cover all cases where a sale is made by the court at the voluntary instance of the parties, or only to sales for partition? What is meant by the expression in such cases'? The first point to be noted is that these sections occur under title 5 of the Code, the caption of which is, 'Of the Judicial Power of the State.' This 'title' has only two chapters. Chapter 1 is headed, 'Of the Judicial Tribunals and their Relative Rights.' Chapter 2 treats of the power of the courts to preserve order by process of contempt, and is devoted wholly to this subject. Chapter 1, however, touches upon a variety of topics, viz. the distribution of judicial power; the place for holding courts in country towns; cases of conflict between different courts as to the use of the court room, where terms of two or more courts interfere; the incompetency of judges by reason of relationship to the parties or interest in the subject-matter; the power to enforce order in its presence or near thereto; the power to enforce order before a person or body acting under its authority; the power to compel obedience to its judgments, orders, and process; the power to control its officers and the conduct of all other persons connected with a judicial proceeding before it; the power to administer oaths, to control its process and orders, to appoint guardians ad litem for infants; the duty of the court as to the reading of its minutes. Then follow the four sections already quoted. From this recital it is seen that under the scheme of the chapter there is not any very close logical connection between the various matters of which it treats down, at least, to the subject of sales, but is rather a collection of miscel lanies. Upon the subject of sales the connection is closer, as indicated by the general reference to sales; and also it is clear that the expression in such cases' refers back to some prior section or sections. Does it refer to section 4877? If it does, it would have to refer to both classes of sales mentioned in that section.-those made of the land of decedents to pay debts, and those made for partition, or only to partition sales. Manifestly, it could not refer to both, because both do

not fall within the description of sales made at the 'voluntary instance of the parties.' On the other hand, if it was intended to apply to partition sales alone, no reason can be seen why the language in section 4880 was not so confined in express terms. This suggestion becomes the more powerful when we take into consideration the eminent learning and skill-a matter of state history-of the codifiers themselves. The thought, however, was not limited, as suggested, but was allowed to remain at large as displayed by the terminology of the section as it now stands. We therefore do not think reference was had to partition sales merely. On the contrary, we think that the logical starting point of the thought carried to its conclusion in section 4880 must be found in section 4878. The subject there sprung is transmission of title to lands sold by the courts of the state, and the means or instrumentalities for such transmission are mentioned by direct decree of the court, or by deed of the clerk. The next seetion carries the thought forward by extending the significance of the terms 'deed' and 'decree,' adding to them the attributes that they 'shall have the same force and effect as a conveyance by the party, and shall be registered.' This manifestly applies to all decrees or clerks' deeds devesting and vesting title under court sales, and refers to their effect in devesting and vesting title. Then immediately follows section 4880, which carries the thought one step further, and adds both an attribute and a limitation,-an attribute to that class of deeds and decrees that arise upon court sales 'made at the voluntary instance of parties,' to the effect that in such sales 'the decree or deed by the clerk shall imply a covenant of seisin and warranty of title by the parties whose interest is sold'; a limitation upon all other deeds and decrees under court sales, implied in the failure to extend the same consequences to such other deeds or decrees. The reason underlying the distinction is not far to seek. Where persons employ the instrumentality of the court to do that which they can do by themselves or their agents, the results ought to be the same as if the acts in question had been so done, because in truth, in such case, the court, in an important sense, is but the agent of the parties. On the other hand, where the court seizes by the strong hand the property of one citizen to satisfy the claims of another, it would not be just to imply any contractual relations between the two, because what is done is, in effect, a confiscation, so to speak, of the defendant's property against his will. Enough is done to satisfy the ends of justice if A.'s property is forcibly applied to an obligation he owes B. It would be an act of arbitrary power that, in addition to this, would force upon him a contract to indemnify B. against failure of title to the property so seized. On the other hand, it is most consistent with right reason that upon parties who voluntarily apply to the court to sell their property the same obliga

tions should be imposed as upon other persons; that is, the covenants that are usually in voluntary deeds.

"The next question to be considered is whether the sale which is the subject of the bill in this case falls within the description of sale 'made at the voluntary instance of parties.' By chapter 107, Acts 1838, the Bank of Tennessee was established 'in the name and for the benefit of the state.' The state was the sole stockholder, so to speak. By section 6 of the act it was made the duty of the governor to nominate and appoint twelve persons, subject to the confirmation of the legislature, as directors, and one of these directors was to be president. The act proceeds: 'And the twelve persons so nominated and confirmed shall constitute the directors, one of whom shall be president, who are hereby incorporated and made a body politic and corporate, by the name and style of "The President and Directors of the Bank of Tennessee," and shall so continue until the 1st day of Jany., 1868, and by that name shall sue and be sued, plead and be impleaded, and they are hereby made able and capable in law, to have, receive, purchase, enjoy, and retain to them and their successors, lands, rents, tenements, hereditaments, goods, chattels and effects, of what kind, nature and quality soever, and the same to sell, grant, demise, alien, or dispose of,' etc. By section 18 it was provided: "That the lands, tenements and hereditaments which it may be lawful for said corporation to hold, shall be only such as shall be requisite for its immediate accommodations for the transaction of its business, and such as have been bona fide mortgaged to it by way of security for, or conveyed to it in satisfaction of debts, previously contracted in the course of ordinary banking business, or purchased at sales upon judgments or decrees rendered in favor of said bank.' The act of February 16, 1866, referred to in the bill, is entitled 'An act to wind up and settle the business of the Bank of Tennessee.' Section 1 provided: "That the Bank of Tennessee shall no longer carry on or do banking business, and shall be and is hereby placed in liquidation, and its business and affairs shall be settled at as early a day as practicable,' etc. The fifth section provided that the president and directors, without delay, and at as early a day as practicable, should 'cause an assignment and deeds of trust' of all the assets of the bank or its branches, 'to be made and executed in the name and behalf of the Bank of Tennessee, and under its seal,' first, to pay the indebtedness due the school fund; second, all other just debts pro rata; and that in the administration of this trust the real estate of the Bank of Tennessee should be sold on a credit of one, two, and three years, with interest from date, and lien retained. Section 6 provided: "That the attorney general of the state, if it becomes necessary in the opinion

and judgment of the governor, file a bill in the chancery court, to execute the deed of trust or trusts, and without security enjoin all creditors from suing said bank, and making all the creditors as far as known, and all other persons unknown, by publication in some public print in the city of Nashville, parties, and to all others, to the end that all interested therein may come in under one decree, and equal justice be done to all.' The bill charges that the assignment was made and the bill in equity was filed in accordance with these sections, and that in course of the administration of the trusts in the chancery court of Davidson county the land in question was reported among the assets of the bank, and was sold under the orders of the court in that case in accordance with the terms of the trust; that it was bought and paid for by the ancestor of complainants, and that title failed to a portion of the land so sold. Did this sale fall within the class of sales referred to in Code, § 4880, as thus made at the voluntary instance of the parties, with the consequent result of implying a covenant of seisin and warranty of title? What was the situation? The bill had been filed as stated, but in the meantime the charter of the bank had expired by limitation. Its corporate existence, by the terms of the charter, was only to continue until January 1, 1868. The land in this case was not sold until 1885, and the clerk and master's deed was not made until April, 1886. Could this deed imply a covenant of seisin and warranty against the corporation at that time, on the idea that the sale fell under the description of a sale made at the voluntary instance of the party? The corporation was not then in existence. It had, during its existence, made the assignment of all its properties directed by the legislature, and expired pending the administration of this trust. It was as completely out of existence as if a natural person had made the assignment, and then died, pending the administration of this trust in the chancery court. It would not be suggested that in such a case a sale of the assigned property would imply a covenant of seisin and warranty against the estate of the deceased person. These covenants are personal; that is, they are the enjoyments of individuals, not incidents attachable to trust estates as such. The sale of the property in this case was merely an incident in the administration of the trust referred to, in which all persons concerned in the fund, creditors as well as the trustee, were necessarily actors. The bank being out of existence, the sale could not be designated as one made at its voluntary instance. Our conclusion necessarily is that the case made in the bill does not fall within the meaning of section 4880 of the Code. We reach this conclusion without regard to the question whether a sale made through the chancery court at suit of the trustee for the enforcement of a voluntary trust would fall