Wallace v. McPherson, 187 Tenn. 333, 340, 214 S.W.2d 50,53 (1947). In Brummit v. Brown, 159 Tenn. 612, 21 S.W.2d 626 (1929), the Supreme Court considered whether a deed was void under the statute of frauds because it did not contain an adequate description. The court held the following description to be sufficient: "All my undivided interest in the estate of my father, Frank A. Brown, of Hamblen County, Tennessee, who was deceased on the 7th day of March 1928."
222 S.W.2d at 978-80 (citations omitted). Herskowitz also relies upon the Tennessee cases of Wilson v. Calhoun, 157 Tenn. 667, 11 S.W.2d 906 (1928), Jones v. Mabry, 32 Tenn. App. 675, 225 S.W.2d 561 (1949), cert. denied 1949, and Brummitt v. Brown, 159 Tenn. 612, 21 S.W.2d 626 (1929), in support of his argument that the court can resort to extrinsic evidence to provide a description to validate the Herskowitz Deed for registration purposes. In Wilson the Tennessee Supreme Court found that a mortgage instrument containing an "exceptionally full and complete" description, with the exception that the name of the state and county in which the land lay was omitted, was sufficient to identify the property.
Wallace, 214 S.W.2d at 53 (quoting 16 AM. JUR. Deeds, § 263, p. 586). To support their contention that the 2010 deed provides an adequate description of Polly Place, the Holts rely on Brummit v. Brown, 21 S.W.2d 626 (Tenn. 1929). In Brummit, the Tennessee Supreme Court considered whether a deed was void under the statute of frauds because it failed to include an adequate description of the subject property.
Defendants assert that the description is sufficient because it conveys all the debtor's interest in the property. See Brummit v. Brown, 159 Tenn. 612, 21 S.W.2d 626, 627 (1929) (deed describing property as "[a]ll my undivided interest in the estate of my father" together with father's name, county of residence and date of death, was not void for lack of property description); McGavock v. Deery, 41 Tenn. 265, 267-68 (1860) (deed purporting to convey all the grantors' interest in their deceased father's real estate held sufficient). The court disagrees.
his demurrer are admitted and must be taken as true. Wilson v. Miller, 194 Tenn. 390, 250 S.W.2d 575; Zager v. Cobb, 192 Tenn. 79, 237 S.W.2d 560. These very allegations within themselves, without using any words at all, are alleging a state of facts from which anyone must and should, the facts being true, conclude that fraud has been committed. It is not necessary in the bill to allege that one is guilty of fraudulent acts. All that is necessary is that the facts thus be averred and if they are so alleged and from them fraud is or can be seen then this is all that is necessary. Thus under these alleged facts there is clearly equity on the face of this bill. The next and last ground of the demurrer is that the deed of gift between all of these children, after the death of their father, does not describe the lands in Tennessee in such sufficiency as to take this deed out of the terms of the "fourth section of the Statute of Frauds, Section 7831 of the Code of Tennessee". This Court in Brummitt v. Brown, 159 Tenn. 612, 21 S.W.2d 626, 627, held that a deed which described the interest conveyed as "all my undivided interest in the estate of my father, Frank A. Brown, of Hamblen County, Tennessee", was a sufficient description. The Court in this opinion takes up and analyzes cases of this State for a hundred years back and correctly concludes that a description, where the heirs convey all of their interest in the real estate of their decedent heir, is a sufficient description and conveys the interest therein. It is needless for us to go into any further discussion of the matter because this opinion meets the question here directly and cites authorities and excellent reason therefor.
In the early days it was held that this Court had no authority to permit the amendment of the original pleadings by the addition of parties. Smyth v. Carden, 31 Tenn. 28. Not only would the allowance of such an amendment be contrary to jurisdictional limitations as being appellate only, but it would also be in conflict with the well established rule that a party in the Appellate Court will not be permitted or heard to assume a position contrary to and inconsistent with the position he took in the Trial Court. Brummitt v. Brown, 159 Tenn. 612, 21 S.W.2d 626. The remaining three assignments of error are on the following rulings of the Court of Appeals:
We think this description is entirely sufficient to identify the land and that is all that the law requires. See Swiney v. Swiney, 82 Tenn. 316, 318, and cases cited; also Brummit v. Brown, 159 Tenn. 612, 21 S.W.2d 626. The intention of the testator in all will cases is controlling. Moreover, in determining the question of title, based upon the description of the property, the generally accepted rule is that if the instrument describes it in such manner that it can be located and distinguished from other property, it is good. Thus in 16 A. Jur., Deeds, Sec. 263, p. 586, it is said: