Opinion
C/A No. 03A01-9502-CV-00130.
September 20, 1995.
Appeal from Knox Law Court, Hon. Harold Wimberly, Judge
J. MIKEL DIXON, Knoxville, for Plaintiffs-Appellees.
WADE M. BOSWELL, Knoxville, for Defendant-Appellant.
VACATED AND REMANDED
OPINION
Plaintiffs obtained a money judgment against defendant, and upon the judgment becoming final, plaintiffs undertook to collect the judgment through executions. In an application for execution filed on June 14, 1993, plaintiffs recited that a garnishment had been issued and "modest amounts" were being paid into the Court pursuant to the garnishment, and that an execution was run for defendant's personal property which was returned, essentially nulla bona. The application then states:
The defendant owns real estate at 7325 Oxmoor Road, Knoxville, Tennessee 37931, which is encumbered with a first mortgage indebtedness which would be superior to the judgment lien of plaintiffs. However, defendant has accumulated equity in that real property, after payment of the first mortgage which is available to judgment creditors such as the plaintiff herein.
The application then asked that the "defendant's real estate be sold in partial satisfaction of the judgment". Defendant moved to dismiss the application for execution appending defendant's deed and a copy of a deed of trust which constituted the "mortgage" referred to in the application. The Trial Judge overruled the motion to dismiss and directed a "sale".
No appeal was granted pursuant to T.R.A.P. Rule 9; however, the Trial Court ordered a stay of this order and we are treating the appeal as one perfected in accordance with Rule 9.
The record establishes that defendant does not have legal title to the property at issue, and only legal titles are subject to execution levy and sale. Evans v. Belmont Land Co., 92 Tenn. 347 (1893). Circuit courts have jurisdiction of suits of an equitable nature, unless timely objection is made to the exercise of that jurisdiction. T.C.A. § 16-10-111. In this case, the defendant has properly objected to the jurisdiction of the Circuit Court. Upon objection, the Circuit Court should have transferred this matter to the Chancery Court since plaintiffs are seeking to sell defendant's equitable interest in the property. See T.C.A. § 16-2-107, Flowers v. Dyer County, Tennessee, 830 S.W.2d 51 (Tenn. 1992); Shelby County v. Bickford, 102 Tenn. 395 (1899).
The order of the Trial Court is vacated and the cause remanded with instructions to transfer this matter to the Chancery Court for further adjudication.
Costs of the appeal are assessed one-half to each party.
________________________ Herschel P. Franks, J.
CONCUR:
___________________________ Don T. McMurray, J.
___________________________ Clifford E. Sanders, Sr.J.