The Deed to God

In Georgia and Tennessee, only the grantor (the seller) must sign a deed conveying real property. Even so, the grantee (the one receiving the property) must accept the property. This usually isn't an issue as real estate is usually a desirable thing. However there have been instances where this isn't the case. For example, someone had a piece of swampland he was tired of paying tax on, and tried to deed it away. This won't work.

My favorite example of this is the story of Hull Kerr. Mr. Kerr owned significant farmland in Murray County Georgia in the late 1800's. As a devout Christian, he sought to show his appreciation by giving away over 300 acres for use as an orphanage. To effect this, he prepared a deed as follows:

Hull Kerr of the county of Murray of the one part and God the Father and Jesus Christ- the son and the Holy Ghost of the other part Witnesseth: that I the said Hull Kerr For and in consideration of the many blessings received of him in hand paid at or before the sealing and delivery of those present the receipt whereof is hereby acknowledged has granted, bargained, sold, aligned, conversed, and confirmed, and by these present does grant, bargain, sell, align, convey, and confirm unto the said God the Father, and the Son Jesus Christ, and the Holy Ghost all that tract or parcel of land situated lying and being in the 8th District and 3rd section containing in all 321 acres 

Kerr gave property straight to the Trinity. Kerr was apparently trying to place the property in trust. When leaving property to a trust, however, the property must actually be titled to the trustee, not the trust or beneficiary itself.

Kerr stored up his treasures in heaven, but his earthly plans did not work out. The land is now a mobile home park and some large residential lots. 

The Chicken Thief is Never Pardoned

Chicken stealing has a deep, lasting legacy. It has changed family trees and survives now in language, and in stereotypes.

In the pre-World War, Deep South, it was known as “doing the town.” Chicken thieves were both very talented and very resilient. One thief taught his dog to steal chickens for him. An experienced thief could steal hundreds of chickens in a year. One Georgia man caught in 1891 was known to have stolen 10,000 chickens.

To a poor farmer, the loss of his chickens at a quarter a piece was a sizable loss to his net worth. 

These farmers lived in ramshackle houses with flies on every surface, mattresses of full of corn shucks, bed bugs and fleas. Children slept without clothes, played without shoes, but with heads full of lice. Most every pot or brush or utensil in their possession had some broken part. Besides the gun and the mule, there was little else the farmer owned that had any actual worth besides his chickens. So, stealing his chickens was the biggest legal and criminal concern he ever had. 

Thus, in the South at the time, a thief caught in the act was fair game to shoot at. Neighbors would join in. Upon hearing shots in the night, a farmer’s neighbor would often hop out of bed, grab their gun, look to see which direction to shoot and jump into the action. One suspected chicken thief was shot and killed in Atlanta in 1907 by a random neighbor, knowing nothing more than there was likely a chicken thief about.

Chicken thieves were generally shot with shot guns, and injured but not killed. One thief who was killed was found to have bird shot in his digestive system from another shooting. One notorious thief was caught in 1912. He had collected 40 wounds from bullets and dog bites from all his years of thieving, but he was still alive. A doctor in 1874 picked out 80 shots from one dead thief.

Such a common problem produced a market of contraptions to assist farmers against thieves. Trap guns were a common solution. These booby traps were set up by farmers so that when a door to the chicken coop was opened, it triggered a gun or explosive by some connected wire. Woe to the thief or anyone in the way of the gun when it fired or misfired. There seem to be more stories of these trap guns going haywire and killing the person setting the gun, instead of any criminal. Many men died in such a way. One farmer in Dalton found a human thumb in his trap in 1880.

Drawing of an Animal Trap by J. A. Williams, photo from National Archives

The killer of a thief seldom faced any consequence for these homicides, unless he shot the wrong person. One Gainesville man killed his brother in 1909 after thinking he was a thief. In fact, he was walking down the street with chickens he had purchased.

In the early 1900’s, it was a common complaint about how much time courts spent on this petty crime. “A … chicken thief is just as liable to engage the entire machinery of the Superior Court for a day as of any felony case, and cost the people of the county just as much as if his offense consisted of a diabolical crime.” 

The court system was cluttered with accused chicken thieves that wanted their day in court. 
The court system did move more swiftly then. Plea bargains were non-existent and all cases had to be admitted, dropped or tried. A court could try two murder jury trials on the same day, and still do other business. Still, trial days were limited and a judge and jury could spend all day trying a chicken thief. 

Prosecuting chicken thieves was a burden on the legal system. Since the stealing occurred at night, without witnesses, there was almost always a burden to the prosecution to put forward a very convincing, but circumstantial case. It was also common that the alleged chicken thief was often not the true culprit. Thus, there could be a lot of he said/they said, making the jury work hard in deliberation and sorting out the truth. 

The typical sentence was 6 months in the chain gang, 30 days in jail or $50 in fines. Yet it seemed to the merchant class, and town dweller, that chicken thieves were punished more severely than bank robbers. 

The authorities in one county lamented that a church treasurer that swindled $80,000 of the church’s money would get an easier sentence than a common chicken thief.
A treasurer of one of the largest railroads in Georgia stole $643,000 was given 6 years with parole. The local paper commented that a chicken thief in the wrong court at the wrong time would get a similar sentence. For instance, Henry Crosby, a convicted chicken thief, was sentenced to 20 years in the Dade Co coal mines for chicken thieving. The conditions in those mines was so miserable, that the state inspectors refused to enter them to do their state required inspections.

All this work over chickens does seem wasteful. On the other hand, what the farmers lacked in social and cultural capital, they made up in sheer percentage of the voting public. Thus, the sheriff and judge and solicitor listened and spent a disproportionate amount of time tracking and prosecuting chicken thieves. There was a common saying at the time that “the chicken thief is never pardoned.”

Also, the police knew that if they didn’t punish the chicken thief, worse things would happen. As told before, small town papers from the time abound with these homicides of suspected chicken stealers. Poor and sometimes desperate farmers out in the country needed violent self-help to handle the threat of thieves, and society gave them that margin. 

As with most things in this era, there was a significant racial element with chicken thieving and how it was handled. Besides the accidental shootings, every story told so far involved the shooting of a black man.

Chicken thieving was disproportionately associated with young black men even though it was common among whites as well.  Likewise, the immunity from killing a chicken thief only applied to white men killing black men. 

One 1880 newspaper directed that “Hen roosts are visited nightly by the hungry d---y who is too lazy to eat bread by the sweat of his brow. Be on the look out, and if you can’t catch him, shoot him.”

Thus, white farmers were not prosecuted when killing a black man. On the other hand, when a black farmer killed a white chicken thief in Columbus, Georgia, he was charged with manslaughter with a $500 bond. A black farmer killing a black thief could also expect to be arrested, as happened in one case near Cedartown, Georgia.

The chicken thief as a black man was such a stereotype that the term “chicken thief” became a racial epithet. Similarly, raccoons as stealers of chicken evolved into an epithet against blacks.
Stereotypes combined. One lady enjoyed having a cemetery in her yard as she explained: “I don’t mind the tombstones or the graves. For one thing, they keep negroes away from our place. You see there is the chicken coop on one side of the yard and the watermelon patch on the other, and you couldn’t get a d—-y to go into either after sundown for any number of chickens or watermelons.”

These stereotypes also evolved into food stereotypes.
To even suggest some connection between a race and fried chicken or watermelon is hard to speak. In another place and time or context, this might seem a minor concern. However, it’s not that a group of people like particular foods; it’s the historical association that these foods were commonly stolen

There are other lasting things, too. Shortly after the Civil War, the Southern states set up the convict lease system. Wealthy men, usually politicians and large mining companies or railroads, would “lease” all the state’s convicts about at eight cents a day for a term of years. The prisoners were called slaves by the men renting them. 

This system was hell. One warden, who even supported the system, said it was demonstrably worse than the Siberian gulag.

A report by a Mississippi county described it as follows: prisoners “all baring on their persons marks of the most inhuman and brutal treatments. Most of them have their backs cut in great wales, scars and blisters, some with the skin peeling off in pieces as the result of severe beatings. We actually saw live vermin crawling over their faces, and the little bedding and clothing they have is in tatters and stiff with filth.”

A Georgia report was similar and included moral conditions where “men and women chained together and occupying the same sleeping bunks. The result is that there are now in the Penitentiary 25 bastard children, ranging from 3 months to five years of age.”

Historians have had to looked to Medieval torture and the death camps of WWII for comparisons.  

In one year in Arkansas, the death rate on the lease system was 25%. This was exceptional as the average yearly death rate for black prisoners was about 11%. This system required having enough prisoners.

The convicts were in these camps were 95-100% black, and they were often arrested as chicken thieves, or vagrants and other piddling matters. As one late 1800’s warden said “In the early days it was possible to send a negro to prison on almost any pretext, but difficult to get a white man there, unless he committed some very heinous crime.” Chicken thieving fueled this system and the disproportionate racial makeup of the system remains.

Chicken thieving and tenant farming are gone now. But some things don’t change. The chicken thief is never pardoned. As one young man resigned to his fate wrote:

Goin’ to my shack,
Goin’ have hump on my back;
Nobody’s business but mine.

Goin’ be hump on my back;
So many chickens in the sack.
Nobody’s business but mine.

Chickens in my sack,
Big hounds on my track,
Nobody’s business but mine.
 

Dismissing Student Loans - NY Times article

A recent New York Times article details the struggles of a student loan creditor in collecting defaulted student loans. The article compares the situation to the subprime mortgage debacle where paperwork was lost and therefore the debt lawsuits couldn't be proven.

In one instance, a $31,000 debt was wiped out by a judge when paperwork showing the debt couldn't be presented. In another instance, an $11,000 debt was dismissed. The article reports that there may be upwards of $5 billion total value in these troubled loans.

Nonetheless, "The trusts win many of the lawsuits they file automatically, because borrowers often do not show up to fight."

People often are embarrassed or too despondent to respond to lawsuits. But as this situation shows, it's important to respond to lawsuits! 

What do you do with a check to a deceased person, after the estate is closed?

It’s not uncommon to get a check made out to a deceased relative after the estate is closed. Must you reopen the estate to deposit the one check? The time and expense of that process will likely preclude doing so, unless it’s a really big check.

A Tennessee statute can help.

Tennessee Code 45-2-711 gives banks the ability to pay out small checks to the administrator of an estate, even if the estate was not officially opened, or it has been closes. It reads, in part:

[W]here the qualified executor or administrator of a decedent has been discharged and a check or checks made payable to the decedent is presented to the bank for payment or collection, the bank may, in its discretion, … pay out the proceeds of one (1) or more checks made payable to the deceased, whether written or electronic, all sums that do not exceed two thousand five hundred dollars ($2,500) in the aggregate: To the executor named in any will known to the bank whether probated or not; (B) To any personal representative appointed by a court whether active or discharged.

Thus, a bank has the right to simply cash the check. However, banks are not required to do this. The law simply gives them the option.

As a practical matter, a lot of banks are not willing to do this and the law won’t make them do it. This is one of those instances where a relationship with a bank is valuable. It’s also an instance where a diplomatic lawyer may be able to explain and sweet talk the banker, and save you time and money.

Bad bankers never die, they just lose interest.

Can an executor contest a will in Tennessee?

The short answer to the title question is:

No. A person cannot contest a will that she has a fiduciary duty to uphold. See Love v. Cave, 622 S.W.2d 52, 57 (Tenn. Ct. App. 1981).

Likewise, an executor who “had knowledge of defects in the will but nevertheless proceeded to probate it,” is prohibited from challenging it.

So what can an executor do when a will may be invalid as a matter of law?

If (and this is a big if) she became executor without knowledge of the defect, and acted in good faith, she can resign as executor and file as an interested party. An interested party is one who would benefit if the will challenge is successful. The interested party need not challenge the whole will; challenging a single provision will suffice.

See the recent In Re Estate of Ellra Donald Bostic on this. While it wasn’t a page-turner factually, it does a good job going thru the law.

In Bostic, the trial court had ruled that although Bostic had standing to sue, she was prevented as a former executor. The Court of Appeals agreed that she had standing but said she was also not prevented from bringing the action unless she knew of the defect before she became executor. This was not shown or found by the trial court. Thus, the case goes back to county court.

Attorney work place hazards

An opinion came from the Tennessee Court of Appeals today in Hitachi Capital America Corp v. Community Trust & Banking Company. There, several creditors were fighting over the priority of their liens against a judgment debtor. Hitachi argued that the putative priority lienholder, Community, had a defective judgment. I.e., Community’s judgment did not include court costs, and therefore was not a final judgment. If Community’s order had to be re-issued, then that would put them at the back of the line and mean a lot of money for Hitachi.

On another note, I was discussing in an undergraduate business law class, work place hazards. Unlike yesteryear, I am not worried about a mine collapsing on me, or getting bacteria from a putrid slaughterhouse. On the other hand, I’m sure I’ve lost years off my life from stress and anxiety. Those unhappy attributes come from letters in the mail, or pleadings such as that that must have come in the Hitachi case.

Really dangerous work

I’m imagine that the bank’s lawyers thought this case was behind them, when all of a sudden, they are notified that they may have made a big mistake. It would take months of worry and significant resources to fight a battle a question of law that could go either way.

In Hitachi, the Appeals court agreed with the Chancery court that a final order need not award these costs. Rather, the costs are assessed as a matter of law. Thus, Community had a proper final order, and their lien was in priority to that of Hitachi. Until the order from the Appeals court went down, the attorneys working for the banks had to keep in mind possible malpractice for not including a sentence in the proposed order.

I guess if this job was easy and stress free, everyone would do it.

Rights of First Refusal ... and YOU

Two recent cases concerning rights of first refusal have come from the Tennessee Court of Appeals.

In Geraldine Abbott, et. al. v. Mark Abbott, et. al, No. E2015-01233-COA-R3-CV (July 20, 2016), the relevant deed contained the language “shall have a right of first refusal to purchase said property and once a price is agreed upon.” That price could not be agreed upon and litigation ensued. The putative buyer said that reading the language literally gave the seller the ability to hold up the sale forever. The seller, unsurprisingly, said that it says what it says.

The trial court imposed a “reasonable time” frame on the right of 45 days. The Court of Appeals said even that was a stretch and the right was unenforceable since it was missing an essential term, price. The court cited a case Four Eights, 194 S.W.3d 484, for the proposition that even if the price was confined to “fair market value,” then that was still not definite enough. The Four Eights case concerned a lease option, not aright of first refusal.

In Delain L. Deatherage v. John C. Hailey et. al., No. M2015-02202-COA-R3-CV (July 19, 2016), the court ruled as to whether an email message constituted a binding right of first refusal. The relevant email read

[Defendant] does not want to sell any of his properties at this time. He may need to at some point in the future. He did say you can stay as long as you want and should he decide to do something with the house you will be contacted first. You would have the first right of refusal. And of course if you do find something else you wanted to buy, I would understand. Let me know if I can help with anything.

The plaintiff subsequently renewed her lease (8 months later) and argued that she had turned down other purchasing opportunities. The court found this was not adequate consideration since the renewal was eight months later and unconnected. Also, not buying other properties was not consideration as there was no expectation on the part of defendants that plaintiff would cease searching for properties to buy.

Presumably, if the email had said “thanks for the ROFR – because of that, I will renew my lease with you,” then it would have been enforceable.

It’s curious how a mountain of paperwork, signed at the closing table, is sometimes not enough to adequately record the agreement between buyer, seller, lender and agents. On the other hand, sometimes a sentence in an email can do.

I remember a case many years ago where a wife had given husband a ROFR. They then divorced. The wife transferred the property from herself individually into a single-member LLC. The deed to the LLC had the standard language of “for one dollar and other good and valuable consideration.” The husband then mailed wife a letter with a $1 bill saying "hand it over." It was a jerk move that ultimately failed, but it resulted in years of litigation.

Be careful with your property and your documents!

Dogs in courtrooms (the cuddly ones, not the litigants)

A proposed Tennessee bill would give state judges discretion to allow therapy dogs into the courtrooms. Presumably, the dogs could comfort vulnerable witnesses such as children. A lot of research has demonstrated these benefits and the idea has been used for years in other jurisdictions.

There is an important distinction between these therapy dogs and service animals. The use of a service animal, such as a "seeing eye dog," is protected by the Americans with Disabilities Act, among other things. However, therapy or comfort animals are not offered the same protection

Some county courts already allow the use of therapy dogs, but the proposed bill would remove any concerns about the legality of the use. Judges are often nervous about novelty, when there will be a losing party looking for grounds to appeal.

One sticking point for the use of therapy animals is how does one know when it is a real therapy animal, and not just a pet. This article noted that one of the sticking points of the proposed bill was whether the therapy animal must have a record of its training. This is a trust issue. In the court context, it is unlikely for someone to claim that her pet is a therapy animal in order to get it into the courtroom. On the other hand, in the housing rental business, tenants may be tempted to call their pet a therapy animal in order to get around "no pet" provisions and policies.

Requiring registration, while sounding logical, has the effect of prohibiting many animals. Someone may have a dog that makes life much more manageable for her without going to the trouble of getting training or registration. It doesn't take always take any training for a dog to be able to comfort its owner. A child subpoenaed for a court hearing might not have the time or money to get a dog properly trained and registered.

In all likelihood, requiring anything more than nominal registration would have a chilling effect on the use of such animals.

For more information, you can check out the Courthouse Dogs Foundation.

Cry, Burkina

I love Burkina Faso. It broke my heart to see the terror attack there. I spent some formative time in Burkina Faso in my late 20’s. It was an epic adventure to me, every day was radically different from the one before, and impossible to plan. I realized how much I had to learn, how adventure is all around me, how much of what I view as success is really not so. There’s an old line that we learn most from the places we go, the books we read and the people we meet. Hear, hear. 

Life is much rawer there. That rawness makes for a lot of pain, but a lot of heroism as well. I admired many of the people I came across, who had to make impossible choices that I will never have to encounter. 

At the time, one UN agency ranked Burkina as the third poorest country in the world. Most people I met would eat rice once or twice a year, on holidays. Nonetheless, many people I visited happily killed a goat for our supper to show their hospitality.

We would often ask village patriarchs how many children they had. This was a confusing question that they had not been asked. They would take several minutes to count them up. Children died frequently, and so they weren’t given names until over a week of life. When a child died, you would hear a ritual wailing all night by the mother. If it wasn’t ritualized, then the spontaneous grief would be too much for the mother to endure, over and over during life.

At the time, the country had one overpass within its borders (the things we have at each interstate exit). It had the highest per capita use of mopeds. I sat on the back of a live, “holy” crocodile there. I had an elephant charge at me. I saw an exorcism. I was a guest at a mass Eid al-Adha outdoor service (one of Islam’s two main holidays). Most of the Muslims there think it absurd that Christians and Muslims don’t get along everywhere.

Burkina Faso had a burgeoning cotton industry. I saw black women in colorful clothes and head rags stooped over, picking cotton, and that hit me, as a student of Southern history. A back of the napkin calculation showed that people were willing to work for $0.03 per hour in the cotton fields.. Even with the low wage, Burkinabe cotton can’t compete with US cotton because of subsidies and dumping. I know there are arguments for and against that, but it still seems wrong.

I was the first lawyer of any nationality that most of the people I met in the bush had ever seen. I often had to defend myself against stereotypes of greedy lawyers. I went to the appeals court in the capital, met a few lawyers and watched the proceedings. The rule of law is not too meaningful there. Almost anyone, when coming into a little money, spent it quickly. Saving for the future was too risky. Someone would just come and take it, in one fashion or another. As an example, there was a coup there a couple of years ago. The Big Man that had ruled for many, many years sought to change the constitution so he could keep ruling (why he was worried about the constitution, I don’t know). When a contingent went into his Qaddafi-financed seat of power to confront him over this, he simply fled. Thus, the country had no head of state. One of the contingent declared himself caretaker of the government and was the new ruler.

I remember sitting at a roadside “restaurant” where a lady would fry a chicken for you. Me and my compatriots were talking about the future and how hard it was to discern the proper path, because of all the choices. Meanwhile about a dozen little boys were circling around us, waiting for us to finish the chicken. No matter how clean we picked it, they would make another meal out of it, eating the sinew and many of the bones. Those little boys had two options for the future: become a shepherd, or go to the city and sell phone cards. I would often ask little boys what they wanted to do when they grew up, and they always said “come to America!” I thank God I’m already here and pray the Burkinabe will know peace.

Transferring Conservatorships from Other States to Tennessee

Filing for a conservatorship is a well-worn path. Although there are lots of ins and outs to it, it basically requires a petition, an affidavit from a doctor stating the need for the conservatorship, and a few procedural items, like an ADA notice and proposed orders. Many courts provide their own preferred forms, such as here.

Depending on the court, the process then moves pretty fast, relative to other litigation. The chancellor appoints a guardian ad litem (if needed) who meets the proposed ward and issues a report. The chancellor then sets a hearing and hopefully issues an order. The conservator can then post a bond and take charge.

When a ward moves, the process is different. Most states, including Tennessee, have adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. This act clarifies which state’s law controls and provides “registration” of an out of state conservatorship in another state. It also provides a slightly cumbersome method of transferring the conservatorship without having to reestablish the grounds for the conservatorship.

Also, if the conservatorship is disputed in some way, this Act can save a lot of money and heartache as it limits forum-shopping.

If the conservatorship (or guardianship) exists in a state not a party to the Act, it can still be moved. The Tennessee statute for transferring conservatorship, T.C.A. § 34-8-302,  requires attaching a copy of an order from the transferring court. However, the transferring court (the other state) often requires an order from the receiving court. The conundrum can be resolved by getting a provisional order from the receiving (Tennessee) court.

After receiving the provisional order, the petitioner then needs to get an order from the transferring state. This often requires hiring local counsel in the transferring state. Once that order is obtained, it can be filed with the Tennessee court for issuance of the final order.

Despite the time and efforts, moving the conservatorship is essential when the ward moves. Thankfully, the Chancery Court in Hamilton County is easy to work with. Failing to transfer a conservatorship can get you in trouble, so make that a priority when moving.