On Petition for a Rehearing. An opinion was filed and a decree entered in this cause on a former day of the present term reversing the decree of the chancery court and dismissing the bill of complainant, Elbert Owens.
The issues made by the pleadings, the material facts disclosed by the record, and the grounds upon which this court based its reversal of the decree of the chancery court, are all stated in our former opinion, to which we refer without repetition, other than certain brief references hereinafter made.
The case is now before us for the disposition of a petition for a rehearing seasonably filed by the appellee, Elbert Owens, complainant below.
Counsel for petitioner state in their brief filed for support of the petition to rehear that, if petitioner "knowingly participated in a fraud," when he accepted the deed under which he is claiming title in this case, the former decree of this court was right; but in the petition to rehear it is stated: "The Court evidently overlooks the fact that there is no evidence in the record that complainant knew this was a fraudulent conveyance, and there is no admission in the record on the part of the complainant that it was a fraudulent conveyance, or that he had any knowledge of or participated in any fraud."
As stated in our former opinion, defendants Burton Owens and wife filed their answer as a cross-bill, seeking to have the deed under which complainant was claiming title declared fraudulent and void and to have it set aside, and, among other defenses to said cross-bill, the present petitioner pleaded res adjudicata and introducted the record in a former case of Burton Owens and wife v. Elbert Owens and wife in the chancery court of Fentress county, wherein the present defendants (Burton Owens and wife), by their original and amended bills, sought substantially the same relief as they are seeking by their cross-bill in the instant case.
Burton Owens and wife alleged in their bill, as amended, in said former suit, among other things, that no consideration was ever paid, and none was to be paid, for the conveyance evidenced by the deed in question, but that said deed was only intended to convey the land therein described to Elbert Owens to be held by him in trust for the complainants, Burton Owens and wife, until such time as they desired or demanded that it should be conveyed back to them or to any person whom they might direct; that Burton Owens "was financially involved and the deed was executed for the purpose of protecting himself until such time as he could settle and discharge his liabilities;" that, at the time said deed was executed, "complainant, Burton Owens, was indebted to one A.B. Potter, and that said deed *Page 114 was executed in order to give complainants a chance to pay off said indebtedness without having all their lands levied on and the title to same beclouded. That since the execution of said deed, complainants have paid off and discharged said indebtedness, and after this was done, they requested and demanded of said Elbert Owens that he reconvey to them the said lands, as he agreed to do upon demand, when the deed was executed; that the defendants failed and refused to execute said deed, although they have never claimed that they were the owners of said land, and the possession of said lands was never, at any time, surrendered to the defendants and they have never been in possession of the same, adverse to the complainants.
"It is true that the defendants live in a little house on the home tract of land, described in the bill, and have cultivated some of the land, by permission of the complainants.
"They were living there at the date of the execution of the deed, and complainants charge and aver that, although the deed recites in its face a consideration of one dollar ($1.00) and other considerations, not one cent was ever paid by said defendants for said land, and no such was ever made to them for it.
"The deed was simply made to permit the defendant, Elbert Owens, complainants' son, to hold such land in trust for the complainant, Burton Owens, until such time as the complainant, Burton Owens, could pay off and discharge said indebtedness, which he has done."
Elbert Owens and wife demurred to the aforesaid former bill of Burton Owens and wife, and, for cause of demurrer, stated that, "the bill shows on its face that the complainants conveyed the land, they now seek to recover, to these defendants, for the purpose of hindering and delaying their creditors; and they willingly, knowingly and actively participated in the fraud of which they now complain. Wherefore, these defendants pray the judgment of the Court whether they shall be compelled to answer further, and pray to be dismissed."
The chancellor held, "That the demurrer is sufficient in law, and will have to be sustained, and the bill and amendment thereto will have to be dismissed, as the bill on its face shows it was made in violation of statute, and with intent to hinder and delay creditors from collecting their debts from the complainant, and was a contract contrary to public policy and a fraud, and by reason thereof was not entitled to relief in this Court."
From the decree thus rendered by the chancery court there was no appeal.
It is obvious that the aforesaid demurrer filed by petitioner in the former cause was not based on formal or technical omissions or defects in the bill, but raised a question of substance, going to the merits of the cause of action, and the chancellor properly held that the former judgment was a complete bar to the cause of action *Page 115 which Burton Owens sought to set up by his cross-bill in the present case. 34 C.J., pp. 797, 798, sec. 1219; Logan Maphet Lumber Co. v. Cross, 126 Tenn. 695, 151 S.W. 51; Parkes v. Clift, 9 Lea, 524.
Under elementary rules, the demurrer admitted the truth of the allegations in the bill which showed not only that the deed in question was made for the purpose of hindering and delaying the creditors of the grantor, Burton Owens, but also that it was made without consideration, and upon an agreement by the grantee, Elbert Owens, to reconvey the land to Burton Owens when the latter had discharged the debts which he then owed.
Upon his demurrer thus admitting the facts alleged in the bill, petitioner obtained a decree of the court in his favor, and he has invoked that decree for his defense in the present case. If he would take the benefits of the former suit, he must assume its burdens.
"It may be laid down as a general rule that a party will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, where the later position is to the prejudice of the adverse party, and the parties and the questions involved are the same." 10 R.C.L., p. 702, par. 29.
Petitioner accepted the fraudulent deed and there is no evidence in the record of the instant case that there was any consideration for the conveyance, or that petitioner was ignorant of the fraudulent purpose for which it was made. He cannot now assume a position inconsistent with that maintained by him in his former suit and deny the admissions made therein. Stearns Coal Lumber Co. v. Jamestown Railroad Co., 141 Tenn. 203, 206, 208 S.W. 334.
The petition for a rehearing is denied and dismissed at the cost of the petitioner.
Crownover and DeWitt, JJ., concur.