                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     April 10, 2007 Session

     MARKS, SHELL & MANESS, ET AL. v. CYNTHIA T. MANN, ET AL.

                  Appeal from the Chancery Court for Montgomery County
                 No. MC-CH-CV-98-08-0011     John H. Gasaway, III, Judge



                     No. M2006-01142-COA-R3-CV - Filed on May 7, 2007


A judgment lienholder appeals from a trial court’s determination that a purchase money mortgage
lien on real property has priority over a previously recorded judgment lien. Based upon this court’s
holding in Guffey v. Creutzinger, 948 S.W.2d 219 (Tenn. Ct. App. 1998), we affirm the trial court.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                          Affirmed

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S. and FRANK G. CLEMENT , JR., J., joined.

Roger A. Maness, Clarksville, Tennessee, for the appellants Marks, Shell & Maness, et al.

Stanley A. Kweller, Nashville, Tennessee, for the appellee, Cynthia T. Mann, et al.

                                              OPINION

        The issue in this case is which of two liens takes priority: (1) a previously filed judgment lien
or (2) a purchase money mortgage lien on later-acquired real property.

       The judgment lien arose from a judgment entered by the Chancery Court of Montgomery
County in favor of the law firm of Marks, Shell & Maness against Cynthia T. Mann and Gary J.
Mann for $553,006.79. That judgment was filed on March 28, 2002, creating a judgment lien
pursuant to Tenn. Code Ann. § 25-5-101 and Tenn. R. Civ. P. 69.07. Mr. and Mrs. Mann divorced.
On August 29, 2003, Mr. Mann purchased real property in Montgomery County and executed a
promissory note for $121,320, secured by a trust deed to the original mortgagee, Washington Mutual
Bank, F.A., which was recorded on September 4, 2003.

      The law firm filed a motion asking the court to order a sale of this real property to satisfy its
judgment lien. The bank’s successor in interest, America’s Servicing Company, Inc., intervened and
opposed the law firm’s motion, asserting that its purchase money mortgage lien was superior.
       The trial court agreed with the mortgagee and, in an opinion and order entered May 24, 2006,
found that the indebtedness created by Mr. Mann in favor of America’s Servicing Company, Inc. was
a purchase money mortgage. The court held that Guffey v. Greutzinger, 948 S.W.2d 219 (Tenn. Ct.
App. 1998), governed the priority issue and quoted from that opinion:

        A mortgage on land executed to secure the purchase money by a purchaser of the
        land contemporaneously with the acquisition of the legal title thereto, or afterward
        but as a part of the same transaction, is a purchase money mortgage, and is entitled
        to a preference as such over all other claims or liens arising through the mortgager,
        although they are prior in point of time.

        Based upon the Guffey case, the trial court concluded:

        Although the judgment lien in favor of the plaintiffs was filed prior to the acquisition
        by the defendant, Gary J. Mann, of the subject real property and prior to the creation
        of the purchase money mortgage in favor of the intervening petitioner, the law in
        Tennessee is well settled that the purchase money mortgage enjoys a priority over the
        judgment lien. The law does not prevent the plaintiffs from conducting the requested
        sale but the proceeds of such a sale would have to be applied to satisfying the
        purchase money mortgage before satisfying the judgment lien.

        We agree with the trial court that Guffey is applicable to the facts and circumstances in the
case before us. The law firm does not disagree and, in fact, characterizes its appeal as a “frontal
assault” on the holding of Guffey.

        The Guffey case involved the same question of priority between a prior judgment lien and
an after-acquired purchase money mortgage lien. The same argument was made that the recording
statutes, specifically Tennessee Code Annotated § 66-24-119 (stating that the first registered
instrument has preference over later registered instruments), give priority to the prior-recorded
judgment lien. Guffey, 984 S.W.2d at 221. However, the Guffey court determined that purchase
money instruments retain special priority rights, i.e., that they are entitled to preference over all other
claims or liens arising through the mortgagor. As the court explained, this priority, based on the
unique nature of purchase money financing, has been recognized in a number of jurisdictions and
is the general rule. Guffey, 984 S.W.2d at 222.

        The Guffey court thoroughly examined the several rationales courts have given to explain the
special priority given to purchase money mortgages, including the doctrine of instantaneous or
transitory seisin and the theory that the only title the purchaser receives is encumbered title. Id. The
court also discussed the public policy reasons justifying the imposition of the rule of superiority for
purchase money mortgage liens. Id. Finally, the court surveyed Tennessee law and stated:




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               However, from the above cases, we conclude that Tennessee has recognized
       the special nature of purchase money mortgages whereby the vendee is not vested
       with absolute title. See Prichard Bros. v. [Cousey], 158 Tenn. [53, 58], 12 S.W.2d
       [711, 712 (1929)]. We must assume that the legislature in enacting this statute was
       cognizant of the law as established by our Supreme Court giving preference to a
       mortgagee over a mechanic’s lien in a purchase money mortgage transaction. The
       statute by its terms provides that judgments “shall be effective against any person
       having, or later acquiring, an interest in such property.” T.C.A. § 66-24-119. The
       judgment can be effective only as to the interest acquired, which in a sales transaction
       and a contemporaneous purchase money mortgage is “land subject to the vendor’s
       lien.” Prichard Bros., 158 Tenn. at 57, 12 S.W.2d at 712. The General Assembly
       did not expressly abrogate this common law notion and, thus, we do not construe it
       as intending to do so. Perry v. Sentry Ins. Co., 938 S.W.2d 404, 406 (Tenn. 1996)
       (“Generally, statutes in derogation of the common law are to be strictly construed and
       confined to their express terms.”)

Guffey, 984 S.W.2d at 224.

       The Guffey court concluded that the execution and delivery of the deed to the purchasers and
the deed of trust to the mortgagor, which instruments were simultaneously recorded, were in such
proximity in time to constitute “one continuous transaction” and that the title conveyed to the
purchasers was considered encumbered by the mortgagee’s lien when it was conveyed. Id.

        We have carefully reviewed the arguments made herein and find no reason to depart from
the holding and reasoning in Guffey. Accordingly, we affirm the judgment of the trial court. Costs
on appeal are taxed to the appellants, Marks, Shell & Maness, et al.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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