                 IN THE COURT OF APPEALS OF TENNESSEE




JAMES R. STROUD and             )         C/A NO. 03A01-9609-CH-00307
wife, SHELBY JEAN STROUD,       )
                                )
          Plaintiffs-Appellants,)
                                )
                                )
                                )
                                )
v.                              )
                                )         APPEAL AS OF RIGHT FROM THE
                                )
                                )                        FILED
                                          KNOX COUNTY CHANCERY COURT

                                )
ESTATE OF JETER EDWARD          )                       December 23, 1996
WARDREP, JR., JETER E.          )
WARDREP, III, BILLY E.          )                       Cecil Crowson, Jr.
HAMRICK, JAMES HAMRICK,         )                        Appellate C ourt Clerk
CAROLYN EADS, and               )
JAMES C. WARDREP,               )
                                )         HONORABLE SHARON J. BELL,
          Defendants-Appellees. )         CHANCELLOR




For Appellants                             For Appellees

DOUGLAS L. DUTTON                          EARL S. AILOR
AMY V. HOLLARS                             Knoxville, Tennessee
Hodges, Doughty & Carson
Knoxville, Tennessee




                              OPINION


REVERSED AND REMANDED                                  Susano, J.
          The plaintiffs, James R. Stroud and wife, Shelby Jean

Stroud, proceeding pro se,1 filed a complaint for specific


      1
       The plaintiffs’ counsel on this appeal was first retained after the
trial court entered its final judgment.

                                      1
performance against the co-executors of the Estate of Jeter

Edward Wardrep, Jr., and Mr. Wardrep’s heirs.   They seek to

enforce a written contract between them and the deceased in which

the latter agreed to sell them property at 4001 Crestfield Road,

Knoxville.   Following a non-jury hearing, the Chancellor

dismissed the complaint.   The plaintiffs appealed, raising issues

that present the following questions:



           1. Did the Chancellor err in dismissing the
           complaint on the ground that the contract was
           not properly before the court?

           2. Is the failure to record the contract a
           bar to a suit for specific performance
           against the personal representatives of the
           deceased?



                                I.

                               Facts


           In the third paragraph of the complaint, the plaintiffs

allege that they and the deceased executed a contract on May 30,

1995, for the sale of the subject property.   The original of the

contract was attached to the complaint and designated Exhibit A

to that pleading.



           All but one of the defendants filed a joint answer in

which they responded to the third paragraph of the complaint as

follows:



           They admit that Jeter Edward Wardrep, Jr.
           signed a contract as identified by Exhibit A
           to the complaint.




                                 2
The joint answer goes on to state a number of defenses in

avoidance of the contract.



          In a separate answer, the defendant James C. Wardrep

responded to the third paragraph thusly:



          Defendant denies the allegations of paragraph
          3 of the Complaint, and specifically alleges
          that the contract, dated May 30, 1995, by and
          between Jeter Edward Wardrep, Jr. (the
          “Decedent”) and the Plaintiffs with respect
          to certain real estate owned by the Decedent
          located at 4001 Crestfield Road, Knoxville,
          Tennessee, is invalid and unenforceable due
          to the Decedent’s incompetency on the date
          the contract was executed, or in the
          alternative, that the contract is a product
          of fraud or misrepresentation by the
          Plaintiffs or undue influence upon the
          Decedent by the Plaintiffs.



          The Chancellor found that the defendants failed to

carry their burden of proof with respect to all of the matters

alleged as defenses in avoidance of the contract.   She

specifically rejected a defense based upon the failure of the

plaintiffs to “duly register[]” the contract, finding that T.C.A.




                                3
§ 66-4-1022 did not preclude a decree for specific performance

against the personal representatives.



               Despite finding in favor the plaintiffs on all of the

defenses in avoidance of the contract, the Chancellor concluded

that because the plaintiffs had not formally moved the court to

admit the contract into evidence, she had to find for the

defendants:



               . . . the crux of the lawsuit, and that is
               the contract of sale, or an authenticated
               copy thereon has never been introduced into
               evidence, so when Defendant argues there are
               terms missing in the contract I can only say
               as far as the Court knows, there are no
               terms. There is no contract before the
               Court. It’s unfortunate when it comes to a
               technicality of that nature but law as
               medicine and surveys and anything else have
               to be done right, and if they’re not done
               right the Court can’t do it itself. The
               Court has to let people represent themselves,
               so I cannot find that there should be
               specific performance.



               We believe the Chancellor was correct in concluding

that T.C.A. § 66-4-102 did not prevent her from decreeing



      2
          T.C.A. § 66-4-102 provides as follows:

               The personal representative cannot be required to
               execute a conveyance under the provisions of § 66-4-
               101, unless the written agreement or contract, duly
               registered, or a certified copy thereof from the
               register’s books, is produced and delivered to the
               representative.

The companion statute, T.C.A. § 66-4-101, is as follows:

               In all cases of written agreements or contracts for
               the conveyance of land in this state, where the person
               executing the agreement or contract dies before final
               conveyance is made, the decedent’s personal
               representatives may execute the conveyance to the
               person with whom such agreement or contract was made,
               or the decedent’s heirs or assigns, according to the
               forms prescribed for the conveyance of real estate.

                                         4
specific performance.     However, we disagree with her conclusion

that the subject contract was not properly before her.



                                  II.

                                  Law


          In Rast v. Terry, 532 S.W.2d 552 (Tenn. 1976), suit was

brought to set aside a tax deed.       The former property owners

claimed that they did not have actual or constructive notice of

the tax sale.   One of the facts alleged in the complaint was that

process as to one of the property owners had been returned by the

Sheriff marked “not to be found in my County.”       Id. at 553-54.

To this allegation, the defendant responded that



          [i]t is admitted . . . that the Sheriff,
          being unable to serve the summons in the
          matter on the Terrys, or either of them,
          returned said summons marked “not to be found
          in my County.”



Id. at 554.   Citing Gibson’s Suits in Chancery, § 410 (5th ed.),

the Supreme Court pointed out the legal effect of the answer:



          When the allegations of the complaint are
          admitted in the answer the subject matter
          thereof is removed as an issue, no proof is
          necessary and it becomes conclusive on the
          parties.



Id.   (Emphasis added).




                                   5
            In John P. Saad & Sons v. Nashville Thermal Transfer

Corp., 642 S.W.2d 151 (Tenn. App. 1982), the Court of Appeals

opined that



            [f]acts confessed in pleadings are binding on
            the parties and offered evidence of such
            facts is properly excluded as irrelevant.
            (citation omitted).



Id. at 152.    As in the instant case, the John P. Saad & Sons case

involves an answer which admitted that the parties to the

litigation had entered into a contract, a copy of which was

attached to the complaint.



            In Irvin v. City of Clarksville, 767 S.W.2d 649 (Tenn.

App. 1988), an owner of property sued the City of Clarksville

seeking damages because of the City’s demolition of a fire-

damaged house in which the plaintiff alleged that he owned an

interest.     The trial court found that the plaintiff failed to

prove an ownership interest in the property because he “failed to

introduce a copy of the deed during the presentation of his

evidence.”     Id. at 653.   The Court of Appeals held that this

finding was in error because the complaint alleged the

plaintiff’s ownership interest and that interest was admitted in

the answer.     In so holding, the Court of Appeals said the

following:



            In light of the City’s admission, the trial
            judge should not have required [the
            plaintiff] to prove that he owned an interest
            in the property. Admissions in pleadings are
            judicial admissions that are conclusive on
            the pleader until withdrawn or amended.


                                    6
               (citation omitted). Thus, when the
               allegations in a complaint are admitted in
               the answer, the subject matter of the
               allegations is removed as an issue, and no
               proof is necessary. (citations omitted).



Id.



                                        III.

                                     Analysis


               The answers in the instant case admit the execution of

the contract.        While the answer of the defendant James C. Wardrep

purports to deny the allegations of paragraph three of the

complaint, his answer actually amounts to a response which is

properly characterized as a “negative pregnant.”3              The response

is actually an affirmation of the contract with allegations of

matters in avoidance.          It is clear to us that none of the

defendants deny that the deceased and the plaintiffs executed the

subject contract.



               Since the contract exhibited to the complaint was

admitted by the defendants, it was not necessary for the

plaintiffs to formally move the court to admit it into evidence.

It was already before the court by virtue of the admissions in




      3
          A “negative pregnant” is defined as follows:

               In pleading, a negative implying also an affirmative.
               Such a form of negative expression as may imply or
               carry within it an affirmative. A denial in such form
               as to imply or express an admission of the substantial
               fact which apparently is controverted; or a denial
               which, although in the form of a traverse, really
               admits the important facts contained in the
               allegations to which it relates.

Black’s Law Dictionary 1032 (6th ed. 1990).

                                         7
the answers.    John P. Saad & Sons, 642 S.W.2d at 152.    We find

that the appellant’s first issue has merit.



            The defendants argued at trial that T.C.A. § 66-4-102

bars a suit against them in their representative capacity.     The

Chancellor rejected this contention, finding that Brister v.

Brubaker’s Estate, 336 S.W.2d 326 (Tenn. App. 1960) holds to the

contrary.    We agree.   Brister expressly holds that T.C.A. § 66-4-

102 will not serve to bar a suit against a personal

representative for specific performance of a contract to sell

real property, noting that



            . . . if the contract relied on by [the
            plaintiff] is otherwise sufficient, it is
            binding, as between the parties to same and
            their heirs and representatives, without
            registration.



336 S.W.2d at 331.



            The execution of the subject contract was proven below.

The Chancellor determined that the matters alleged in avoidance

of the contract were not sustained by the proof.    While these

latter findings were not raised as issues on this appeal, we find

that the evidence does not preponderate them.    We believe it is

appropriate to remand this case to the trial court so it can

fashion by an appropriate order the relief to which the

plaintiffs are entitled under the terms of the contract.



            The judgment of the trial court is reversed.    This

matter is remanded to the trial court for the entry of an


                                   8
appropriate order, consistent with the opinion of this court.

Costs on appeal are assessed to the appellees.



                                 ______________________________
                                 Charles D. Susano, Jr., J.



CONCUR:



______________________________
Houston M. Goddard, P.J.



______________________________
William H. Inman, Sr.J.




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