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Whaley v. Perkins7/21/2005
kins told Mr. Daley to prepare papers for those two additional acres. On December 12, 1985, Perkins executed a second warranty deed prepared by Mr. Daley conveying a contiguous two-acre parcel to the Beshires. That warranty deed was duly recorded in the Office of the Register of Shelby County, Tennessee on March 19, 1986. With the execution of the December 12, 1985 deed, the Beshires now owned four contiguous acres and had fifty (50) feet of road frontage.
In 1988, the Beshires decided to sell their home in Shelby County, so they could move to Fayette County. Accordingly, on January 14, 1988, the Beshires listed their residence for sale with Banyan Tree Realtors. On April 15, 1988, when the residence had not sold, the Beshires re- listed their residence with Banyan Tree Realtors. In that listing agreement, the Beshires indicated that the residence could be purchased with two acres or four acres. Shortly thereafter, the Whaleys were shown the property and were told that the house and two acres (the property) could be purchased for $136,000.00, or the house and four acres could be purchased for $157,000.00. On April 18, 1988, the Whaleys submitted an offer to purchase the residence and two acres (the property) for the sum of $125,000.00. The Beshires accepted the Whaleys' offer on April 21, 1988. On November 27, 1988, a closing was conducted by M. Stephen Brandon, an attorney, pursuant to which the Beshires were the sellers of the property, the Whaleys were the purchasers/mortgagors, and Mercantile Mortgage Corporation was the mortgagee of the property. At the closing, the Beshires executed a warranty deed in favor of the Whaleys and the Whaleys executed a trust deed in favor of Mercantile Mortgage in both of which the property was described by metes and bounds description. The warranty deed and trust deed were duly recorded on June 1, 1988, in the Office of the Register in Shelby County.
Perkins did not participate in the sale of the property to the Whaleys, and she testified that she "did not know anything about it at all." On July 6, 1992, seven years after Perkins had made transfers to the Beshires and four years after the Beshires had transferred the property to the Whaleys, John Masserano, a real estate attorney in Collierville, Tennessee, prepared a quitclaim deed pursuant to which the Beshires transferred back to Perkins the two-acre parcel that had adjoined the property. That quitclaim deed was recorded on July 14, 1992, in the Office of the Register of Shelby County, Tennessee, at Instrument No. CY 6405. In preparing that quitclaim deed to return the two-acre parcel back to the farm in 1992, John Masserano said nothing to Perkins about there being anything wrong with the two-acre transfer.
In 1995, Perkins sold the remainder of the farm, including the two acres that had been returned in 1992, to a Mr. McCarty for subdivision development. That transaction was also handled by John Masserano.
On July 3, 1995, after a subdivision application for the farm had been filed, the Office of Planning and Development for Memphis and Shelby County (OPD) sent the Whaleys a notice of hearing regarding the approval of the subdivision. The OPD notice indicated that a public hearing would be conducted by the Memphis and Shelby County Land Use Control Board (LUCB) on July 13, 1995 at the City Council Chambers in Memphis City Hall. On July 13, 1995, the OPD filed a staff report that concluded that "the Whaley property, however, appears to have been created in violation of the subdivision regulations." OPD also indicated that:
The applicant will need to demonstrate that the Whaley property is a lot of record, or that all efforts have been exhausted to include it within t
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