107 Tenn.

Volume 107 — Tennessee Reports

73 opinions

107 Tenn. 1Knights of Pythias v. Steele (1901)
1 Chabgb ob Coubt. Erroneous as to preponderance of evidence. In civil cases a mere preponderance oí evidence in favor of the party upon whom the burden of proof rests is sufficient to entitle him to recover, and an instruction to the jury is erroneous, as requiring more than a preponderance, which is in these words: “A witness is only valuable to the extent that his evidence establishes some material fact or circumstance which aids in making clear and plain to your minds some question involved in this litigation.” (Post, pp. 4, S.) Gases cited: Gage v. Railroad, 88 Tenn., 724; McBee v. Bowman, 89 Tenn., 132. 2. Same. Same. An instruction to the jury, in an action on a life policy to which the defense of suicide is interposed, is erroneous, as requiring more than a preponderance of the evidence, which states that “the burden of proof is on the defendant to establish to the satisfaction of the jury, by a preponderance of the evidence,” that the insured committed suicide. It is not essential, in a civil case, that facts shall be “established” — that is, “settled certainly,” or “fixed permanently.” Nor is it essential that the evidence shall “satisfy” the minds of the jury — that is, set their minds at rest and free them from doubt, suspense, and uncertainty. (Post, pp. 6-13.) 3. New Trial. Gra/iited for inxeompetency of jv/ror, when. The fact that a juror falsely stated, on his voire dire examination, that he had not served on the regular panel within the last two years, and thereby deceived counsel and prevented his challenge for cause, is a sufficient ground for setting aside a verdict and granting a new trial, especially where this fact is fortified by such conduct of the jury, on and after the trial, as indicated that they were not fair and impartial. (Post, pp. 13-15.) Constitution construed: Article I., Section 6. Case cited: Neely v. State, 4 Bax., 180.
107 Tenn. 16Polk v. Gunther (1901)
1. Vendor's Lien. Mnforcement of, against life tenant does not affect remainderman. The enforcement of a vendor’s lien, to which the entire title is subject, by sale of land in a suit to which the life tenant alone is made a party, does not affect the interest of the remainder-man. (Post, pp. 17-20.) 2. Same. Same. And, in such case, the remaindermen, whose interests were not sold, will not be required, as a condition to recovery of same after the expiration of the life estate, to account for any part of the purchase price that was appropriated to the extinguishment of the vendor’s lien. (Post, p. 21.) 3. Estoppel. To set tip title to land. The owner of land who actively induces its purchase as the property of another will be estopped to set up Ms title against such purchaser, although the owner may have acted in ignorance or forgetfulness of his own title. (Post, pp. 20, 21.) 4. Pabtition. Improvements made by one tenant in common. When one tenant in common, at his own expense, puts improvements on the common property, and, afterwards, partition in kind is made, such improvements should be allotted to the share of the party making them, and without any charge for their value. (Post, pp. 21, 22.) Cases cited: Reeves v. Reeves, 11 Iieis., 669; Estellu University, 12 Lea, 476; Simpson v. Sparkman, 12 Lea, 360; Broyles v. Waddell, il Heis., 32.
107 Tenn. 23Earp v. Edgington (1901)
1. Evidence. Incompetent as cause for new trial. Where the jury has been permitted to hear and consider incompetent evidence without exception, new trial will not he granted on this account alone. (Post, pp. 29, 30.) Cases cited: Ins. Co. v. Scales, 101 Tenn., 640; Perey v. Perey, 94 Tenn., 331. a. Same. Same. But if the Court instructs the jury erroneously and prejudicially as to the consideration of such evidence, that constitutes good cause for new trial. (Post, pp. 30, 31.) 3. Wills. Admissibility of subsequent declarations of testator. Testator’s declarations, made subsequently to the making of his will, are not competent to prove that the will was the result of undue influence, or of fraud or force, excited by or on behalf of a few beneficiaries thereunder. (Post, pp. 31-34.) 4. Same. Poverty and afflictions of contestants not competent. It is not competent to prove, on the trial of an issue of devisavit vel non, the poverty and afflictions of the contestants. (Post, pp. 34, 35.) 5. Same. Bequest on subject of undue influence erroneously refused, On the trial of a contest for undue influence, fraud, and force, of a wife’s will bequeathing her entire estate to her husband, it is reversible error for the court, after giving a bewildering, if not misleading, charge, to refuse to give this special request on- behalf of contestee, to wit: That if the jury found that the husband “was loyal to his wife in her misfortunes, and during the entire period of their married life gave his time and attention to the promotion of her interests and the improvement of her estate under her direction, then they might look to these facts as showing a motive for the making of the will, and if they further believed from the evidence that it was made because of gratitude and affection for him, and without duress, fraud or undue influence practiced by him on the testatrix, then they-should find for the will.” (Post, pp. 35-37.) 6. Same. Ratification of will obtained through undue influence. Although a will may have been made originally as the result of undue influence, fraud or force, still it is valid if the testator, with full knowledge of the facts, and after the removal of all improper influences, freely ratifies and intentionally leaves it as her last will and testament. (Post, pp. 37, 38.) 7. Chahge 03? Court. Request as to weight of proof of admissions. A request for an instruction that the jury may consider and base their verdict upon parol evidence of admissions of a party, is not improperly refused where it does not contain the usual caution to the jury in considering parol evidence of admissions or declarations. (Post, pp. 38-40.) 8. Same. Same. A request for instruction that jury shall consider a party’s admissions shown by parol evidence as “ strong evidence ” of an adverse fact, is erroneous and proprly refused. (Post, p. 40.)
107 Tenn. 41Taylor v. Lumber Co. (1901)
1. Mechanics’ Lien. Subcontractor's Rights. A subcontractor is not entitled to personal judgment against the owner of property for the value of labor or materials furnished to a contractor and put into its improvement. There is no privity between the subcontractor and the owner of the property in such case. (Post. p. 42.) S. Same. Same. A subcontractor, not being entitled to judgment against the owner of the property for the value of materials or labor furnished to a contractor and put into its improvement, cannot enforce his mechanics’ lien for same against the property by-execution, but alone by attachment. The statutory provision for enforcement of mechanics’ liens by execution as well as by attachment, though general in terms, is restrained by necessary construction to contractors’ liens, who are in privity with the owner of the property and entitled to personal judgment against him, upon which execution may issue. (Post, pp. 42-45.’) Act construed : Acts 1873, Ch. 19. Code construed : {jg 3531, 3540, 3543, (S.); g<! 2739, 2740, 2746, 3747 (M. & V.); \\ 1981, 1986-7, (T. & S.). Cases cited: Barnes v. Thompson, 2 Swan, 313.
107 Tenn. 46Greer v. Chickasaw Land Co. (1901)
1. Certiobaei. Application for, when made. Application for certiorari, as a substitute for an appeal, to review a Justice’s judgment must be made at or before the first regular term of the Circuit Court held in the county after rendition of the justice’s judgment or sufficient cause averred for the delay. Cases cited: Trigg v. Boyce, 4 Hay., 100; Perkins v. Hadley, 4 Hay., 143; Love v. Hall, 3 Yer., 408; Tipton v. Anderson, 8 Yer., 222; Newman v. Rogers, 9 Hum., 121; Johnson v. Deberry, 10 Hum., 440; McMurry v. Milan, 2 Swan., 177; Brinkley v. Burney, 5 Cold., 103; Mason v. Hammons, 7 Cold., 133; Lanier v. Williams, 1 Head, 442; Mason v. Westmoreland, 1 Head, 557; Nance v. Hicks, 1 Head., 625; Gillam v. Looney, 1 Heis., 319; ■Copeland v. Cox, 5 Heis., 174; King v. Williams, 7 Heis., 305. 2. Same. Exouse for delay in making application for, insufficient, when. ■ ■ An application for certiorari, to review a Justice’s judgment, will be dismissed, on motion, where the petition shows that applicant had delayed over two and one-half years, and until bill had been filed to enforce the judgment, to file his petition, in which no excuse is averred for the last year’s delay.
107 Tenn. 54Nott v. Fitzgibbon (1901)
1. Will. Copy of will construed. “I hereby will my home place of seventy (70) acres, and seventy acres on the west and adjoining, and seventy aeres still west, to my wife, Hanna Fitzgibbon, and my son, James Fitzgib-bon, jointly for life. In case my son, James Fitzgibbon, dies without issue, or my wife should die, I hereby will and bequeath the homestead and the next seventy acres to Mrs. Margaret Nott and her four daughters, for life, and will remainder to their heirs. I hereby will and bequeath seventy acres, more or less, lying west of the home place and the seventy acres before mentioned, to Thomas Clifton and his children, for their lives, with remainder to their heirs, after the death of my wife and son, James Fitzgibbon. ” (Post, pp. 55, 56.) 3,. Same. Construction of same. The Court holds upon a proper construction of said will: (1) That testator’s widow and son, James, take an estate for their joint lives, and during the life of the survivor of them, in the three tracts of land; (3) that testator’s son, James, having survived the widow and having heirs born to him, takes the homestead tract and the seventy acres adjoining it on the west, in contingent fee, determinable upon his dying “without issue;” he takes only the life estate in the other seventy acres in any event; (3) that Margaret Nott and her daughters take, under the devise to them, only in the event that the son, James, dies without issue; (4) that Thomas Clifton and his children take the remainder in the seventy acres devised to them absolutely, and free from the condition contained in the devise to MargaretNott and her daughters. (Post, pp. 55-65.) Cases cited: Petty v. Morse, 5 Sneed, 136; Owen v. Hancock, 1 Head, 563; Cowan, McClung & Co. v. Wells, 5 Lea, 683; Battle v. House, 4 Lea, 303; Alston v. Davis, 3 Head, 365. ' 3. Same. Construction of separate provisions. There must be connection by grammatical construction, direct words of reference, or by the expression of some common purpose, between distinct bequests or devises in a will, to justify the drawing in aid the special terms-of one bequest to construe another. Independent provisions, not so connected, must be separately construed, even though there may be room for conjecture that the testator had the. same intention as to ail. (Post, p. 63.) . ’ • Cases cited: Simpson u Smith, 1 Sneed, 394; Randolph v. Wen-del, 4 Sneed, 647; Wood v. Polk, 13 Heis., 320; Kay v. Connor, 8 Hum., 634.
107 Tenn. 66Bank v. Memphis (1901)
1. Taxation. Bach assessment. The back assessment feature of the General Assessment Act of 1897 does not authorize back assessment, for 1897 and preceding years, of property — e. g.\ the capital stock of banks whose shares were exempt, which was not subject to original assessment under the laws applicable to said years. (Post, pp. 69-73.) Act construed: Acts 1897, .Ch. 1. Case cited: Bank v. Memphis, 101 Tenn., 154. 2. Same. Suit for taxes paid under protest maintainable, when. A taxpayer who has paid taxes under protest can maintain an action to recover same, although he has not applied to the Board of Equalization for relief, when the assessment is void, as having been made without authority of law. (Post, p. 72.) Case cited: Ward v. Alsup, 100 Tenn., 746. 3. Decbee. Construction of. The meaning of a decree must be ascertained from its face; and its terms cannot, in the absence of pleadings impeaching it, be varied or altered by parol proof. (Post, pp. 73-76.)
107 Tenn. 77Erck v. Erck (1901)
FROM: SHELBY. Appeal from Probate Court of Shelby County. J. S. Galloway, J.
107 Tenn. 83Williamson v. Tunis (1901)
Wills. Gives transmissible interest, when. Under a devise of lands to testator’s daughter, and, upon her death without issue, to her surviving brothers and sisters, or their issue, the daughter takes a vested and transmissible interest, subject to the contingency of dying without issue, and her issue take, not under the will, by inheritance from her. Cases cited and approved: Petty v. Moore, 5 Sneed, 128; Owen v. Hancock, 1 Head, 563; Alston v. Davis, 2 Head, 266; Cowan, McClung & Co. v. Wells, 5 Lea, 684. Cited and distinguished: Springfield v. Jackson, 11 Lea, 348; Turner v. Ivie, 5 Heis., 222.
107 Tenn. 89Dunscomb v. Randolph (1901)
FROM SHELBY. Appeal from Chancery Court of Shelby County. F. K. Heisecelt,, Ch.
107 Tenn. 106Railroad v. Kuhn (1901)
X. DECLARATION. Sufficient for personal injury sustained in another State. In an action by a passenger against a common carrier for personal injury sustained from derailment and overturning of a coach in another State, it is not essential that the declaration shall aver the breach of any statute of that State. It is sufficient if the declaration avers a case of common law negligence. (Post, pp. 109, 110.) Case cited and approved: Railroad v. Reagan, 96 Tenn., 128. 2. Same.' Avers case of common km negligence. A declaration makes a prima facie case of actionable negligence, at common law, which avers that defendant is a common carrier, and that plaintiff, as its lawful passenger, was injured by derailment and overturning of its coach, in which he was traveling. (Post, p. 110.) 3. Common Carrier. Presumption of negligence from derailment of coach. Injury to passenger from derailment of a Coach, in which he is traveling, raises a prima facie presumption of negligence on the part of a common carrier, and casts upon it the burden of showing that the accident causing the injury was unavoidable by the exercise, on its part, of the utmost'degree of care, skill, and foresight. (Post, pp. 110-117.) 4. Same. Measure of duty to passengers. Common carriers are not insurers of the safety of. their passengers, but they are held to the exercise of the greatest, highest or utmost care, skill, and foresight that human experience and observation and the known laws of nature suggest as conducive to the passenger’s safety, and capable of being put into practice; or, to express it otherwise, they are held to the exercise of such active, solicitous care, skill, and foresight as intelligent, suitably-trained, and very cautious persons would be expected to exercise for their own personal protection in the same business and surroundings, and with the instrumentalities required and employed; and this obligation, in the case of railway carriers, applies not only to the selection and use of suitable carriages, motive power, appliances, and servants, as in case of stag-e lines, but also to the proper construction and maintenance of roadbed and tracks. (Post, pp. 124-131.) Cases cited and approved: Railroad v. Elliott, 1 Cold., 611; Railroad v. Messino, 1 Sneed, 321; Ferry Co’s. v. White, 99 Tenn., 256; Transit Co. v. Venable, 105 Tenn., 460. Cited and distinguished: Railroad v. Mitchell, 11 Heis., 404; Sommers v. Railroad, 7 Lea, 204; Young v. Bransford, 12 Lea, 237; Railroad v. Stewart, 13 Lea, 437. 5. Same. Charge of Court correctly and sufficiently defines carrier’s duty to passenger. In an action by a passenger against a common carrier for injury resulting from derailment of a coach, the Court’s charge as to the carrier's duty is correct and adequate, and makes refusal to give additional requests proper, which is in these words, to wit: “In this case, if you believe from all the evidence that the sleeping car in which plaintiff was a passenger, was derailed and overturned as a direct and proximate result of a rain, which was so heavy, unusual, and extraordinary that it could not -have reasonably been expected or anticipated by defendant railroad company, and that such unusual and extraordinary rain was the causé of a portion of defendant’s railroad embankment giving away, and the consequent derailment of said sleeping car in which plaintiff was a passenger, and that said accident could not have been prevented by the exercise of the utmost degree of care and vigilance on the part of the defendant, then plaintiff cannot recover. . . . Defendant railroad company, as a common carrier, does not insure the absolute safety of its passengers, and is not responsible for the direct and violent acts of a nature which could not reasonably have been foreseen and guarded ag-ainst or prevented by the exercise of a high degree of care, skill, and pru-‘ denee, and if the defendant railroad company maintained its culvert and the railroad embankment at the point where the accident occurred in a good condition,■' and the same were safe for all emergencies which could reasonably have .been anticipated by it, and at the time of the injury complained of defendant was ‘in the exercise of the utmost degree of care and prudence, both in the matter of the maintenance of said embankment and in the operation of its trains over the same, then said defendant is not liable. If you find from the testimony that defendant was without negligence in the construction and maintenance of the culvert, and that the injury to plaintiff was the result of an inevitable accident, and such as no human foresight could avert, then the defendants would not be liable, and your verdict must be in favor of the defendant.” (Post, pp. 120-122.) 6. Same. Charge correctly defines carrier’s duty as to construction and maintenance of bridges and culverts. In an action by a passenger against a common carrier for injury sustained by derailment of ear caused by defective culvert, the Court’s charge is correct and adequate in these words, to wit: “The measure of diligence required in the maintaining of bridges and culverts by railroad companies is that the character and size of the stream, the extent and situation. of the agricultural land about it, and the nature of the rainfalls and floods affecting it, shall ]je ascertained and provided for so far as the exercise of ordinary foresight, care, and skill can accomplish them, but there is no requirement that the recurrence of cyclones, cloudbursts, and the like shall be foreseen, or guarded against, though it is known that they have many times happened. .And, therefore, if you find from the proof that the culvert was of sufficient capacity to carry off safely all ordinary accumulations of water, and that the defendant constructed and maintained the same with due care and frequently inspected the same, and it appeared to be amply sufficient for all purposes, then the Court charges you that the company would not be liable for the injury suffered by the plaintiff from such extraordinary downpour of rain, or cloudburst, as overtaxed the capacity of said culvert and caused a washout.in same.” (Post, pp. 122, 123.) 7. Peoximate Cause. What is. Where the unsafe condition of a culvert that causes derailment of a coach and injury to a passenger has been caused by the concurrence as proximate causes of the act of God, to wit: an unprecedented rain, and the negligence of the carrier in its construction or repair, the carrier is liable for such injury of its passenger, provided it is reasonably certain that the unprecedented rain would not alone, without the concurring negli-genee of the carrier, have produced the same result. (Post, pp. 123, 124.) Cases cited and approved: Boeppe v. Railroad, 104 Tenn., 437; Express Co. v. Jackson, 93 Tenn., 337. 8. ChaRche of Court. Refusal of requests proper. It is not error to refuse to give additional instruction, upon request of a party, where same are substantially covered by the original charge. (Post, p. 123.) Cases cited and approved: Kaufman v. Eye, 99 Tenn., 145; Kail-road v. Pugh, 97 Tenn., 634; Railroad v. Reagan, 96 Tenn., 139.
107 Tenn. 132Randolph v. Thomas (1901)
1. Moetsages and Deeds oe Trust. Sale under void, when. A sale of land, made hy the trustee pursuant to a deed of trust, is void where hoth the secured debt and the deed of trust are barred by the statutes of limitation, and such sale will be vacated and set aside at the suit of the maker of the deed, his heirs or devisees. Act construed: Acts 1885, Ch. 9. Cases cited: McElwee v. McElwee, 97 Tenn., 649; Runnels v. Jacobs, 100 Tenn., 397; Hawley u. Reid, 101 Tenn., 438. 3. Same. Not revived by new promise, when. A provision in a note that it shall stand as secured by the same mortgage that the maker had given to the payee to secure, another note does not constitute such new promise as will revive or keep alive the motgage or the debt therein secured.
107 Tenn. 138McLean v. Caldwell (1901)
1. Lease. Purchaser became assignee of, when. The purchaser at foreclosure sale of a leasehold interest in realty assumes, upon taking possession, the relation of a privy in estate with the original lessor, and is treated as an assignee of the lease, having all the rights and incurring all the obligations pertaining to that character. (Post, pp. 139-142.) Case cited and approved: State v. Martin,’14 Lea, 93. 2. Same. Rights and liabilities of assignee. The assignee of a lease can, as a general rule, avoid liability for rents, other than those accruing during the term for which he holds possession, by assigning the lease and surrendering possession to some other person; and it makes no difference that such reassignment is made to a beggar, a minor, a married woman, a prisoner, an insolvent, or to one hired to take the assignment, and for the express purpose of avoiding- liability for rents. (Post, pp. 140, 141.) 3. Same. Same. But the assignee cannot by mere abandonment of possession, without assignment of the lease, avoid liability for rents. (Post, p. 141.) 4. Same. Same. Nor can the assignee of a lease, that provides for payment of annual rents, avoid payment of rents for the whole year where he holds over, even if he abandons possession and assigns the lease before the expiration of the year. (Post, pip. 141, 142.) Cases cited: State u Martin, 14 Lea, 92; Snowden v. Memphis Park Association, 7 Lea, 225.
107 Tenn. 148Kittrell v. Perry Lumber Co. (1901)
GARNISHMENT. Insufficient notice. Notice of garnishment is insufficient to require appearance and answer by a corporation, which is addressed to an individual, naming him as agent of the corporation, and only requiring him personally to' answer as to the debtors’ assets in his hands.
107 Tenn. 151Tennessee Ice Co. v. Raine (1901)
1. Gokforatiohs. Charter powers. A corporation having- the charter of an iee company has no authority to engage in the business of buying and selling beer, and its acts in the latter capacity are ultra vires. (Post, p. 154.) 2. Same. Liability for ultra vires acts. A corporation that has received and retains the benefit of an executed contract that it had no power under its charter to make, will not be heard to say that its act was ultra vi/res in order to defeat an action by the other party to recover what is justly due upon an equitable adjustment between the parties. (Post, pp. 154-160.) Cases cited: Hawkins Co. v. Railroad, 1-Shann., 397; Marble Co. v. Harvey, 92 Tenn., 121. 3. Chancery Pleading and Practice. Bill maty embrace double aspect and seek alternative relief when. A bill in equity is not bad for duplicity, by which the complainant seeks to recover against a corporation on its contract if valid, or in the alternative upon the value of the consideration paid, if the contract should be held ultra vires and void. (Post, pp. 153-155.) Cases cited: Merriam v. Laeefield, 4 Heis., '218; Dodd v. Benthal, 4 Heis., 609; Marble Co. v. Harvey,' 92 Tenn., 121; Hill v. Harri-man, 95 Tenn., 308; Collins v. Knight. 3 Tenn., Ch. 188. 4. Same. Prayer for relief. Where a general prayer is added to a special prayer for relief, such relief may be granted as is justified by the averments of the bill, even though it be different from that primarily and specially asked for. Cases cited: Boss v. Young-, 5 Sneed, 630; Hoyal v. Bryson, 6 Heis., 141; O’Connor v. Hotel Co., 93 Tenn., 708.
107 Tenn. 161Neilson v. Weber (1901)
1. Administeation. Decedent’s land sold by heir not liable for debts. The sale by an heir o£ inherited lands to a bona fide purchaser for value, who has paid for same in full before receiving- notice of any indebtedness of the ancestor’s estate, for payment of which the lands might have been sold, places the lands beyond the reach of creditors of the estate, and substitutes the personal liability of the heir for the lands. (Post. pp. 163, 164.) Code construed: § 3989 (S); § 3094 (M. & V.); § 2356 (T. & S.). Cases cited and approved: Livingston v. Noe, 1 Lea, 65; Smith v. Thomas, 14 Lea, 325; Maxwell v. Smith, 86 Tenn., 540; Eaht v. Meek, 89 Tenn., 276. 3. Same. Same. Burden of proof. But the burden is upon the purchaser, in such ease, to show that he made the purchase from the heir bona fide, and without notice of indebtedness of the ancestor’s estate, which might have been made a charge against the lands. (Post, p. 164.) Cases cited and approved: Gibson v. Jones, 13 Lea, 692; Bahtu., Meek, 89 Tenn., 276. 3. Same. Notice of debts to pwrchaser from heir insufficient, when. Suggestion of insolvency made on the day after administration, which had not been followed up by any subsequent step, when the heir sold his interest in the lands of the estate, fifteen months later, does not affect the purchaser from the heir with constructive notice of indebtedness of the estate for which the lands might be held liable. (Post, p. 165.) 4. Same. Same. The purchaser of lands from the heir, if otherwise innocent, will not be affected by the fact that his attorney knew of the indebtedness of the estate, especially where it does not appear that the attorney had this knowledge at the date of the purchase, or that he acquired it in the course of his employment. (Post, p. 165.)
107 Tenn. 166Swope v. Jordan (1891)
1. Tax Title. Void, when. Under the facts stated in the opinion the Conrt holds that complainant acquired no title to the lands involved by his purchase thereof at a tax sale. (Post, pp. 169-171.) 2. Estoppel. By recitáis in deed or mortgage. Recital in a mortgage of the existence of a former unpaid mortgage on the same property, estops the parties to the later mortgage and those claiming under them, to deny the legality and priority of the earlier mortgage. (Post, pp. 172, 173.) Oases cited and approved: Coal Creek Mining Co. u Heck, 15 Lea, 497; McRoberts u Copeland, 85 Tenn., 211; Caraway v. Caraway, 7 Cold., 245; Rankin v. Warner, 2 Lea, 302. 3. CORPORATIONS. Constitutionality of Acts 1895 reaffirmed. Constitutionality of Acts 1895, Ch.' 139, validating contracts of foreign corporations made before registration of charter and abstracts thereof, reaffirmed. (Post, pp. 177-179.) Acts construed: Acts 1895, Ch. 119. Case cited and approved: Butler v. B. & L. Asso., 97 Tenn., 679. 4. Same. Same. But said Act can have operation and effect, within constitutional limitations only between the original parties, or those claiming under them, without superior equities. It cannot operate to divest the vested rights of innocent third pei-sons. (Post, pp. 179-183.) Case cited: Shields v. Clifton Hill Land Co., 94 Tenn., Iá3. 5. Innocent Purchaser. ' Who is not. The holder of notes secured by mortgage, who took them in payment of a pre-existing-debt, and with notice that the mortgage securing them recognized on its face a pre-existing unpaid mortgage on the same property, is not such innocent purchaser, and does not occupy such position that he may set up the defense that the former mortgage was void because made to a foreign corporation that had not complied with the statute requiring registration of its charter (Post, pp.169-177, 182, 183.) 6. BuildiNG and Loan ASSOCIATIONS. Accounting with borrowing stockholder. Where a building and loan association declares forfeiture against its defaulting borrowing stockholder, and subsequently, becomes insolvent itself, the account between the company and such stockholder should be stated, in winding up its affairs, as of date of the forfeiture, and as between a going, not an insolvent, concern and such stockholder. (Post, pp. 183, 184.) Cases cited: Rogers v. Hargo, 93 Tenn., 35; Post®. B. & L. Asso., 97 Tenn., 408; Carpenter®. Richardson, 101 Tenn.. 176; Carpenter v. Frazier, 103 Tenn., 463.
107 Tenn. 185Burnett v. Railway Officials (1901)
1. Accident Insurance. Construction of policy. Under an accident policy providing that “ the death of the insured shall immediately terminate all liability under this policy, and in no ease shall the insured he entitled to recover for more than 101 weeks hereunder,” there can he no recovery for the death of the deceased. 2. Same. Same. The Court holds that the scope and effect of said policy cannot he enlarged so as to include indemnity in case of death hy the extraneous matters averred in the declaration and set out in the opinion.
107 Tenn. 191Manley v. Manley (1901)
BbNefit Societies. Mother, not wife, takes benefit of certificate. The mother, not the wife, is entitled to the death fund due on a. certificate issued by a benefit society to one of its members after his marriage, and made payable to him personally in the event of his total disability, and to his mother in the event of his death, where the constitution and laws of the society do not exclude the mother in express terms from the class of eligible beneficiaries, although they do provide that the beneficiary department of the society shall be established and maintained “ to provide substantial relief to members and their families in the event of death or total disability.” Case cited: Lane v. Lane, 99 Tenn., 639.
107 Tenn. 202State v. Cooper (1901)
1. Mandamus. To control Judge’s action touching bills of exceptions. This Court has undoubted power, in a proper ease, and in aid of its appellate jurisdiction, to compel a trial Judge to sign a hill of exceptions. (Post, pp., 209-211.') Cases cited: State v. Hall, 3 Cold., 255; State v. Elmore, 6- Cold., 531; State v. Hall, 6 Bax., 7; Memphis v. Halsey, 12 Heis., 214; Ingersoll v. Howard, 1 Heis., 248; Alexanders. State, 14 Lea, 91; Van Vabry v. Staten, 88 Tenn., 334; State v. Sneed, 105 Tenn., 711; Galloway <v. Eleing, 2 Shann., 614. 2. Same. Same. But a trial Judge who has signed hill of exceptions, certifying the facts as he understands them, will not he compelled to certify additional matters relating to occurrences in open Court, e. g., the voir dire examination of a juror, where he denies upon personal knowledg-e and recollection the correctness of such additional matters, and there is no sufficient proof in the record to overcome the Judge’s recollection of the facts, even if such proof could he sufficient for that purpose in any case. Proof by affidavit or otherwise, not made part of the record sent up, will not be considered in such ease to impeach trial Judge’s recollection. (Post, pp., 209-213.) 3. Bill of Exceptions. Matters not part of. A mere oral statement and offer to prove certain facts on motion for new trial without producing and setting out the proof, by affidavit or otherwise, in the bill of exceptions, or asking time to do so, presents no question that can be considered by this Court. (Post, pp. 211, 212.)
107 Tenn. 214Colligan v. Cooney (1901)
1. Tax Salk. Void for want of description of land. A judicial sale of lands for taxes is void, although the decree contains a full and sufficient description of the lands, where the pleadings npon which it is based contain no such description. {Post, pp. 219-221.) Cases cited: Morristown v. King, 11 Lea, 669; Rhinehartu Nealis, 101 Tenn., 169. 2. Same. Same. The opinion affords several examples of tax sales made under decree which are held void for want of sufficient description in the pleadings of the property sold. (Post, pp. 216-220.) 3. Same. Collateral attack. A tax sale, when set up to the prejudice of a third person, who was not a party to the tax proceedings, may be impeached collaterally by such third person by proof dehors, the original record showing that the proceedings and sale were erroneous either in law or fact. {Post, pp. 220-223.)
107 Tenn. 224Pierce v. Gibson County (1901)
1. Injunction. Against creation of nuisance by county. Injunction lies to prevent the construction and operation by a county oí a sewer system, ior the purpose and with the effect of conveying- from its courthouse and discharging upon private property the filth and excrement deposited in the public urinals and water closets, where it. appears beyond reasonable doubt that there is real and immediate danger that material and irreparable injury will be thereby inflicted upon the property owner affected. Cases cited: Kirkman . Handy. 11 Hum.. 400; Vaughn v. Law, 1 Hum., 134; Brew v. Van Deman, 6 Heis., 433; Weakley v. Page, 103 Tenn., 179. 2. County. Has no poiuer to create nuisance. The exemption against judicial interference and control ordinarily accorded to counties in the exercise of governmental powers and discretion, cannot be invoked to protect a county in such exercise of its powers and discretion, even for a public purpose, as creates, or threatens to create, a nuisance injurious to the citizen. Cases cited: Horton v. Nashville, 4 Lea, 37; Chattanoog'av. Reid, 103 Tenn., 616.
107 Tenn. 235Herman Bros. v. Sartor (1901)
Injunction. Deed made in violation of, not void, when. A deed made in violation of an injunction is not void or inoperative as to any one except the person for whose benefit the injunction was g-ranted, and not as to him where he has consented to the making of the deed without dissolution of the injunction. Casescited: Greenwaldu. Roberts, 4 Heis., 500; Wilhoitu Castell, 3 Bax., 419.
107 Tenn. 239Fennell v. Loague (1901)
1. Administbator. Not trustee for heirs, when. An administrator who purchases lands of the estate sold under decree at his instance for payment of debts, at a fair price and in good faith, does not take the lands in trust for the heir, hut acquires a good and perfect title. 2. Same. Same. And his adverse possession of the lands continuously for seven years, claiming them under color of such purchase, in hostility to the heir, is sufficient to vest him with a good and indefeasible title to same. Cases cited: Marr v. Gilliam, 1 Cold., 491; Duke v. Harper, 6 Yer., 280; Watson v. Smith, 10 Yer., 469; Haynes v. Swan, 6 Heis., 560.
107 Tenn. 244Dewey v. Goodman (1901)
1. Mabbied Womah. May convey her separate estate to her husband. A married woman, possessing unlimited power of disposition over her separate estate, may make a valid conveyance of it to her husband. (Post, pi. 253.) Cases cited: Vicki;. Gower, 92 Tenn., 391; Peterson v. Richman, 93 Tenn., 71. 2. Same. Primy examination may be taken by Notary Public. A married woman’s privy examination to her deed conveying her separate real estate may be taken and certified by a Notary Public. (Post, p. 252.) Act construed: Acts 1870, Ch. 71. Case cited and distinguished: Huff v. Glenn, 101 Tenn., 112. 3. Same. Peed for separate estate valid without privy examination. A married woman’s deed for her separate estate, over which she possesses unlimited power of disposition, is valid without privy examination. (Post p. 252.) Cases cited: Sherman v. Turpin, 7 Cold., 382; Petersons. Rieh-mon, 93 Tenn., 71. 4. Same. Estoppel of. A married woman is estopped to reclaim her separate estate where she has conveyed same to her husband by deed reciting only a consideration of love and affection, and thereafter joins the husband in a conveyance of the same to an innocent third person, and permits her husband, in her presence, to receive the purchase price, without protest, no matter to what extent the husband may, without knowledge or participation of the purchaser, have imposed upon and defrauded her. (Post, pp. 252-256.) 5. Featjd. Presumption of. A gift to a spiritual medium by his victim is presumed fraudulent, especially where the parties hear the relation of husband and wife. (Posi, %>. 255.)
107 Tenn. 257Carroll v. Alsup (1901)
1. Constitutional Law. Title and subject of general assessment act. A statute is not objectionable as embracing- more than one subject, or as embracing matter not covered by its title, which, under the title, “An Act to provide more just and equitable laws ior the assessment and collection of revenue for State, county, and municipal purposes,” etc., enacts, for the assessment of quasi publie and manufacturing corporations, a method of assessment different from that applied to other classes of corporations, in that the shares of stock of the former classes of corporations are not to be assessed to stockholders, compensation for the difference being made in the manner of assessing the properties of the companies. (Post, pp. 266, 267.) Act construed: Acts 1899, Ch. 435. Cases cited and approved: State v. Brown, 103, Tenn., 450; State v. Yardley, 95 Tenn., 546. Cited and distinguished: State-u. McCann, 4 Lea, 1; Murphy v. State, 9 Lea, 373; Mayor v. Lewis, IS Lea, 180; Ragio v. State, 86 Tenn., 373; Hyman v. State, 87 Tenn., 109; Bank v. Devine G-ro. Co., 97 Tenn., 604; Kennedy v. Montgomery County, 98 Tenn., 165. 2. Same. Assessment act not vicious as class legislation, when. A general assessment law is not vicious as class legislation which provides a method for the assessment of quasi publie and manufacturing corporations different from that applied to other classes of corporations, especially where there are palpable reasons apparent for such classification. (Post, pp. 267, 268.) Act construed: Acts 1899, Ch. 435. Cases cited and approved: Railroad v. Harris, 99 Tenn., 684; Bank v. Memphis, 101 Tenn., 154. 3. Taxation. Method of assessing corporations. A provision, in a general assessment law does not create an unlawful exemption from taxation, but only prescribes a peculiar, but valid, method of assessment, which directs, as to quasi public and manufacturing corporations, that their corporate property, including their franchises, easements, incorporeal rights, and privileges, shall be assessed at actual cash value, not to be less than the actual cash value of both the shares of stock and bonded debt, and declaring that this shall be in lieu of the assessment of the shares to either the corporation or its stockholders. (Post, pp. 267-269.) Act construed: Acts 1899, Ch. 435. 4. Same. State Board of Equalization. The State Board of Equalization does not lose the power to complete its work in equalizing the taxes of a county by returning the assessment roll, pending the consideration of a county, to the County Court Clerk, for a temporary purpose, and the board may, in such case, recall the roll and complete its work. (Post, p. 269.) Act construed: Acts 1899, Oh. 435. 5. Same. Same. Under the assessment law of 1899 the State Board of Equalization is composed of three members, a majority of whom is made a quorum, and hence the presence and concurrence of two members, at a regular meeting, are sufficient to render its action valid, and the presence at such meeting of a third person, as substitute for the absent member, does not vitiate the action of the board, especially when it does not appear that he exercised any control over the decision reached. (Post, pp. 269-273.) Act construed: Acts 1899, Oh. 435. Cases cited: Cowan v. Murch, 97 Tenn., 590; Austin v. Harbin, 95 Tenn., 600; Radford Trust Co. v. Memphis Lumber Co., 92 Tenn., 136. 6. Same. Same. Under the assessment law of 1899 the State Board of Equalization is invested, not only with the power to equalize taxes among the counties, civil districts, etc., but also with the power to increase or decrease the valuations of the property of individual taxpayers in order to equalize the distribution of the public burdens. (Post, p. 274.) Act construed: Act 1899. Ch. 435. 7. Same. Same. The State Board of Equalization may, at its biennial sessions, without infringement of any constitutional right of the taxpayer, increase or decrease the valuation of his property, for the purpose of equalization, without giving him any notice other than that afforded by the following provision of the assessment law of 1899, to wit: ‘ ‘ Taxpayers and property owners, without further notice than this Act, are required, to take notice of such biennial session. At this biennial session the assessment of the entire property of the State, and every taxpayer in it, is to be considered and passed upon, and the action of the board becomes, when taken, a finality.” (Post, pp. 274-282.) Act construed: Acts 1899, Ch. 435. 8. Same. Basis of valuations. The Constitution of 1870 requires property to be assessed for taxation at its actual cash value, and does not permit assessment at any per cent, of value below one hundred per cent. It requires equality and uniformity on the plane of actual cash value. ‘ ‘ The actual cash value is the only practicable basis upon which taxes can be made equal and uniform, and this is clearly the constitutional requirement, the legislative intent, and should be the effort of the Court as well as taxpayers. ” (Postpp. 282-293. ) Constitution construed: Art. II., Sec. 28. Cases cited and approved: Brown v. Greer, 3 Head, 696; Chattanooga v. Railroad, 7 Lea, 569; State v. Butler, 11 Lea, 410; Railway v. Morrow, 87 Tenn., 415; Ellis v. Railroad, 8 Bax., 531; Jenkins v. Ewin, 8 Heis., 458. Cited and distinguished: Reelfoot Lake v. Dawson, 97 Tenn., 160. 9. Same. Same. Beyond all controversy, the assessment law of 1899 fixes “actual cash value ” as the basis of assessments to be made thereunder. It defines “actual cash value” as the amount of money the property would bring if sold at a fair, voluntary sale. (Post, pp. 290, 291.) Act construed: Acts 1899, Ch. 435.) 10. Same. Same. It is competent for the Legislature to prescribe in an assessment law any reasonable method or rule for the ascertainment of actual cash value. (Post, p. 290.) 11. Same. Taxpayer’s remedy for disproportionate assessment. A taxpayer whose property has not been assessed at more than its actual cash value, as required by the Constitution and laws, cannot obtain any abatement of his assessment, except in very exceptional cases, by reason of the fact that other taxpayers have been assessed upon an inadequate valuation. The legal remedy in such cases is to raise the inadequate assessments, not to lower those made according to law. (Post, pp. 290-293.)
107 Tenn. 294Hart v. Union City (1901)
FROM OBION. Appeal in error from Circuit Court of Obion County.
107 Tenn. 300Wilson v. Schaefer (1901)
FROM SHELBY. Appeal from Chancery Court of Shelby County. F. H. Heiskell, J.
107 Tenn. 337Winters v. Hainer (1901)
1. Advebse Possession. Bars action for land, when. Adverse possession for seven years of a portion of a tract of land held under a certificate of tax sale describing' the whole tract, accompanied by claim of the whole tract, defeats an action of ejectment against the possessor for any part of the tract. 2. Ejectment. Plaintiff’s title. The plaintiff cannot recover in ejectment unless he can show a perfect title.
107 Tenn. 340Freeman v. Railroad (1901)
1. New Trial. Motion for, waived, when. A motion for new trial is waived when made at same time and in same record entry with motion in arrest of .judgment. (Post, p. 344.) ’ Cases cited: Snapp v. Moore, 2 Overton, 236; Ins. Co. v. Crunk, 91 Tenn., 378. 2. Damages. Por death, how distributed. Damages recoverable for the negligent killing of a person pass, in the absence of surviving widow or children or father, as other personalty, under the laws relating to the distribution of decedents’ estates, to the mother and brothers and sisters of the deceased. Hence, in a case averring absence of widow, children, and father, and survivorship of mother, brother, and sister, it was not error to admit proof of the existence of the brother and sister. (Post. pp. 334, 333.) Code construed: ^ 4035-4029, 4172 (S.); £§ 3130-3134, 3278 (M. & V.); U 3291-2293, 2429 (T. & S.) Cases cited: Railroad v. Bean, 94 Tenn., 395; Loague v. Railroad, 91 Tenn., 461. 3. Fellow-servant. Who are not. The members of a bridge crew, whose duties -were to repair bridges, trestles, etc., on a line of railroad, operating for that purpose a construction train, are not fellow-servants of the conductor and engineer of a freight train operating on such road. (Post, p. 346.) Cases cited: Railroad v. Carroll, 6 Heis., 347; Railroad v. DeAr-mond, 86 Tenn., 73; Taylor v. Railroad, 93 Tenn., 307. 4. CONTRIBUTORY Negligeno®. Does not exist, when. A member of a bridge crew, crushed by a backing switch train, while' engaged in loading heavy timbers on a car of the construction train, standing on a sidetrack, is not guilty of contributory negligence, by reason of his failure to look and listen for the approach of the switch train, or by reason of his occupying’ the track while at work, that being the most effective and convenient method of conducting it. (Post, pp. 346, 347.) 5. Proximate Cause. What is. The rapid and reckless backing of a freight train against cars standing on a side track, without signal and warning, thereby crushing and killing a member of a bridge crew, engaged in loading a construction car on said track, is the proximate cause of the injury, and not-the mere fact of the deceased’s presence on the track. (Post, pp. 348, 347.) Case cited: Taylor v. Railroad, 93 Tenn., 312. 6. Master AND Seevant. Master’s ditty as to place to work. The servant has the right to assume that he would be given a safe place to work, and that it would be kept safe while he was engaged. (Post, p. 347.) 7. Measure oe Damages. Recoverable for death. The measure of damages recoverable for the negligent killing of a person is (1) such as the deceased would have been entitled to if he had survived; (2) such as the parties suing would have been entitled to in their own right. Next of kin cannot recover for their own physical suffering and mental anguish resulting from the death. (Post, p. 348.)
107 Tenn. 349Brown v. Brown (1901)
1. Resulting Trust. Waived, when. A resulting' trust is waived by the party, in whose favor it arises, accepting a mortgage on the land for the amount due him. (Post, pp. 3S1, 352.) Cases cited: Gregg v. Jones, 5 Heis., 443; Lane v. Logue, 12 Lea, 685. 2. Mobtgages and Deeds oe Teust. Not barred, when. The foreclosure of a mortgage, which secures past due debts, is not barred by the lapse of ten years from its date, where it provides for its enforcement by sale of the lands 'after six months’ notice to the debtor to pay the debts secured and the required notice has not been given. The statute begins to run in such case only from expiration of the six months’ notice. (Post, pp. 350-352, 353.) Act construed: Acts 1885, Ch. 9.. Case cited: Johnston v. Grosvenor, 305 Tenn., 362.
107 Tenn. 355Hascall v. Hafford (1901)
1. Husband and Wife. 'Wife’s domicile. The husband’s domicile determines that of the wife, regardless of the place of her actual residence. (Post pp. 356, 357.) Case cited: Farris v. Sipes, 99 Tenn., 298. 2. Same. Exemptions allowed only to widow of resident. Exemptions of homestead, etc., and provision for a years’ support made by Constitution or. statutes in favor of widows, inure to the benefit of the widows of residents, and not to the widows of nonresidents. (Post, p. 357.) Oases cited: Graham v. Stuhl, 92 Tenn., 673; Farris v. Sipes, 99 Tenn., 298. 3. Homestead. Nonresident not entitled to. To constitute one a resident of the State, entitling him and his widow to homestead, he must have acquired a domicile in the State in the sense of residing here with intention to remain permanently. It is not sufficient that he has a mere home or habitation in the State, with no intention of immediate removal. (Post, pp. 359-363.) Case cited: Stratton v. Brigham, 2 Sneed, 421. 4. Domicile. Does not exist, when. Domicile within the meaning of the homestead laws does not exist in favor of a person or his widow, although he had lived in the State for several years, voted in a primary election, and was elected to the office of Alderman, which he declined, when it appears that he had never moved his family into the State, and had repeatedly declared that he had come into the State for temporary business purposes, and expected to return to his former place of residence when his purposes were accomplished. (Post, pp. 359-363.) Case cited: Devine v. Dennis, 1 Shan. Cas., 378. 5. Chancery Pleading and Practice. Concurrent finding of Court and Master. The rule as to concurrent finding of Chancellor and Master has no application when the concurrence is as to a fact, or, rather, mixed question of law and fact, which should have "been determined by the Chancellor without a reference. Hence such concurrent finding as to fact, or question of domicile or residence, will be utterly disregarded. {Post, pp. 358, 359.)
107 Tenn. 364Myers v. Taylor (1901)
1. Chabge oe Court. Refusal of requests proper, when. The Court’s refusal or failure to give special instructions requested before, and not insisted upon after, the regular charge is given is not error. (Post, p. 366.) 2. Contract. Part in writing and part in parol. Morrison addressed this proposition to Myers, viz.: “1 want to put a mill on your land, and buy the timbers you have in township 8 north (describing the land), timbers to be paid for as fast as cut. Humber to be shipped green to any responsible firm, and your stumpage to be paid you by said firm. You are to be notified where lumber is to be sold before lumber is shipped. Please make me price per thousand feet on oak.” Myers replied: “White oak, $2 per thousand; red oak. $1.50 per thousand. ” Held, These writings constitute no such completed contract as will exclude parol evidence of a subsequent arrangement by which title to the lumber was to remain in the seller until the purchase price was paid. (Post, pp. 366-369.) 3. Same. Same. A contract partly in writing and partly in parol is treated as a parol contract. (Post, p. 369.) Case cited: Smith v. O’Donnell, 8 Lea, 468. 4. Evidence. Pa/rol in convection with written contract. The general rule that parol evidence is not admissible to contradict, vary, or add to the terms of a written contract is not applicable where the contract comes in question among strangers . to it, and there are exceptions to the rule in its application to the parties to the contract. (Post, pp. 369, 370.) Cases cited: Leineau v. Smart, 11 Hum., 308; Hines v. Wilcox, lOO.Tenn., 524. 5. Same. Erroneous exclusion cured, when. Where this Court can see that the injury resulting from erroneous exclusion of evidence has been cured by remittitur of part of recovery there will be no reversal for such error. (Post, p.-370.)
107 Tenn. 371Bennett v. Mass. Mutual Life Ins. (1901)
1. Evidence. Parol admissible. In an action to rescind a written contract on the ground that it did not, by reason of fraud, express the real, intention and meaning of the parties, it is competent to show by parol the true and real contract made by the parties. (Post, pp. 373, 374.) Cases cited: McKenzie v. Planters’ Ins. Co., 9 Heis., 261; Barnard v. Roane Iron Works, 85 Tenn., 139. 2. Same. Sufficiency of. In an action to rescind a written contract on the ground that, by reason of fraud, it did not express the intention of the parties, a decree in favor of complainant will be sustained upon the testimony of himself alone, proving the real contract different from that'expressed in the writings, especially where he shows the presence of agents of the other party at the making of the contract, who are not offered to contradict him. (Post, pp. 373-375.) Cases cited: Chapman -u. McAdams, 1 Lea, 500; Gage v. Railway Co., 88 Tenn., 726; McBee v. Bowman, 89 Tenn., 133; Stone v. Manning, 103 Tenn., 232; Jackson v. Blanton, 2 Bax., 63; Dunlap <o. Haynes, 4 Heis., 476. 3. Life Insurance. Insurer precluded by the fraud of its medical examiner. An insurance company cannot avoid its policy for incorrect answers touching the assured’s physical condition, and personal and family, history written into the medical examination upon which the policy is based, by the insurer’s medical examiner, without the knowledge or consent of the assured, who had, in fact, answered all questions correctly. (Post, pp. 375-376.) 4. Same. Authority of .medical examiner defined. While the medical examiner of an insurance company is an agent with limited powers, nevertheless his acts in and about the business intrusted to liis care are binding within the scope of his authority, and to this extent the general rules of agency are applicable to him as to other special agents. Post, pp. 376-377.) Case cited: K. of P. v. Cogbill, 99 Tenn., 34. 5. Same. Bescission of poUcy. Although the insurer may be estopped to rely upon incorrect answers inserted in the application by the medical examiner without assured’s knowledge or authority to avoid its policy, this fact does not estop the assured, upon the discovery of such • defect, to sue for rescission of policy and recovery of premiums paid thereon. (Post, pp. 377, 378.) 6. Same. Same. And such suit is not barred by the defendant’s failure to read his policy, or the application for it, in which the defect was disclosed, for over two years after its issuance. (Post, pp. 378-380.) 7. Same. Same. Nor is such suit defeated by the assured’s delay to bring it for two months after discovery of the defect in his policy. (Post, pp. 378-380.)
107 Tenn. 381Colquit v. State (1901)
1. Evidence. Verdict of coroner's jury not admissible, when. The verdict of a coroner’s jury finding that defendant killed the deceased, and that the killing was a “ cold-blooded murder,” is not admissible against the defendant in a murder trial. Aliter, it seems, in civil cases, as to that part of the verdict which is not a mere expression of opinion. (Post, pp. 382-385.) Case cited: Galloway v. Shelby County, 7 Lea, 121. 2. Same. IVithdraion, no cause for new trial. If incompetent evidence that has gone before the jury is after-wards definitely withdrawn with proper instructions to the jury to disregard it, it constitutes no cause for new trial or reversal. (Post, pp. 385, 386.) Cases cited: Railroad v. Humphreys, 12 Lea, 200; Green v. State, 97 Tenn., 59-62. 3. Same. Self-serving declarations. Statements of the defendant made on the day before the killing explaining his relations with deceased and narrating his action are not part of the res gestae, but self-serving and inadmissible on a trial for the murder. (Post, pp. 386, 387.) Cases cited: Evans v. Jones, 8 Yer., 463; Kirby v. State, 7 Yer., 259; Kirby <u. State, 9 Yer., 383; Irvine v. State, 104 Tenn., 138. 4. Same. Exclusion of acts not traced to deceased. The court does not err in excluding on a murder trial proof of acts of an unknown person calculated to put the defendant in fear, when they are in no way traceable to the deceased. (Post, pp. 387, 38S.) 5. Same. Witness’ opinion incompetent. It is reversible error for the Court to permit a witness, over defendant's objection, to testify in a murder trial that he had said, on some occasion when defendant was not present, that he “ would not kill a dog like he, defendant, killed that man.” (Post, pp. 388-390.) 6. Same. Same. And this ruling is not relieved of its erroneous character by the fact that the witness made said statement, detailing his former expression of opinion in answer to a question asked by the State on re-examination calling for the remainder of a conversation inquired about on cross-examination, but not in relation to this particular matter. (Post, pp. 388-390.) Case cited: Greer v. State, 6 Bax., 629.
107 Tenn. 392Sreet Railroad & Tel. Companies v. Simmons (1901)
1. New Trial. Extension of term of Court for disposition of. The authority conferred by Acts 1899, Ch. 40, upon the Courts of this State to continue and extend any of their terms beyond the time limit fixed by law, and into another and succeeding term at the same or another place for the purpose “ of trying, disposing of, and returning verdict and rendering judgment ” in cases “pending and on trial by Court or jury undetermined ” at the expiration of the term, confers upon the Courts the power to continue and extend their £erms for the purpose of disposing of motions for new trial and granting appeals. (Post, pp. 393-396.) Act construed: Acts 1899, Ch. 40. Code construed: § 6057 (S.); \ 4991 (M. & V.); I 4219 (T. & S.). Case cited and distinguished: States. Sneed, 105 Tenn., 714. 2. Same. Misconduct of jury. A verdict is vitiated by statements made to the jury by one of their number during their deliberations out of the presence of the Court, which were of a character to prejudice the complaining party, although the jurors testify they were not influenced by same. And such statements may be proved by affidavits of the jurors.' (Post, pp. 401- 403.) Cases cited: Donston u. State, 6 Hum., 275; Wade v. Ordway, 1 Bax., 240; Morton v. State, 1 Lea, 498; Nolan v. State, 2 Head, 521; Sam v. State, 1 Swan, 61. 3. Master and Servant. Servants diligence to protect himself. The servant of a telephone company, commonly called a lineman, whose duties, inter alia, are to put up poles, string wires, put in guy wires, and to repair same and clear the lines of troubles, must inspect and test the wires which he is expected to work; and being engaged in an occupation peculiarly hazardous, and having the better opportunity to discover and avoid the dangers incident thereto, he cannot, without negligence, assume that wires are properly and safely insulated, but must exercise active diligence to discover defects that may possibly exist. (Post, pp. 337-408.) Case cited: Cumberland Tel. Co. v. Loomis. 87 Tenn., 504.
107 Tenn. 409Perkins Oil Co. v. Eberhart (1901)
1. Building Contract. Construction of. Under a contract ior erection of an oil mill, which binds the contractor, for the sum of $26,000, to furnish all materials and perform all the work ‘ ‘ according to the plans and specifications (made part of contract), and foundations for presses, accumulators and engines to the amount of 120,000 brick — all in addition to that quantity to be $14 per 1,000 in Portland cement; $11.50 per 1,000 in Louisville cement” — he is entitled to additional compensation, at the prices stated, for all brick over the estimate of 120,000 used and laid in cement for “foundations for presses, accumulators, and engines;” but not on the 1,120,000 brick used, and laid in mortar, in construction of other parts of the mill, which would give him, extra, the unreasonable sum of $12,880. (Post, pp. 411-422.) 2. Same. Same. Where a building contract provides for the laying of the main body of the brick in lime mortar, and other portions in Portland and again other in Louisville cement, a change in the specifications allowing the use of the cheaper cement “in all brick work,” excepting certain foundations and cappings, relates alone to the brick that are to be laid in cement under the original contract, and does not have the effect to require all brick used in the building to be laid in cement. (Post, pp. 419-422.) 3. Same. Effect of alterations. If a contractor sustains loss of materials, by reason of their being rendered unfit for use, on account of alterations made by the owner in the original plans and specifications, he may recover the amount of such loss from the owner. (Post, pp. 424, 426.) 4. Same. Contractor’s bondsmen not released by alterations of plans, when. The surety of a contractor is not released from liability by reason of changes made by the owner in the original plans and specifications, where the contract, made part of his bond, provides for alterations on written order of the architect, and those made were not by enlarging the building or adding new ones, but in matters of detail, though adding more than one-tenth to the cost of the building. In such case, there is substantial compliance with the original plans and specifications. (Post, pp. 429-432.) 5. CONTRACT. Rules of construction. The chief concern of the Court in the construction of a contract is to ascertain the intention of the parties — the sense in which they understood their agreement. This intention is to be gathered from the four corners of the written instrument, read in the light of the surrounding circumstances. Its language controls, when plain and unambiguous. (Post, pp. 415, 416.) Cases cited: Polk v. Buchanan, 5 Sneed, 726; Barker v. Freeland, 91 Tenn., 116; Hills v. Paris, 12 Heis., 457; Nunnelly v. Warner Iron Co., 94 Tenn., 282. 6. Decree. ■ Authorized by pleadings, when. Under a bill filed against a contractor and his surety, and subcontractors and materialmen claiming liens upon the property, by the owner of the property, to save multiplicity of suits and settle the rights of all the parties in a single decree, the owner may have decree against the contractor for any sum he may be compelled to pay in discharge of liens in excess of the contract price. (Post, pp. 422-424.) 7. Chancery Practice. Concurrent finding of Master and Chancellor. Where the Master reports there is not sufficient evidence to fix the amount of a valid claim, and suggests another reference on the point, and the Chancellor concurs, but the party in interest asks no further reference, this Court can grant no relief. (Post, pp. 425-427.) 8. Mechanics’ Lien. Enforcible by cross-bill. Where the owner, for the purpose of preventing multiplicity of suits and to settle the rights of all parties by a single decree, files bill against a contractor and his surety, and also against numerous subcontractors and materialmen claiming liens on the property, the lien claimants may by cross bill, attaching' the property, enioree their claims against same. (Post, pp. 427, 428.)
107 Tenn. 433Read v. Memphis Gaslight Co. (1901)
Mortgages and Deeds oe Trust. Allowances to trustee for expenses and attorney fees. Under a corporate deed of trust, made pursuant to and embodying a resolution of the Board of Directors of the mortgagor company, providing that the “ deed should confer upon the trustee all proper and necessary power and authority for the protection and security of the holder of the bonds,” and under and by the general principles of law without such special provision, the trustee is entitled to reasonable allowances, out of the trust fund or estate, for his time and trouble and for expenses necessarily incurred, including attorney fees, in the defense of a suit brought against him attacking the trust deed; and such allowances constitute a prior lien upon the trust fund or estate, and are enforceable against it by proper proceedings. Cases cited; Fulton v. Davidson, 3 Heis., 614; New Memphis Gaslight Co. case, 105 Tenn., 268.
107 Tenn. 444Citizens' Street Railroad v. Shepherd (1901)
1. Steebt Railkoads. Duty of motorman as to preventing collisions. It is not the duty of a motorman in charge of and operating an electric street car to stop or even cheek the speed of his car upon observing a wagon or other moving object on the track ahead of him, unless, by reason of the nearness of the object, or other circumstances, it would appear to a reasonably prudent man that a collision would probably occur unless he did so. The motorman has the right to act upon the assumption that the wagon or other moving object will clear the track in due time until the contrary becomes reasonably manifest, and then it is his duty to prevent the accident, if possible, by the use of all reasonable means in his power. (Post, pp. 445-449.) 2. Charge of Court. Contradictory clasues. An erroneous proposition in the Court’s charge is not cured by another contradictory or inconsistent one that is correct. The parties are entitled to a clear and consistent charge as well as a correct one. (Post, pp. 449, 450.)
107 Tenn. 451Thompson v. Keck Manufacturing Co. (1901)
Deceeb. Coram non judice. A decree for debt and costs rendered against a mere formal defendant in an action by creditors against their debtor and others to recover their debts and set aside fraudulent conveyances of his property is coram non judice and void. Cases cited: Bank-u. Carpenter, 97Tenn., 437; Randolphu. Bank, 9 Lea, 63; Rogers u Breen, 9 Heis., 679; Easley v. Tarkington, 5 Bax., 592.
107 Tenn. 455State v. Taylor (1901)
1. Municipal Cobpobations. Ownership and control of streets. A municipal corporation acquires only an easement in streets dedicated to public use by the acts of the owner in laying them out as part of a town plat, and selling lots abutting on same, and the fee to the lands covered by the streets remains in the original owner and his vendees. (Post, pp. 4S3, 464.) Cases cited: Hamilton Co. v. Rape, 101 Tenn., 225; Railroad v. Bingham, 87 Tenn., 530; Smiths. Railroad, 87 Tenn., 630. U. Same. Same. A municipal corporation holds the public streets, in which it has a mere easement, in trust for the public convenience, and has no authority to sell or transfer same, either for or without consideration, so as to invest its grantee with any interest whatever in the property covered by the streets. It cannot transfer the fee, because it does not own it. It cannot transfer the easement, because it is held in trust for the public use only. A statute authorizing it “to sell and dispose” of the streets, if deemed expedient, applies alone to streets in which the city owns the fee. (Post, pp. 463, 464.) Act construed: Acts 1881, Ch. 167. Code construed: $ 1915 (S.); $ 1607 (M. & V.). Cases cited: Humes v. Knoxville, 1 Hum., 403; Mayor u Brown, 9 Heis., 1; Railroad v. Bingham, 87 Tenn., 530; Smith v. Railroad, 87 Tenn., 630. 3. Same. Same. But a municipal corporation has the power, under the general law, which has been confirmed by express statute to this corporation, upon its own ideas of utility and expediency, without any power of the Courts to review its action, by ordinance properly passed, not only to open, widen, extend, establish, grade, and pave the public street, but likewise to alter, abolish, vacate, abandon or discontinue the same; and upon its abandonment, alteration, or vacation oí a street, in which; it has only an easement, the fee reverts to the abutting owner. (Post, pp. 464-467.) Act construed: Acts 1881; Ch. 167. Case cited: Anderson v. Turbeville, 6 Cold., 150. 4. Same. ■ Same. But abandonment, vacation, or alteration must be made subject to the right of abutting- owners, or others whose properties are thereby injured, to compensation; but persons only remotely affected by such action have no legal cause of complaint. (Post, p. 467.)
107 Tenn. 469Crisman v. McMurray (1901)
1. Juby Teial. Issue for, in Chancery Court. The statutory provision, in relation to jury trials in the Chancery Courts, that the issues shall “set forth briefly and clearly the true questions of fact to be tried,” requires that the questions or propositions submitted for the jury’s determination shall be of such character that the decision of each of them will be conclusive upon the merits of the entire case or of some distinct branch of it, and forbids submission to the jury, as distinct and separate issues of collateral, immaterial or subordinate questions of fact, whose decision would be inconclusive as to the merits of the case or any distinct branch of it. (Post, pp. 470-472.) Code construed: §6285 (S.); §5218 (M. & V.); §4468 (T. & S.). Cases cited: MeElyá v. Hill, 105 Tenn., 319; Cheatham v. Pearce & Ryan, 89 Tenn., 670. 2. Same. Evidence improperly considered, by jury. It is reversible error for the jury, even by accident and wholly without fault of themselves, or of the parties or their attorneys, to take out and use during- their deliberations the stenographic report of the testimony of one of the parties of a most material character delivered before them orally, not having any such report of the testimony of the other party or of any other witness. (Post, pp. 472-474.) Cases cited: Railroad v. Lee, 95 Tenn., 388.
107 Tenn. 476Bank v. Smith (1901)
1. MORTGAGES and Deeds OF Trust. Assignment of seov/red notes passes lien. Doctrine reaffirmed that the lien of a mortgage or deed of trust passes, without special assignment thereof, to the indorsee or transferee of the note or debt secured. (Post, p. 483.) Cases cited: Clark v. Jones, 93 Tenn., 639. 2. Same. If 'barred, 'sale under void. A sale made b7 the trustee under and pursuant to a deed of trust, after its lien is barred by the statute of ten years, is absolutely void and imparts no title to the purchaser. (Post, p. 483.) 3. Same. Not sewed from bar by renewal, when. A mortgage or deed of trust cannot be saved from the bar of the statute of ten years and its lien preserved as against subsequent intermediate incumbrances, by any sort of new promise or renewal contract between the maker and beneficiary, though entered into before the bar of the statute had attached. After the lapse of ten years from the date of the maturity of the secured debt the bar of the statute, if not prevented by appropriate proceedings for foreclosure, becomes complete and absolute. (Post, pp. 483, 484.) Act construed: Acts 1885, Ch. 9. Code construed: § 4464 (S.). Cases cited; McElwee v. McElwee, 97 Tenn., 649; Bunnells v. Jacobs, 100 Tenn., 397. 4. Same. Extinguished pro tanto. The assignee of a debt secured by a mortgage having priority, who takes the assignment merely as security for money advanced at the instance and for the benefit of the maker, or of a volunteer named by him, cannot, as against a subsequent lienor, enforce the mortgage for a larger amount than was actually advanced, with interest. (Post p. 484.) 5. COLLATERAL Seourity. Effect of payment of debt. The payment or cancelation oí the principal'debt ipso facto terminates the creditor’s interest in collaterals deposited for its security. (Post, pp. 48i, 485.)
107 Tenn. 486Glasscock v. Tate (1901)
1. Will. Creates active trust. A will- creates an active trust and invests the trustee with legal title for the purposes of the trust, including the power to maintain suit for protection of the trust estate, which, after devising testatrix’s realty to her two sons during their lives, with remainder upon their death to their children, who should live to attain majority, and in default of such children, to a charitable use, provides for appointment of a trustee to rent out the lands, and pay taxes, and distribute the residue of the rents between her two sons. (Post, pp. 487-492.) Cases cited: Jourolmon v. Massengill, 86 Tenn., 82; Jobe v. Dillard, 104 Tenn., 658. 2. Same. Proper construction of. Under such will the testatrix’s two sons do not take as joint tenants, with right of survivorship, but they take several interests as tenants in common. Upon the death of one son, leaving a minor child, the trustee holds the estate equally for such child and the surviving son, until the child attains its majority, when he is invested with the full legal title to one-half of the estate, and the trust continues to the surviving son only. Should the child die before attaining majority, his one-half of the estate goes, not to the surviving son of testatrix, but to the designated charitable use. So the interest of a son who dies leaving no child goes to said charitable use. (Post, pp. 491-498.) Cases cited: Smith v. Metcalf, 1 Head, 64; Smith v. Thompson, 2 Swan, 385. 3. Same. Same. Notwithstanding the devise in this will is to the two sons “during their lives,” with remainder to “the heirs of their body,” to take effect “at their death,” the Court finds, in the relation of the parties, and in the general tenor of this will, such indications, which by law need only be slight, as justifies tke construction that testatrix intended her sons to take several and distributable interests, which, upon the death of each son, was cast upon his children. (Post, pp. 491-498.) 4. DECREE. Invalid, when. A decree is invalid, for want of power in the Court to render it, which undertakes, even with the consent of the beneficiary, especially when he is an infant, to set aside a trust created by will for his benefit, and denude the trustee of his estate and powers. Courts will preserve, but never destroy a trust of this character. (Post, p. 492.) 5. Same. Same. A decree for partition of land is invalid where the holder of the legal title and contingent remaindermen were not made par- ' ties to the case in which it was rendered. (Post, p. 498.)
107 Tenn. 499State v. Cook (1901)
1. Patent Eights. State’s regulation of sale constitutional. State legislation denying the privileges oí negotiability to notes showing on their face that they were given for a patent right, and denouncing and punishing as a felony the taking of a note for a patent right, or any interest therein, without stating on its face that it was given upon such consideration, is not in contravention of that clause of the Federal Constitution which declares that “the Congress shall have power to promote the progress of science and useful arts by securing, for limited times, to authors and inventors the exclusive right to their respective writings and discoveries.” Such legislation constitutes a legitimate exercise of police power, and limits, not the proper use, of property in patent rights, but its abuse. Constitution.construed: U. S. Const., Art. 1, Sec. 8, Subsec., 8. Acts construed: Acts 1897, Ch. 77; Acts 1879, Ch. 228. Code construed: $ 3316 (S.); § 3481 (M. & V.). Cases cited: Harmon v. Haggerty, 88 Tenn:, 705; Bank v. Stock-ell, 93 Tenn., 352; State v. Scott, 98 Tenn.. 254; Tennessee v. Butler, 3 Lea, 332; Harbison v. Knoxville Iron Co., 103 Tenn., 439. 2. Class Legislation. Not vicious, when. A statute which denounces and punishes as felony the taking of notes for patent rights without explicitly stating that fact on the face of the note, is not vicious class legislation, although no such provision is made as to the taking of notes upon any other consideration. The classification upon which such statute is based is not capricious, but founded on good and sufficient reasons. Constitution construed: Art. 2, Sec. 8. Acts construed: Acts 1897, Ch. 77. Case cited: State v. Sehlitz Brewing’ Co., 104 Tenn., 731, 733.
107 Tenn. 512Railroad v. Hall (1901)
1. Actions. Maintainable py possessor of personalty for its destruction. In an action against a railway company for killing- his cow the plaintiff can recover upon proof that he was in actual, exclusive, and undisputed possession of the animal, claiming it as his own, at the time it was killed, although he was not able to show a complete title to same. . Cases cited: Crawford v. Bynum, 7 Yer., 3S1; Criner v. Pike, 2 Head, 398; Carson v. Prater, 6 Cold., 567. 2. Same. Pleadings sufficient. And plaintiff may recover upon such proof of possession, without proof of title, although the averment of the pleadings was that the cow was plaintiff’s property.
107 Tenn. 515Sibley v. State (1901)
1. Constitutional Law. Game and fish laws. A statute, enacted for the protection and preservation of fish in that portion of a particular river situate in a designated county, if otherwise free from infirmity, is not unconstitutional as arbitrary and capricious class legislation, although such river extended into other counties and there were other rivers in said county, none of which were subjected to like restraint or regulation. Such special legislation is authorized by that clause of the Constitution which provides that “the General Assembly shall have power to enact laws for the protection and preservation of game and fish within the State, and such laws may be enacted for and applied and enforced in particular counties or geographical districts designated by the General Assembly.” Constitution construed: Art. 1, See. 8; Art. 11, Sec. 13. Act construed: Act 1899, Ch. 85. Cases cited: Maney u State, 6 Lea, 218; Peters v. State, 96 Tenn., 682. 2. Same. Same. Bub a statute forbidding the erection and maintenance of dams, essential to the operation of industrial plants, in such manner as to prevent fish from ascending or descending a river, is not such law for the protection and preservation of fish as may be applied and enforced as to that part of a river situate in a single county under said clause of the Constitution. Constitution construed: Art. 1, Sec. 8; Art. 11, Sec. 13. Act construed: Acts 1899, Ch. 85.)
107 Tenn. 522Railroad v. Deakins (1901)
1. Actions. Maintainable by consignor against ca/rrier for damages resulting from delay in sMpment, when. For damages resulting from the carrier’s negligent delay in the shipment of goods for sale by the consignee on commission, the consignor can maintain an action. The title to the goods does not in such case vest in the consignee, hut remains in the consignor. 2. Common Carrier. Excuse for fcMure to deliver goods insufficient, when. Such congestion of freight in the carrier’s yards as prevents prompt delivery is no excuse for delay in delivery of perishable goods, even if sufficient in ordinary cases, where the carrier’s ag’ent, with the knowledge of such congestion, promises to make prompt delivery and thereby prevents the consignor from taking steps to secure the goods. 3. Verdict. Not set aside, when. A verdict for 1212.50, as damages for delay in delivery of a car load of apples, will not be set aside as excessive, although it is based upon the plaintiff’s testimony alone, while another witness, better acquainted with the market than plaintiff, placed the damages at $169.50.
107 Tenn. 526Mckinney v. Street (1901)
1. Husband and Wife. Wife not estopped by Tmsband’s act to claim Tier lands. The wife is not estopped to claim and recover her lands from a person to whom the hushand has sold same, even where she knew of and approved the sale, or joined in it by title bond, and the husband has collected the purchase price or recovered same in a suit to which she was not a party, but equity will compel her to account for and restore any part of the purchase price she may have received personally, and will enforce the same against the-land. Cases cited: Gillespie v. Worford, 2 Cold., 696; Moseby v. Partee, 5 Heis., 31; Aiken v. Suttle, 4 Lea, 105; Jarnigan v. Levisy, 6 Lea, 400; Wright v. Duffield, 2 Bax., 221; Pilcher v. Smith, 2 Head, 208; Davis v. Jennings, 3 Tenn. Ch., 241; Rheau Iseley, 1 Shann. Cas., 220. 2. Evidence. Record incompetent. •And in the wife’s action to recover her land from the husband’s purchaser, the record of an action in which he had recovered the purchase price, to which she was not a party, is not admissible in evidence against her.
107 Tenn. 532Pile v. State (1901)
Witness. Enforcement of rule. The rejection of a material witness for the defendant in a felony case, on the ground that he had entered the court room and heard part of the evidence, in violation of the rule, constitutes reversible error when the witness violated the rule through ignorance and without fault of himself, or the defendant or his counsel. Case cited: Smith v. State, 4 Lea, 428.
107 Tenn. 534Mitchell v. Orr (1901)
Gaming. Loser may recover lost money, when. By statute, though not at common law, the loser may recover back money wagered, lost, and paid upon the result of a primary election. Code construed: {¡§3159, 3161 (S.); §§2438-8440 (M. & V.); §§1769-1771 (T. & S.). Cases cited: Whiteside v. Ex. of Tabb. Cooke, 384; Porter v. Jones, 6 Cold., 324; Stanford v. Howard, 103 Tenn., 29; Allen v. Dodd, 4 Hum., 133; Smith v. Stephens, 5 Sneed, 254; Williams v. Taliaferro, 1 Cold., 39; MeGrew v. City Produce Exchange, 85 Tenn., 572; Bell v. State, 5 Sneed, 507; Eubanks v. State, 3 Heis., 488.
107 Tenn. 539Holt v. State (1891)
1- Cbiminal Practice. Election by State must be made, when. Where, under an indictment charging the offense of unlawfully carrying a pistol, in a single count, the State introduces evidence of the commission of that offense by the defendant at several different times and places, it is reversible error for the Court to refuse to compel the State, on defendant’s motion, to elect and state for which of the several offenses conviction will be sought. 2. Same. Ms to admitting evidence of other distinct offenses. Under an indictment charging the defendant, in a single count, with unlawfully carrying a pistol, it is competent for the State to prove several distinct offenses committed at different times and places, but, upon defendant’s motion asking it, the Court must require the State to elect and state the occasion for which conviction will be soug'ht, and exclude from the jury all evidence relating to carryings on other occasions. The same rule applies to liquor and gaming cases. Cases cited: Wright v. State, 4 Hum., 194; Hampton v. State, 8 Hum., 69; Cash v. State, 10 Hum., Ill; Boyd v. State, 7 Cold., 77; Lawless^. State, 4 Lea, 178; Tillery v. State, 10 Lea, 35; Pouteu. State, 15 Lea, 712; Luttrell v. State, 85 Tenn., 233.
107 Tenn. 544Green Rea Co. v. Holman (1901)
FROM RHEA. Appeal in error from Circuit Court of Rhea County. M. D. Smallman, J.
107 Tenn. 548Templeton v. Nipper (1901)
Public Works. Commissioners for letting not Moble for failweto take bond for pi'oteetton of laborers and materialmen, when. The benefit of the bond required by Acts 1899, Ch. 183, for the protection of laborers and furnishers of material on public works let by State, county, or city, does not extend to one who furnishes labor or material in the construction of such works to a subcontractor, and, therefore, the commissioners who let such contracts are not liable to such person for their negligence in failing to take such bond. Act construed: Acts 1899, Ch. 183. Case cited: Rhea County v. Sneed, 105 Tenn., 581.
107 Tenn. 552Murphy v. Johnson (1901)
1. Bill of Review. Does not lie, when. Bill of review does not lie to review and reverse a decree of this Court, either for error apparent or for newly discovered evidence; and, for this purpose, a decree of the Chancery Court, entered pursuant to the mandate of this Court upon remand of a cause, is treated as the decree of this Court and is not renewable by a bill of review. [Post, p. 558.) Cases cited: Hurt v. Long, 90 Tenn., 445; Wallen v. Huff, 1 Shann. Cas., 4. 2. Bill in Equity. Substance, not name, determines its nature. The substance, not the name given to it by the pleader, determines the nature of a bill in equity. [Post, p. 557.) Case cited: Arnold v. Moyers, 1 Lea, 308. 3. DECREE. Coram non judn.ce. A decree not justified by the pleadings .is void, whether rendered by this Court or by the lower Court. [Post, p. 557.) Case cited: Randolph v. Bank, 9 Lea, 63. 4. Same. Same. Case in judgment. The decree in this cause is coram non jwMce and void as to the SI, 250 averred by the bill, and admitted by the answer, to have been paid to the intestate in his lifetime, and not, therefore, chargeable to the administrator. (Post pp. 558, 557.)
107 Tenn. 558Johnson v. Murphy (1901)
PROM JEFFERSON. Appeal from Chancery Court of Jefferson County. John P. • Smith, Ch.
107 Tenn. 560Bryant v. Bank (1901)
1. Vbndob’s Lien. Priority of. An assignee of purchase price notes possesses a lien on the land for which they wdre given superior to the attaching creditor of the vendee or assignor, where, before levy of the attachment upon the land, by agreement of the parties to the deed and the assignee of the notes, there had been inserted in the deed, which originally contained no such stipulation, a clause creating a vendor’s lien to secure the notes; and it is immaterial whether this clause was inserted as a correction of the deed or as a new contract, or whether the deed was registered after its insertion. (Post, pp. 561-5(57.) 3. Registration. Its effect. Registration laws fix and regulate the rights of creditors of the vendor, and of purchasers from him, but have no application to creditors of the vendee. The vendor’s creditors may defeat the vendee’s title by attachment of the land before registration of the deed, but the vendee’s creditors would secure, by such attachment, only such interest as the vendee actually had in the land at the date of the attachment. (Post, pp. 564, 565.) Code construed: § 3753 (8.); ? 3890 (M. & V.); § 3075 (T. & S.). Cases cited: Leech v. Hillsman, 8 Lea, 747; Colyar v. Bank, 103 Tenn., 733. 3. Deed. Not vitiated by subsequent interlineaUbns. A deed is not vitiated by the insertion, in good faith and by consent of parties, of a clause providing for a vendor’s lien, made after its execution and registration, especially when such clause is inserted to cure an omission, made by accident or mistake, from the original instrument. (Post, pp. 566, 567.) 4. Same. Aclmoivledgment of, required, when. After change of a registered deed re-acknowledgement is required to authorize its re-registration. (Post, pp. 567.)
107 Tenn. 568Gorrell v. Taylor (1901)
1. PARENT and CmLD. Services of child for pa/rent presumed gratuitous. Attentions and services rendered by a child, while living with the parent, during the latter’s ill-health, though long continued, are presumed to have been gratuitously rendered from motives of affection and duty, and to entitle the child to recover compensation therefor, he must overcome this presumption by a preponderance of evidence showing either an express contract or such exceptional facts and circumstances as establish an intention on the one part to charg-e. and on the other to pay for same notwithstanding the relation of kinship. Cases cited: Forsee v. Matlock. 7 Heis., 425; Taylor v. Lineum-felter, 1 Lea, 83; Hayes v. Cheatham, 6 Lea, 9. 2. Same. Same. The same rule applies to services and attentions rendered by the husband or wife of a child as to those rendered by a child. 3. Same. Same. And this presumption applies to services rendered by persons in more remote degrees of relationship than that of parent and child, but grows weaker as the degree of relationship grows more remote.
107 Tenn. 572Stephens v. Ozbourne (1901)
FROM KNOX. Appeal from Chancery Court of Knox County. Joseph W. Sneed, Ch.
107 Tenn. 579Chumbley v. Bowman (1901)
Appeal Bond. Surety’s Viability. Decree for the full amount goes against the surety on an appeal bond upon affirmance of a money decree against his prin-pal, although the latter has succeeded by his appeal in obtaining a modification of the decree appealed from, so far as to postpone his liability to that of a co-defendant who did not appeal.
107 Tenn. 581Keneval v. State (1901)
1. Bigamy. Vnlaiuful cohabitation separate offense. Cohabitation in this State with the wife of a bigamous marriage had in another State is not bigamy, but is declared a distinct felony by statute. (Post, p. 582.) Code construed: § 6760 (S.); § 5649 (M. & V.); § 4839 (T. & S.). Case cited: Kinney v. State, 3 Head, 545. 2. Same. Same. Cohabitation in this State with the wife of an alleged bigamous marriage had in another'State does not constitute a felony within our statute where it appears that the alleged first marriage, which was supposed to render the later marriage bigamous, was itself illegal, bigamous, and void. (Post, pp. 582-584.) Code construed: l 6760 (S.); $ 5649 (M. & V.); g 4839 (T. & S.). Case cited: Bashaw u. State, 1 Yer., 186. 3. INDICTMENT. Por bigamous cohabitation in this State. While an indictment for bigamous cohabitation in this State, under color of an illegal marriage had in another State, is, perhaps, sufficient, without averring the name of the first wife, or date or place of the first marriage, still, if these facts are specifically averred, they must be proved as averred and cannot be rejected as surplusage. (Post, pp., 584, 585.) 4. Cbiminal Practice. Not guilty. It is not error to strike out defendant’s special plea in a criminal case if he can have, and especially if he has actually had, the benefit of the same matter of defense under this general plea of not guilty. (Post, pp., 583, 584.) 5. Same. Admission of evidence. Relevant facts proved on behalf of defendant by an incompetent witness, or by informal deposition or by secondary evidence, with, the consent of the Attorney-g-eneral, or admitted without objection on his part, cannot he objected to by the State and excluded in this Court. (Post pp. 585-587.)
107 Tenn. 588Davis v. Rogersville (1901)
1. Municipal BoNds. Valid election for issuance of. By an Act, approved April 22, 1901, the town of Rogersville was required to submit to the qualified voters of that town, within ninety days from that date, a proposition for the issue of $2,500 city bonds for certain purposes. By another Act, passed at the same session and approved April 18, 1901, the registration and election laws were amended, and made to include for the first time the town of Rogersville. Neither Act made any provision for a special registration of the voters of the town for this election, and the election, which was required to be holden before a general registration could be had under the g'eneral election laws, was held without registration, and without compliance with the “Dortch law.” Held: The election was properly held under the old law, and the proposition had been approved by the required majority, and bond issue can be validly made. Acts construed: Acts 1901, Chs. 147, 341. 2. Elections. Registration for. Registration of voters in the town of Rogersville for this particular election was not authorized within the limited period allowed by the statute for holding it, by the general provisions of the election or registration laws authorizing registration of voters for special or other elections.
107 Tenn. 592McClung v. Colwell (1901)
1. CORPORATIONS. Pledges of shares of stoolcs. A pledgee, to whom shares of stock have been assigned and delivered as collateral security, is secure against the pledgor and his creditor without transfer of same on the books of the corporation. (Post, p. 600.) Case cited: Parker v. Bethel Hotel Co., 96 Tenn., 374, 3. Same. Same. A pledgee of shares of stock may constitute and appoint the pledgor, in whose name the shares stand on the books of the company, his ag-ent to sell, exchange, or otherwise dispose of same for the pledgee’s benefit. (Post, pp. 598, 599.) Cases cited: Johnson v. Smith, 11 Hum., 400; Wharton v. Lavender, 14 Lea, 188; Grange Warehouse Co. v. Owen, 86 Tenn., 355. 3. Same. Same. The pledgor’s creditors acquire no right or interest by attachment of shares of stock before their delivery to the pledgee, which the pledgor had, as the pledgee’s agent, taken in exchange for other pledg-ed shares, under an agreement that they should stand in the room and stead of the former pledged shares, even though the shares were issued and stood in the pledgor’s name. (Post, pp. 593-600.) Cases cited: Young v. South Tredegar Iron Co., 85 Tenn., 189; Cates v. Baxter, 97 Tenn., 447. 4. Kesultusg Trust. Applies to personalty. Where shares of stock are issued or assigned to one person a trust will result in favor of another person who advances the consideration in whole or in part. (Post, pp. 600-602.) Cases cited: Say les v. Cox, 95 Tenn., 579; Arbuckle v. Kirkpat. rick, 98 Tenn., 221; Cornick v. Richards, 3 Lea, 1; Bank u Baker, 8 Hum., 447.
107 Tenn. 603Gaut v. American Legion of Honor (1901)
1. Benevolent Association. Insurance, by. The certificate issued by a fraternal, mutual, benevolent association to its members, promising, upon a stipulated consideration and prescribed conditions, to pay, at the death of the member in good standing, a definite sum to the beneficiary therein named, is a contract of insurance, in all its essential elements, which must be performed in good faith by the association. This contract measures the right of the member and the obligation of the association, and will be enforced by the courts according to its terms. (Post, pp. 617-619.) 2. Same. Same. A clause in the contract of insurance entered into by a fraternal, mutual, benevolent association by which the insuring member agrees “to conform in all respects to the laws, rules, and usages of the order now in force, or which may hereafter be adopted by the same,” does not reserve to the association the power to reduce, by amendment of its by-laws or otherwise, without the insured’s consent, the amount payable on his certificate. Such by-law is ultra vires and void. The contract, in this respect, is inviolable. The reserved right of legislation, under such contract, is one of preservation and not of destruction of the insurance contract. (Post, pp. 619-624.) Case cited and distinguished: K. of P. v. La Malta, 95 Tenn., 157.
107 Tenn. 625Templeton v. Mason (1901)
1. Attachment. Plea in abatement. The cause for an original attachment averred in a hill, e. g., fraudulent disposition of property by the defendant, cannot be put at issue by answer, but only by plea in abatement. It is otherwise if the bill is framed under § 6097, Shannon’s Code, to set aside the fraudulent disposition of the defendant’s property and subject it to his debts. (Post, pp. 626-632.) Code construed: §6097 (S.); §5031 (M. & V.); §4288 (T. & S.). Cases cited: August u Seeskind, 6 Cold., 172; Foster v. Hall, 4 Hum., 346; Brooks v. Gibson, 7 Lea, 271; Pace v. Plumlee, 2 Shann. Cas., 55; Cheatham v. Pierce, 89 Tenn., 668; Tarbox v. Tonder, 1 Tenn. Ch., 163; Greene v. Starnes, 1 Heis., 582; Renkert v. Elliott, 11 Lea, 246; Epperson v. Robertson, 91 Tenn., 413; House v. Swanson, 7 Heis., 34; Isaaeks v. Edwards, 7 Hum., 468; Kendricks v. Davis, 3 Cold., 524; Boyd v. Martin, 9 Heis., 386. 2. Same. Same. The statute authorizing the making, by answer, of any defense that does not go to the jurisdiction does not enable a defendant to put in issue the cause averred in the bill for an original attachment otherwise than by plea in abatement. (Post, pp. 629-632.) Code construed: § 6128 (S.); § 5061 (M. & V.); § 4318 (T. & S.). 3. Same. Same. Nor does the statute requiring summons to issue in original attachment cases change the rule that the cause for attachment stated in the bill must be put at issue by plea in abatement. (Post, pp. 629-632.) Cases cited: Bivins v. Mathews, 7 Bax., 256; Bank v. Poster, 90 Tenn., 735; Robb v. Parker-, 4 Heis., 59. 4. Same. Of right of redemption. A debtor’s right of redemption in land is subject to attachment. A creditor, even by judgment, is not compelled to pursue the statutory remedy where there has been a fraudulent disposition of the property, and that course would lead to multiplicity of suits. (Post, pp. 632-634.) Cases cited: Weakley u Coekrill, 6 Lea, 372; Herndon v. Pickard, 5 Lea, 703; Ewing v. Cook, 85 Tenn., 333.
107 Tenn. 635Southern Railway Co. v. Leinart (1891)
1. Demuebeb to Evidence. Waives exceptions to adrr^issibiUty cmd competency of evidence. By demurring- to the evidence the demurrant waives his exceptions taken to the admissibility or competency of evidence, and admits the truth of all the evidence received, though over his objection, whether the same was legally competent and admissible or not. (Post, pp. 636-644.) Case cited: Bedford v. Ingram, 5 Hay, 156. 2. Same. Evidence sufficient to defeat, when. It is sufficient to defeat a demurrer to the evidence in an action for damages caused by defendant’s negligence, that the evidence tends to show actionable negligence on the part of the defendant. The evidence, in this case, is reviewed in the opinion and held sufficient to defeat the demurrer. (Post, pp. 644-646.)
107 Tenn. 647Knoxville v. Knoxville Water Co. (1901)
1. Municipal Cobpobations. Notice to members of council of special meetings. It is a general rule that every member of a Municipal Council is entitled to reasonable notice of special meetings, and that no important action — e. g., the passage of an ordinance on one of the required readings — can be lawfully done by such meeting unless such notice has been given, or unless the members not notified actually attend and participate in the business of the meeting. But failure to give notice to a member is excused when it was not practicable to do so. (Pogt, pp. 655-666'.) Cases cited: Land Co. u Jellieo, 103 Tenn., 321. 2. Same. Same. The giving of notice of a special meeting to a member of a City Council is excused as not being legally practicable, and the passage of an ordinance at such meeting, on its third and final reading, without his presence, is valid, where it appears that such member was, at the time of the holding and call of such meeting, three hundred miles distant, and outside the limits of the State, and that he had, for a considerable time, been engaged in regular employment outside the State, although he maintained his home in the city, visiting it occasionally, and attending special meetings of the Council when notified. (Post, pp. 655-666.) 3. Same. Mayor’s power to call special meetings defined. The necessity and urgency of calling a special meeting of a City Council rests in the sole discretion of the Mayor, and the exercise of his discretion is not reviewable'by the courts, where ' the city charter provides that he may call special meetings, whenever in his judgment the good of the city requires it. (Post, p. 665.) 4. Same. Publication of city ordinance on Sunday valid. Under the requirement of a city charter that its ordinances shall he “printed and published,” the publication of an ordinance in a regular Sunday issue of a city paper is valid and sufficient. (Post, pp. 666-670.) Oases cited: Lucas v. Larkin, 85 Tenn., 355; Amis u Kyle, 2 Yerg., 31; Mosely v. Vanhooser, 6 Lea, 286. 5. G-oveenmestt. Powers of, to regulate public utilities. It is settled- law that the State, by direct enactment of its Legislature, or by authority delegated by the Legislature to counties or municipalities, may regulate public utilities, and the rates to be charged for public service by corporations or individuals rendering any service to the public. This doctrine has been applied, by the courts, to telephones, elevators, gas companies, water companies, and other public or quasi public utilities. (Post, p. 671.) Cases cited: Crumbley v. Water Co., 99 Tenn., 420; Wataug-a Water Co. v. Wolfe, 99 Tenn., 430. 6. Wateb COMPANY. Regulation of rates of chairges by city. The statute under and by authority of which the Knoxville Water Company was¡ chartered and organized contained this provision, to wit: “And this Act is in no way to interfere with the police or general powers of the corporate authorities of such city, villag-e or town, and, such corporate emihorities shall home power by ordinance to regulate the price of water to be supplied by such company.” The contract between the city of Knoxville and said water company, granting an exclusive' privilege for thirty years, contained this stipulation, to wit: “Said company will supply private consumers with water at a rate not to exceed five cents per hundred gallons. ” Subsequently said water company obtained the city’s consent to consolidate with other companies upon its agreement to furnish water at certain “maximum” rates, not exceeding those stipulated in its former contract. Afterward, in 1895, the city, by ordinance, fixed a schedule of charges for water, upon the basis of which said company conducted its business until 1901, when the city fixed, by ordinance enacted pursuant to its power to regulate rates, a new schedule of charges, somewhat lower than those fixed in 1895. The water company denies the city’s power to pass this last ordinance. Held: The city had. power to pass the ordinance of 1901, reducing- the charges for water below the rates fixed by the ordinance of 1895, and there being no contest as to the reasonableness of the rates fixed by the ordinance of 1901, the same is valid. The power of regulation conferred upon the city by said Act of 1877 is a continuing one, which is not exhausted by a single exercise of it, but may be exercised, within reasonable bounds, as often as the public interests may demand. (Post, pp. 670-692. 7. Same. Same. If the power shall be conceded to the Legislature to authorize a municipal corporation to enter into a perpetual and irrevocable contract with a water company for a system of water works and supply of water, whereby such water company shall be and remain exempt from supervision, control, and regulation in the interest of the public, as regards the matter of its rates of charges for water, still, the grant of such authority must be plain, positive, and unequivocal. If there is reasonable doubt it must be resolved against the grant of such authority and in favor of the existence of the power of regulation. (Post, pp. 670-692.) Cases cited: Iiarbison v. Iron Co., 103 Tenn., 431; Dayton v. Barton, 103 Tenn., 604; Deeper v. State. 103 Tenn., 503; Railroad v. Burke, 6 Cold., 50; State v. Martin, 3 Shannon, 555. 8. Same. Same. Where, under the statute and. the contract of the parties, the city has the power to regulate the rate of charges by a water company, the latter cannot justly object that such power of reg-ulation is unreasonable by reason of the fact that the city is one of the water consumers, whose rates are to be regulated, or because the city is interested to depress the value of the company’s plant, in order to secure it at an unfair price, under an option which the company had voluntarily given to the city for its purchase. The company has its legal remedies for any wrongful conduct of the city and must pursue them. (Post, pp. 688, 689.) 9. Same. It is not a valid objection to a statute giving- a city the power to regulate the rate of charges of a water company, that it contains no express provision, on its face, that such regulation shall be reasonable, and that the statute makes no provision for contesting or ascertaining the reasonableness of rates fixed by the city. The company’s right to have judicial investigation of rates fixed exists, and can be enforced independently of any statutory authorization. (Post, pp. 670-692.)
107 Tenn. 693Foster & Webb v. Scott County (1901)
1. Account. From another eownty. In an action upon an account, coming from another State or another county of this State, properly proved in compliance with the statute, its correctness is not in issue unless it is denied under oath. Code construed; § 5561 (S.); § 4259 (M. & V.); $ 3780a (T, & S.). 2. Same. Same. The affidavit to an account coming from another State, or another county of this State, which puts the defendant to denial of same upon his oath, in order to put its correctness at issue, must be made by the plaintiff himself, and not by an agent. (Post, %>. 695.) Code construed: $ 5561 (S.); $4259 (M. & V.); $ 3780a (T. & S.). Cases cited: Cave v. Baskett, 3 Hum., 342; Hunter v. Anderson, 1 Heis., 3; Brown v. Stabler, 1 Heis., 444; Briggs v. Montgomery, 3 Heis., 675; Brien u Peterman, 3 Head, 499.
107 Tenn. 698Hamby v. Lane (1901)
1. Homestead. How set up in pleadings. In a suit against husband and wife, by the husband’s creditors, to set aside a conveyance of realty made by him to his wife as voluntary or fraudulent, and subject the property to his debts, it is not essential that the wife set up and claim in her pleadings her right of homestead, eo nomine, in such realty, but it is sufficient, if it appear from all the facts averred in the pleadings that she is .entitled to homestead in the property. The pleadings in this ease, though informal, sufficiently state her right to homestead. (Post, pp. 699-701.) Cases cited: Smith v. Carter Bros., 16 Lea, 527; Gray v. Baird, 4 Lea, 215. 2. Same. Wife’s right not defeated by husband’s fraudulent conveyance to her. The wife’s right of homestead is not defeated by the husband’s • fraudulent conveyance to her of the property to which that right has attached, even though she participated in the fraud. (Post, pp. 701-703.) Constitution construed: Art. 11, Sec. 2. Code construed: § 3798 (S.); §2935 (M. & V.); §§ 2110a, 2114a (T. & S.). Cases cited: Ruohs v. Hooke, 3 Lea, 302; Powell v. Warren, 2 Shannon, 144; Howell v. Thompson, 95 Tenn., 396; Gray v. Baird, 4 Lea, 215; Cox v. Ballentine, 1 Bax., 363; Cronon v. Honor, 10 Heis., 533; Mynatt v. Magill, 3 Lea, 72.
107 Tenn. 705Virginia Iron v. Hamilton (1901)
PROM WASHINGTON. Appeal in error from the Circuit Court of Washington County. H. T. Campbell, J.
107 Tenn. 712Hooper v. Railroad (1901)
1. Amendment. Relation of. An amendment of a declaration, in an action by an administrator for personal injuries causing- the death of his intestate, striking out the name of one beneficiary and substituting the name of another and different one, relates to the commencement of the action so as to defeat the running or bar of the ■statute of limitations. Such amendment does not introduce a new cause of action, but merely corrects the statement of the old one. (Post, pp. 713-720.) Cases cited: Railroad v. Foster-, 10 Lea, 351; Railroad v. Bean, 94 Tenn., 394; Railroad u Johnson, 97 Tenn., 670; Loague v. Rail-I'oad, 91 Tenn., 461; Whaley v. Catlett, 103 Tenn., 351. 3. Res Ad judicata. What is not. The judg-ment of an appellate Court, reversing the judgment of a trial Court and remanding the case to the Court “ whence it came, with directions to grant a new trial, to sustain the plea of the statute of limitations made to the amended declaration, and to enter judgment for defendant,” is not such final adju-' dication as will debar the plaintiff from taking a non-suit in the trial Court and thereafter prosecuting a new suit brought within a year after such dismissal. (Post, pp. 720-723.) Case cited: Railroad v. Brigham, 95 Tenn., 634.
107 Tenn. 724Knox County v. Fox (1901)
1. Sherim-. Allowed jail fees for detention of workhouse prisoners, when. The county is liable to the Sheriff: for board and turnkey fees of prisoners sentenced to the workhouse, but committed to jail, under mittimus, pending- their removal to the workhouse. Code construed: H 6352, 7370-7376, 7420 (S.); 5269, 6237-6243 (M. & V.); ??4517, 5395-5401 (T. & S.). 2. Workhouse. Convicts not liable to work out costs and fees accruing after corvoicUon. Workhouse convicts cannot be compelled to work out costs or jail fees that accrue after their conviction — e. g., Sheriff’s fees for board and turnkeys accruing by reason of their detention in jail on their way to the workhouse. Cases cited: Knox v. State, 9 Bax., 202; Exparte G-riffin, 88 Tenn., 547.
107 Tenn. 731Moore v. Ward (1901)
Homestead. Dimorced wife not entitled to, when. A wife who has obtained a divorce, but has not claimed the homestead or obtained decree for it in the divorce proceedings, cannot subsequently, in an independent suit, assert her right to homestead against the husband or his vendee. Code construed: $ 3810 (S.); § 2946 (M. & V.); '£ 2121a. (T. & S.). Cases cited: Joyce v. Tomlin, 3 Shan. Cas., 143; Rosenbaum v. Davis, 106 Tenn., .51.