121 Tenn.

Volume 121 — Tennessee Reports

35 opinions

121 Tenn. 1Coleman v. State (1908)
1. CONTEMPT OE COURT. Sworn answer of defendant was conclusive at common law, but not in chancery, when. In a contempt case at common law, the sworn answer of the defendant charged with contempt of court, denying the contempt and making such statement as Will free him from the imputed contempt, was conclusive and entitled him to his discharge; hut in chancery the truth may be inquired into and ascertained by the court upon interrogatories and the answer thereto. (Post, V. 7.) Cases cited and approved: Rutherford v. Metcalf, 5 Hay., 58; Underwood’s Case, 2 Humph., 46; note to Warner v. Martin, 4 Am. & Eng. Ann. Cas., 183, 184. 2. SAME. Common law rule of the conclusiveness of defendant’s answer has fallen into desuetude, and the matter is subject to proof. The common law rule that the sworn denial of the defendant charged with contempt of court and making such statement as will free him from the imputed contempt was conclusive has fallen into desuetude in this State, and evidence is admissible to controvert the statements therein, and the whole matter is subject to inquiry and ascertainment by the court. (Post, pp. 7-9.) Cases cited and approved: Brooks v. Fleming, 6 Bax., 331-333; Harwell v. State, 10 Lea, 544; Sinnott v. State, 11 Lea, 281; Scott v. State, 109 Tenn., 390; Rickets v. State, 111 Tenn., 380; United States v. Shipp, 203 U. S., 565, and citations; O’Flynn v. State, 89 Miss., 850; Emery v. State (Neb.), Ill N. W., 374, 9 L. R. A. (N. S.), 1124. 3. SAME. Tampering with summoned jurors before they are accepted is a contempt of court. Under our statute making it a contempt of court to abuse or unlawfully interfere with the process or proceedings of the court, one charged with an offense, trying to influence in his behalf persons summoned for jurors before their nonacceptance on the jury is guilty of contempt of court. (Post, pp. 9-12.) Code cited and construed: Sec. 5918 (S.); sec. 4881 (M. & Y.); sec. 4106 (T. & S. and 1858). 4. SAME. Judgment too general and meager may be corrected in supreme court so as to set out the facts sufficiently. Where the judgment in a prosecution for contempt of court is too general and meager in not sufficiently setting out the grounds on which the accused was found guilty, it may be corrected in the supreme court so as to set out the facts sufficiently. (Post, p. 12.) Cases cited and approved: Cronan v. State, 113 Tenn., 539, 543, and citations; Cowan v. State, 117 Tenn., 247, 249.
121 Tenn. 13American Steam Laundry Co. v. Hamburg Bremen Fire Insurance (1908)
1. FIRE INSURANCE. Forfeiture of policy by change of interest, though business is continued under same trade name. Where the owner of a laundry business, conducted under the name of a company as a trade name, insured, under such trade name, the laundry property against fire under a policy providing that it shall be void, if any change should take place in the interest, title, or possession of the property insured, and thereafter sold the business to others, without any transfer of the policy, and without any notice of the sale to the insurer, the sale forfeited the policy, and such purchasers could not recover upon the same for a loss by fire, although they continued the business under the same trade name used by their vendor. 2. SAME. Policy is a personal contract for indemnity of insured and does not go with property on its sale, when. A fire insurance policy is a personal contract for the indemnity of the insured, and does not go with the property on its sale as an incident thereto, in the absence of an agreement for the transfer of the policy. (Post, pp. 17-20.) Cases cited and approved: Quarles v. Clayton, 87 Tenn., 308, 314; Bennett v. Featherstone, 110 Tenn., 27; Insurance Co. v. Manning (C. C. A.), 160 Fed. 385. 3. SAME. No assent to change in ownership, where agent trying to cancel policy is informed of some change in property, when. Where the agent of the insurer was informed that some changes had been made in the insured property, but was not informed as to whether there was a change in the title or ownership, or whether the changes were physical changes in the property, lie certainly did not assent to the changes whatever they were, for the reason that he was endeavoring at the time to take up and to cancel the policy. (Post, p. 21.) 4. SAME. Broker effecting insurance is not the agent of the insurer so as to affect the insurer by notice to such broker. A broker who effects insurance, under no employment by the insurer, but for a commission upon the premium received for such risks as he procures to be offered and the insurer chooses to accept, is not the agent of the insurer in such sense that notice to him would bind the insurer; and hence notice of the sale and transfer of the insured property to brokers who effected the insurance and divided the commissions with the agent of the insurer would not bind the insurer. (Post, pp. 20-24.) Cases cited and approved: Royal Insurance Co. v. McCrea, 8 - Lea, 531, 532; Equitable Insurance Co. v. McCrea, 8 Lea, 541; Martin v. Insurance Co., 106 Tenn., 523, 528; Grace v. Insurance Co., 109 II. S., 278; Adams v. Insurance Co. (C. C.), 17 Fed., 630; Kehler v. Insurance Co. (C. C.), 23 Fed., 340; 'White v. Insurance Co., 120 Mass., 330; Devens v. Mechanics & Trust Co., 83 N. Y., 168; Hermann v. Insurance Co., 100 N. Y., 411.
121 Tenn. 25Dutton v. Mayor of Knoxville (1908)
1. MUNICIPAL CORPORATIONS. Ordinance prohibiting forestalling is valid under a charter authorizing such ordinance, when. Under its legislative charter (Acts 1907, ch. 207), giving the city the power to regulate the inspection of provisions, to restrain and punish forestalling and regrating of provisions, and to establish and regulate markets, the city of Knoxville possessed the power to prevent the unlawful raising of the prices of produce through forestalling and regrating by passing an ordinance prohibiting the hawking of fruit, vegetables, poultry, or other products, from wagons, by others than those raising their own produce. Acts cited and construed: Acts 1907, eh. 207. Cases cited and approved: Nightingale’s Case, 28 Mass., 168, 171; Louisville v. Roupe, 45 Ky., 593. 2. WORDS. “Forestalling” is buying victuals on the way to market to sell again at a higher price. “Forestalling” is the buying of victuals on their way to market before they reach it, with the intent to sell them again at a higher price. (Post, p. 30.) 3. WORDS. “Regrating” is buying com or other dead victual in any market to sell again therein. ' “Regrating” is the buying of corn or other dead victual in any market, and selling it again in the same market. (Post, p. 30.) 4. MUNICIPAL CORPORATIONS. Ordinance prohibiting hawking sales by others than producers is not invalid as an unlawful discrimination. A city ordinance prohibiting the hawking of fruit, vegetables, poultry, or other products, from wagons, by others than those raising their own produce is not invalid- as an unlawful and. unjust discrimination, because those prohibited from selling belong to a distinct class from those permitted to-sell; the first being those who would violate the law by forestalling and re-grating the market, and the others being the producers of provisions who would sell them direct to the consumers. (Post, pp. 28, 29, 33, 34.) 5. SAME. Same. State and county license will not authorize the violation of a valid city ordinance. A city ordinance prohibiting hawking sales by others than the producers is not inoperative because the State and county had granted a huckster’s license to those prohibited from hawking in the city, since the license would not authorize t^.e licensee to violate a valid city ordinance. (Post, p. 34.) Commonwealth v. Fenton, 139 Mass., 195; Commonwealth v. Ellis,' 158 Mass., 556.
121 Tenn. 35State v. Sexton (1908)
PROM SCOTT. Appeal from the Circuit Court of Scott County.— G. Me. HENDERSON, Judge.
121 Tenn. 45Turnmire v. Mayes (1908)
1. ÍBASTARDS. Status at common law; incapacity to inherit;. . no heirs, save those of their own bodies. Under the common law, an illegitimate child was treated as nullius fllius, and, as such, incapable of inheriting from either the putative father or the mother, and without heirs, save those of his own body. (.Post, p. 49.) 2. SAME. Statute relating to inheritance by and from illegitimate children was repealed by its omission from the Code. The statute (Acts 1819, ch. 13, sec. 1) enabling the illegitimate child or children to inherit from the mother dying intestate and leaving no legitimate child or children; and enabling the legitimate and illegitimate brothers and sisters, born of the same mother to inherit equally the estate of a deceased illegitimate brother or sister dying intestate and without issue, but not enabling the illegitimate brothers and sisters to participate with the legitimate brothers and sisters born of the same mother in the inheritance of a legitimate brother or sister dying intestate and without issue, was repealed by its omission from the Code of 1858. (Post, pp. 49-53.) Acts cited and construed: Acts 1819, ch. 13, sec. 1. Cases cited and approved: Riley v. Byrd, 3 Head, 19; Woodward v. Duncan, 1 Cold., 562; Kelly v. JacKson, 2 Shannon’s Cases, 198; Dennis v. Dennis, 105 Tenn., 86. 8. SAME. Same. Statute to supply the place and' correct the inequalities of the former statute. Section 10 of the Acts 1866-67, ch. 36, was evidently passed to supply the place and correct the inequalities growing out of the construction of Acts 1819, ch. 13, sec. 1, as shown in the foregoing headnote. (Post, p. 53.) Acts cited and construed: Acts 1819, ch. 13, sec. 1; Acts 1866-67, ch. 36, sec. 10. Case cited and approved: Laughlin v. Johnson, 102 Tenn., 455. 4. SAME. ¡Statute affecting the status and. inheritance by and between illegitimates is prospective and not retrospective. The statute (Acts 1866-67, ch. 36, sec. 10) enabling the illegitimate child or children of a mother dying intestate to inherit her estate equally with her legitimate child or children, and enabling the brothers and sisters of either of such children dying intestate and without child to take in like manner his or her estate, is prospective in its character and operation, and therefore did not affect the status or capacity of inheritance of such a child who died before the passage of the statute. (Post, pp. 53, 54, 57-61.) Acts cited and construed: Acts 1866-67, ch. 36, sec. 10. Cases cited and approved: Leach v. Cooper, Cooke, 249; Starks v. Trainor, 11 Hum., 292; Puckett v. State, 1 Sneed, 356; Riley v. Byrd, 3 Head, 19; Woodward v. Duncan, 1 Cold., 562; Edwards v. Goulding, 38 Miss., 118; Steckel’s Appeal, 64 Pa., 494; Curtis v. Hewins, 11 Mete., 294; Carroll v. Carroll, 20 Texas, 746. 5. SAME. Illegitimate mother’s legitimate child inherits through her, if at all, and not directly from her legitimate brother and sister. If a legitimate child of an illegitimate mother can inherit from the mother’s legitimate brother and sister, he must do so through his mother, and not directly from his such uncle and aunt. -(Post, pp. 53, 54, 62, 63.) Case cited and approved: Dennis v. Dennis, 105 Tenn., 86. 6. SAME. Illegitimate deceased mother’s legitimate child will not inherit from her legitimate brother or sister dying intestate without children but leaving legitimate brothers. Under the provisions of the statute as stated in the fourth headnote, the legitimate child of an illegitimate mother dying before the passage of the statute does not inherit from the mother’s legitimate intestate brother or sister who died after the passage of the act leaving surviving legitimate brothers, hut no children. (Post, pp. 48-63.) Acts cited and construed: Acts 1866-67, ch. 36, sec. 10. Cases cited and approved: Levy v. McCartee, 6 Pet., 102. Cases cited and distinguished or disapproved: Dennis v. Dennis, 105 Tenn., 86; Sleigh v. Strider, 5 Call (Va.), 439; Rice v. Efford, 3 Hen. & M. (Va.), -225; Ash v. Way, 2 Grat. (Va.), 204; Bale v. Elder, 118 Ill., 436; Sutton v. Sutton, 87 Ky., 216; Dickenson’s Appeal, 42 Conn., 491. 7. SAME. (Legislation for relief of illegitimates and their offspring favored, hut not extended beyond its provisions. While the courts regard with favor the legislation for the relief of illegitimates and their offspring, and, so far as found consistent with sound rules of construction, will administer it with a view of effectuating its humane purpose, yet they will not go further in the recognition of inheritable blood in illegiti-mates than the legislature has unmistakably gone. (Post, p. 63.) Case cited and approved: Laughlin v. Johnson, 102 Tenn., 455.
121 Tenn. 64Brown v. Crystal Ice Co. (1908)
COURT OP CIVIL APPEALS, lias jurisdiction as to super-sedeas of an interlocutory order for a .mandatory injunction granted in chancery, when; discharge of such supersedeas improvidently granted in supreme court. The court of civil appeals, and not the supreme court, has jurisdiction of an application for the supersedeas of an interlocutory order made hy an ex parte fiat, on a bill praying therefor, directing the issuance of a mandatory injunction in the suit of a stockholder in the defendant corporation to compel the officers and agents thereof to permit him to .examine its books; and where one of the judges of the supreme court, upon application made to him, has improvidently ordered a supersedeas, a motion made before the supreme court to discharge such supersedeas will be granted. The case does not involve'any special amount of property, but simply a right asserted by complainant. All appellate jurisdiction in chancery suits, except certain cases, is in the court of civil appeals; and this case clearly does not fall within any of the excepted cases, nor do habeas corpus cases instituted in the chancery court. . Acts cited and construed: Acts 1907, ch. 82, sec. 7.
121 Tenn. 69Heart v. East Tennessee Brewing Co. (1908)
1. CONTRACTS. Contrary to law, morality, and public policy are void. It is a principle of general application that all .contracts which provide for doing a thing which is contrary to law, morality, and public policy are void. {Post, p. 71.) Cases cited and approved: Yerger v. Rains, 4 Humph., 259; Wet-more v. Brien, 3 Head, 723; Rhodes v. Summerhill, 4 Heisk., 205; Henderson v. Waggoner, 2 Lea, 134. S. SAME. Same. Lease of a house for a business subsequently made unlawful by statute is thereby terminated. Where a house is leased to be used for a saloon or place for the sale of intoxicating liquors, as expressed in the contract, which was a lawful* business at that place when the contract was made, but which was subsequently, made unlawful at such place by statute, the lease contract was thereby terminated, and upon the lessee’s refusal to further occupy and use the house or to pay rent for the remainder of the term, the landlord could not maintain an action to recover the rent accruing under the terms of the lease subsequent to such time. Acts cited and construed: Acts 1907, chs. 17, 206, and 207. Cases cited and approved: Railroad v. Green, 9 Heisk., 592; Ralston v. Boady, 20 Ga., 449; Sherman v. Wilder, 106 Mass., 537; Mound v. Barker, 71 Vt., 253; Riley v. Jordan, 122 Mass., 231; Holmead v. Maddox, 2 Cranch, 161; Gray v. Sims, Fed. Cas., No. 5729; Sauner v. Insurance Co., 41 Mo. App., 480; Cor-rigan v. Chicago, 144 Ill., 537; Jamieson v. Gas & Oil Co., 128 Ind., 555; Church v. New York, 5 Cow., 538.
121 Tenn. 75Bayless v. State (1908)
RECORDS. Certified copies of records in office of internal revenue collector of the United States are inadmissible as evidence against a defendant in State court, when. A certified copy of the record in the office of the internal revenue collector of the United States for the district of Tennessee showing that the defendant, who is under indictment for selling intoxicating liquors within. four miles of a schoolhouse, had paid the internal revenue special tax as a retail liquor dealer by purchasing an internal revenue stamp as a retail liquor dealer is inadmissible as evidence against him upon the trial, though our statute (Acts 1903, ch. 355, sec. 1) provides that the fact that such defendant has paid such tax shall be prima facie evidence of sales within the meaning of the law, because our statutes (Shannon’s Code, secs. 5573-5591) upon the subject of admitting certified .copies of records do not cover the case of a certificate of records from the office of the internal revenue collector of the United States. Code cited and construed: Secs. 5573-5591 (S.); secs. 4541-4559 (M. & V.); secs. 3791-3806 (T. & S. and 1858). Acts cited and construed: 1903, eh. 355, sec. !.•
121 Tenn. 83Thomas v. State (1908)
1. EVIDENCE. Statements made the day after the difficulty constitute no part of the res gestae, and are inadmissible. Where, in a prosecution for homicide, the theory of the defense is self-defense, testimony that the decedent said, the day after the difficulty, that he struck at the accused with a knife two or three times, hut did not know whether he cut him, constituted no part of the res gestae, and was incompetent and inadmissible. (Post, pp. 84, 85.) 2. SAME. Admission of incompetent evidence justifies the admission of similar incompetent evidence in rebuttal thereof. A party who has, over the objection of his adversary, given to the jury clearly incompetent testimony, will not be allowed to avail himself, as a ground for new trial, or for reversal in the appellate court, of the fact that his adversary used, in rebuttal, neutralizing testimony equally incompetent, but directed to the same point. Thus, where the accused introduced incompetent statements of the deceased that he had attempted to cut the accused, he cannot object on appeal that equally incompetent testimony was admitted in rebuttal thereof. (Post, pp. 85-87.) Case cited and approved: Morgan v. State, 88 Ala., 223; Railroad v. Ladd, 92 Ala., 287; Perkins v. Hayward, 124 Ind., 44'9; Sherwood v. Titman, 55 Pa., 77; Fuller v. Valiquette, 70 Vt., 502.
121 Tenn. 88Breckenridge Cannel Coal Co. v. Scott (1908)
1. LAND LAWS. System of entries of State lands by the checkerboard system is valid. The checkerboard system of entries of State lands is valid. (Post, pp. 108, 114', 118.) Case cited and approved: La Follette Coal, Iron & Railroad Co. v. East Tennessee Iron & Coal Co., MS., at Knoxville, 1902. 2. SAME. Special entry defined. A special entry is one that carriers on its face notice, to the common understanding of men acquainted in the neighborhood thereof, of some call therein, so that other enterers may know when without its sphere. (Post, pp. 110, 111.) Cases cited and approved: Kendrick v. Dallum, Cooke, 220; Banks v. Sellars, 2 Sneed, 33; Berry v. Wagner, 5 Lea, 564. 3. SAME. Same. Entry located by reference to other entries is special, when. Where an entry connects with a certain other entry which had as its beginning point the northwest corner of a certain county, a point well established by an act of the legislature and one of general notoriety,' and from that point the calls of the entry can, with reasonable industry, be ascertained with certainty to a common intent, the entry is special. (Post, pp. Ill, 112.) Case cited and approved: La Follette Coal & Railroad Co. v. East Tennessee Iron & Coal Co., 2 Tenn. Chy. App., 668, 4. SAME. Presumption, in the absence of evidence, that an older entry is special to save it from defeat. The older entry is to be favored, and it will be presumed, in the absence of all evidence, that the locative corner of such entry was one well known In the neighborhood at the time the entry was made, so as to make it sufficiently special to save it from defeat. {Post, pp. Ill, 112.) Cases cited and approved: Smith v. Craig, 2 Tenn., 287; Wallen v. Campbell, 2 Tenn., 320; Talbot v. McGavoek, 1 Yerg., 262. 5. SAME. Entry may be shown to be a part of connecting series of entries, and its specialty thus established. The specialty of an entry may be shown by proof that it was a part of a series of entries made together, and thus connecting back or communicating with the first entry, which was special because beginning at a well known point. {Post, p. 114.) 6. SAME. Same. Specialty may appear by inspection of entry books, and tracing back in the series of entries. Where the inspection of the entry books shows a series of connected entries made on the same day and located by the same persons, any entry must be traced back, as on the links of a chain, to the original and first entry, the basis of the specialty of all of them. {Post, p. 114.) 7. SAME. Specialty of entry cannot be defeated by subsequent enterer on ground that first enterer may have a survey to include quantity of his entry. While the first enterer may, by mandamus, compel the surveyor to-run the lines so as to include the acreage, if there is vacant land which may be included in the survey sufficient to make up the shortage, yet, where a survey of an entry containing an insufficient quantity of land is not objected to by the en-terer for whose benefit it was made, a subsequent enterer cannot object on the ground that the first enterer may at some time thereafter exercise his right to relief by mandamus. {Post, pp. 114-116.) ts. SAME. Knowledge of entry locator is the knowledge of the enterer and claimants under him. The locator of an entry for the enterer is his agent, and the knowledge of the locator is the knowledge of the enterer and those claiming under him. {Post, pp. 116, 117.) ' 9.' SAME. Entry extending into an adjoining county is valid. An entry is not invalid because a portion of tbe land entered or located extends into an adjoining county. (Post, pp. 116, 117.) 10. SAME. Subsequent enterer cannot object to incorrectness of surveys of prior entries, especially after fifty years. Where tbe surveys of entries correct upon tbeir face were made by competent authority, a subsequent enterer, cannot object thereto on the ground that the lines were not correctly run, especially more than fifty years afterwards. (Post, pp. 117, 118.) 11. ADVERSE POSSESSION. Continued under grant for seven years after acquirement of possessory title before grant perfects title to extent of boundaries of grant, when. Where a person as a naked trespasser made a clearing and inclosure upon the land of another and held adverse possession of the same for more than seven years, and thus acquired a possessory title, and thereafter entered and obtained a grant from the State for a large quantity of land including within the -same said clearing and inclosure, and continued his adverse possession in the interlap without any extension thereof for more than seven years under said grant, he thereby acquired a perfected title, not only to the actual inclosure, but also to the extent of his boundaries. (Post, pp. 93, 94, 118-120, 123.) Case cited and approved: Coal Co. v. Parks, 94 Tenn., 263. 12. STATUTES OE LIMITATIONS. Suspension of their operation by statute and constitution did not impair vested rights or titles thereunder. Where a right or title accrued and became vested by adverse possession under the statutes of limitations before the enactment of the statute (Shannon’s Code, sec. 4454) and the adoption of the constitutional provision (sched., sec. 4) suspending the operation of the statutes of limitations from the 6th of May, 1861, to the 1st of January, 1867, the right or title was not affected or impaired thereby. (Post, pp. 120, 121.) Code cited and construed: Sec. 4454 (S.); sec 3457 (M. & V.); sec. 2762 a (T. & S.). Acts cited and construed: Acts 1865, ch. 10, sec. 1. Constitution construed: Sched., sec. 4. Cases cited and approved: Girdner v. Stevens, 1 Heisk., 280; Yancey v. Yancey, 5 Heisk., 353; Coal Co. v. McDowell, 100 Tenn., 571, 572. 13. SAME. Continued to run during the war where the courts were open for institution of suits, when. The statutes of limitations would not run after the war began, if it he made to appear that the courts were closed, so that suit could not he brought. (P.ost, p. 121.) 14. JUDICIAL NOTICE. That courts in Scott county in this State were not closed in 1861 and 1862. The courts will take judicial notice that the courts of Scott county in this State were not closed in 1861 and 1862. (Post, pp. 121-123.) Cases cited and approved: Girdner v. Stephens, 1 Heisk., 280; Harrison v. Henderson, 7 Heisk., 342; Mining & Manufacturing Co. v. Ross, 12 Lea, 1, 13, 14. Cases cited and distinguished: Yancey v. Yancey, 5 Heisk., 353; Criner v. Cherry, 3 Tenn. Cas., 496, 499. 15. STATUTES OE LIMITATIONS. Registration of deed under void acknowledgment is void as to adverse possession under color of title. The registration of a deed under a void acknowledgment must he treated as if never made at all, and such deed is ineffective as a color of title under our statute (Acts 1895, ch. 38) requiring registration of deeds as prerequisite to their use for purposes of color of title for adverse possession of lands. (Post, pp. 124, 125.) Acts cited and construed: Acts 1895, ch. 38. Case cited and approved: Byrd v. Phillips, 120 Tenn., 14, 29, . 30. 16. DEEDS OF CONVEYANCE. Recited to be made in lieu of a previous unrecorded deed raises presumption that such previous deed was treated as for naught, when. Where a deed recites that it is made in lieu of a deed made to a named third person on a previous certain date, and that it was never recorded, as shown on the face thereof, it will he presumed, in the absence of proof to the contrary, that the deed so previously made had been surrendered and was treated as for naught between the parties. (Post, pp. 123, 125-128.) 17. ADVERSE POSSESSION. Not shown to be within the in-terlap of one tract with another tract, when. The evidence is stated, reviewed, and held insufficient to show that certain adverse possessions were within the interlap of a certain tract of land with a certain other tract. (Post, pp. 128-130.) 18. EJECTMENT. Proper joinder of grantors and grantee as complainants in ejectment bill, where grantors reserved uncertain part of timber. Where the grantors reserved all the timber on the land conveyed, except what was necessary for use by grantee in operating his mines, the grantors and grantee were properly joined as complainants in a bill of ejectment. (Post, pp. 130, 131,)
121 Tenn. 132Teague v. Sowder (1908)
1. EVIDENCE. A latent ambiguity oí a writing is what. A latent ambiguity is one where the equivocality of expression or obscurity of intention does hot arise from the words themselves, but from the ambiguous state of extrinsic circumstances to which the words of the instrument refer, and which is susceptible of explanation by the mere' development of extraneous facts, without altering or adding to the written language or requiring more to be understood thereby than will fairly comport with the ordinary or legal sense of the words and phrases used. {Post, p. 148.) Cases cited and approved: Weatherhead v. Sewell, 9 Humph., 295. 2. SAME, A patent ambiguity of a writing is what. A patent ambiguity is one produced by the uncertainty, contra-dictoriness, or deficiency of the language of an instrument, so that no discovery of facts or proof of declarations can restore the doubtful sense without adding ideas which the words used do not sustain. {Post, p. 148.) Case cited and approved: Weatherhead v. Sewell, 9 Humph., 295. 3. SAME. Ambiguity in a writing removable by parol evidence is what. An ambiguity in a writing which may be removed by parol evidence is not a doubt thrown upon the intention of the party in the instrument by extrinsic proof tending to show an intention different from that manifested by the words of the instrument, but is one growing’out of the question of identity of the person or subject mentioned in the instrument. {Post, p. 149.) Cases cited and construed: Weatherhéad v. Sewell, 9 Humph., 295; Harrison v. Morton, 2 Swan, 469; Gourley v. Thompson, 2 Sneed, 391; Eatherly v. Eatherly, 1 Cold., 464; Horton v. Thompson, 3 Tenn. Chy., 581; Claris: v. Clark, 2 Lea, 725. 4. SAME. Grantor’s declarations and other instruments are inadmissible to reform a registered deed as against subsequent purchasers, when. In a suit, where the original deed was lost, for the reformation of a • registered deed, under which subsequent purchasers held the land without notice of any error in drafting the deed or in its registration, upon the ground of an alleged clerical error in the registration affecting the estate conveyed, the declarations of the grantor as to the character of the estate intended to be conveyed, made at the time of the execution of the registered deed, and two undelivered deeds by the same grantor to the same grantees, one of a prior date and one of even date with the registered deed, are inadmissible as against such subsequent purchasers, because they cannot be required to look beyond the phraseology of the deed itself as recorded on the register’s books. The intention as to the character of the estate granted must be ascertained from the instrument, in this case, as registered. {Post, pp. 144-150.) Case cited and approved: Davis v. Smith, 9 Humph., 559. 5. VENDOR AND VENDEE. Purchaser of land is chargeable ■ with recitals of deeds in his chain of title, and of what other facts. Purchasers of land are fixed with notice of the recitals of the deeds in their chain of title, and are chargeable with notice of the proper construction of such deeds, and of every fact with which, with reasonable prudence or diligence, they ought to become acquainted. (Post, pp. 150, 151.) 6. SAME. Same. Purchaser of land is chargeable with notice of clerical errors in deed in chain of title or in its registration, when. If the context of a registered deed in a purchaser’s chain of title shows a clerical error by the draftsman thereof or by the copyist who transcribed it on the register’s hooks, the purchaser would be chargeable with notice thereof, and would be put upon inquiry. (Post, p. 161.) 7. REMAINDERS. Remainderman is not estopped by failure to sue or assert title during the existence of the life estate to sue afterwards for reformation of deed. A remainderman or reversioner cannot maintain a suit to recover the land, and is not bound to assert his title, during the existence of the life estate, and his failure to do so does not constitute laches; nor does his standing by and allowing the life tenant or those claiming under him to enjoy the property as owners in fee and to develop it without objection constitute laches which will estop him from instituting a suit for the reformation of the deed, on the ground that it created only a life estate in the first taker with remainder to him. (Post, pp. 151-153.) Cases cited and approved: McCorry v. King, 3 Humph., 275; Marr v. Gilliam, 1 Cold., 502; Dodd v. Benthal, 4 Heisk., 608; Aiken v. Suttle, 4 Lea, 109; McBroon v. Whitfield, 108 Tenn., 422. 8. SAME. Same. A married woman as remainderman not asserting title against life tenant and purchasers in fee is not estopped, when. The fact that a married woman who was a part of the time an infant while claiming a remainder estate in land which was sold in fee by the alleged life tenant, her mother, resided at one time within two miles, but most of the time within five miles of the land while it was occupied and improved by the purchasers, and asserted no right therein for nearly twenty-five years, will not estop her to assert her claim to the land after the termination of the life estate. (Post, pp. 151-153.) Case cited and approved: Dodd v. Benthal, 4 Heisk., "601. 9. DEEDS OE CONVEYANCE. To a named person without word “heirs” passed only a life estate at common law. At common law a deed to a designated person by name, omitting the use of the term “heirs,” passed only a life estate, although it purported to convey the land to the grantee forever, or to him and his assigns forever. {Post, p. 154.) 10. SAME. Creating life estate with remainder to heirs gave first taker absolute estate under the rule in Shelley’s Case. Where a deed purports to convey to the first taker an estate in land for his lifetime, with remainder to his heirs, it would create, at common law, under the operation of the rule in Shelley’s Case, an absolute estate in the first taker, to the exclusion of his heirs. (Post, p. 154'.) 11. SAMÉ. Creating life estate with remainder to heirs gives heirs remainder estate under statute abolishing rule in Shelley’s Case. Where a deed conveys a life estate to a person, with the remainder to his heirs, the heirs will take a remainder estate, if that was the grantor’s intention as expressed in the deed, under our statute (Shannon’s Code, sec. 3674) abolishing the rule in Shelley’s Case by providing that where a remainder is limited to the heirs, or to the heirs of the body, of a person to whom a life estate in the premises-is given, the heirs or the heirs of the body of such tenant shall take as purchasers by virtue of the remainder so limited to them. (Post, p. 154.) Code cited and construed: Sec. 3674 (S.); see. 2814 (M. & V.); sec. 2068 (T. & S. and 1858). Acts cited and construed: Acts 1851-52, ch. 91, sec. 1. 12. SAME. May create a fee simple estate without word “heirs” under our statute, when. Under our statute (Shannon’s Code, sec. 3672) providing that deeds shall pass all the estate or interest of the grantor, un- . less an intention to pass a less estate appears from the deed, a fee simple estate may be conveyed without the use of the word “heirs.” (Post, pp. 154, 155.) Code cited and construed: Sec. 3672 (S.); sec. 2812 (M. & V.); sec. 2006 (T. & S. and 1858). 13. SAME. Technical rules of construction have been abandoned; the intention must govern. Technical rules in the construction of conveyances have been most wisely abandoned in this State, and the intention of the instrument to be ascertained from its language read in the light of the surrounding circumstances must be followed as the guide. (Post, pp. 154, 155.) Cases cited and approved: McNairy v. Thompson, 1 Sneed, 149; Williams v. Williams, 16 Lea, 171; Fogarty v. Stack, 86 Tenn., 610. 14. SAME. Granting clause to grantees, “their heirs and assigns forever” conveys fee simple estate. The granting clause of a deed reciting that the grantors, husband and wife, “bargain and sell unto” the grantees, “their heirs and assigns forever, with the exception of mine and my wife’s homestead or lifetime,” conveys a fee simple estate. {Post, pp. 139, 155, 156, 169.) 15. SAME. Word “assigns” imports power to sell, and creates a fee, when. The use of the word “assigns” in the granting clause and haben-dum of a deed imports an intention to give the grantees the power to sell and dispose of the property, and, therefore, creates a fee simple estate. {Post, pp. 155-159.) Cases cited and approved: Johnson v. Morton, 28 Tex. Civ. App., 296; Goetz v. Ballou, 64 Hun, 490. 16. SAME. Intention of grantor to be ascertained and enforced, regardless of formal divisions, if possible. The rule of construction of a deed, when it is sought to determine what estate was conveyed thereby, is to ascertain the intention of the grantor, if possible, by giving to every word of the deed its appropriate ■ meaning, and to enforce that intention regardless of the mere formal divisions of the instrument. {Post, pp. 168, 169.) Case cited and approved: Bean v. Insurance Co., Ill Tenn., 186. 17. SAME. Granting clause prevails over habendum, if they are irreconcilable by the context failing to show grantor’s intention. Where the granting clause of a deed conveyed land to the grantees, “their heirs and assigns forever,” with the exception of a homestead therein for the grantors, and the habendum was to the grantees “their lifetime and their to their heirs and as- . signs forever,” the two clauses were wholly repugnant, and not being reconcilable by aid of the context showing the grantor’s intention, the granting clause creating a fee simple estate will prevail over the subsequent habendum granting a less estate. {Post, pp. 155-169.) Cases cited and approved: Caines v. Marley, 2 Yerg., 582, 584; Cains v. Jones, 5 Yerg., 254; Wall v. Ward, 2 SVan, 648, 654; Meredith v. Owens, 4 Sneed, 228, 224; Beecher v. Hicks, 7 Lea, 207; Fogarty v. Stack, 86 Tenn., 610; Graham v. Meacham, 98 Tenn., 205; Bean v. Insurance Co., Ill Tenn., 186, 189; Frank v. Frank, 120 Tenn., 569, 578, 579; and numerous cases in other jurisdictions cited in the opinion of the court, on pages 162, 163, 164, 168.
121 Tenn. 170Mattox v. City of Bristol (1908)
COURT OF CIVIL APPEALS. Appeal in injunction suit to restrain the diversion of the "water of a stream lies to such court and not to supreme court. In a suit by a riparian owner for a perpetual injunction against the diversion of water from a stream on the ground that such diversion would materially impair the operation of his mill, an appeal from the decree adjudging the rights of the parties lies to the court of civil appeals, and not to the supreme court, and where such appeal is taken directly to the supreme • court, a motion to strike the case from the docket of the supreme court will he sustained. Appeals lie to the court of civil appeals in all chancery cases, except those involving more than one thousand dollars, exclusive of costs, and cases involving the constitutionality of statutes of the State, contested elections, State revenues, and ejectment controversies. The controversy in this case does not fall within either of the excepted cases. Acts cited and construed: Acts 1907, ch. 82. see. 7.
121 Tenn. 173Morrow v. Sneed (1908)
1. CHANCERY PRACTICE. Blaster is disqualified to grant and enter a pro confesso upon the cross bill of the defendant who is the chancellor. The clerk and master is empowered not only to grant and enter an order pro confesso, but also to set such order aside, and in so doing he exercises a judicial function; and when acting in such matter in the room and stead of the chancellor in a case in which the latter is disqualified by reason of being the defendant, the master and his deputy were equally disqualified . to grant and enter an order pro confesso on the defendant’s cross bill. (Post, pp. 174-178.) Cases cited and approved: Friedman v. Mathes, 8 Heisk., 502; Kimberly v. Arms, 129 U. S., 512; In re Durant, 60 Vt., 176. 2, SAME. Refusal of postponement or continuance for absence of a deposition caused by accommodation to the opposite party is reversible error, when. Where a case was at issue on the 5th of January, 1907, but nothing was done by either party to speed the cause until the 13th of August, 1907, when, by consent, it was continued and remanded to the rules for the taking of proof; and notice was given by complainant to take depositions on the 28th of August, 1907, but at the request of defendant, whose judicial duties made it difficult for him to attend, complainant twice consented to a postponement until the 12th of November, 1907, when complainant’s deposition • was taken in part, and was left open to enable him to refer to some records, with a view of making certain what was uncertain, and it remained unfinished Until the 9th of December, 1907, when complainant’s solicitors were notified that the case would be called for trial two days thereafter, and they at once wired to have the deposition closed and' forwarded, but it failed to arrive in timé. When the case was .called, complainant asked for a postponement for a few days for the arrival of the deposition, or for a continuance, which request the court improperly refused to grant, and thereby committed reversible error. (Post, pp. 178-181.) 3. SAME. Reversible error to deny complainant’s motion to dismiss suit without prejudice after refusal of continuance, when. Where complainant’s request for a postponement of the trial for a few days to give time for his depositions to arrive, or for a continuance, was improperly refused, it was reversible error for the court to deny his motion to dismiss the case without prejudice and to force him to trial. (Post, p. 181.) 4. SAME. Reversible error for abuse of discretion in improperly refusing a continuance, when. While continuances are subject to the discretion of the trial court, and this discretion will not be interfered with, save when abused, still when abused, it is reversible error. (Post, p. 181.)
121 Tenn. 182Hill v. Moore (1908)
JUDICIAL SALES. Recitals in deed of clerk and master showing prima facie authority to make it, without production of record. Under our statute (Acts 1907, ch. 334), a clerk and master’s deed of conveyance of land, even where made before the enactment of such statute, reciting that by a decree of the chancery court at a certain place, of which court he was the clerk and master, rendered at a specified term in a specified cause and entered at a specified page, the clerk and master of said court on a certain date sold at public auction the land, there-inafter described and conveyed, to the grantee for a specified sum, as appears from the clerk and master’s report, and further reciting that said sum had been paid as required by the decree of said court confirming the report, shows prima facie the clerk’s authority to make the deed, and requires any one questioning' such authority to file a copy of the record to overturn the prima facie case made by the deed. Acts- cited and construed: Acts 1907, ch. 334. Case cited: Castleman v. Land Co., 1 Tenn. Chy. App., 9, 12, 13.
121 Tenn. 186Brown v. State (1908)
1. INTOXICATING LIQUORS. Punishment fixed by State for sale thereof without license cannot be changed by trial court. The punishment fixed by statute (Acts 1899, ch. 161, sec. 1) upon conviction for the offense of selling intoxicating liquors without the prescribed license is a fine of not less than fifty dollars, nor more than two hundred dollars, and imprisonment in the county jail or workhouse for six months, and the trial court has no discretion or authority to change the terms of the punishment. {Post, pp. 190, 191.) Acts cited and construed: Acts 1899, ch; 161, sec. 1. 2. SAME. Loan of whisky to be returned in kind and so returned constitutes a sale thereof in the sense of the statute prohibiting its sale.. The exchange of whisky for whisky by a loan of whisky to be returned in kind, which is in fact returned in kind as agreed, is a transaction constituting a “sale” thereof within the meaning of the statute (Shannon’s Code, sec. 6795) making it unlawful to sell or tipple intoxicating liquors within four miles of any schoolhouse, and within the meaning of the statute (Acts 1899, ch. 161, sec. 1) making it a misdemeanor' to sell intoxicating liquors without a license, when construed in view of the statute (Shannon’s Code, sec. 6783) requiring these provisions “to be construed liberally so as to prevent evasion and subterfuges and to effectuate the object had in view.” s Code cited and construed: Secs. 6780, 6783, 6795 (S.); secs. 5667, 5670, 5679 (M. & V.); secs. 4857, 4860 (T. & S. and 1858). Acts cited and construed: Acts 1899, ch. 161, sec. 1. Cases cited and approved: Commonwealth v. Abrams, 150 Mass., 393; Commonwealth v. Burns, 8 Gray, 482; Commonwealth v. Clark, 14 Gray, 367; Kenton y. State, 36 Tex. Crim., 259; Bruce v. State (Tex. Crim.), 39 S. W., 683. 3. SAME. Purpose in requiring license for the- sale thereof is to provide revenue and to restrict and regulate the business. The' legislative purpose in making it a misdemeanor to sell intoxicating liquors without a license was to provide revenue for the government and to restrict and regulate the liquor business. {Post, p. 192.) Cases cited and approved; Webster v. State, 110 Tenn., 491; Poster v. Speed, 112 Tenn., 470, 473. 4. CRIMINAL LAW. Charge assuming an unquestioned fact constitutes a harmless error, when. Where the accused was clearly guilty of selling intoxicating liquor contrary to the statute, by exchanging or lending it to be returned as shown in the second headnote, which transaction was not questioned, an error in the charge assuming the fact of the exchange by a loan and return thereof, and instructing the jury that such transaction was a subterfuge rendering the defendant guilty, was a harmless error. (Post, pp. 189, 196, 197.) Case cited and approved: Bruce v. State (Tex. Crim.), 39 S. W, 683.
121 Tenn. 198McConnell v. Bell (1908)
1. PARTITION. Life tenant is not entitled to a sale for partition as against remainderman. A life tenant cannot maintain a bill against the remainderman for a sale of the land for partition or division of the proceeds, nor for partition in kind. {Post, p. 206.) Case cited and approved: Holt v. Hamlin, 120 Tenn., 496. 2. SAME. Same. Life tenant’s right to assent to a sale for partition does not entitle him to force such sale as against remainderman or reversioner. While an estate for life in the whole of the premises does not and cannot enter into the scheme of partition in kind at all, yet it may enter into the scheme of a sale for partition or division of the proceeds, with the assent of the life tenant; hut this rule does not mean that a life tenant, by consenting to a sale of the property through a bill filed by him for- that purpose, can force a sale against the wishes of the remainder-man or reversioner. It means that a remainderman or rever-sioner may file a bill against his cotenants in remainder or reversion and against the life tenant for a sale of the land for partition or division of the proceeds, and, with the assent of the life tenant, have the whole estate sold, if for the benefit of all. {Post, pp. 208, 209.) Code cited and construed: Secs. 5265-5268 (S.); sees. 4246-4249 (M. & V.); secs. 3505-3508 (T. & S. and 1858). Case cited and approved: Holt v. Hamlin, 120 Tenn., 496. 3. SAME. Same. Same. Statute attempting to give life tenant a right to force a sale for partition as against a remainderman or reversioner without his assent is unconstitutional. The statute (Acts 1907, ch. 403) entitling the life tenant to a sale of the whole estate in the land for partition and division of tlie proceeds between himself and the remainderman or reversioner, when the property is so situated that the life estate cannot he made to yield a support, in its existing condition, to the life tenant, and when it is to the interest of said life tenant that said land be sold for distribution, attempts to give the life tenant a right to a sale of the land of the remainderman or reversioner, without his assent and without the right to interpose any defense, and is invalid as depriving the remainderman or reversioner of his property without due process of law and contrary to “the law of the land.” The statute undertakes to establish a rule whereby one private citizen can use the property of another private citizen for his benefit without the consent of the latter. The statute is, therefore, unconstitutional and void. (Post, pp. 206, 207, 209, 210.) Constitution cited and construed: Art. 1, sec. 8 (State); 14th am. (U. S.). Acts cited and construed: Acts 1907, ch. 403. 4. SAME. Same. Same. Same. Statute depriving one of property without his consent for the benefit of another is not saved from its unconstitutionality by any classification in legislation. The said statute, the substance of whose provisions is stated in the foregoing headnote, does not involve a question of classification under our constitution (art. 11, sec. 8); for there can be no reasonable classification in legislation by which one man can without his consent, be deprived of his property for the benefit of another man. Such statute cannot be saved from its such unconstitutionality under section 8 of the first article of our constitution by reason of any classification made under the 8th section of the eleventh article thereof. (Post, pp. 210, 211.) Constitution cited and construed: Art. 1, sec. 8; art 11, see. 8.
121 Tenn. 212Knapp v. Supreme Commandery, United Order of the Golden Cross of the World (1908)
1. CORPORATIONS. Equity jurisdiction to define and determine the extent and limitations of their powers. Courts of equity have jurisdiction to define and determine the extent and limitations of the powers of corporations, and to declare contracts or other corporate action, made or threatened by the corporation ór its officers, in excess and violation of thosei powers, invalid, and to restrain and prohibit the performance of them. (Pos», pp. 222, 223.) Case cited and approved: Dodge v. Woolsey, 18 How., 331, 341, 15 L. Ed., 401. 3. SAME. Stockholders may sue where corporation refuses to do so, when. One or more stockholders of a corporation may maintain a suit in behalf of themselves and all other stockholders against the corporation and others participating in the unlawful action to declare corporate action ultra vires and void and to enjoin its consummation, where the complainant stockholders had first demanded of the corporation that it bring the suit for the said purpose, and said demand was refused. (Post, pp. 217, 220, 221, 223-225.) 3. PROCESS. Jurisdiction of nonresident by publication, where resident codefendant is before the court, and their property is impounded by injunction, when. In a suit by minority certificate holders in a resident incorporated fraternal beneficiary association against it and a nonresident similar association to declare illegal and ultra vires an attempted merger of the two associations, to enjoin the consummation of such merger, to restrain the disposition of the assets of the resident association under such void contract, and to require the return to the nonresident association of its assets illegally and -wrongfully received by the resident association and its officers pursuant to such attempted merger contract, jurisdiction may be obtained of the nonresident association by substituted process and construction service by publication, where jurisdiction of the resident association has been obtained by personal service of process, appearance, and answer, and the jurisdiction of the subject-matter, as the property of the corporations, has been obtained by impoundment by injunction, by which the court acquires jurisdiction to determine the entire controversy. (Post, pp. 216, 217, 222-231, 232, 233, 239.) Cases cited, distinguished, and approved: Paper Co. v. Shyer, 108 Tenn., 444; Pennoyer v. Neff, 95 U. S., 734; Haddock v. Haddock, 201 U. S., 562; Loaiza v. Superior Court, 85 Col., 11; Dunham v. Dunham, 162 Ill., 610; Butler v. Washington, 45 La. Ann., 281; Peaslee v. Peaslee, 147 Mass., 180; Amy v. Amy, 12 Utah, 286; State v. Duket, 90 Wis., 276; Reed v. Reed, 52 Mich., 123. 4. CORPORATIONS. Creatures of legislature, and powers must be express or necessarily implied. Corporations are creatures of the legislature, and exist solely and alone by virtue of the act of incorporation. They can exercise no powers not expressly -granted in their charters or the law, or necessarily implied from the powers expressly given. (Post, p. 231.) 5. SAME. Statutes granting corporate powers must be strictly construed. All statutes under which corporate power is asserted must be construed in favor of the State from which the power emanated, and against the grant of power. (Post, pp. 231, 232.) Cases cited and approved: Gas Co. v. Williamson, 9 Heisk., 326; Memphis v. Gas Co., 9 Heisk., 533; Deaderick v. Wilson, 8 Bax., 133; Elevator Co.' v. Railroad, 85 Tenn., 703; Miller v. Insurance Co., 92 Tenn., 176; Davis v. Railroad, 131 Mass., 259. 6. SAME. Cannot consolidate without express power in charters or statutes. Corporations have no general power to consolidate or merge with another corporation, unless the express power to do so is found in their charters or the statutes of the State which created them. (Post, pp. 232-234.) 7. SAME. Statute authorizing lease and disposition of corporate property and franchises embraces quasi public corporations, and not private corporations. A statute (Acts 1887, ch. 198), authorizing corporations existing under the laws of this State to lease and dispose of their property and franchises to«any corporation of this'or any other State authorized to carry on the same general business, applies only to quasi public corporations, and does not embrace private corporations. (Post, pp. 234-236.) Acts cited and construed: Acts 1887, ch. 198. Case cited and approved: Coal Creek Co. v. Coal Co., 106 Tenn., 651. 8. SAME. Statute authorizing lease and disposition of corporate property upon approval of majority of stock does not apply to fraternal beneficiary associations. A statute (Acts 1887, ch. 198) authorizing corporations to lease and dispose of their property, upon approval by a vote of a majority óf “the stock” in a meeting of “the stockholders” held for that purpose after the prescribed notice, does not authorize a fraternal beneficiary association, having neither stock nor stockholders, but members, incorporated under Acts 1875, ch. 142 (Shannon’s Code, sec. 2524), providing for the organization of such corporations for the general welfare of society, and not for individual profit, to consolidate with another similar association. (Post, pp. 236, 237.) Code cited and construed: Sec. 2524 (S.); sec. 1983 (M. & V.). Acts cited and construed: Acts 1875, ch. 142; Acts 1897, ch. 19; Acts 1901, ch. 113; Acts 1905, ch. 480. 9. SAME.' Statute authorizing a lease and disposition of corporate property to another corporation does not authorize a consolidation or merger. A statute (Acts 1887, ch. 198), authorizing the lease and disposition of the property of a corporation to a similar corporation, does not authorize a consolidation and union of a domestic corporation with a foreign corporation. A lease of the property of one corporation to another, to he operated hy it, is an entirely different thing from a merger or union. {Post, pp. 237, 238.) Acts cited and construed: Acts 1887, ch. 198. 10. SAME. An ultra vires merger contract cannot he supported as a lease or sale, when. A contract, in form and substance, a merger of two fraternal beneficiary associations, hy which one of them takes over and absorbs the other, admitting the absorbed association’s members to full membership, without the medical examination required by the absorbing association’s by-laws, though some of them were ineligible on account of age, securing to some of them certain rights contrary to the by-laws, is made without authority, and is ultra vires and void, and cannot be supported as a sale or lease of the merged association. ‘{Post, pp. 238, 239.) ' 11. SAME. Objecting members of fraternal beneficiary association may sue to prevent an ultra vires merger, and to have an account of assets. The objecting members of a fraternal beneficiary association, having applied to the corporation’s officers to bring suit to set aside an ultra vires merger with another association, and being refused, can maintain a bill in chancery to have the merger declared void and to enjoin the corporation’s officers and agents from doing any act in the furtherance thereof, and as incidental ■ to such relief to have an account taken of the assets of the absorbed association which have come into the hands of the absorbing association, and have the same returned. {Post, pp. 216, 217, 220, 222-225, 239.)
121 Tenn. 240Emert v. Blair (1908)
1. WILLS. Devise of life estate, with a limited, restricted, or qualified power of disposition, creates a life estate, and not a fee, and allows remainder over to take effect. WRere a testator, in order to afford kis wife a comfortable and secure support during her life out of liis estate, devised and bequeathed to her for her natural life all bis property, to Rave, manage, and use for her support during her life, and at her death to be divided among his lawful heirs and distributees, and gave her power to sell any of the property for the use aforesaid, but restricted her from selling his realty in Sevierville, unless in her judgment her support shall absolutely require it, and also gave her the right, if the profits in her judgment were insufficient for her support, to convert to her own use so much of his estate as will be sufficient for the purpose, the balance, if any, to belong to his estate at her death, in whatsoever shape it may be found, the widow took a life estate, with a limited power of disposition, and not a fee. The restricted and qualified power of sale limits the estate of the widow to a life estate, and allows the remainder over to take effect. {.Post, pp. 242-258.) Cases cited and approved: Pillow v. Bye, 1 Swan, 185; Downing v. Johnson, 5 Cold., 230; McGavock v. Pugsley, 12 Heisk., 690; Bradley v. Carnes, 94 Tenn., 36; Smith v. Bell, 6 Pet., 68. Cases cited, approved, and distinguished: Bean v. Myers, 1 Cold., 226; Hamilton v. Insurance Co., 6 Lea, 402; Bradley v. Carnes, 94 Tenn., 27; Meacham v. Graham, 98 Tenn., 190; Clark v. Hill, 98 Tenn., 300; Brien v. Robinson, 102 Tenn., 157. S. SAME. Devise of life estate to widow to manage and use for support, and to go to testator’s heirs at her death, constitutes her a trustee for such heirs, when. Where a testator, in order to afford his wife a comfortable and secure support during her life out of his estate, devised and bequeathed to her for her natural life all his property, to have, manage, and use for her support during her life, and at her death to be divided among his lawful heirs, in whatsoever shape it may be found, the widow held the property during her life in trust to' use for her support, and to preserve that portion of the estate and the increase thereof, which she did not require for her support, for the testator’s heirs. (Post, pp. 243, 244, 258-264.) Cases cited and approved: King v. Sharp, 6 Humph., 55. Cases citéd, approved, and distinguished: Hunt v. Watkins, 1 Humph., 498; Bonner v. Bonner, 7 Humph., 436; Vaden v. Vaden, 1 Head, 444, 450; Fo'rsey v. Luton, 2 Head, 183; Vaneil v. Evans, 4 Cold., 345; McHaney v. McNeilly, 10 Heisk., 539; Swan v. Finney, 4 Bax., 30; Adylett v. Swope, 1 Shannon’s Cases, 447. 3. SAME. Cost of suit for construction of will to be paid out of the estate. Where a suit by the remaindermen, as the heirs of the testator, against the heirs of the life tenant, presents a proper case for the construction of a will, the costs will be adjudged to be paid out of the estate of the testator. (Post, p. 264.)
121 Tenn. 265McKinney v. Duncan (1908)
1. EASEMENTS. Requisites for acquirement of a road over the . land of another by prescription. To acquire the easement of á road over the land of another by prescription, there must be an uninterrupted user of the road for at least twenty years under an adverse claim of right, while the owners of the land are capable of contracting and granting the easement, and have the estate in the land which he claims to have acquired, and while all persons concerned in the estate in or out of which the easement is claimed to be derived are free from disability to resist the claim and user and are seized of the estate in fee and in possession during the requisite period. {Post-, pp. 268-271.) Cases cited and approved: Sharp v. Mynatt, 1 Lea, 375; Saunders v. Simpson, 97 Tenn., 385. 53. SAME. Same. State of facts showing right of way not to be acquired by prescription. Where complainant’s only claim to an easement of a right of way over the uninclosed land of another is based upon the fact that he had used the way continuously for thirty years, without objection from any one, and that he had obtained leave of the husband of the life tenant, who was in possession of the land, to repair the road in 1874, but without claim of an express grant of the road, and without proof of an assertion of adverse claim to it until shortly before it was closed, and where the land was in possession of a life tenant from 1870 to 1900, after which the remaindermen, or those claiming under them, were in possession for only eight years before the road was closed and suit was brought for its recovery, he had no easement of right of way by prescription. (Post, pp. 268-271.) 3. DEDICATION. Defined; how made; for use of public; express or implied. Dedication is the appropriation or gift of land, or an easement therein, by the owner, for the use of the public; and it may be express, where the appropriation is formally declared, or by implication arising by operation of law from the owner’s conduct and the facts and circumstances of the case. (Post, p. 271.) 4. SAME. Requisites to establish implied dedication; intent of owner. To establish dedication by implication, there must be proof of facts from which it positively and unequivocally appears that the owner intended to part permanently with his property and vest it in the public, and that there can be no other reasonable explanation of his conduct. Dedication is a question of intention, and the intent must be clearly and satisfactorily proved. (Post, pp. 271-273.) Cases cited and approved: Worth v. Dawson, 1 Sneed, 59; Jackson v. State, 6 Cold., 532. 5. SAME. Same. State of facts showing1 no implied dedication for a road. The mere fact that persons living in the neighborhood of a tract of uninclosed and unimproved woodland were allowed to use a passway across it, repairing it from time to time, without interruption for thirty years, .does not show an intention of the owners to dedicate the way to the public. (Post, pp. 272-274.) See citations under the next preceding headnote. 6. SAME. Remaindermen are not affected by life tenant’s dedication. . A life tenant cannot dedicate any interest in the fee; and the remaindermen, or those claiming under them, are not affected by any acts of the life tenant respecting a dedication of the land. (Post, p. 274.) 7. EASEMENTS. Not for a right of way as a way of necessity. Private property cannot be taken and appropriated to the use of another, however convenient and necessary it may be to him, ‘not even for a road as the only means of exit from one’s land to a public highway or other places in the neighborhood. (Post, p. 274.)
121 Tenn. 275McBurney v. Glenmary Coal & Coke Co. (1908)
FROM MORGAN. Appeal from the Chancery Conrt of Morgan County. —D. L. Lansden, Chancellor.
121 Tenn. 308Harriman Land Co. v. Hilton (1908)
1. Leeds 03? CONVEYANCE. May refer to prior deed fos description, without reference to its registration; identificationi by parol evidence, when. A deed of conveyance of land may refer to a prior deed for the description and identification of the land intended to he conveyed, and where the reference is sufficiently definite to refer to some particular tract of land, parol evidence is admissible . to aid in its identification, and to show that the said prior deed is duly recorded, though that fact is not indicated in the reference, especially in a case arising upon facts occurring prior to the statute (Acts 1895, ch. 38) requiring the assurance of title to he registered to make adverse possession under it effective. (Post, pp. 310-319.) Code cited and construed: Sec. 4456 (S.). Acts cited and construed: Acts 1895, ch. 38. Cases cited and approved: Johnson v. Kellogg, 7 Heisk. 266; Swiney v. Swiney, 14 Lea, 316; Smith v. Graves, 15 Lea, 459; Byrd v. Phillips, 120 Tenn., 14, 21, 22. 3. SAME. Same. Sufficiency of reference to prior deed for description; case in judgment. A deed of conveyance of land is sufficient in its reference to a prior deed for description and identification of the land intended to be conveyed, where it makes such reference in this language: “A five hundred acre tract, deed from J. F. Scott to William Lewellyn in the year 1852, lying on.the east side of Emory river, in district, No. 41,” where it is otherwise described in the deed as situated in- the county of Morgan and State of Tennessee. (Post, pp. 310-319.) 3. SAME. Variance in the number of the civil districts in different deeds in chain of title presumed to be caused by change of the districts, in absence of evidence, when. Where a deed in the chain of title describes the land as lying in a certain civil district, and subsequent deeds describe the land as lying in another civil district, and there is no evidence whatever on the subject, and the point seems not to have been made in the chancery court, the supreme court will presume that the civil districts have been changed or renumbered. (Post, pp. 314, 318, 319.) 4. SAME. Delivery presumed at its date, though subsequently ■acknowledged, when. The delivery of a deed of conveyance of land, in the absence of proof to the contrary, is presumed to have been made at the date of the deed, although its acknowledgment appears to have been made at a subsequent date. (Post, pp. 319-322.) Case cited and approved: Note under Blanchard v. Tyler, 86 Am. Dec., 63. Case cited and distinguished: Tompkins v. Bamberger, 3 Lea, 679.
121 Tenn. 324Farley v. Farley (1908)
1. WILLS. Speaks from testator’s death, unless contrary is indicated. A will speaks from the death of the testator, unless there is something on the face of it to indicate the contrary. (Post, p. 326.) 2. SAME. Heirs construed to mean children take per capita. Where the word “heirs” can he construed to mean children, or where there are other words indicating individuals, under a devise to them, they will take per capita, and not per stirpes. (Post, p. 327.) Cases cited and approved: Seay v. Winston, 7 Humph., 472; Petty v. Moore, 5 Sneed, 126; Ingram v. Smith, 1 Head, 411, 426, 427; Rogers v. Rogers, 2 Head, 660; Alexander v. Walch, 3 Head, 493; Puryear v. Edmondson, 4 Heisk., 43; Cowan v. Wells, 5 Lea, 683, 684; Kimhro v. Johnston, 15 Lea, 79; Franklin v. Franklin, 91 Tenn., 121; Boyd v. Robinson, 93 Tenn., 1; Smith v. Smith, 108 Tenn., 21-23. 3. SAME. Devise to nephew and “heirs” of a deceased niece equally gives nephew a half interest, and such heirs a half interest per stirpes. A devise of land by a testatrix to her living named nephew and “heirs” of her deceased named niece equally gives an undivided half interest in the land to the nephew and an undivided half interest to the heirs of the niece per stirpes. The word “heirs” in such case must be taken in its ordinary technical signification, because it was impossible to foresee who would answer the description of heirs of the niece at the death of the testatrix. Cases cited and approved: Ricks v. Williams, 16 N. C., 3; Balcom v. Haynes, 14 Allen, 204.
121 Tenn. 330Starnes v. Hatcher (1908)
1. SPECIFIC PERFORMANCE. Allegations oí bill construed to show a written contract and its embodiment in a petition for «adoption of children. In a suit for specific performance of a contract, made by the intestate and collateral ancestor of the defendants, to adopt the complainants, and, at his death, to leave them all his property as the heirs of his body, where the bill alleges that the said decedent and his wife, who were childless, applied to the custodian of the complainants, then orphan children, for their custody and control, and received them into their possession upon the distinct understanding and agreement, made with their custodian who was acting for them in loco parentis, that decedent would legally adopt them as his own children, and that, at his death, they should receive his property; that the verbal contract was reduced to writing, read over to the decedent, fully understood and agreed to by him, and signed by him, the contract being embodied in a petition to the county court for the adoption of complainants; that under said agreement in writing, the decedent undertook, in consideration of receiving complainants, to rear, educate, nurture, and adopt them, treat them as if they were his own children, and give them his property as if they were the heirs of his body; and that with this understanding complainants were delivered to the decedent and his wife, and were by them accepted under and in pursuance of the contract, the effect • of the allegations, upon demurrer to the bill, is not merely that there was a verbal agreement, put into writing only in the form of a petition to the county court for the adoption of the complainants, but that the agreement, verbal in the beginning, was reduced to writing and read to, understood by, and signed by decedent, and was contemporaneously embodied in the petition to the county court for the adoption. (Post, pp. 332-337.) 2. SAME. Contract to adopt and leave property enforced as to property after adoption becomes impossible by death. •"While the contract of a person to adopt certain children and to leave them his property as his heirs will not, as to the adoption, he specifically enforced by the courts after the death of such person, because such specific performance is made impossible by his death, yet the other part of the contract to leave such children his property may be specifically performed; for these two obligations ,are distinct in character. (Post, pp. 337, 338.) 3. SAME. Same. Of contract to leave property to children to be; adopted, though the contract to adopt is not performed. Where a person agreed in writing to adopt certain children and to leave them his property at his death, and obtained possession of them, from their custodian acting in loco parentis, with this distinct understanding and agreement, and took them into his family, reared and educated them, and they lived with him for years believing him and his wife to be their father and mother, and rendered all the devotion and services that duty required from children to parents, and the person failed to adopt them, and to leave his property to them at his death, they would he entitled to specific performance of the agreement to leave his property to them after his death. Cases cited and approved: Townsend v. Yanderwerker, 160 TJ. S., 171; Jaffee v. Jacobson, 1 C. C. A., 24; Rhodes v. Rhodes, 3 Sandf. Chy. (N. Y.), 279; Winne v. Winne, 166 N. Y„ 263; Rivers v. Rivers, 3 Desaus. (S. C.), 190; Johnson v. Hubbell, 10 N. J. Eq., 332; Van Dyne v. Vreeland, 11 N. J. Eq., 370; Van Tine v. Van Tine (N. J. Eq.), 15 Atl., 249, 1 L. R. A., 155; Wright v. Wright, 99 Mich., 170; Albring v. Ward, 137 Mich., '352; Bowins v. English, 138 Mich., 178; Kofka v. Rosicky, 41 Neb., 328; Gupton v. Gupton, 47 Mo., 37; Sutton v. Hayden, 62 Mo., 101; Sharkey v. McDermott, 91 Mo., 641; Nowack v. Berger, 133 Mo., 24; Owens v. McNally, 113 Cal., 444; Chehak v. Battles, 133 Iowa, 107; Daily v. Minnick, 117 Iowa, 563; Quinn V. Quinn, 5 S. D., 328; Burns v. Smith, 21 Mont., 251.
121 Tenn. 347State v. Enloe (1908)
1. MANDAMUS. Result to tlie State in overruling demurrer must be considered by court, -when. In determining whether the public interest will justify a litigation along the lines laid down in a bill for mandamus against the officers of the State, it is incumbent upon the supreme court to inquire into the nature of the contest into which the State would he plunged upon overruling a demurrer thereto, sustained below, and remanding the cause for trial. (.Post, pp. 352-355.) Cases cited and approved: Harris v. State, ex rel., 96 Tenn., 496, 516-518; State v. Wilbur, 101 Tenn., 211; State, ex rel., v. Taylor, 119 Tenn., 229, 258, 259, 264, 276, 277. 3. RES ADJUDICATA. In tax cases is limited to the taxes actually in litigation. The plea of res adjucticata in tax cases is to be limited to the taxes actually in litigation, and the judgment is not conclusive in respect of taxes assessed for other and subsequent years. (Post, pp. 377, 378.) Case cited and approved: Bank v. Memphis, 101 Tenn., 154. 3. MANDAMUS., By counties to compel the assessment of a railroad’s property for taxation will be refused where its grant would be detrimental to the State. Where, in a mandamus suit by certain counties to compel an assessment of the property of a certain railroad company, it appears that the legitimate effect of granting the writ would be to deprive the State of the great benefit it obtained in inducing the railroad company to waive its exemptions and to go upon the tax list as other railroad companies, and to deprive it of a large amount paid yearly by the company for several years, which the State would be bound in honor to refund as received under a repudiated contract, but which, if not willingly returned, would have to be credited upon any taxes recovered by litigation; and that another effect, as the court judicially knows, would be to open up a similar and a much larger controversy with another railroad company that settled its litigation, over its exemptions, with the State by an agreement to pay yearly a certain sum up to a date fixed, and then to go upon the tax list as other railroad companies; and where, in exchange for these great losses, the State would obtain, under .the bill, simply the right to institute and maintain many lawsuits against railroad companies, all of which might prove fruitless, a demurrer to the bill will be sustained, and the mandamus refused in the proper exercise of the court’s discretion. (Post, pp. 374-379.) 4. SAME. Suit by county without the name of the State; suit by State on relation of county is county’s suit. Counties may maintain a bill in their own names for a mandamus to compel the assessment of railroad property for taxation, and the use of the State’s name in behalf of the counties is altogether unnecessary; and where such suit is brought in the name of the State in behalf of the counties, on relation of the counties and their county judges, the counties are the real parties complainant, and the appearance of the State in such case is merely nominal. (Post, p. 379.) 5. SAME. Same. No statute authorizes suit by State in behalf of counties to compel tax assessments. There is no statute,authorizing the use of the name of the State in behalf of a county in a mandamus suit to compel the assessment of railroad property for taxation. Such suit is not authorized by Shannon’s Code, section 495, which regulates suits in the name of the State for the counties; nor by sections 5165-5187 thereof, which regulate proceedings in the name of the State against corporations and to prevent the usurpation oí office. (Post, p. 379.) Code cited and construed; Secs. 495, 5165-5187 (S.); secs. 461, 4146-4168 (M. & V.); secs. 3409-3431 (T. & S. and 1858). 6. RES ADJUDICATA. State must sue by the attorney-general to be bound by the suit. ■When the State is to be bound by proceedings to collect taxes or other debts due it by suits at law or in equity, it must appear by the attorney-general of the State, pursuant to statute (Shannon’s Code, sec. 5756, subsec. 5). (Post, p. 379.) Code cited and construed: Sec. 5756, subsec. 5 (S.); sec. 4720, subsec. 5 (M. & V.); sec. 3952a, subsec. 1 (T. & S.).
121 Tenn. 381Bannon v. Jackson (1908)
1. CONTRACTS. Building contract stipulating against extra work except upon written orders of architect. A stipulation in a building contract that no work shall be considered extra, unless a written order for tbe same shall have been given to the contractor by the architect, prevents a recovery for extra work, where the architect did not first give the contractor a written order therefor, and the owner or his authorized agent did not waive the written orders. This rule is justified by sound reasoning and is abundantly supported by authority. {Post, pp. 384-395.) Cases cited and approved: Langley v. Rouss, 185 N. Y.,, 201; White v. Railroad, 50 Cal., 417; O’Keefe v. Corporation, etc., 59 Conn., 557; Beers v. Wolf, 116 Mo., 179; Condon v. Jersey City, 43 N. J. Law, 452; Cooper v. Hawley, 60 N. J. Law, 560; Sheyer v. Pinkerton Construction Co. (N. J., 1904), 59 Atl., 462; Stuart v. Cambridge, 125 Mass., 102. ¡3. SAME, Same. Written orders of architect are not dispensed with by a provision making him supervisor of the building. A stipulation in a building contract that no work shall be considered extra, unless a written order for the same shall have been given to the contractor by the architect, is not so modified by a provision making the architect the supervisor of the building, with authority to order and direct in its construction, that the owner is bound by an oral order of the architect for extra work. The- architect was, by such provision, constituted the agent of the owner in superintending the work within the terms of the contract, which required his orders for extra work to be given in writing signed by him. (Post, pp. 385, 393-395.) Case cited and approved: Langley v. Rouss, 185 N. Y., 201. 3. SAME. Certificate of architect as a condition precedent to maintenance of suit hy builder for compensation, ■when. A stipulation in a building contract that in case of each payment a certificate shall be obtained from the architect, to the effect that the work has been done in strict accordance with the drawings arid specifications, and that the payment is properly due, makes the certificate of the architect a condition precedent to the maintenance of a suit by the contractor against the owner for compensation, in the absence of a showing of a fraudulent, malicious, capricious, or unreasonable refusal to issue the certificate, or a waiver of the condition, or the inability of the contractor to obtain the certificate by some cause over which he has no control. {Post, pp. 384, 395, 396.) 4. .CHANCERY PLEADING AND PRACTICE. Rights to be determined by facts existing at commencement of suit, or by subsequent facts presented by supplemental pleadings. The rights of the parties to a chancery suit are to be determined by the facts existing at the commencement of the suit, unless something affecting the matter in issue has since occurred, and is presented by a supplemental pleading. {Post, pp. 396, 397.) Cases cited and approved: Payne v. Beech, 2 Tenn. Chy., 708; Riddle v. Motley, 1 Lea, 468. 5. SAME. Same. Case in judgment. Where a building contract requires the presentation of the certificate of the architect as a condition precedent to the maintenance of a suit for compensation, and the contractor’s bill in chancery makes no reference to the certificate and offers no excuse for failing to obtain it; and the answer offers, as a ground for resisting recovery, the failure to obtain the certificate, the contractor cannot rely on a certificate subsequently obtained, unless presented by a supplemental bill. {Post, pp. 396, 397.) 6. CONTRACTS. Owner may contract against liability for damage to material or work of one independent building contractor done or caused by another. A stipulation in a building contract that the owner will not be responsible for any loss or damage which the contractor may sustain, in material or work, at the hands of any other contractor, relieves the owner from liability for damages sustained by the contractor through the negligence of other independent contractors of the owner. (Post, pp. 385, 397, 398.) 7. SAME. Partial payment does not create implied promise to discharge the balance of an unfounded claim. The mere payment of a part of- a claim, where there is no liability, does not create an implied promise to discharge the remainder of the claim. (Post, p. 398.) 8. SAME. Partial payment of unfounded claim is not a waiver of contract provision against such claim, when. Where a building contract stipulated that the owner should not be responsible for any loss or damage which the contractor might sustain, in material or work, at the hand of any other contractor, a mere payment, by the owner, of a part of a claim of the contractor for damages caused by the negligence of another independent contractor was not a waiver of such contract provision. (Post, pp. 385, 398.)
121 Tenn. 400Kittel v. Steger (1908)
FROM VAN BUREN. Appeal in error from the Circuit Court of Yan Burén County. — Joseph C. Higgins, Judge.
121 Tenn. 413Hobbs v. State (1908)
1. CRIMINAL LAW. Presumption that the jury were sworn in 1 the absence of any contrary showing. The mere failure • or omission of the minute entry to recite or show that the trial jury in a criminal case were sworn, where nothing appears in the record of an affirmative character to the contrary, and where the objection is made for the first time on appeal, will not authorize a reversal; because in such case, it will be presumed that the jury were sworn, and by clerical omission the fact was not made a part of the minute entry. (Post, pp. 414-416.) Cases cited and approved: Claris v. State, 8 Bax., 591; Robertson v. State, 4 Lea, 425. 2. SAME. Objection for failure to swear jury is waived by going to trial without objection. An objection for failure to swear the jury must be made in the trial court to be available in the supreme court; for such failure is waived hy going to trial without objection. (Post, pp. 416-418.) Cases cited and approved; Looper v. Bell, 1 Head, 376; Preston v. State, 115 Tenn., 343; State v. Baldwin, 36 Kansas, 1; Baldwin v. Kansas, 129 U. S., 52; Smith v. State, 63 Ga., 168. 3. SAME. Objections to correctible irregularities must be made . at proper time in trial court, or they are waived. Objections going only to such irregularities as could have been easily corrected, upon calling the attention of the trial court thereto, must be made in the trial court; and, if not, they will be considered as waived by the supreme court. (Post, pp. 418, 419.) Case cited and approved: Pearson v. State, at Nashville, December term, 1905. Case cited and overruled: Bass v. State, 6 Bax., 579.
121 Tenn. 420Rhinehart v. State (1908)
1. CONSTITUTIONAL LAW. Statute (the fire marshal law) containing' hut one subject, and that expressed in its title. A statute (Acts 1907, ch. 460), known as the fire marshal law, entitled “An act to reduce the fire waste in Tennessee by providing for the investigation of fires, and to provide for the expense of such investigation,” and whose body imposes a certain tax rate upon the gross receipts of fire insurance companies for the purpose of providing or creating an expense fund for the enforcement of the law, contains but one subject which is expressed in the title. The provisions for the investigation of fires and for the payment of the expenses of such investigations are only the means by which the subject of the act, expressed in the title, is to be accomplished. {Post, pp. 426, 429, 430, 433, 434.) Acts cited and construed: Acts 1907, ch. 460. Constitution cited and construed: Art: 2, sec. 17. Cases cited and approved: Railroads v. Crider, 91 Tenn., 489-493; State v. Yardley, 95, Tenn., 546; Peterson v. State, 104 Tenn., 127; Railroad v. Byrne, 119 Tenn., 278. &. SAME. Separable unconstitutional provision in a statute does not invalidate the rest of it, when. The constitutionality of the provision of the fire marshal law (Acts 1907, ch. 460, sec. 4), authorizing the insurance commissioner, in his investigation of the origin of fires, to enter upon and examine any building or premises where a fire has occurred, or any building or premises adjoining the same, is not decided, because it is not involved in the case, but even if it were unconstitutional because in conflict with the constitutional provision (art. 1, sec. 7) forbidding unreasonable searches and seizures, the other provisions of the act for the investigation and prevention of fires would not be thereby invalidated. The statute is effective without this provision, and would have been enacted without it (Post, pp. 429, 434-436.) Cases cited and approved: State v. Cummins, 99 Tenn., 667; Cummings v. Trewhitt, 113 Tenn., 561; Pite v. State, 114 Tenn., 659; State v. Willett, 117 Tenn., 334; Malone v. Williams, 118 Tenn., 390. Cases bearing upon the question cited: Boyd v. United States, 116 U. S., 616; Adams v. New York, 192 U. S., 585; Hale v. Henkel, 201 U. S., 43. 3. SAME. Tax on gross receipts of fire insurance companies for enforcement of fire marshal law is valid as a privilege tax. The provision in the fire marshal law (Acts 1907, ch. 460, sec. 6) levying a tax of one-fifth of one per cent- upon the gross receipts of fire insurance companies for the purpose of creating a fund to pay the expenses of enforcing the law, and directing the surplus of such fund remaining at the end of any year to he paid into the State treasury, is not in conflict with the constitutional provision (art. 2, see. 28) requiring all property to be taxed equally and uniformly, according to value, which has reference solely to assessments and taxes for revenue, made and levied upon property according to its value; and this charge on insurance companies can be nothing more that a privilege tax, if it he a tax, and the legislature may impose privilege taxes at its discretion. (Post, pp. 429, 430, 436-440.) . Acts cited and construed: Acts 1907, ch. 460, sec. 6. Constitution cited and construed: Art. 2, sec. 28. Cases cited and approved: Kurth v. State,'86 Tenn., 136; Kennedy v. Montgomery Co., 98 Tenn., 180; Telegraph Co. v. Philadelphia, 190 U. S., 160; Telegraph Co. v. Taylor, 192 U. S., 64-70; Terre Haute v. Kersey, 159 Ind., 300. 4. POLICE POWER. Eire marshal law for protection from fires and imposing a tax for its enforcement is valid. The fire marshal law (Acts 1907, ch. 460) providing for the investigation of the origin of fires and for the prevention of fires, and levying a certain tax rate upon the gross receipts of fire insurance companies for the creation of an expense fund for the enforcement of said law, is a police measure, and constitutes a valid exercise of the police power of the State. ( Post, pp. 426, 429, 430, 437-440, 443, 445.) Acts cited and construed: Acts 1907, ch. 460, sec. 6. Cases cited and approved: Knoxville v. Bird, 12 Lea, 123; Reel-foot Lake Levee District v. Dawson, 97 Tenn., 171; -Webster v. State, 110.Tenn., 504; Arnold v. Knoxville, 115 Tenn., 204; Morrison v. State, 116 Tenn., 544; Underwriters v. Whipple (N. Y.), 2 App. Div., 361, and cases cited under headnote 3. 5. FIRES. Investigation of origin of fires may be conducted at insurance commissioner’s office in the State capitol. Under the fire marshal law (Acts 1907, ch. 460) authorizing the insurance commissioner to investigate the origin of fires throughout the State, such investigation may he conducted at his office in the State capitol, where he is required by law enacted previous to- said act to keep his office, though the fire under investigation occurred in another county, especially when there is no provision in the act as to where the investigation shall be conducted. (Post, pp. 426-430, 4'41, 447.) Acts cited and construed: Acts 1907, ch. 460. 6. SAME. Fire marshal law is a remedial statute, and must be liberally construed. The fire marshal law (Acts 1907, ch. 460), authorizing the insurance commissioner to investigate the origin of fires and to subpoena witnesses for that purpose, is remedial in its nature and should receive a broad and liberal construction to effect the purpose of its enactment. (Post, p. 443.) 7. WORDS AMD PHRASES. The words “trial justice” mean a justice of the peace, when. The words “trial justice” used in the provision of the fire marshal law (Acts 1907, ch. 460), vesting in the insurance commissioner or his deputy all the power of a “trial justice” for the purpose of summoning and compelling the attendance of witnesses, mean a justice of the peace. (Post, p. 442.) 8. FIRES. Insurance commissioner may subpoena witnesses from any part of the State to appear before him in investigations of fires. ■ The fire marshal law (Acts 1907, ch. 460, sec. 3), vesting in the insurance commissioner or his deputy all the powers of a “trial justice” (meaning a-justice of the peace) for the purpose of summoning and compelling the attendance of witnesses to testify in investigations under the act, in connection with the existing law (Shannon’s Code, sec. 7368), empowering justices to summon witnesses, authorizes the insurance commissioner, in such investigations, to issue subpoenas to compel witnesses from any part of the State to appear before him at his office. (Post, pp. 428, 429, 442, 443.) Code cited and construed: Secs. 5615, 5937 (subsec. 4), 7358 (S.); secs. 4580, 4900 (subsecs. 4), 6225 (M. & Y.); secs. 3827, 4125 (subsec. 4), 5380 (T. & S. and 1858). __ 9. SAME. Fire marshal law is a police measure, and the proceedings under it are more criminal than civil in their nature. The fire marshal law (Acts 1907, ch. 460) is a police measure, passed for the protection of life and property, and to facilitate the detection of those guilty of fraudulent and incendiary fires, and to aid in bringing them to punishment, and the investigation provided for is more a criminal proceeding than a civil one, and it was clearly the intention to confer upon the insurance commissioner all the power vested in justices of the peace to require witnesses to appear before them and testify in relation to crimes committed. (Post, pp. 442, 443, 445.) Acts cited and construed: Acts 1907, ch. 460. 10. WITNESSES. Jurisdiction to enforce penalty for nonattendance of witnesses before insurance commissioner. Under the fire marshal law (Acts 1907, ch. 460, see. 3), vesting in the insurance commissioner or his deputy all the powers of a justice of the peace for the purpose of summoning witnesses and compelling their attendance to testify in his investigations of fires, in connection with the existing statutes (Shannon’s Code, secs. 5608, 5609, and 5610, imposing penalties upon witnesses for their nonattendance, and the statute (Shannon’s Code, sec. 5613), providing for the enforcement, in the circuit court, of the penalty against a witness for his nonattendance before a justice of the peace or commissioner, the circuit court of the county in which the insurance commissioner has his office has jurisdiction to enforce against a witness the penalty of two hundred and fifty dollars for his disobedience to a subpoena, where the certificate of such disobedience is indorsed' on the subpoena, and returned to said court, by the said commissioner or his deputy. (Post, VP- 428, 429, 443-445, 447.) Code cited and construed: Secs. 5608-5610, 5613 (S); secs. 4573-4575, 4578 (M. & V.); secs. 3820, 3821, 3824 (T. & S. and 1858). Acts cited and construed: Acts 1907, ch. 460, sec. 3. 11. SAME. Same. Motion for penalty for nonattendance of witness should be in the name of the State; commissioner as relator is surplusage. The motion for the recovery of a penalty against a witness for his failure to appear, in answer to a subpoena, before the insurance commissioner, in the investigation of the origin of a fire, pursuant to the fire marshal law (Acts 1907, ch. 460), should be made in the name of the State, without the intervention of the commissioner as relator; but his name, being mere sur-plusage, will not affect the action, the State being the real party in - interest. (Post, pp. 445, 446.) IS. SAME. Cannot excuse himself by his judgment or the advice of counsel as to the materiality of his evidence and attendance. Even if the insurance commissioner was exceeding his authority under the fire marshal law (Acts 1907, ch. 460) in investigating matters not pertinent to the origin of the fire in question, that would be no excuse for a witness to disobey the subpoena issued by the commissioner and served upon him. A witness cannot determine for himself whether or not his evidence is material or whether he should attend, and the advice of counsel will not protect him, especially where he disobeyed the subpoena in the interest of such counsel’s client. (Post, pp. 446, 447.)
121 Tenn. 448Atlantic Coast Line Railroad Co. v. Richardson (1908)
1. PARTNERSHIP. Does not exist by voluntary association of railroads for transportation of freight, when. - A voluntary association of independent, but connecting, railroad corporations, for the more expeditious handling and transporta, tion of freight passing over their several lines to points beyond, does not constitute a partnership, or anything upon which the doctrine of representation, or of principal and agent, as between such railroads, can be invoiced. {Post, pp. 451, 457, 458.) Cases cited and approved: Post v. Railroad, 103 Tenn., 184; United States v. American Bell Telephone Co., 29 Fed., 17.. 2. FOREIGN CORPORATIONS. Process cannot be served upon a traveling agent not connected with the transaction not arising in this State, when. A foreign railroad corporation, operating a line of railroad wholly outside of this State and having only a soliciting agent in this State, which commits a wrong by the negligent handling of a nonresident’s freight passing over its line as an intermediate carrier, is not brought within the jurisdiction of the court by service of process upon its traveling agent where he had no connection with the shipment, because such corporation Is not “doing business in the State,” in the sense of our statute (Shannon’s Code, secs. 4543-4545) authorizing the service of process on the agents of foreign corporations “doing business” in this State, for the reason that the shipper’s “cause of action” for the wrong does not arise from “any transaction with persons” or “concerning any property situated in this State, through any agency whatever, acting” for the corporation “within the State,” although the wrong is not discovered until the freight reaches its destination here. {Post, pp. 450-458, 461-463.) Code cited and construed: Secs. 4543-4545 (S). Acts cited and construed: Acts 1887, ch. 226, secs. 1-3. Cases cited and approved: Insurance Co. v. Spratley, 99 Tenn., 322; State v. Insurance Co., 106 Tenn., 294; Insurance Co. v. Spratley, 172 U. S., 602. Case cited and distinguished: Railroad v. Bean, (Sept, term, 1908). S. SAME. Same. Statute authorizing service of process upon any agent is circumscribed by other provisions. While the purpose of the statute (Shannon’s Code, sec. 4545) authorizing process to be served upon any agent of a foreign corporation found within the county where the suit is brought, whatever the character of his agency may be, was to remedy a defect in our statutes providing for service of process on corporations in that they were not applicable to foreign corporations having no resident agent, or local office, but only having a traveling agent, not localized in this State, yet the right of suing foreign corporations in the courts of this State is cireum- - scribed by sections 4543 and 4544 of said Code, limiting the right to sue such corporations “doing business” in this State as there defined, and as shown in the second headnote. {Post, p. 455.) Code cited and construed: Secs. 4543-4545 (S). Acts cited and construed: Acts 1887,'ch. 226, secs. 1-3. Cases cited and approved: Railroad v. Walker, 9 Lea, 475; Telephone Co. v. Turner, 88 Tenn., 265. 4. STATUTES. Unambiguous, intelligent, and definite in meaning to be followed by the courts in construction. Where the language of a statute is free from doubt or ambiguity, and expresses an intelligent and definite meaning, the courts are bound to assume that this meaning is that which the legislature had in mind, and they are not at liberty to depart from it {Post, pp. 455-461, 463.) Cases cited and approved: United States v. Fisher, 2 Cranch, 358; Doe v. Considine, 6 Wall., 458; Woodhury v. Berry, 18 Ohio St., 456; Mill Co. v. Muxlow, 115 N. Y., 170; Bradbury v. Wagen-horst, 54 Pa., 180. 5. COMMON CARRIERS. Liability of initial carrier for violation of instructions and contract as to icing, reicing, and routing. Where the bill of lading limits the liability of connecting common carriers to the one inflicting the injury, the initial carrier will be liable to the shipper for damages caused by its violation of his express instructions given at the time of the delivery of the goods and of its contract as to route and icing and re-icing the goods. (Post, pp. 463, 464.) Cases cited and approved; Railroad v. Cabinet Co., 104 Tenn., 568.
121 Tenn. 465Palmer v. State (1908)
1. JUROR AND JURIES. Venireman cannot be required to read newspaper articles to see whether he had previously read them. Where a juror on his voir dire stated that he had not formed or 'expressed an opinion, that he was a subscriber for a certain newspaper and usually read it carefully, but did not remember reading articles about the case, and that, if he had read them, he would have formed an opinion which would require evidence to remove, the refusal of the court to permit the counsel of the accused to exhibit to the juror the articles to be read by him, to ascertain whether he had previously read them, was proper. [Post, pp. 471, 472.) Case cited and distinguished: Ward v. State, 102 Tenn., 730. 2. SAME. Reading newspaper articles without forming opinion does not disqualify juror. A juror who states on his voir dire that he has reacj^ the accounts of the-crime in newspapers, but has not formed or expressed any opinion, is not disqualified. (Post, p. 473.) 3. SAME. Review of questions of fact as to competency of jurors as in other cases, when. Whether the nature and strength of a juror’s opinion are such as in law necessarily raise the presumption of partiality is a question of mixed law and fact, to be tried, as far as the facts are concerned, like any other issue of fact, and the finding of the trial court will not be set aside by the reviewing court, except for manifest error. [Post, p. 476.) Case cited and approved: Conatser v. State, 12 Lea, 436. 4. SAME. Burden is on challenger to show disqualification of juror. The burden is upon the challenger of a juror to show the actual existence of a disqualifying opinion. (Post, p. 476.) Case cited and approved: Conatser v. State, 12 Lea, 436. 6. SAME. Opinions formed upon personal knowledge or statements of witnesses disqualify, while those formed from rumor do not disqualify. The opinion of a juror as to the guilt or innocence of the accused is not always a disqualification. Those opinions which are based on personal knowledge of the facts of the case, or on a statement of the facts made by witnesses themselves, or by others who have heard the witnesses relate them, disqualify; while those formed from rumor do not disqualify. (Post, pp. 480-482.) Cases cited and approved: Rice v. State, 1 Yerg., 432; McGowan V. State, 9 Yerg., 184; Payne v. State, 3 Humph., 376; Moses v. State, 10 Humph., 456; Moses v. State, 11 Humph., 232; Alfred & Anthony v. State, 2 Swan, 581; Eason v. State, 6 Bax., 466; Conatser v. State, 12 Lea, 436; Spence v. .State, 15 Lea, 539; Woods v. State, 99 Tenn., 182; Leach v. State, 99 Tenn., 584, 596, 597; State v. Robinson, 106 Tenn., 204, 206; Turner v. State, 111 ienn., 593; Wilson v. State, 109 Tenn., 167, 169, 170. 6. SAME. Statute putting newspaper account upon equality with other sources of information, as to whether facts or rumors, is not unconstitutional. Newspaper statements, to disqualify a juror, must be such as fall within the disqualifying sources of information, and purport to be detailed by those who profess to know the facts; and any other statement only amounts to rumor, and will not disqualify. Therefore, a statute (Acts 1899, ch. 383) providing that a juror who has formed an opinion upon newspaper statements is not disqualified where he testified that he believes he can fairly and impartially render a verdict in accordance with, the law and evidence, and the court is satisfied of the truth of such statement, when construed in connection with the foregoing rule, is not unconstitutional. (Post, pp. 481-488.) Acts cited and construed: Acts 1899, ch. 383. Cases cited and approved: Spence v. State, 15 Lea, 539, 546; "Woods v. State, 99 Tenn., 182; Leach v. State, 99 Tenn., 584; State v. Robinson, 106 Tenn., 204, 206; Morrison v. State, unreported; Turner v. State, 111 Tenn., 593; Wilson v. State, 109 Tenn., 167, 169, 170. 7. SAME. Opinion upon rumor, where juror can do impartial justice, does not disqualify him, when. Where a juror, on his voir dire, testified that he had formed an opinion based upon mere rumor; that his opinion was’a fixed-one which would require evidence to remove; that he had tallced generally about the matter, but did not know whether he had talked with witnesses or not, but had accepted the matter as a mere rumor, and that he had read a certain newspaper; that he could as juror do fair and impartial justice between the State and the defendant, such a juror is not disqualified, but is competent. (Post,.pp. 473-488.) Cases cited and approved: See cases cited under the next preceding headnote; and numerous cases cited generally, without any particular application, in the. opinion, pages 474, 475. 8. RAPE. Refusal to charge as to assault with intent to commit rape is proper where accused was guilty of rape or nothing. Where, in a trial under an indictment for rape, the accused was, under the evidence, either guilty of the crime of rape or of nothing, the refusal of the trial judge.to instruct the jury upon the subject of assault with intent to commit the rape was proper. (Post, p. 488.) Cases cited and approved: Powers v. State, 117 Tenn., 363, 372; Frazier v. State, 117 Tenn., 430, 441. 9. CRIMINAL PROCEDURE. Motion in arrest of judgment is a waiver of a motion for a new trial. A motion in arrest of judgment and new trial cannot be made together and at the same time, because a motion in arrest of judgment is a waiver of a motion for new trial. (Po&t, pp. 489, 490.) Cases cited and approved: Freeman v. Railroad, 107 Tenn., 340; Hall v. State, 110 Tenn., 365, 368. XO. SAME. Same. Waiver of motion for new trial confines errors, to face of record. The legal effect of the waiver of the motion for a new trial is that the court is confined to error assigned upon the face of the record. {Post, pp. 489-490.) Case cited and approved: Hall v. State, 110 Tenn., 365, 368. 11. INDICTMENT. Trial judge may, but is not bound to quash, for defects. The trial judge may perhaps, on his own motion, quash an indictment for defects therein, but he is not bound to quash it, even on motion of the accused. {Post, p. 490.) Cases cited and approved: Jetton v. State, Meigs, 192; State v. Willis, 3 Head, 157. 12. SAME. Objections must be made in lower court. Objections to the indictment must be made in the lower court. {Post, p. 490.) Cases cited and approved: Rodes v. State, 10 Lea, 414; Glide-well v. State, 15 Lea, 135; Luttrell v. State, 85 Tenn., 232, 237. 13. SAME. Same. Objections to form are waived by going to trial. Objections to the form of the indictment are generally waived by going to trial without calling the attention of the trial judge to them. {Post, p. 490.) Cases cited and approved: Stevenson v. State, 5 Bax., 683; Scruggs v. State, 7 Bax., 38; Forrest v. State, 13 Lea, 106. 14. CRIMINAL PROCEDURE. Motion in arrest must rest on record. A motion in arrest of judgment must rest on matter of record. {Post, p. 490.) Cases cited and approved: State v. Rogers, 6 Bax., 563; King v. State, 91 Tenn., 649. 15. SAME. Motion in arrest must state the specific grounds. A motion in arrest of judgment must state specifically the grounds on which it is based. (Post, pp. 490-492.) Cases cited and approved: State v. Steele, 3 Heisk., 135; Hall v. State, 110 Tenn., 365. 16. INDICTMENT. Por rape according to statutory definition, without charging that the female was “ravished”, is sufficient, when. An indictment, averring that the accused on a certain date fel-oniously did have carnal knowledge of a certain female, forcibly and against her will, charges the crime of rape, as defined by our statute (Shannon’s Code, sec. 6451), though it does not charge that the accused “ravished” the female. .The word “ravished” implies nothing more than that the act was done forcibly and against the will of the woman. (Post, pp. 492-495.) Code cited and construed: Secs. 6451, 7077, 7080, 7083 (S.); Secs. 5361, 5943, 5946, 5949 (M. & V.); secs. 4610, 5114, 5117, 5120 (T. & S. and 1858). Cases cited and approved: Wllkey v. Commonwealth, 104 Ky., 325; Tway v. State, 7 Wyo., 75, 78, 79; Harmon v. Commonwealth, 12 Serg. & R. (Pa.), 69; O’Connell v. State, 6 Minn., 279, 284, 285 (Gil., 190); Williams v. State, 1 Tex. Cr. App., 90, 92, 93; Gibson v. State, 17 Tex. Cr. App., 574; Fields v. State, 39 Tex. Cr. Rep., 488; Leoni v. State, 44 Ala., 110; Jackson v. State, 114 Ga., 861.
121 Tenn. 496Leiberman v. Bowden (1908)
1. APPEALS. Bill of exceptions to preserve evidence or ruling not a part of the technical record. Where the final decree recited that the cause was “heard upon all the several branches thereof, upon the bills and answers thereto, cross bills and answers thereto, petitions and answers thereto, pro confessos, depositions on file, exhibits, and pleadings, oral testimony introduced on the hearing, as hereinafter mentioned.” ' etc., but where it affirmatively appears that the recital as to oral evidence related to a wholly different branch of the case in which complainants and appellants were not interested; and where another part of the decree, allowing complainants an appeal, recited that “complainants, being nonresidents of” the county, “are allowed thirty days to make their appeal bond and file their bill of'exceptions,” it is clear that complainants were not required to file a bill of exceptions in support of their appeal, unless it was desired to preserve some part of the evidence or ruling of the court that was not a part of the technical record. (Post, pp. 501-503.) 2, SAME. Presumption that jury trial in chancery was waived, in the absence of any exceptions to trial before chancellor, when. In the absence of any exceptions to the trial of a case before the chancellor without the intervention of a jury demanded in the answer, it will be presumed that a jury was waived. (Post, p. 503.) 8. SAME. Consent of parties is not necessary to special, limited, or abridged transcript of record. Consent of parties is not necessary to authorize the supreme court to try a cause upon a special, limited, or abridged transcript of the record containing only such parts of the record as were designated in accordance with statute (Acts 1903, ch. 35). (.Post, pp. 503, 505, 506.) Acts cited and construed: Acts 1903, ch. 35. 4. SAME. Same. Appellee designating no additional parts of record for transcript cannot complain, when. "Where counsel for the appellee, after receiving notice of the parts of the record designated hy counsel of the appellant for the transcript, fails to designate any additional pai^of the record to he inserted in the transcript, he cannot thereafter complain of the transcript made in pursuance of such designation in accordance with the statute (Acts. 1903, ch. 35). (Post, pp. 503-506.) Acts cited and construed: Acts 1903, ch. 35. 5. SAME. Presumption that depositions and documents in transcript were read and constituted a part of the record in consolidated chancery suits, when. Where certain suits in chancery are, hy consent, consolidated with a general creditor’s suit, for the trial of all the causes together, with a stipulation that the pleadings, depositions, and exhibits in a certain other suit between certain of the parties, previously tried in said court, and finally determined in the supreme court, may be read as evidence in the consolidated causes, with the further stipulation that, inasmuch as the original record had been destroyed by fire,- the same may be read from the original transcript or a proven copy of the same, and the clerk and master certified on the transcript embodying depositions and documents that they were true and perfect copies of such parts of the record as were designated for the transcript by-counsel of appellant, no objection can be made to the transcript in the supreme court on the ground that it embodies depositions and documents not read on the hearing below, or that it fails to show affirmatively what depositions and evidence were. . before the court, especially where it appears that no exception or objection was made, before the clerk and master in the court below, to the ’specific portions of the record designated by counsel of appellant for the transcript; for, in such case, it will be presumed that the selected portions of the record were read on the hearing and constituted a part of the record of the trial. The verity of the certified record cannot be thus impeached upon the mere suggestion of counsel, without even an affidavit to sup.port the objection. {Post, pp: 506-509.) 6. SAME. Chancery cause is tried, de novo upon transcript of record in supreme court; rule in law cases. "While.in a law case, in the absence of a bill of exceptions, the supreme court will presume that there was sufficient evidence to sustain the finding of the court below; but in a chancery cause, the hearing in the supreme court must be de novo upon the transcript of the record filed, and in the absence of any evidence in the record to support the decree, it must be reversed. {Post, p. 5X0.) Cases cited and approved: Shelby Co. v. Bickford, 102 Tenn., 402; Hearst v. Proffit, 115 Tenn., 560. 7. MORTGAGES. Assumption of timber mortgage debt by the purchaser of the land does not extend lien to the land itself, when. Where the owner of certain land mortgaged the timber thereon, and then subsequently sold and conveyed the land, with warranty of the title, except as against the said mortgage lien on said farm, and reciting that the purchaser agreed to pay and discharge said lien, in addition to the purchase price stipulated therein, such deed created a mere assumption of the timber lien, and did not enlarge it to a claim on the farm or land itself. {Post, pp. 510-517.) 8. VENDOR’S EQUITY OR IMPLIED LIEN. Is defeated by conveyance before suit to fix and enforce the lien. A vendor’s equity or implied lien for the purchase price of land is defeated by the vendee’s sale and conveyance of the land before the institution of suit to fix and enforce it. {Post, p. 518.) Cases cited and approved: Watson v. Watson, 1 Bax., 387; Bacchus v. Peters, 85 Tenn., 679. 9. SAME. Same. Ho subrogation to vendor’s equity or implied lien after vendee’s conveyance, when. There can be no subrogation to the vendor’s equity or implied lien by a prior mortgagee whose debt was assumed by the vendee, where the vendee has sold and conveyed the land before any suit was instituted to declare and enforce the subrogation. (Post, pp. 517, 518.) 10. SAME. Mortgagee is not estopped to enforce the personal . liability of the purchaser assuming the mortgage debt by stating that he would look to the original debtor, when. Where the purchaser of land subject to a timber mortgage assumed and agreed to pay the debt as a part of the consideration, the mortgagee was not estopped to enforce the purchaser’s personal liability for the debt by the fact that, after such sale and conveyance of the land, he instituted and prosecuted a suit against the mortgageor to foreclose the mortgage against the timber and for a personal judgment, without making said purchaser a party to the suit, nor by the fact that on several occasions, when 'informed of such assumption, he stated that he would look to the original debtor to perform his contract, etc., especially where he made no objection to the performance of the contract by the such assumer and actually received payments from him. (Post, pp. 510-520.)
121 Tenn. 521Lee v. State (1908)
FROM WAYNE. Appeal in error from the Circuit Court of Wayne County. — Samuel Holding, Judge.
121 Tenn. 556Landrith v. Hudgins (1908)
1. RELIGIOUS SOCIETIES. Implied power of churches to unite when there is no explicit pronouncement to the contrary in their constitutions. The implied power of union of one Christian church with another, involving the surrender of the organization of one of them, exists, where there is no explicit pronouncement to the contrary in their constitution, religious standards, or forms of government. There is nothing in the constitution or organization of the Cumberland Presbyterian Church to indicate that it was intended to be a perpetual organization, so that it had or has the power, if properly exercised, to unite with the Presbyterian Church in the United States of America. (Post, pp. 573, 574, 584, 585, 593, 596, 597.) 2. SAME. Same. The power of union of churches must he exercised in accordance with their constitutions. The power of one church to form a union with another, when it exists, must be exercised in accordance with the manner indicated by the constitution or constituent contract by which the organization is bound and held together. (Post, pp. 585, 594, 595, 597, 680, 681.) Cases cited and approved: Lamb v. Cain, 129 Ind., 515; College v. Wyatt, 27 Ore., 475; Bear v. Heasley, 98 Mich., 308; Russie v. Brazzell, 128 Mo., 93; Jaicks v. Sullivan, 128 Mo., 187; Hochreiter’s Appeal, 93 Pa., 479, 484. 8. SAME. The'church session is the governing agency of a congregation of the Cumberland Presbyterian Church. The church session of the Cumberland Presbyterian Church, composed of two or more ruling elders, elected by the congregation, and the minister in charge who is attached to the congregation by the combined voice of the presbytery, the session, and the members, is the governing agency of the congregation. (Post, pp. 586, 587, 590, 591, 592.) 4. SAME. Question of union with, another denomination must he submitted to the presbyteries and not to a per capita vote of the various congregations. The question of union between the Cumberland Presbyterian Church and the Presbyterian Church in the United' States of America cannot, under the Presbyterian or Cumberland Presbyterian form of government, he submitted by the general assembly to a general per capita vote of all the congregations, but can only be submitted to and be determined by a vote of the presbyteries consisting of pastors or ministers representing the church at large and elders representing the various congregations, the result of which shall be subsequently declared by the general assembly. (Pos#, pp. 687-590, 594, 596, 597.) 6. SAME. Jurisdiction or power of government of each particular Cumberland Presbyterian Church is lodged in its church session. Under the Presbyterian or Cumberland Presbyterian form of government, the jurisdiction, or power of government, in each particular church, namely, that part of the sovereignty of the whole which belongs to each particular church organization, is lodged in the church session, and not in the members at large. (Post, pp. 590, 691, 592.) 6. SAME. Amendments cannot be made by action negativing the specific rule for amendments prescribed in the constitution of of a church. Under the constitution of the Cumberland Presbyterian Church, providing a specific method for the amendment of its constitution, Confession of Faith, and Catechism, to be proposed, recommended, and submitted by its supreme judicial authority, known as the “General Assembly,” a representative body, to the presbyteries, such provision cannot he disregarded and the amendment made effective by treating the vote taken as equivalent to an amendment or by an act negativing the rule of amendment, or by mere negative action by the organization, the general assembly and the presbyteries, without violating an obligation- to the members, because the method prescribed for amendment is a part of the constituent contract which the members of the church have- a right to rely upon. (Post, pp. 595, 596, 641-645.) 7. SAME. Whole plan of union and not simply a part thereof must be submitted to the presbyteries of the Cumberland Presbyterian Church, when. Under a plan of reunion and union of the Cumberland Presbyterian Church with the Presbyterian Church in the United States of America, involving the surrender of the name, the creed, and organization of the Cumberland Presbylterian Church and its absorption by or incorporation into the other church and under its name, and also the acceptance by its members of the doctrines and Confession of Faith of the said other church, as revised in 1903, and of its doctrinal and ecclesiastical standards, where the only part of the plan submitted to the presbyteries of the Cumberland Presbyterian Church was embraced in a question to which they were required to return a categorical answer of either approval or disapproval, which only asked whether the presbyteries were- in favor of the reunion and- union on the basis of the revised Confession of Faith and other doctrines and ecclesiastical standards of the Presbyterian Church in the United States of America, etc., the general assembly of the Cumberland Presbyterian Church, by such submission and the acceptance of such plan by the result of the vote of the presbyteries, as duly ascertained and declared, had no power to surrender the name and organization of the church and to dissolve it by consenting to its absorption by the Presbyterian Church in the United States of America. (Post, pp. 597-604, 682, 683.) 8. SAME, ."Doctrines of the Presbyterian Church in ther United States of America are not substantially the same as those of the Cumberland Presbyterian Church. The doctrines of the Presbyterian Church in the United States of America as contained in its Confession of Faith and other standards, as revised in 1903, still retain 'the doctrinal standards of the Westminster Confession of Faith, and are not substantially the same as the doctrines of the Cumberland Presbyterian Church. (Post, pp. 604-641.) 9. SAME. Land conveyed to a church, cannot be diverted to a different faith without a valid change of the faith of such church. Where land is conveyed to officers of the Cumberland Presbyterian Church and their successors in office for the use and benefit of said church, it cannot, without a breach of contract, he diverted to the . maintenance of a different faith, unless the Cumberland Presbyterian faith has been changed into a new form by competent ecclesiastical authority. (Post, pp. _ 572, 573, 628, 640, 675-681.) Code cited and construed: Secs. 2563, 2564 (S.); secs. 2007, 2008 (M. & V,); sec. 1509 (T. & S. and'1858). Cases cited and approved: Schnorr’s Appeal, 67 Pa., 146; Miller v. Gable, 2 Denio (N. Y.), 548, 555, 556; Smith v. Pedigo, 145 Ind., 416; Hale v. Everett, 53 N. H., 9; Farraria v. Vas-concelles, 23 Ill., 456; Kniskern v. Churches, 1 Sandf. Ch., 439, 7 N. Y. Ch. Rep., 435, and note on page 437; Roshi’s Appeal, 69 Pa., 468. 10. SAME. Same. Trust created by conveyance for money as well as by a gift. In the creation of the trust as shown in the next preceding headnote, it is immaterial that the trust had its origin in a conveyance for a money consideration instead of a donation. (Post, pp. 678, 679.) 11. SAME. Submission o< question of union not. involving a question of amendment of''the. constitution and Confession of Faith of a church; case in judgment. Under section 60 of the constitution of the Cumberland Presbyterian Church providing that, upon recommendation of the General Assembly at n stated meeting by a two-thirds vote, the Confession of Faith, Catechism, Constitution and Rules of Discipline may be amended or changed by a majority of the presbyteries, on the same being transmitted for their action, if they shall approve the same, and under a submission, by the said General Assembly to the presbyteries, of a basis of union of such church with the Presbyterian Church in the United States .of America, founded on the question whether they would sanction a union on the basis of the Confession of Faith of the latter -church, without the submission of any question whether the Cumberland Presbyterian Church would amend its own Confession of Faith into a form more suitable, but submitting the question as aforesaid whether it would unite with the other church on the basis of the latter’s Confession of Faith, a vote of a majority of the presbyteries in favor of the union, duly and properly ascertained and declared, did not constitute an amendment of the constitution or Confession of Faith of the Cumberland Presbyterian Church. (Post, pp. 641-645, 680, 681.) IS. SAME. Determination of ecclesiastical questions by ecclesiastical bodies is not conclusive upon the civil courts in determining property rights in church property. The civil court, administering the law of the land, in disposing of property rights in church property has the power to determine for itself, as a necessary preliminary, the theological questions involved, as being in the nature of the facts on which the controversy must turn. ■ The determination of an ecclesiastical question by an ecclesiastical body, legislative or judicial, Is not binding upon a civil court administering the law of the land, in disposing' of property rights in church property, when the correct view of the nature, means, extent, and bearing of such ecclesiastical question is necessary to be determined in order to settle such property rights. (Post, pp. 627, 628, 645-683.) Cases cited and approved: Deaderick v. Lampson, 11 Heisk., 523; Reeves v. Walker, 8 Bax., 277; Rodgers v. Burnett, 108 Tenn., 173, 183; Watson v. Jones, 13 Wall., 679; Bouldin v. Alexander, 15 Wall., 139; Watson v. Avery, 2 Bush (Ky.), 332; Gartin v. Penick, 5 Bush (Ky.), 123, 124, 9 Am. Law Beg. (N. S'.), 213; Perry v. Wheeler, 12 Bush (Ky.), 541, 554, 556; Church v. Wilson, 14 Bush (Ky.), 252; Krecker v. Shirey, 163 Pa., 534; McGinnis v. Watson, 41 Pa., 9, 14-16, 20, 23, 29; Schnorr’s Appeal, 67 Pa., 138, 146, 147; Boshi’s Appeal, 69 Pa., 462, 467; McAuley’s Appeal, 77 Pa., 397, 412; Kerr’s Appeal, 89 Pa., 97; O’Hara v. Stack, 90 Pa., 477, 490; Smith v. Pedigo, 145 Ind., 361, 392, 416; Ferraría v. Vasconcelles, 23 Ill., 456; Vasconcellos v. Ferraría, 27 Ill., 237; Ferraría v. Vas-eoncellos, 31 Ill., 54, 55; Sweiker v. Husser, 146 Ill., 399, 435, 436; Kuns v. Bobertson, 154 Ill., 394, 400, et seq., 415, 416; Chase v. Cheney, 58 Ill., 509, 10 Am. Law Beg. (N. S.), 295; Church v. Whitmore, 83 Iowa, 138; Cape v. Church, 117 Wis., 150-155; Franke v. Mann, 106- Wis., 132; Watson v. Gar-vin, 54 Mo., 353, 354, 374, et seq.; Bussie v. Brazzell, 128 Mo., 93; Schlicter v. Keiter, 156 Pa., 119; College v. Wyatt, 27 Ore., 390; Lamb v. Cain, 129 Ind., 486; Gable v. Miller, 10 Paige (N. Y.), 627, 647; Miller v. Gable, 2 Denio (N. Y.), 492, 540-549, 552-570; Attorney-General v. Pearson, 3 Meri., 353, 355; Watkins v. Wilcox, 66 N. Y., 654; Kniskern v. Churches, 1 Sandf. Ch. (N. Y.), 439; Stebbins v. Sherman, 1 Sandf. Ch. (N. Y.), 510; Attorney-General v. Dublin, 38 N. H., 460; Hobby v. Morton, 33 Ill., 398; Fadness v. Braunborg, 73 Wis., 257; Bear v. Heasley, 98 Mich., 279; Lemp v. Baven, 113 Mich., 375; General Assembly of Free Church of Scotland, et al. v. Lord Overton et ah, Law Eeports, Appeal Cases, 515, 516, 627, 628, 669; Everett v. Church, 53 N. J. Eq., 500, 517, 518; Connitt v. Church, 54 N. Y„ 551, 554, 557, 558, 560, 563; Nachtrieb v. Har- . mony Settlement, 3 Wall., Jr., 66 Fed. Cas., No. 10,003; Bona-cum v. Murphy, 71 Neb., 4'63. 13. SAME. Same. Determination of ecclesiastical questions by ecclesiastical bodies is conclusive upon civil courts, except as to property rights in church property. The civil court cannot invade the sacred inclosure of the church, and assume to direct its teachings, or the administration of its rites and ceremonies, or to hinder the imposition of its censures, nor will the civil courts intermeddle or interfere with the internal administration of the affairs of the church, such as disciplinary cases, cases involving the exscinding of members, and the administration of rules and ordinances, and the like, where the ecclesiastical body acting, or undertaking to do so, is clothed with the power and jurisdiction to act in the matter; hut where property rights in church property are involved, the courts will adjudicate the same, because as to such rights, the church stands on the same plane with all other persons, and corporations, no higher, no lower; the ' law is over all. (Post, pp. 645-683.) Cases cited and approved: Nance v. Bushy, 91 Tenn., 303; Watson v. Jones, 13 Wall., 679; Bouldin. v. Alexander, 15 Wall., 139; Bonacum v. Murphy, 71 Neb., 463; Hatfield v. De Long, 156 Ind., 207; Harmon v. Dreher, Speers, Eq. (S. C.), 87; Wheelock v. Church, 119 Cal., 477; Shannon v. Frost, 3 B. Mon. (Ky.), 253; People v. German, 3 Lans. (N. Y.), 442; State v. Hebrew Cong., 31 La. Ann., 205. 14. SAME, Property conveyed to trustees of a church creates a trust for the promulgation of its tenets and doctrines. Property conveyed to trustees for the use of a church by its denominational name, or by its corporate name, if it be incorporated, creates a trust for the promulgation of the tenets and doctrines of that denomination, and hence land conveyed to the officers of the Cumberland Presbyterian Church at Fayette-ville, Tennessee, and their successors in office for the use and benefit of that church did not pass to the members uniting with the Presbyterian Church in the United States of America on the attempted union of the two churches in 1906, but remained' the property of the members of the congregation who continued to be members ‘ of the Cumberland Presbyterian Church, and' held to its principles and doctrines, and remained truly identf fled therewith in doctrine, polity, and organic subordination. (Post, pp. 572, 573, 675-683.) Code cited and construed: Secs. 2583, 2564 (S.); secs. 2007, 2008 (M. & V.); sec. 1509 (T. & S. and 1858). Cases cited and approved: Schnorr’s Appeal, 67 Pa., 146; Roshi’s Appeal, 69 Pa., 468; Miller v. Gable, 2 De.nio (N. Y.), 548, 555, 556; Kniskern v. Churches, 1 Sandf. Ch., 439; 7 N. Y. Gh. Rep., 435, and note on page 437; Smith v. Pedigo, 145 Ind., 416; Hale v. Everett, 53 N. H., 9; Ferraría v. Vasconcelles¡ 23 Ill., 456.
121 Tenn. 684Gardner v. State (1908)
1. CHANGE OF VENUE. Affidavits held to be sufficient to require a change of venue in a criminal case. Affidavits as evidence in support of an application for a change of venue in a criminal prosecution are stated, considered and held to he sufficient to show great improbability of defendants obtaining a fair trial in the county where the alleged offense was committed or in any adjoining county, and that, therefore, a change of venue should have been granted, and granted to the nearest adjacent county free from the objectionable causes, which the defendants may have selected. (Post, pp. 688-706, 714.) Code cited and construed: Secs. 7159-7162 (S.); secs. 6025-6028 (M. & V.); secs. 5195-5198 (T. & S. and 1858). Z. SAME. Same. Upon reversal and remandment for error in refusing the change of venue, the supreme court will direct the transfer of the cause. Upon reversal and remandment of a criminal case, because of the error committed by the trial judge in refusing to change the venue to the adjacent county selected by defendants, the supreme court will direct the lower court to transfer the cause for trial to such adjacent county. (Post, p. 714.) 3. EVIDENCE. Of the formation of a law and order league is inadmissible in prosecution for murder. In a prosecution for the murder of a person who was a member of the night riders, an organization alleged to have been formed for the purpose of forcing tobacco raisers to join the Planters’ Protective Association, by destroying the property of persons who were not members thereof and by committing other acts of violence, evidence that a law and order league had been organized in the place where the defendants lived shortly after the killing of the deceased is irrelevant. (Post, p. 707.) 4. SAME. Of statement of witness as to leaving neighborhood after the killing is inadmissible when. In such prosecution, a statement made by a witness that, after the murder, for the commission of which the defendants were arrested, he left the neighborhood where he was living because he wanted to get away from the night riders, is not admissible, for the reason that it is irrelevant and too remote from the issue. (Post, p. 707.) 5. SAME. Rejection of evidence subsequently admitted is not prejudicial. Where evidence rejected is afterwards substantially introduced and admitted in a subsequent part of the examination of the same witness, such rejection was not prejudicial. (Post, p. 707.) 0. SAME. As to Planters’ Protective Association is inadmissible in prosecution for murder of a night rider, when. In a prosecution for the murder of a member of the night riders, an organization alleged to have been formed for the purpose of forcing tobacco raisers to join the Planters’ Protective Association, evidence to .prove the charter of the protective association, its special form of organization, its character, and volume of business is inadmissible because toe remote. (Post, pp. 707, 708.) 7. SAME. Evidence is to payment of attorney’s fee by such association not concerning night riding is inadmissible in such prosecution when. In such prosecution, evidence as to money paid to an attorney by the said association as his fee for defending certain members thereof charged with malicious threats under the statute is inadmissible, where it does not appear to have been concerned with night riding, although the attorney, in answer to a question, said that the people spoke of them as night riders. (Post, p. 708.) 8. SAME. Of subsequent murder is inadmissible in a prosecution for a prior murder. In a prosecution for murder, evidence as to a subsequent murder is inadmissible, because it will throw no light upon the issues to be tried in the pending case. (Post, p. 708.) 9. SAME. In. a prosecution for the murder of a night rider, evidence as to the character and methods of the night riders, is admissible when. In a prosecution for the murder of a member of a band of night riders, an organization alleged to have been formed for the purpose of forcing tobacco raisers to join the Planters’ Protective Association, where the theory of the defense was that the defendants were assailed by a band of night riders and they fired in self-defense, evidence was admissible, tending to show the existence of a band of night riders, its organization and purpose; that in carrying out its purpose, the night riders had terrorized the surrounding country by destroying tobacco plant beds, sending threatening letters, riding through the country mashed and armed, and had committed other acts of violence; that they had threatened violence to and had actually raided certain towns; that they had threatened the city of Clarksville so ominously that the citizens thereof had organized for defense; that defendants had been engaged as guards to repel their threatened attacks; that, on the night of the murder, a telephone message was sent to the chief of police of said city that a body of night riders had started towards said city; that the sheriff was notified, and refused to take any action; that the people along the line they were expected to travel, not in sympathy with the night riders, needed help; that thereupon the defendants and several others were sent out to assist the people, and to arrest the night riders, if they could; that they all proceeded into the neighborhood from which the telephone message had come; that shooting was heard a short distance further on; that the Clarks-ville party then proceeded in the direction from which the shots apparently came, but did not overtake or discover any night riders; that defendants were posted on the cross-road where the homicide subsequently occurred; and where there was evidence tending to show that all of the foregoing facts were known, in a general way, to the plaintiffs in error, all the foregoing evidence was admissible as tending to develop all of the facts; so as to give the jury a comprehensive idea of the organization defendants liad to deal with, and the situation in which the defendants were placed. (Post, pp. 708-714.) 10. CONSPIRACY. Each member of a conspiracy is responsible for the acts of each and all the members thereof. Where the evidence shows a conspiracy, existing among two or more men, or a body of men, to do an unlawful thing, the body of men, attains the distinctive character of an individual, and each man contributing to the composition of the body is, in general, responsible for the acts of all the members composing the body in prosecution of the enterprise in which all are engaged, or in furtherance of the object or common design of the conspiracy. (Post, p. 713.) Cases cited and approved: Jackson v. State, 6 Bax., 452; Little v. State, 6 Bax., 491; Irvine v. State, 104 Tenn., 132, 145-147; Standard Oil Co. v. State, 117 Tenn., 618, 673. 11. EVIDENCE. In prosecution for murder of night rider, connection with another association may be shown to develop the purpose of the night riders. In a prosecution for the murder of a member of a band of night riders, an organization alleged to exist for the purpose of forcing tobacco raisers to join the Planters’ Protective Association, evidence to show a connection between the two organizations is admissible, but only so far as to fully develop the nature and purpose of the night rider’s organization; and the extent to which the inquiry may go depends largely upon the discretion of the trial judge as the investigation proceeds. (Post, pp. 713, 714.)
121 Tenn. 715Walton & Co. v. Burchel (1907)
The opinion, in this ease, though decided at the September term, 1907, was just recently filed for publication. 1. EMPLOYER AND EMPLOYEE. Burden rests on plaintiff to show that death of employee was caused by negligence of employer’s foreman, when, In an action for a wrongful death of an employee based upon the ground of the negligence of the employer’s foreman, as a vice principal, the burden rests on the plaintiff to show by a preponderance of the evidence that the explosion of dynamite resulting in the death was caused .by some negligent act of the foreman. (Post, p. 723.) 2. VERDICT. In determining question of refusal of peremptory instructions^ the strongest legitimate.view of evidence in favor of verdict approved by trial judge must be taken as true. After a verdict and judgment thereon in favor of the plaintiff, the supreme court,- in determining the question whether the motion for peremptory instructions refused by the trial judge should have been granted, will take as true the strongest legitimate view of the evidence in favor of the verdict, and discard all countervailing evidence. (Post, p. 723.) Case cited and approved: Machinery Co. v. Hargraves, 3 Cates, 476, 484, 485. 3. EMPLOYEE, AND EMPLOYEE. Negligence of employer’s foreman, as a vice principal, may be proved by circumstances, in action for death of employee. In an action for a wrongful death of an employee based upon the ground of the negligence of the employer’s foreman, as a vice principal, if there' is no positive and direct evidence that the foreman was guilty of the particular act of negligence, and no evidence to show what that negligence was, like any other act of negligence, it may be proved by circumstances. (Post, p. 723.) 4. SAME. Same. Pacts warranting inference that premature 'explosion of dynamite was caused by negligence of employer’s foreman resulting m death of employee. In the case stated in the preceding headnote, where there was an explosion of dynamite without any known particular cause for it, and it is shown that dynamite will not explode "without somebody having caused it,” or without some known cause, and where the foreman was shown to be exceedingly reckless and careless with dynamite and other explosives, and, to be considerably intoxicated, and was standing near the dynamite placed for the explosion, with a stamping stick in his hands, when a premature explosion thereof occurred causing the explosion of a large quantity of dynamite, by him carelessly and negligently left near, which killed the foreman, and the plaintiff’s intestate and two others, who were all that were near the place, from which, together with all the proven circumstances, the legitimate inference could be drawn that the foreman was guilty of the negligent act which caused the explosion, so that there was some very material evidence from which the jury could conclude that the explosion was caused by the negligence of the foreman. (Post, pp. 723-728.) Cases cited and distinguished: Railroad v. Lindamood, 111 Tenn., 457; United States v. Ross, 92 U. S., 381. 5. SAME. Same. Same. Action lies ior wrongful death of a young employee caused by negligence of his father as foreman of the employer. The action for the wrongful death of the employee under the circumstances shown in the two preceding headnotes is not defeated by the fact that the employee was the son of the foreman, where he is under sixteen years of age, and dominated by his father, and had not been instructed in the use arid danger of dynamite, especially where he sees that his father, notwithstanding his reckless conduct and habits, had the confidence of his employers. (Post, p. 728.) 6. SURVIVORSHIP. Not presumed on account of age, sex, strenth, corpulency, or activity of those perishing in a common disaster. Where persons perish in the same common disaster or calamity, there is no presumption of survivorship resting upon considerations of age, sex, strength, corpulency, or activity, and in the absence of evidence from which survivorship can be determined, it will be presumed, for the purpose of settling rights and succession to property, that all persons perishing in such disaster' died at the same time or moment. (Post, pp. 728-733.) Cases cited and approved: Home v. French, 187 U. S., 401; Note in Association v. Ryce, 104 Am. St. Rep., 210, and citations; Re Willbor, 20 R. I., 126, and note in 51 L. R. A., 863. 7. SAME. Same. Right of action for wrongful death of a boy perishing with his father in a common disaster survives to his mother, brothers, and sisters, where he left no widow or ' ^children, when. Where a boy perishes at the same time with his father in a common disaster caused by the defendant’s negligence, leaving no widow and children, but leaving his mother, brothers and sisters surviving him as his next of kin, the right of action for his wrongful death survives to his personal representative for them. (Post, pp. 728, 733.)