124 Tenn.

Volume 124 — Tennessee Reports

46 opinions

124 Tenn. 1State v. Nashville, Chattanooga & St. Louis Railway Co. (1910)
1. CORPORATIONS. Statute in terms applying to corporations, joint stock companies and associations applies to corporations only, and not to individuals or firms. The statute (Acts 1887, ch. 208), making it unlawful for any corporation, joint stock company, or association to discharge any employee, or to threaten to do so, for voting or not voting at any election, for or against any candidate or measure, or for trading or not trading with any particular person or class of persons, or to notify any employee, by general or special notice, directly or indirectly, secretly or. openly, not to' trade with any particular person or class of persons, under penalty of being discharged; and providing that any violation shall he a misdemeanor, and imposing a fine upon such offending corporation, joint stock company, or association, and further providing that any officer or agent of such corporation, joint stock company, or association who shall make or execute any notice, order, or threat so forbidden shall he guilty of a misdemeanor, and, on conviction, shall he punished' hy both fine and imprisonment, includes and applies to corporations only, and not to individuals or firms. The terms “joint stock company” and “association,” are used as synonymous with the word “corporation,” and are surplusage. There are no such corporate bodies as a joint stock company or association known to the laws of this -State. (Post, pp. 5-9.) Acts cited and construed: Acts 1887, ch. 208. 2. CONSTITUTIONAL LAW. Statute forbidding corporations to do things that individuals and firms may do Is unconstitutional as arbitrary and vicious class legislation, when. The statute whose provisions are stated in the preceding headnote is unconstitutional because it is arbitrary and vicious class legislation under the State constitution (art. 1, sec. 8, and art. 11, sec. 8), in that it prohibits corporations and their agents from doing certain things under severe penalties, which does not apply to firms or individuals doing the same thing. (Post, pp. 7-13.) Acts cited and construed: Acts 1887, ch. 208. Constitution cited and construed: Art. 1, sec. 8; art. 11, sec. 8. Cases cited and approved: Stratton v. Morris, 89 Tenn., 534; Soon Hing v. Crowley, 113 U. S., 709; Railroad v. Ellis, 165 IT. S., 155; Connolly v. Union Sewer Pipe Co., 184 U. S., 540. 3. SAME. Same. Such statute is also unconstitutional, as denying corporations the equal protection of the laws. Tho statute mentioned in the preceding headnotes is also unconstitutional, because it denies corporations the equal protection of tlie laws, in violation of tlie fourteenth amendment to the federal constitution. (Post, pp. 7-15.) Constitution cited and construed: XT. S. Const., 14th am. Case cited and approved: Connolly v. Union Sewer Pipe Co., 184 U. S., 540. 4. SAME. Classification in legislation must not be mere arbitrary selection, and must be natural and reasonable. The general assembly may enact laws containing reasonable and proper classification of the objects of the legislation, but the classification must not be a mere arbitrary selection. It must have some basis which bears a. natural and reasonable relation to the object sought to he accomplished,, and there must be some good and valid reason why the particular individual or class upon whom the benefit is conferred, or who are subject to the burden imposed, not given to or imposed upon others,. should be so preferred or discriminated against. (Post, pp. 9, 10.) 5. SAME. Same. Propriety and necessity of classification in legislation must be disclosed by what. There must be reasonable and substantial differences in the situation and circumstances of the persons placed in different classes which disclose the propriety and necessity of the classification. (Post, p. 10.) 6. SAME. Classification in legislation that is a denial of the equal protection of the law to one class and the grant of an immunity to another class. If legislation arbitrarily confers upon one class benefits, from which others in a like situation are excluded, it is a grant of a special right, privilege, or immunity, prohibited by the constitution, and a denial of the equal protection of the laws to those not included; and if the legislation, without good reason and just basis, imposes a burden .upon one class which is not imposed upon others in like circumstances or engaged in the same business, it is a denial of the equal protection of the laws to those subject to the burden and a grant of an immunity to those not subject to it. (Post, p. 10.) Cases cited and approved: See citations under headnote 2. 7. SAME. Same. Classification of corporations and individuals as employers that is valid, or that is invalid as a denial of the equal protection of the laws, when. Where the classification of corporations or of employers is natural and reasonable, and based upon some distinctive difference in the business of the several classes, a difference peculiar to and inhering in its very nature, it is valid; hut legislation that affects certain acts of corporations, and does not affect similar acts by individuals and firms, as where the application of' the statute is made to depend solely upon the fact whether the employer is a natural or artificial person, between which, within the constitutional provisions invoked there is no distinction, is class legislation, and denies to corporations the equal protection of the laws. (Post, pp. 13-15.) . Cases cited and approved: Railroad v. Ellis, 165 U. S., 155, 157; Tullís v. Railroad, 175 U. S., 348; Ballard v. Oil Co., 81 Miss., 507; Smith v. Railroad, 75 Ala., 449; Quarries Co. v. Bough, 168 Ind., 671; Johnson v. Mining Co., 127 Cal., 4; Slocum V. Irrigation Co., 122 Cal., 555.
124 Tenn. 16Louisville & Nashville Railroad v. Ray (1910)
1. CIRCUIT COURT PRACTICE. Judgment is entered on the verdict when it is recorded. The judgment on the verdict in the circuit court is entered by the clerk as a matter of course when he records the verdict. (Post, pp. 26, 29.) Code cited and construed: Sec. 5892, subsec. 3 (S.); sec. 4854, subsec. 3 (M. & V.); sec. 4077, subsec. 3 (T. & S. and 1858). Acts cited and construed: Acts 1805, ch. 45, sec. 2. 2. NEW TRIALS. Motion for new trial made within thirty days after entry of verdict and judgment suspends judgment as. nonexistent for that purpose. Where a judgment is entered on the verdict as a matter of course at the time of recording the verdict, as required by statute, leaving no time between the entry of the verdict and the entry of the judgment thereon, within which time the motion for a new trial can be made, the judgment is only quasi final until after tjie expiration of the thirty days from such entry, and if a motion for new trial is made within the thirty days, the judgment for the purposes of the motion and appeal is treated as nonexistent. (Post, pp. 27, 28, 29.) Code cited and construed: Sec. 5892, subsec. 3 (S.); sec. 4854, subsec. 3 (M. & V.); sec. 4077; subsec. 3 (T. & S.). and 1858). Acts cited and construed: Acts 1805, ch. .45, sec. 2; Acts 1885, ch. 85. 3. SAME. Same. Disposition of motion for new trial may be carried over into the time fixed by law for the next term. The motion for a new trial is a part of the trial itself, and under the statute (Acts 1899, ch. 40) relating to the disposition of suits pending at or near the expiration of the term of court, its disposition may be carried over into the time allowed by law for the next term of the court. (.Post, p. 27.) Acts cited and construed: Acts 1899, eh. 40. Cases cited and approved: Railroad v. Simmons, 107 Tenn., 392, 396; Ray v. State, 108 Tenn., 282, 298-301; Rhinehart v. State, 122 Tenn., 698. 4. SAME. Motion for new trial must be made to review matters required to be in bill of exceptions. A motion for a new trial must be made in all cases where it is desired to review any matters proper to be recorded in a bill of exceptions. (Post, pp. 27; 28.) Cases cited and approved: Railroad v. Johnson, 114 Tenn., 632; Seymour v. Railroad, 117 Tenn., 98. 5. SAME. Same. Motion for new trial must be acted on by trial court before supreme court will consider it. The motion for a new trial must be considered by the trial court before it can be considered by the supreme court (Telephone & Telegraph Co. v. Smithwick, 112 Tenn., 463, 470), because the action of the trial court thereon is an indispensable prerequisite to the action of the supreme court in the review of matters proper to go into a bill of exceptions as indicated in the preceding headnote, and for the purpose of enabling the supreme court to say whether the trial court acted correctly in refusing a new trial, or under Acts 1875, ch. 106 (Railroad v. Conley, 10 Lea, 531; Morgan v. Bank, 13 Lea, 241; Baugh v. Railroad, 98 Tenn., 120; Jenkins v. Hankins, 98 Tenn., 548) granting a new trial. (Post, p. 28.) Acts cited and construed: Acts 1875, ch. 106. Cases cited and approved in the body of the headnote not restated here. ' ' ‘ ' '• 6. SAME. Appeal is prosecuted from judgment on verdict after motion for new trial is overruled, and not from the- order on tlie motion; extent of review. An appeal can only be prosecuted from a judgment on a verdict, when a new trial is refused by the trial court; and, for such purposes of appeal, tlie judgment, although previously entered, really is effective as of the date of the order of the court overruling the motion for a new trial. The appeal is prosecuted from the judgment, and not from the order of the trial court overruling the motion for the new trial, and brings up for review all the points made in the motion for the new trial, and duly assigned for error in the appellate court. (Post, p. 28.) 7. SAME. Motion for new trial made within thirty days after .judgment may be disposed of after the expiration of the thirty days, and appeal lies within the thirty days thereafter; case in judgment. Where a motion for a new trial is made or filed within the thirty days from the rendition of the judgment, it may he disposed of after the expiration of such thirty days; as, where the judgment was entered on the verdict June 3d, 1910; the motion for the new trial was made or filed June 29th; called up by the court for hearing July 5th, 1910, and continued until the 6th, on which latter day it was argued and held under advisement until July 9th, 1910, when it was overruled, the court had jurisdiction to dispose of the motion, and an appeal might be prayed, perfected, and prosecuted from the judgment originally entered, within the thirty days from the over-rulement of the motion for a new trial. (Post, pp, 22-27.) Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. & V.). Acts cited and construed: Acts 1871, ch. 59; Acts 1885, ch. 65. 8. SAME. Same. After overruiement of motion for new trial, thirty days additional may be allowed to giye bond and perfect appeal. Where the motion for á new trial, made or filed within the thirty days after the eptry of the judgment, but disposed of after that time, is overruled, the court may allow the appellant thirty days additional in which to give bond and perfect the appeal. (Post, pp. 22, 23, 24, 27.) Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. & V.). Acts cited and construed: Acts 1871,. ch. 59; Acts 1885, ch. 65. 9. APPEALS. Statutes regulating the time for appealing and making appeal bond or taking the pauper’s oath construed. Tile object and purpose of Acts 1871, ch. 59, was to confer upon the circuit courts the power to grant time for the execution of appeal bonds, a power previously exercised by the chancery courts, so as to make the rule uniform in both circuit and chancery courts, hut inasmuch as this act was construed to mean that the time granted for the execution of the bond should be computed from the day of the adjournment of the court, and not from the time, when it was granted, Acts 1885, ch. 65, limiting the time for appealing to thirty days during the term, and allowing the court to extend the time to give the appeal bond or to take the pauper’s oath, not exceeding thirty days additional, was passed to meet such hardship against the judgment holder and was intended to take the place of the previous act. (Post, pp. 28, 24.) Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. & V.). Acts cited and construed: Acts 1871, ch. 59; Acts 1885, ch. 65. Cases cited and approved: McPhartridge v. Gregg, 4 Cold., 324, 326; Andrews v. Page, 2 Heisk., 634, 638; Ricks, ex-parte, 7 Heisk., 364; Jackson v. McDonald, 2 Shannon’s Cases, 556; Adamson v. Hurt, 3 Shannon’s Cases, 424; Davis v. Wilson, 85 Tenn., 383. 10. SAME. Same. Limitation of time for appealing by setting aside the judgment and entering a new judgment. The statute limiting the time for appealing to thirty days cannot he evaded on the theory that the judgment is within the breast of the judge during the term, and that he can set it aside after the expiration of the thirty days, and enter a new judgment from which the appeal can be prosecuted. (Post, pp. 25, 26.) Code cited and construed: Sec. 4898 (S.); sec. 3883 (M. & V.). Acts cited and construed: Acts 1871, eh. 59; Acts 1885, ch. 65. Cases cited and approved: Railroad v. Johnson, 16 Lea, 387; Ellis v. Ellis, 92 Tenn., 471. 11. NEGLIGENCE. Doctrine of turntable cases is not applicable . where the person injured by car moving was not attracted there by the cars, but by the unloading of a boat. Where the plaintiff, a boy about twelve years of age, in company With another boy of about the same age, observing a-boat. unloading its freight at a wharf into box cars of the défendant, to which wharf there was no land approach except across lots or along defendant’s spur track, crossed the lots to the wharf, and, after a refusal of permission to stay aboard the boat, climbed upon defendant’s box cars, standing close to the wharf on the spur track and properly secured by brakes and chocks, to watch the unloading of the boat into the cars, a.nd while in this position heard a noise as if the cars were about to move, and, in jumping to the ground, broke his leg, it was held in an action against the defendant railroad company for this injury, that the doctrine of the turntable cases had no application,. since the plaintiff was not attracted to the place by the cars, but by the unloading of the boat. (Post, pp. 22, 23, 29-38.) 12. SAME. Same. Turntable and attractive nuisance theories do not apply to cars left on commercial railroad to be loaded, when. The theory of the turntable cases, or the attractive nuisance theory, while recognized by the court, does not apply to cars left standing by a commercial railway upon its spur track to be loaded in the ordinary course of business, especially where they are left in charge of a'shipper engaged in loading, and in whose care they are for the time being. (Post, pp. 34, 35.) Cases cited and approved: Bates v. Railroad, 90 Tenn., 36; Cooper v. Overton, 102 Tenn., 211, 237; Stone Co. v. Pugh, 115 Tenn., 688; Barney v. Railroad, 126 Mo., 372; Chicago v. McLaughlin, 47 Ill., 265; Railroad v. Jenks, 54 Ill. App.,. 91; Railroad v. Henigh, 23 Kan., 347. Cases cited, approved, and distinguished. Whirley v. White-man, 1 Head, 610; Railroad v. Cargille, 105 Tenn., 628; Burke v. Ellis, 105 Tenn., 702. 13. SAME. Special instructions in cases involving turntable and attractive nuisance theories. In an action for negligence based upon the theory of the turntable cases, or attractive nuisance theory, the trial judge should give special instructions, as a matter of law, that the facts stated, if true, constitute the degree of negligence, or not, as.the ease may be, which would render the defendant liable or not liable in damages, as the case may be. (Post, pp. 36-38.) Cases cited and approved: Whirley v. Whiteman, 1 Head, 624; Bates v. Railroad, 90 Tenn., 36; Cooper v. Overton, 102 Tenn., 211; Railroad v. Cargille, 105 Tenn., 628; Burke v. Ellis, 105 Tenn., 702; Stone .Co. v. Pugh, 115 Tenn., 688. 14. SAME. Peremptory instructions erroneously refused by the trial judge may be allowed by court of civil appeals, and the action dismissed. Where the trial judge erroneously refuses to give peremptory instructions for the return of a verdict for the defendant, there is no error in the judgment of the court of civil appeals granting the peremptory instruction, and dismissing the action. (Post, pp. 23, 29, 38.) Cases cited and approved: Bates v. Railroad, 90 Tenn., 36; Cooper v. Overton, 102 Tenn., 211; Stone Co. v. Pugh, 115 Tenn., 688. 15. EVIDENCE. Positive evidence is not affected by negative evidence of those whose attention was not called to the matter, Where there is positive evidence that cars were properly secured by brakes and chocks, it is immaterial that others did not so see the same, where it does not appear that their attention was called to the matter. (Post, p. 32.)
124 Tenn. 39Board of Education v. Baker (1910)
1. DEEDS OF CONVEYANCE. Abandonment is not proved under condition for reversion for abandonment of the lot for school and church purposes, when. Where a lot of ground was conveyed to the school directors of a certain public school district and their successors in office for a site for a schoolhouse and church with a reservation that the title should revert to the grantor in case the use of the lot for such purpose was abandoned, proof that the , ■ building erected thereon had been neglected to such an extent that it was in bad repair and in a very dilapidated condition, and that sometime prior to the filing of the bill, the public school was not taught in the building, because of the erection of a more commodious building in another place, but that its use was continued for church purposes, and no abandonment by the public was shown, is insufficient to show an abandonment in the sense of the provision of the deed. (Post, -pp. 45, 46.) 2. SAME. Contingent right of re-entry is not a grantable right; what interest is grantable. The contingent right of re-entry on account of the abandonment of the house and lot under a condition in the deed providing that the title should revert if the property was abandoned for the purposes of school and church is not a grantable interest in the property; for an interest in land, in order to be the subject of a valid grant, must exist in possession, reversion, or remainder, or by executory devise or contingent remainder, and be something more than a bare possibility of an interest, which is uncertain. (Post, pp. 46-48.) 3. SAME. For breach of conditions in law, grantor, his heir, or assignee may enter; but for breach of conditions in deed, grantor or his heir only, and not his assignee, can enter. ■Where there is a breach of the conditions in law, the grantor, his heir, or assignee, may avail' himself of the right to enter; but a breach of conditions in deed entitles the grantor and his heirs only, and not strangers taking by assignment or deed, to enter and defeat the estate of the grantee. {Post, p. 48.) 4. SAME. Entry is the only mode of taking advantage of a breach of a condition in a deed to defeat or forfeit the estate granted. The only mode of taking advantage of a breach of a condition in deed, which has the effect to defeat an estate, or to work a forfeiture thereof, is by entry, which reduces the granted estate to the same condition and causes it to be held upon the same terms as if the estate to which the condition is an-’ nexed had not been granted. {Post, p. 48.) 6. SAME. Reversion for breach of conditions in deed must be made effective by re-entry of grantor or his heir, and is waived by grantor’s subsequent conveyance, though he had no grant-able interest. Where the grantor conveys a lot of ground to the school directors of a certain public school district and their successors in office, to be used for a schoolhouse and church only, by a deed providing that whenever the lot was abandoned for such purposes, the title should revert to the grantor, the condition for reversion upon abandonment of the particular use was a condition in deed, available to the grantor and his heirs only, and the right of entry for breach thereof, was waived by the grantor’s subsequent conveyance of the land to a third person, though the grantor’s right of reversion was not an estate which could be the subject of a conveyance, so that such subsequent grantee acquired nothing by his deed. {Post, pp. 44, 47-49.) Cases cited and approved: Rice v. Railroad, 12 Allen (Mass.), 141. 6. CHANCERY PLEADING AND PRACTICE. After district schoolhouse and lot is transferred by legislative .act to city, its governing authority may become complainant to pending ejectment suit, when. Where a lot of ground was conveyed to the school directors of a certain public school district and their successors in office for a site for a schoolhouse and church, and the county board of education filed a bill in ejectment to recover the lot from one alleged to be in wrongful possession and to remove, as clouds upon complainants’ title, the deeds under which the defendant was claiming title, and pending the suit the State legislature passed an act amending the charter of the municipal corporation in which said lot was situate, so as to establish for said town a school system under the control of its board of mayor and aldermen, and transferred all school property within its corporate limits, including the lot in question, to the municipality, after which the said board of mayor and aldermen filed a petition in the case to be permitted to be made complainants, with the right to prosecute the suit in their name, and this was done. {Post, pp. 44, 45.)
124 Tenn. 50Sadler v. State (1910)
1. CRIMINAL LAW. Unnecessary presence of grand jury officer Is reprehensible, but his casual presence when- witnesses aré examined will not vitiate indictment or presentment. The policy of the statute (Shannon's Code, sec. 7041), prohibiting the presence of any officer or person with the grand jury, “when the question is taken upon the finding of an indictment,” requires secrecy in the investigations and proceedings of the grand jury, and their sessions are not open to the public; and while it is improper and highly reprehensible for a court officer unnecessarily to enter or remain in the grand jury room, and, for such conduct, he should be rebuked and punished by the presiding judge, yet his casual presence during the examination of witnesses will not vitiate or invalidate the indictment or presentment, unless it is shown that he attempted to interfere with or influence the grand jury in its action. (Post, pp. 52-54.) Code cited and approved: Sec. 7041 (S.); sec. 5907 (M. & V.); sec. 5082 (T. & S. and 1858). Cases cited and approved: State v. Kimball, 29 Iowa, 267; Richardson v. Commonwealth, 76 Ya., 1007; State v. Bacon, 77 Miss., 366. 2. SAME. Plea1 in abatement to Indictment or presentment upon repugnant grounds Is bad, if point is made. Where the plea in abatement to a presentment is based upon two grounds, the first of which is that the grand jury officer was in the grand jury room during the examination of witnesses upon whose testimony it is supposed the presentment was found, and the second of which is that the presentment purported to have been returned upon the testimony of witnesses, when as a matter of fact no -witnesses were heard, these two grounds are repugnant to each other, and such plea is had, if the point is made in the trial court. (Post, pp 62, 54.) ■3. SAMÉ. Same. Repugnant grounds of plea in abatement to indictment or presentment not pointed out or acted on in trial court may be considered in supreme court. Where no point was made or action taken in the trial court on a plea in abatement to a presentment or indictment for repugnancy between the two grounds relied on, both grounds may be considered fully in the supreme court. (Post, pp. 54, 55.) 4. SAME. Presentments may be returned upon personal knowledge of grand jurors or upon testimony of witnesses. A presentment may be returned either upon the personal knowledge of the grand jurors, or upon testimony of witnesses heard by them. (Post, p. 55.) 5. SAME. Presentment does not show that it was found upon testimony of witnesses, because of indorsed designation of witness to be summoned for State. A presentment does not show that it was found upon the testimony of witnesses examined before the grand jury, because there was indorsed thereon, after the style of the case and the designation of the offense, these words: “Summon witnesses for the State: Jno. W. Hunter,” etc., followed by the signatures of the attorney-general and the foreman and members of the grand jury. (Post, pp. 55, 56.) Code cited and construed: Secs. 7052, 7054 (S.); secs. 5918, 5920 (M. & V.); see. 5092 (T. & S; and 1858). Case cited and approved: State v. Lewis, 87 Tenn., 119, 121.
124 Tenn. 57American Lead Pencil Co. v. Nashville, Chattanooga & St. Louis Railway (1910)
1. CONTRACTS. Express or implied, written or oral; meeting of mjnds of parties; mutual, definite; free from fraud or undue influence; not against public policy. While a contract may be either express or implied, or written or oral, yet it must be created by act of the parties, and must result from a meeting of their minds in mutual assent to its terms, and it must be based upon a sufficient consideration; and it must be mutual, free from fraud or undue influence, and not against public polity, and sufficiently definite to be enforced. . (Post, p. 64.) 2. CUSTOM AND USAGE. Custom is a general rule or law arising from usage or repetition of acts; usage may exist without custom, but custom not without usage. Usage is a repetition of acts, and differs from custom in that usage is, a fact, while custom is the law or general rule which arises from such repetition; and while there may be usage without custom, yet there cannot be a custom without usage accompanying or preceding it. (Post, p. 64.) Case cited and approved: Cutter v. Waddingham, 22 Mo., 206-248. 3. SAME. Admissible to explain ambiguity, or as furnishing the rule where the contract is silent, but not to vary or contradict its terms. Where a contract is indistinct, ambiguous, or uncertain in its terms, evidence of the usage or custom on the particular point is admissible, like the general law, to explain the same, and as furnishing the rule where the contract is silent, but not to vary or contradict the written contract, either expressly or impliedly. (Post, pp. 64, 65.) Cases cited and approved: Bedford v. Flowers, 11 Humph., 242; Charles' v. Carter, 96 Tenn., 614. 4. SAME. Usage cannot make a contract, nor prevent the effect of settled rules of law. Usage and custom, in legal contemplation, differ radically in many respects from a contract, and the distinction between them is quite apparent; and usage cannot make a contract where there is no contract, nor prevent the effect of the settled rules of law. (Post, pp. 64, 65.) ■ Case cited and approved: Charles v. Carter, 96 Tenn., 614. 5. CHANCERY PLEADING AND PRACTICE. No relief upon proof of case not alleged in the pleadings; no relief upon proof of usage or custom not alleged, if no contract. It is a fundamental principle that the proof must correspond, with the allegations in the pleadings, and relief cannot he granted upon-proof of a case substantially different from the case made in the pleadings; and a hill seeking relief for the breach of a contract cannot be sustained upon proof of usage • ,or custom, and its breach, where there was no contract, express or implied. (Post, pp. 61, 62, 65-67, 68, 69.) Cases cited and approvéd: Foster v. Jackson, 8 Bax., 434; Railroad v. Collins, 85 Tenn., 227; Coal Co. v. Daniel, 100 Tenn., 65; Railroad v. Lindamood, 111 Tenn., 457. 6. SAME. Same. No relief where the bill is based upon, a contract, and the proof shows no contract, but a usage or custom of inferior employees not known to the principals. The complainant, in an action against a railroad company for the destruction of freight by fire while the car was standing on a siding near complainant’s warehouse, alleged that under the contract between complainant and defendant, whenever complainant applied for an empty car, defendant was bound to furnish it as soon as possible, and, upon receipt of notice that the car was loaded and ready .for shipment, it was hound forthwith to remove it from the switch, and promptly start the same toward its destination; but defendant failed promptly to remove the car in question from the siding, after receiving notice that it was loaded, but allowed several freight trains to pass while it was' standing on the siding, and left it standing there, and that this default on the part of the defendant was the proximate cause of the loss of the car by fire. The evidence did not show a contract between the parties whereby defendant was bound to move the car immediately upon notice, but merely a usage to that effect, adopted by the inferior employees of both parties for their mutual convenience, not known to either principal, or to any of their officers clothed with authority to make a contract. Upon these allegations and upon such proof, it was held that a bill which grounds the right to recover upon the breach of a contract cannot be sustained by proof of usage or custom, instead of a contract, so that proof of the usage was insufficient to support the allegations of the bill. (Post, pp. 61, 62, 65-70.) 7. COMMON CARRIERS. Liability does not commence while something remains to be done by the shipper, nor until the goods are ready for shipment. A common carrier’s risk begins on delivery and acceptance of the goods by it; and if something remains to be done by the shipper after the goods are put into the hands of the agent of the carrier, before they are to be transported, the carrier does not become liable as carrier until the goods are ready for shipment. (Post, pp. 67-69.) Cases cited and approved: Watson v. Railroad, & Heisk., 255; Stewart v. G-racy, 93 Tenn., 315; Wells v. Railroad, 51 N. C., 47; Basnight v. Railroad, 111 N. C., 592; O’Neill v. Railroad, 60 N. Y., 138. 8. SAME. Same. Carrier’s liability does not begin before bill of lading is signed, where it has not taken possession of the goods, when. Where a car was loaded and standing át the shipper’s warehouse on a siding constructed for its convenience, hut the shipper had not, according to its practice, made out a triplicate bill of lading and presented it to the carrier’s agent to ■ be Signed, though ample time had elapsed after the car was loaded and before the fire for the shipper to do so, there was nó constructive delivery of the car to the carrier, so as to mate it liable for the goods upon their destruction by fire. (Post, pp. 69-71.) 9. SAME. Not liable for goods burned in the oar by negligence of shipper’s employee before taken possession by the carrier. Where a car loaded with freight was, when burned, standing on a siding near the shipper’s warehouse, and the fire was started by a coal, oil stove in the office of the shipper’s warehouse being turned over by one of the shipper’s employees, firing the warehouse, from which the flames spread to the car and destroyed its contents, the act of the shipper’s employee, chargeable to the shipper, in starting the fire, was the proximate cause of the loss of the goods, which were still in the possession of the shipper, and not' in the possession of the carrier; and, therefore, the carrier is not liable for the loss of the goods. (Post, pp. 71-73.) Cases cited and approved: Lamont v. Railroad, 9 Heisk., 59, 60; State v. Ward, 9 Heisk., 105; Saunders v. Railroad, 99 Tenn., 135; Barr v. Railroad, 105 Tenn., 547; Railroad v. Norman, 108 Tenn., 331; Railroad v. Wilson, 108 Tenn., 618; Railroad v. Haynes, 112 Tenn., 712; Railroad v. Kellogg, 94 U. S., 469; Insurance Co. v. Boon, 95 U. S., 130; Mill Co. v. Standard Oil' Co., 63 Fed., 400, 11 C. C. A., 253; Edgar v.'Railroad, 32 Utah, 330. 10. SAME. Same. Carrier is Hot liable for loss caused by shipper’s act. Even in cases where the relationship of common carrier exists, the common carrier is not liable for a loss caused by the shipper’s act, whether that act he one of negligence, misadventure, or misfortune. (Post, pp. 71, 73.) Cases cited and approved: Railroad v. Law, 68 Arle, 218; Hart v. Railroad, 69 Iowa, 485; Coweta Co. v. Railroad, 4 Ga. App., 94.
124 Tenn. 74Leech v. State (1910)
1. CRIMINAL LAW. Where the accused pleads guilty before a justice, the justice must proceed under the small offense law, when applicable, though the grand jury is in session. Under the statute (Acts 1899, ch. 16) providing that whenever any person brought, while the grand jury is in session, before a justice of the peace, upon a warrant for any criminal offense or misdemeanor, pleads guilty, the accused shall he dealt with under the small offense law, where that law is applicable, a justice before whom one charged - with gaming is brought must, if the accused pleads guilty, proceed under the small offense law, though the grand ■ jury is in session, and it is error to bind him over to the criminal court. Acts cited and construed: Acts 1899, ch. 16. 2. SAME. Same. Plea in bar containing same facts as overruled plea in abatement amounts to a plea of guilty upon the facts, when* Where the accused pleads in abatement to a presentment for a misdemeanor falling under the small offense law, as gaming, by a sufficient plea showing that he pleaded guilty before the justice of the peace, and a demurrer thereto is sustained, and the accused thereupon files another plea as a plea in bar containing the same facts, the latter plea amounts to a plea of guilty upon the facts. (Post, pp. 77, 78.) 3. SAME. Same. Same. Remandent for issue on plea in abatement, and if sustained, case to be remanded to the justice to proceed under small offense law, when. Where the accused files a sufficient plea in abatement to a presentment for a misdemeanor falling under the small offense law, showing that he properly pleaded guilty before the justice of the peace, and that the justice improperly and erroneously hound him over to the criminal court, and the criminal court erroneously sustained a demurrer to such plea in abatement, the supreme court, upon reversing the case, will remand the cause to the criminal court to the end that an issue may be made upon the plea in abatement; and directing the criminal judge, in case the issue is found in favor of the accused, to remand the cause and direct the return af the papers to the justice of the peace, with directions to proceed against the accused under the small offense law. (Post, p. 80.)
124 Tenn. 81Jordan v. State (1910)
1. CRIMINAL LAW. Appeal does not lie from judgment upon plea of present insanity adverse to the defendant in a homicide. The judgment upon the plea of present insanity adverse to the defendant in a homicide case is not a final judgment from which the defendant may appeal, because it is upon a collateral issue, and not final. (Post, pp. 84, 88.) 2. SAME. Accused cannot be put upon his trial, while insane. One charged with crime cannot he required to plead to the indictment, and he put upon his trial, sentenced, or punished while insane. (Post, pp. 87, 90.) 3. SAME. Accused cannot escape trial upon ground of present insanity, if he can defend rationally. The accused cannot escape trial upon the ground of present insanity, unless it is such that he cannot conduct his defense rationally. (Post, pp. 87, 88.) 4. SAME. Same. Trial of issue of present insanity involves what. The question presented upon the trial of the issue of present insanity is not the guilt or innocence of the accused, but whether his mental condition is such that he can conduct his defense rationally; and the issue is purely a collateral one. (Post, p. 88.) 5. SAME. Same. Same. Sanity may be proved by a preponderance upon issue of present insanity, and is not required to be proved beyond a reasonable doubt. • • The rule that the defendant, the presumption of sanity being overthrown, must be proved to be sane beyond a reasonable doubt, is applicable in criminal trials upon the direct issue of the guilt or innocence of the defendant, and not to the determination of preliminary matters and collateral issues, such as the issue of present insanity; for in the latter case, sanity may he proved hy a preponderance of evidence. (Post, pp. 86-89, 91.) Cases cited and approved: Dove v. State, 3 Heist., 349; Stuart v. State, 1 Bax., 181; King v. State, 91 Tenn., 648. 6. SAME. Same. Same. Same. Practice is not prescribed by statutes; sanity proved by preponderance, and not beyond reasonable doubt. The statute (Code of 1858, Sec. 1554, and Acts 1871, ch. 138, sec. 7), providing that, on a plea of present insanity, the court shall charge the jury that, if from the evidence they believe the defendant to be insane and dangerous to be at large, they shall so find, does not fix the practice in such cases, because these provisions are found in chapters of the Code and Acts relating to the government of hospitals for the insane, and the particular provisions mentioned are intended to provide for the admission of parties charged with crime who cannot be tried because of their insanity, though the language indicates that the trial is to be by jury, and that only a preponderance of evidence is necessary to determine the issue. (Post, pp. 89-91.) Code cited and construed: Sec. 1554 (T. & S. and 1858). See sec. 2631 (S.); sec 2065 (M. & V.). Acts cited and construed: Acts 1871, ch. 138, sec. 7. 7. SAME. Plea of present insanity to be sworn to by friend of defendant, and filed, when. The proper practice in submitting a plea of present insanity is to have it verified by the oath of a friend of the defendant, " and filed before the trial upon the indictment. (Post, p. 91.) Case cited and approved: Green v. State, 88 Tenn., 634. 8. SAME. Plea of present insanity to be submitted to a special jury, when. Where, on a plea of present insanity, there is any possible doubt upon the question of sanity, the issue should be submitted to a jury in the trial court, specially impaneled to try it. (Post, p. 91.) Case cited and approved: Firby v. State, 3 Bax., 358. Case cited and distinguished: Bonds v. State, M. & Y., 143. 9. SAME. Present insanity of accused may be investigated and determined by the supreme court, without a jury, when. Where it appears to the supreme court that the accused is probably insane and should not have been tried, or that judgment against him should not be executed, that court will investigate and determine the question of insanity without á jury, and make such order as the dictates of humanity and the law require in the postponement of trial or judgment. (Post, p. 91.) Cases cited and approved: Bonds v. State, M. & Y., 143; Green ■ v. State, 88 Tenn., 635.
124 Tenn. 93Hagan v. Nashville Trust Co. (1910)
1. DAMAGES. Lost profits are recoverable for breach of contract, unless speculative, remote, or not contemplated. Profits lost by the wrongful breach of the contract upon the part of the defendant will he allowed in ascertaining the damages for such breach, unless they are speculative, remote, or not contemplated by the contract. (Post, pp. 98-103.) Cases cited and approved: Chisholm v. .Canopy Co., Ill Tenn., 202; Howard v. Manufacturing Co., 139 U. S., 199. 2. BROKERS. Same. Commission contract fixing rate for all sales made within a certain period, when breached, entitles the agent to such commissions on sales made within that time, though made by others, when. Under a contract allowing a real estate broker a fixed rate of commission on all sales of land made with five years, construed to embrace all sales made within that time whether made by him or not, which commissions were to compensate him for other valuable services not requiring his whole time or any certain part of it, the broker is, upon the wrongful breach of the contract by the other party, entitled to commission on all sales made within that period, though they were effected by the combined efforts of nearly all the real estate agents in the city of Nashville, especially where such broker was ready at all times to go forward with his part of the contract and to fulfill the obligations imposed upon him thereby; for such, damages are not speculative or remote, and were contemplated by the contract (Post, pp. 95, 96, 99-103.) Cases cited and approved: ' Chisholm v. Canopy Co., Ill Tenn., 202, 230. 3. DAMAGES. Speculative at time of suing, but becoming ascertainable and fixed before the trial, are recoverable for wrongful breach of contract. Where the profits were speculative damages at the time of the filing of the bill, but became ascertainable and fixed before the trial by the expiration of the time fixed for the performance of the contract, such profits are recoverable for the wrongful breach of the contract by the other party. (Post, pp. 97, 100, 101, 103.) 4. BROKERS. Real estate agent is not entitled to commissions on improvements erected on land sold by the owner, where not contemplated in the contract, when. A real estate broker, employed at a fixed rate of commission, to sell lands and houses for a fixed term, is not entitled, upon a wrongful breach of the contract by the landowner, to recover commissions upon the value of the improvements erected upon the land sold by the owner because such damages were not within the contemplation of the parties when the contract was made. (Post, pp. 95, 96, 104.)
124 Tenn. 105Chapple v. State (1910)
FROM MAURY. Appeal in error from the Circuit Court of Maury County. — Sam Holding,, Judge.
124 Tenn. 119State ex rel. Standard Trust Co. v. Folk (1910)
1. BUILDING AND LOAN ASSOCIATIONS. Mutuality is their distinguishing characteristic and the essential law of their existence as defined by statutes and decisions. Building and loan associations, as created and defined by statute and as defined by judicial decisions, are mutual, and mutuality is tbeir distinguishing characteristic and the essential law of their existence; and the term “building and loan associations,” used in the title or caption of a legislative act, will be given the legal significance that attached to such term under the law at the time it was so used, and the term includes associations doing a building and loan business based upon the principle of mutuality between the association and its members, and in which membership is obtained through the ownership of its shares of stock, with equal privileges and opportunities of obtaining loans of its funds granted to every shareholder upon reasonable terms prescribed for the regulation of all members. (Post, pp. 121, 123-125.) Cases cited and approved: McCauley v. Association, 97 Tenn., 421; Province v. Association, 104 Tenn., 458; Setliff v. Asso-citation, 39 S. 'W., 546. 2. CONSTITUTIONAL LAW. New subj’ect of legislation In amendatory act not included in title of amended act, whose title is not enlarged in amendatory act, is unconstitutional. The first section of Acts 1897, ch. 126, undertaking to amend Acts 1895, ch. 114, sec 2, by providing that the business of building and loan associations “need not necessarily be mutual,” is unconstitutional because it introduces into the original act a new subject of legislation, not within the purview of its title, which provided "for the examination and supervision of building and loan associations,” and which is not enlarged in the title of the amendatory act, in violation of the constitutional provision (art. 2, sec. 17) requiring the subject of legislation to be expressed in the title. (Post, pp. 122-126.) Acts cited and construed: Acts 1896, ch. 114, sec. 2; Acts 1897, ch. 126, sec. 1. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Hyman v. State, 87 Tenn., 109; Railroad v. Byrne, 119 Tenn., 286. 3. INJUNCTION. Not granted against State treasurer, because It is assumed that the department of government represented by his office will observe the law when it is ascertained. Where, in a suit by a corporation against the State treasurer, it is determined that a certain statute, under the provisions of which the treasurer claimed the power to exercise jurisdiction over its business, and forbade it to do business in this State until it came within and submitted to the jurisdiction of the office of the such treasurer, is invalid, an injunction will not be granted restraining the treasurer from interfering with the ’ business of the corporation, as it will be assumed by the court that the department of government represented by such officer 'Will observe the law when it is ascertained. (Post, p. 126.)
124 Tenn. 127State ex rel. Davidson County Board of Education v. Pollard (1910)
1. PUBLIC SCHOOLS. County court cannot legally appropriate • general county funds for construction and repair of public school buildings. The county court has no power to make an appropriation cut of the general county funds for special county purposes, and 'cannot legally appropriate any part of the fund for general county purposes to the special purpose of maintaining the public schools, in the erection of school buildings and the repair and improvement of existing “buildings; for, while the maintenance of public schools in the county is a county purpose, it is not, under our statutes, a general county purpose hut a special county purpose. (Post, pp. 129-137.) Code cited and construed: Secs. 1395, 6045, subsec. 11 (S.); . secs. 1167, 4987, subsec. 11 (M. & V.); sec. 4215, subsec. 12 (T. & S. and 1858). Acts cited and construed: Acts 1809, ch. 81; Acts 1907, ch. 236, sec. 8, subsec. 1, sec. 10, subsec. 2; ch. ‘447; ch. 537; Acts 1909, ch. 264', sec. 2; ch. 479, secs. 1 and 2. Cases cited and approved: Kennedy v. Montgomery Co., 98 Tenn., 179; Railroad v. Hamblen Co., 115 Tenn., 526; State v. True, 116 Tenn., 294. 2. SAME. Mandamus will not lie to compel county judge to issue county warrant for school purposes to be paid out of general . county funds attempted to be appropriated by quarterly county court for school purposes. The county judge cannot be compelled by mandamus to issue a county warrant for the payment of indebtedness contracted for the erection and repair of public school buildings, to be paid out of tie general county funds attempted to be appropriated by tbe quarterly county court for that purpose. (Post, p. 129-137.) See citations under the preceding headnote. 3. SAME. Statute authorizing appropriations for erection and repair of courthouses, jails, and “other county buildings” does not include public schoolhouses; rule of construction. The statute (Shannon’s Code, sec. 6045, subsec.' 11) empowering the quarterly county court to appropriate money for building, repairing, and taking care of courthouses, jails, and other county buildings, does not include schoolhouses and buildings used for school purposes; for the words “other county buildings,” as so used, under the rule of e-jusdem generis, mean county buildings of the same nature and kind as courthouses and jails. (Post, pp. 130, 138-139.) Code cited and construed: Sec. 6045, subsec. 11 (S.); sec. 4987, subsec. 11 (M. & V.); sec. 4215, subsec. 12 (T. & S. and 1858).. Acts cited and construed: Acts 1809, eh. 81.
124 Tenn. 139American Surety Co. of New York v. Folk (1910)
INSURANCE. Fidelity, guaranty, and surety companies are insurance companies in sense of statute imposing privilege taxes upon insurance companies. Under the statute (Acts 1895, ch. 160, sec. 2, and Acts 1899, ch. 31) defining “a contract of insurance” to he “an agreement by •which one party, for a consideration, promises to pay money or its equivalent, or to do some act of value to the assured, upon the destruction or injury, loss or damage, of something in which the other has an insurable interest,” a fidelity, surety, and guaranty corporation is an “insurance company” within the meaning of the statute (Acts 1907, ch. 541, sec. 6) imposing a privilege tax upon insurance corporations or companies; and the fact that the general incorporation statute (Acts 1875, ch. 142) makes provision for fire, life, and marine insurance corporations, and that Acts 1895, ch. 113, provides for the incorporation of guaranty and surety companies, and Acts 1895, ch. 175, authorizes guaranty and surety companies to become surety on judicial and official bonds, does not make guaranty and surety companies a distinct class, though the general “Tennessee insurance act” (Acts 1895, ch. 160) was enacted prior to the enactment of Acts 1895, ch. 175. Acts cited and construed: Acts 1875, ch. 142; Acts 1895, ch. 160, sec. 2; Acts 1895, chs. 113 and 175; Acts 1907, eh. 541, sec. 6. Cases cited and approved: Bank v. Fidelity & Guaranty Co., 110 Tenn., 10, 19, 20; People v. Rose, 174 Ill., 310; Shakman v. U. S. Credit System Co., 92 Wis., 366; In re Hogan, 8 N. D„ 301; Chaflin v. U. S. Credit System Co., 165 Mass., 601; Guarantee Co. v. Mechanics’ Trust Co., 80 Fed., 772.
124 Tenn. 146Key v. Norrod (1910)
1. ARBITRATION AND AWARD. Revocation of agreement, at common law, before award. An agreement to arbitrate, unless made a rule of court, is, under the common law, revocable at any time before the award is made. (Post, pp. 148, 149.) 2. SAME. Same. Common law right of revocation of agreement has not been abrogated or altered by statute. The common law right of revocation of the agreement to arbitrate, when not made a rule of court, and when exercised before the award is made, has not been abrogated or altered by statute in this State. (Post, pp. 149-153.) Code cited and construed: Secs. 5188-5195 (S.); secs. 4169-4176 (M. & V.); secs. 3432-3439 (T. & S. and 1858). Acts cited and construed: Acts 1851-52, ch. 173, secs. 1 and 2. 3. SAME. Award made after effective revocation of arbitration agreement is void. An award rendered after the revocation of the agreement to arbitrate, made effective by notice thereof to the arbitrators, is void, because such revocation terminates the authority of the arbitrators. (Post, p. 153.) 4. SAME. Agreement to arbitrate could not be made a rule of court, except in a pending suit, at common law. By the common law the courts had no power to make the agreement to arbitrate a rule of court, unless there was a suit pending therein with reference to the dispute. (Post, pp. 152, 153.) Case cited and approved: Halliburton v. Flowers, 12 Heisk., 2S. 5. SAME. Statutes authorize agreement to arbitrate to be made a rule of court, though there is no pending suit. Our statutes confer upon the courts authority to make the agreement to arbitrate a rule of court, whether there is a suit pending with reference to the controversy or not. (.Post, pp. 152, 153.) . , See citations under headnote 2. 6. SAME. Same. Rule of court made upon agreement without pending suit. In order that a submission to arbitration may become a rule of court, and, therefore, irrevocable, it is certainly necessary that the parties agree that it may he entered of record; and upon proof thereof, the rule shall thereupon be made. (Post, pp. 152, 153.) See citations under headnote 2. ?. SAME. Mere agreement to enter the award as a judgment of a certain court does not make the submission irrevocable; question reserved. The statute clearly makes irrevocable only such submissions to arbitration as are entered of record, and the mere agreement to enter the award as a judgment of a particular court does not make the submission irrevocable, because the submission is not thereby made a rule of court; and the question whether the mere agreement to enter a submission of record, without actual entry, renders the submission irrevocable, is reserved and not decided. (Post, pp. 153, 154.) See citations under headnote 2.
124 Tenn. 155National Hosiery & Yarn Co. v. Napper (1910)
1. EMPLOYER AND EMPLOYEE. Instruction that employee must fully understand risks and dangers to release employer from liability for personal injuries or death. In an action against an employer for personal injuries resulting in the alleged wrongful death of an employee, an instruc-struetion calculated to mislead the jury into believing that, though the employee was killed while disobeying orders and as a consequence thereof, it must appear that the employee fully understood the risks and dangers of disobedience, in order to release the employer from liability, is erroneous; for the law is clear that if a servant is injured while engaged in disobeying the orders of his superior, he cannot recover. (Post, pp. 160-169.) Cases cited and approved: Railroad v. Wilson, 88 Tenn., S16; Railroad v. Reagan, 96 Tenn., 128; Card v. Wilkins, 61 N. J. Law, 296; McMellen v. Union News Co., 144' Pa., 332. 2. SAME. Same. Instruction making employee’s understanding of risk to depend upon directions of employer’s foreman Is erroneous as invading province of jury. The court’s charge which makes the employee’s' understanding of the risk and dangers of the disobedience of orders to depend upon statements and directions of the employer’s foreman is erroneous as invading the province of the jury. (Post, pp. 160-169.) 3. SAME. Employee, whether adult or minor, need not be warned of danger of disobeying orders of his superior. The employee, whether adult or minor, need not be warned of the danger of disobeying the orders of his superior in order to prevent a recovery for his injury or death. (Post, p. 169.) 4. PRACTICE. Appellant cannot complain of court's statement of his contention, where no objection was made at the time. The appellant cannot complain that the trial judge incorrectly instructed the jury as to the ground of his contention, where the judge’s statement was not objected to by him at the time so as to give the judge an opportunity to correct the same, by special requests or in other form. (Post, pp. 169, 170.) Cases cited and approved. Hayes v. Cheatham, 6 Lea, 1, 7; Mc-Colgan v. Langford, 6 Lea, 108, 116, 117;. Malone v. Searight, 8 Lea, 91; Slattery v. Lea, 11 Lea, 9, 12. 5. NEW TRIALS. Motion sufficiently specifying the errors and grounds therefor, under a rule of court requiring the same. A court rule requiring that a motion for a new trial shall specify the errors and the grounds on which the motion is based is complied with by specifying the particular passages of the charge complained of, and it does not require a statement of the reasons why the mover believes that there was error in the portion of the charge specified. (Post, pp. 170-172.) Case cited and distinguished: Railroad v. Johnson, 114 Tenn., 632. 6. EMPLOYER AND EMPLOYEE. Trial judge should determine, and not leave it to the jury to determine, whether the employer’s subsequent order rescinded his former order to employee. Where plaintiff’s intestate, a boy sixteen years old, in the employ of defendant, was ordered with another boy to take, on the elevator, a heavy work bench from the basement to another floor, and in doing so received a fatal injury, owing to the legs of which bench coming in contact with a beam which projected into the elevator shaft, it was for the trial judge to determine whether such order rescinded an order given on the day before the accident that intestate should not take anything on the elevator which must be placed on end, so as to excuse intestate’s disobedience thereof. (Post, pp. 162, 172-175.) 7. SAME. Employee unable to comply with orders without violation of instructions should ask for further instructions, and his failure to do so is contributory negligence as a matter of law. Where deceased, a boy sixteen years of age, was directed by his foreman to assist another boy in removing a bench' from the basement and was directed by the foreman at the time or at a previous time not to attempt to bring anything up on the elevator, which it was necessary to stand on end, and the boys found it necessary to stand the bench on end to get it on the elevator, and it was too heavy for the boys to take up the steps, it was the -duty .of deceased to report to his foreman and ask for further instructions, and his failure to do so was a disobedience of orders, and he was guilty of contributory negligence as a matter of law. (Post, pp. 162, 172-175.)
124 Tenn. 176Southern Iron & Coal Co. v. Schwoon (1910)
• 1. ADVERSE POSSESSION. Period of suspension of statutes of limitations from May 6, 1861, to January 1, 1867, could not be used to complete bar of statutes of limitations. The adverse possession of land from 1860 to 1870 did not complete the bar of the statute, because the period from May 6, 1861, to January 1, 1867, was inoperative,_ and could not he used to complete the bar of the statute of limitation of seven years, and such adverse possession was reduced to a period of less than seven years, under Acts 1865, ch. 10, sec. 1, suspending the operation of the statutes of limitations from May 6, 1861, to January 1, 1867. {Post, p. 196.) Acts cited and construed: Acts 1865, ch. 10, sec. 1. 2. SAME. Assurance of title purporting to convey an estate in fee constitutes color of title. • An assurance of title purporting to convey an estate in fee, though not, in fact, conveying such estate, constitutes color of title; and it may he a fraudulent or forged deed, or it may he a will, or a decree divesting and vesting title, or any other paper purporting to transfer a title in fee. {Post, pp. 203, 204.) Code cited and construed: Sec. 4456 (S.); sec. 3459 (M. & V.); sec. 2763 (T. & S. and 1858). Acts cited and construed: Acts 1819, ch. 28, sec. 1. 3. SAME. Same. .Decree in ejectment adjudging the title to be in complainant Is not an assurance of title, when. A decree in an ejectment suit, which merely declares that the complainant therein is the owner in fee of the land in controversy described, and that his title is superior to that claimed by the deféndant therein, hut which does not purport to divest and vest title, is not an assurance of title; for' such decree simply determines, ■ in favor of the complainant, the contest with the defendant, and merely means that the.court has considered the complainant’s chain of title, and adjudges that he has title, hut does not purport to transfer title. (Post, pp. 194, 195, 203-205.) Code cited and construed: Sec. 6301 (S.); see. 5234 (M. & V.); see. 4484 (T. & S. and 1858). Case cited and approved: Duncan v. Gibbs, 1 Yerg., 258. Chse cited and distinguished: Wilkins v. McCorkle, 112 Tenn., 688. 4. SAME. Deed of bargain and sale quitclaiming and transferring land constitutes color of title, and not a mere quitclaim deed. A deed which uses the expression “bargained and sold, and do hereby quitclaim and transfer” purports to convey the lánds, and is not a mere quitclaim deed, but is a color of title. (Post, pp. 193, 194, 201-203, 205.) Case cited and approved: Hanks v. Folsom, 11 Lea, 559. 5. SAME. Executor’s deed conveying “all the right, title, and claim” of testator holding under registered tax deeds purporting to convey the fee is an assurance of title. The deed of an executor, showing on its face that it is made in pursuance of a power conferred by the will, and purporting to convey “all the right, title, and claim” of the testator who held under registered tax deeds purporting to convey an estate in fee, is an assurance of title within the meaning of the statute of limitation (Shannon’s Code, sec. 4456) vesting title in one who has had seven years’ adverse possession of land under an assurance of title. (Post, pp. 193, 194, 197, 198, 200, 203/205-207.) Cases cited and approved: McGavock v. Deery, 1 Cold., 265; Seifreid v. State, 2 Tenn. Chy., 17, 23; Thurston v. University, 4 Lea, 513, 515-520; Swiney v. Swiney, 14 Lea, 316, 323. 6. SAME. Void tax deed is an assurance of title. If it be conceded that a tax deed is void on tbe ground that the land was assessed for the taxes against a deceased owner, or on the ground that the tax sale was made on a day not authorized by law, still it would constitute an assurance of title within the meaning of the statute of limitations. (Post, pp. 193, 195, 196, 207, 208.) Cases cited and approved: Gray v. Darby, M. & Y., 396; Love v. Shields, 3 Yerg., 4'05; Whiteside v. Singleton, Meigs, 224; Vance v. Johnson, 10 Humph., 214; Blantire v. Whitaker, 11 Humph., 313; Clark v. Chase, 6 Sneed, 636; Hunter v. O’Neal, 4 Bax., 494. 7. SAME. Deed purporting to convey right and title of grantor holding under deeds purporting to convey the fee is an assurance of title. . A deed purporting to convey the grantor’s right, title, and interest in a specified tract of land, accompanied by proof of deeds purporting to convey an estate in fee to him, constitutes an assurance of title or color of title. (Post, p. 208.) 8. SAME. Deed conveying grantor's right, title, estate, and interest in certain described lands constitutes an assurance of title within our statutes of limitations. Under the statute (Shannon’s Code, sec 3672), providing that every grant or devise of real estate, or any interest therein, shall pass all the estate or interest of the grantor or devisor, unless the intent to pass a less estate or interest shall appear, one who makes a deed conveying all its right, title, estate, and interest in certain described lands, or who uses equivalent words, necessarily refers to his title papers, and the deed conveys whatever interest those title papers show that he has; and where his title papers do not convey a title to him in fact and law, but only purport to do so, the effect would be the same, that is, the deed would carry whatever force or effect such assurance has under our statutes of limitations. (Post, pp. 208, 209.) , Code cited and construed: Sec. 3672 (S.); sec. 2812 (M. & V.); sec. 2006 (T. & S. and 1858). Acts cited and construed: Acts 1819, ch. 28, sec. 1; Acts 1851-52, ch. 33, sec. 1. 9.DEEDS OF CONVEYANCE. Conveying all that portion not previously conveyed or held by older title, without description of excluded land, operates prima facie to convey the whole described tract. Where a deed purports to convey “all that portion not heretofore sold or conveyed or held by older title of” a certain described tract, all lands previously conveyed and those held by older title are excluded; and the rule is that the burden of establishing the existence and location of the excluded land is on the party claiming adversely to the deed; and, unless a description of the excluded land appears in the deed, there is prima fade no excluded territory until the evidence establishes the fact. {Post, pp. 193, 197-201, 209, 210.) Cases cited and approved: Bowman v. Bowman, 3 Head, 48; Bowler v. Nixon, 7 Heisk., 719; Bleidorn v. Pilot Mountain C. & M. Co., 89 Tenn., 212; Wright v. Hurst, 122 Tenn., 656. 10. SAME. Intention reached by construction of all parts, without regard to technical divisions. All parts of a deed shall he examined together for the purpose of reaching the intention of the parties, and, when so ascertained, that intention shall control, without regard to technical divisions, or to the particular parts of deeds as distinguished from each other. (Post, p. 210.) Cases cited and approved: Kirk v. Burkholtz, 3 Tenn., Chy., 421, 424, et seq; Hanks v. Folsom, 11 Lea, 560 (and citations); Fogarty v. Stack, 2 Pickle, 610. 11. SAME. Rule-stated in the ninth headnote has become a rule of property. The rule stated in the ninth headnote has become a rule of prop erty in this State and the distinction contended for that such rule may . obtain as to lands granted in a deed and then excluded, but not where the exclusion appears in the granting words of the deed, would be disastrous. (Post, p. 210.) 12. ADVERSE POSSESSION. The cutting of timber, not shown to be the only use the land was susceptible of, does not con-situate adverse possession. Where the evidence shows that the defendant for more than seven years, cut timber on the land in controversy, but the evidence does not show that the land was susceptible of only that form of occupation or use, but on the contrary shows, by the subsequent building of houses and the clearing and opening of fields thereon, that it was susceptible of other forms of possession, there was no adverse possession established. (Post, pp. 211, 212.) Cases cited and approved: West v. Lanier, 9 Humph., 762; Creech v. Jones, 5 Sneed, 632; Cass v. Richardson, 2 Cold., 28; Copeland v. Murphy, 2 Cold., 72; Pullen v. Hopkins, 1 Lea, 741; Hicks v. Tredericks, 9 Lea, 491; Coal & Iron Co. v. Cop-pinger, 95 Tenn., 526. 13. SAME. Same. Not made out by defendant’s cutting of timber, though bill charged land was valuable principally for its timber, but not stating that it was exclusively valuable therefor. A charge in the bill that the land sought to be recovered was valuable principally for it timber, but not stating that it was exclusively valuable therefor, does not enable the defendant to make out adverse possession by showing that he cut timber on the land for more than seven years. (Post, pp. 211, 212.) 14. SAME. Lime kilns not used continuously for seven years and houses burned within four or five years after their erection, and not rebuilt, do not constitute adverse possession. Where a lime kiln was erected on land and used for the burn-of lime for some years, but not continuously for seven years, but remained thereon in good condition for seven years; and about the time the kiln was constructed, some houses were built for the' lime burners, but these were destroyed by fire four or five years thereafter, and were never rebuilt, adverse possession for seven years is not shown under our seven year statute of limitation. (Post, p. 212.) Code cited and construed: Sec. 4456 (S.); sec 3459 (M. & V.); sec. 2763 (T. & S. and 1858). Acts cited and construed: Acts 1819, ch. 28, 1. 15. SAME. Inclosure and cultivation of land for two years, then the erection of houses thereon and their occupancy for five years, though the fences are removed, constitute adverse possession. Where lands were inclosed and cultivated for two years, and then houses were erected within the inclosures, and thereafter the fence around the inclosure was torn down to faciliate the logging business of the possessor, and the occupancy of the houses were continuously kept up until such possession had been held consecutively for more than seven years before the bill was filed, the adverse possession of the defendant was established. (Post, p. 213.) ' 16. SAME. Possession acquired by one holding under a registered deed from one without color of title, and held adversely for seven years perfects his title. Where the owner of a tract of land occupied an adjoining- parcel included in another tract embraced in a deed under which a third person claimed, until he sold his tract to such third person, who then took possession thereof and also of such parcel, and continued in such possession of such parcel for more than seven years under his previously registered deed, which enabled any adverse claimant to determine the nature of the claim of such third person’s possession, the third person’s possession ripened into a title by adverse possession, over the objection that there was hut a secret change of possession from one who had no color of title to one who had color of title, without bringing knowledge of the changed possession to the adverse claimant; for the inclosure and possession were notorious, and the adverse claim was shown hy the registered deed under which the possession was held. (Post, pp. 213-216.) Code cited'and construed: Sec. 4456 (S.); see. 3459 (M. & V.); sec. 2763 (T. & S. and 1858). Acts cited and construed: Acts 1819, ch. 28, sec. 1; Acts 1895, ch. 38. Cases cited and approved: Coal Co. v. Parks, 94' Tenn., 263; Coal Co. v. Scott, 121 Tenn., 88, 118, 119, 120. 17. SAME. Statute of limitation need not be pleaded where title has been perfected by adverse possession under registered deed. The defendant need not plead the seven year statute of limitation in order- to make his defense under the statute (Shannon’s Code, sec. 4456), vesting title in one who has had seven years’ adverse possession holding under a registered assurance of title, since seven years’ adverse possession thereunder operates as a transfer of title. (Post, p. 216.) Code cited and construed: Sec. 4456 (S.); sec. -3459 (M. & V.); sec. 2763 (T. & S. and 1858). Acts cited and construed: Acts 1819, ch. 28, sec. 1. 18. SAME. Statute of limitation must be pleaded to make defense of possessory right. Where the defense is merely of a possessory right under Acts 1819, ch. 28, sec. 2 (embraced in Shannon’s Code, sec. 4458), the defense of the seven year statute of limitation must he pleaded, in order to make the defense. (Post, p. 216.)
124 Tenn. 218Smithson v. State (1910)
1. HOMICIDE. Rejection of evidence of the lecherous character of the deceased showing motive of accused to protect his young daughter is reversible error. Where the accused, the father of a motherless daughter, sixteen years of age, knowing that the deceased was a libertine, wrote him a friendly letter, requesting that he cease his attentions to his said daughter, as she was too young to marry; and the deceased replied to the letter in a flippant and offensive note, admitting that he had proposed marriage to the daughter, hut denying that he had any intention to marry her, and almost declaring in so many words that his attenions to the daughter were for no good purpose, and, when taken in connection with the prisoner’s knowledge of the decedent’s character, the reply was of a nature to excite much further the apprehensions of the .father concerning the decedent’s visits to the young daughter; and with some evidence tending to show that the accused was under the impression that the deceased had not discontinued his meetings with the daughter, but had seen her clandestinely after decedent’s said letter; and, thereafter, on the night of the homicide, the accused met the deceased at a social gathering, and upon seeing him in conversation with the daughter, beckoned him to one side, where they had an altercation, and the accused claimed that, after the deceased had struck him with brassknucks, he, in self-defense, shot and killed the deceased. Upon these facts, it was reversible error for the trial judge to reject evidence of decedent’s conduct with other women, indicating a lecherous character to a high degree, which was known to the accused, and was admissible as bearing upon the motives of the accused. (Post, pp. 220-229.) Cases cited and approved: State v. Zellers, 7 N. J. Law, 220, 230; Cheek v. State, 35 Ind., 492; Shepherd v. Commonwealth, 119 Ky., 931; Shipp v. Commonwealth, 124 Ky., 643; Austin v. State, 14 Ark., 561; Pritchett v. State, 22 Ala., 39; Gardom v. Woodard, 44 Kan., 758. 2. CRIMINAL LAW. What constitutes the “res gestae” in a prosecution for murder. The “res gestae” is the murder, and the murder is made up of the homicide and the intent with which it was committed; and in a prosecution for murder, the “res gestae” is not limited to the act of killing, for it includes not only the killing itself,' hut also the acts and words demonstrating the intention and motive. (Post, pp. 227, 228.) Cases cited and aproved: Cornwell v. State, M. & Y., 147; Garber v. State, 4 Cold., 161, 169; Ray v. State, 108 Tenn., 282. 3. SAME. Same. Intent and malice are essential to murder, even in the second degree; motive may rebut presumption of malice raised by other evidence. To sustain a conviction for murder, even in the second degree, it is as essential to show the intent, directly or circumstantially, as it is to .prove the killing itself; and it was reversible error in the trial judge to exclude the evidence reflecting on the motive and intention of the accused; for it was admissible in this case to' explain the motive of the accused in calling the deceased aside at the social gathering, and to rebut the presumption of malice necessary to sustain the conviction for murder in the second degree, which other evidence in the record raised against the accused. (Post, pp. 228, 229.)
124 Tenn. 230State v. Marshall (1910)
1. CRIMINAL LAW. Venue is in new county to which the place where the offense was committed is transferred. Where the place in which the offense was committed is transferred to a new county before indictment had, the indictment ■ must he returned in the new county. (Post, pp. 233, 234.) Constitution cited and construed: Art. 1, sec. 9. Cases cited and approved: State v. Donaldson, 3 Heisk., 48; Speck v. State, 7 Bax., 46; Ex parte Moran, 144 Fed., 594, 75 C. C. A., 396; Moran v. Territory, 14 Okla., 544. 2. SAME. Venue ip county to which the place of offense is transferred after indictment, and cause should be transferred. Where the portion of an old county in which an offense has been committed is transferred to another county, while the proceedings are pending in the first county, the court of such county loses jurisdiction, hut has inherent power to order the transfer of the cause to the new jurisdiction, to which the place of the crime has been transferred by the legislature. (Post, p. 234.) ■Constitution cited and construed: Art. 1, sec. 9. Cases cited and approved: Pope v. State, 124 Ga., 801; Bundrick v. State, 125 Ga., 753. 3. SAME. Same. Supreme court will remand cause for transfer by the circuit court where that court should have transferred it to another county; when. Where the circuit court erroneously abates the indictment and discharges the accused upon the ground that the place in which the offense was committed has been transferred to another county pending the proceedings, the supreme court will. upon reversing the case, remand the cause to the circuit court, with direction to transfer the same to the county to which the place of the offense has been transferred, for further proceedings, and to transmit the indictment, together with certified copies of all the entries of record therein made. (Post, p. 234.)
124 Tenn. 235Hall v. State (1910)
1. CONSTITUTIONAL LAW. Legislation applicable to counties having a population within designated limits according to the existing or any subsequent census is not unconstitutional as for vicious classification. The provisions of the constitution of this State (art. 1, sec. 8, and art. 11, sec. 8) and that of the United States, contained in the fourteenth amendment thereto, do not prohibit the enactment of laws not general in their application, where the classification is natural, and has a reasonable relation to the subject-matter of the legislation; and a statute applicable in counties having a designated population by the last federal census, or by any subsequent federal census, is not within such constitutional prohibitions; for such classification is not arbitrary, vicious, or capricious. (Post, pp. 238-240.) Constitution cited and construed; Art. 1, sec. 8, and art. 11, sec. 8 (State),' 14th am. (U. S.). Cases cited and approved: Woodard v. Brien, 14 Lea, 523; Cook v. State, 90 Tenn., 407; Sutton v. State, 96 Tenn., 696; Peterson v. State, 104 Tenn., 127; Condon v. Maloney, 108 Tenn., . 82-98; Turner v. State, 111 Tenn., 593-602; Archibald v. Clark, 112 Tenn., 532; Murphy v. State; 114 Tenn., 531. 2. STATUTES. Construction to ascertain and give effect to legislative intent. The courts, in construing a statute, must give effect to its intent; for the intent of a statute is the law, and the primary rule of construction is to ascertain and give effect to that intent. (Post, p. 240.) 3. SAME. Same. Entire statute must be considered in construing it, and effect given to every part, if possible. The courts, in ascertaining the intent of a statute, must consider the entire statute, and give effect, if possible, to every part thereof. (Post, p. 240.) 4. SAME. Construction to carry out manifest object, and not to defeat it, if susceptible of two constructions. Where a statute is susceptible of two constructions, one of which will carry out its manifest object, and the other will defeat it, the former construction must be adopted; for a statute must be construed with reference to its manifest object. (Post, pp. 240, 241.) 5. SAME. Construction with a view to reason and convenience, and to avoid absurdity, hardship, injustice, or inconvenience. In construing a statute, what it reasonable and convenient or what will cause hardship and injustice must be considered; and statutes must be construed in the most beneficial way permitted by law, to prevent absurdity, hardship, injustice, or inconvenience. (Post, p. 241.) 6. SAME. Applicable in certain counties according to population of last or any subsequent federal census remains so applicable notwithstanding population changes; and becomes applicable to all other counties coming within its classification under any subsequent census. A statute made applicable in counties having a population, within designated minimum and maximum limits, according to the last (then existing) or any subsequent federal census, is applicable in all counties coming within its provisions when passed, and remains in force and continues applicable in said counties, notwithstanding any changes that may occur in their population as shown by any future federal census, and until it shall he repealed by proper legislative act; and it applies in all other counties that may come within its provisions by changes in their population as shown by any future federal census. (Post, pp. 238, 241-243.) 'Acts cited and construed: Acts 1903, ch. 263. 7. SAME. Rule of public policy that all laws shall be certain in their terms and application must be applied in construing statutes. One rule to be applied in the construction of statutes is the rule of public policy that all laws shall be certain in their terms and application, so that they may be Known by the people, and that no disturbances may grow out of frequent changes and alterations. (Post, p. 242.) 8. CONSTITUTIONAL LAW. Construction making a statute once applicable in a county, under a population classification, always applicable, regardless of future population, does not render it unconstitutional as arbitrary class legislation. The construction given the statute as stated in the sixth headnote does not render it void and unconstitutional as arbitrary class legislation, because such construction makes it impossible for any county, by a change in its population according to a subsequent federal census, to pass out of the classification that at first made the law applicable in it. (Post, pp. 238, 243-246.) Constitution cited and construed: Art. 1, see. 8; art. 11, sec. 8. Cases cited and approved: Cook v. State, 90 Tenn., 407; Peterson v. State, 104 Tenn., 127; Condon v. Maloney, 108 Tenn., 82. Cases cited and and distinguished: Woodard v. Brien, 14 Lea, 523; Sutton v. State; 96 Tenn., 696.
124 Tenn. 247Dixie Fire Insurance v. American Confectionery Co. (1910)
1. MULTIPLICITY OF SUITS. Chancery has jurisdiction of a bill by insurance companies to prevent a multiplicity of actions at law In which the remedy would be Inadequate. Where five insurance companies separately issued policies on a manufacturing plant, insuring it against loss by fire, one company issuing a policy upon machinery_alone; one company issuing two policies at different dates upon both machinery and stock,^,with stipulated sums in each policy on each class of property; one company issuing one policy upon machinery, and at a later date another policy upon stock; one company issuing a policy with certain sums upon building, machinery, and office fixtures; one company issuing a policy upon the stock alone; all of which policies were identical, excepting their dates, their amounts, the property insured, and the name of the insurer, and each policy provided for a proportional and limited liability witK" other insurers; and a loss occurring while these policies were in forceja bill filed by some of the insurance companies against the insured and the other insurance companies, and a cross bill by the defendant insurance companies, showing that the questions common to all the policies were misrepresentations in procuring the policies; e) the -keeping of explosives b;T the insured in violation of the licies;\3) his failure to separate the damaged and undamaged property and to make an inventory thereof; (4) his violation of the stipulation or condition as to the automatic sprinkler system; and (5) the fraudulent arbitration award wrongly classifying the property and distributing the loss and valuing the property so excessively as to shock the conscience, is not demurrable, because chancery has jurisdiction of such suit for the adjustment of the liability of each insurer under each policy for the purpose of preventing a multiplicity of actions at law, and because none of them could give efficient and adequate relief, though the actions at law might be consolidated; and it is not necessary that each of the parties’should be interested in all of the questions^ Cases cited and approved; Harrison v. Hallum, 5 Cold., 525, 528, 529; Cartmell v. McClaren, 12 Heisk., 41, 42, 43; Walker v. Day, 8 Bax., 77-80; Woodward v. Hall, 2 Tenn. Chy., 164, 166, 167; Hughes v. Tennison, -3 Tenn. Chy., 641-643 (citing Johnson v. Brown, 2 Humph., 328); Ducktown, Sulphur & Iron Co. v. Fain, 109 Tenn., 56, 70; Smyth v. Ames, 169 U. S., 466, 517, 518; Bitterman v. Railroad, 207 IJ. S., 205, 226; Kelly v. Boettcher, 85 Fed., 55, 64, 29 C. C. A., 14; Curran v. Campion, 85 Fed., 67, 29 C. C. A., 26; Wyman v. Bowman, 127 Fed., 257, 263, 264, 62 C. C. A., 189, 195, 196; Railroad v. Smith, 128 Fed., 1, 63 C. C. A., 1; Railroad v. Caffrey, 128 Fed., 770, 774, 775; Fidelity & Deposit Co. v. Fidelity Trust Co. (C. C.), 143 Fed., 152, 156, 157; Risely v. Utica (D. C.), 173 Fed., 502, 506, 507; Snelling v. Richard (C. C.); 166 Fed., 635, 636; Bracken v. Rosenthal (C. C.), 151 Fed., 136-138; Pennsylvania Co. v. Bay (C. C.), 150 Fed., 770, 773, 774; State v. Knife Falls Boone Corporation, 96 Minn., 194, 199; Hanson v. Neal, 215 Mo., 256, 271; Blumer v. Ulmer (Miss.), 44 South., 161; Tisdale v. Insurance Co., 84 Miss., 709; Insurance Co. v. Landau, 56 N. J. Eq., 513, 522, 523 (and numerous citations); Scofield v. Lansing, 17 Mich., 437, 444'; Torrent v. Hamilton, 95 Mich., 159, 161-163; Fegelson v. Insurance Co., 94 Minn., 486; Baumgartner v. Bradt, 207 Ill., 345, 348, 349, 350; Charles Simon’s Sons Co. v. Md. Telephone & Telegraph Co., 99 Md., 141, 180; Blakenburg v. Black, 200 Fa., 629; Whipple v. Guile, 22 R. L, 576; Brown v. Tilley, 25 R. I., 579; Almond v. Wilson, 75 Va„ 613, 623, 624; Johnson v. Black, 103 Va., 477. See also the citations under the next headnote. Cases cited and distinguished: Bruton v. Rutland, 3 Humph., 435; Insurance Co. v. Insurance Co., 11 Humph., 134, 35; Rogers y. Simpson, 10 Heisk., 655, 657; Insurance Co. v. Sckmidt, 175 Fed., 720, 99 C. C. A., 296. 2. SAME. General principles for sustaining or rejecting a bill upon the ground of preventing a multiplicity of suits. Each, suit sought to he sustained upon the ground of preventing a multiplicity of actions, if not brought directly within the principle of some preceding case, must be decided upon its merits, and upon a survey of the real and substantial convenience of all parties, the adequacy of the real remedy, the situations of the different parties, the points to be contested, and the result which would follow if jurisdiction should be assumed or denied, whether within reasonable and fair grounds the situation is calculated to be in truth one which will practically prevent a multiplicity of litigation, and will be an actual convenience to all parties, and will not unreasonably overlook or obstruct the material interests of any. In avoiding a multiplicity of suits, care shortld be exercised to guard against that complication and confusion in the investigation of rights and the application of remedies, arising from the attempt to blend in one suit distinct and incongruous claims and liabilities. (Post, pp. 265-290.) Cases cited and approved; Johnson v. Brown, 2 Humph., 327, 328, 329; Governor v. McEwen, 5 Humph., 241, 263, 264; Bartee v. Thompkins, 4 Sneed, 623, 634, 636; Fogg v. Rogers, 2 Cold., 290; Miller v. Harris, 9 Bax., 101; Ducktown, Sulphur & Iron Co. v. Fain, 109 Tenn., 56; Insurance Co. v. Beasley, MS; at Jackson, April term, 1908; Insurance Co. v. Trabue, MS. at Jackson, April term, 1908 (and citations); Hale v. Allinson, 188 U. S., 56, 77; Whipple v. Guile, 22 R. I., 578. See also citations under preceding headnote. 3. SAME. Chancery jurisdiction to prevent a multiplicity of actions at law and to subserve public and. private interests regardless of law jurisdiction. Chancery has jurisdiction of a suit to prevent a multiplicity of actions at law, and to subserve thereby both public and private interests, regardless of the fact that a court of law has jurisdiction. (Post, pp. 290, 291.) 4. SAME. Relief in chancery against a multiplicity of actions will not be denied, because they might ail be consolidated. Relief in chancery on the ground of preventing a multiplicity of actions at law will not he denied, merely because the actions at law should all he brought in one court, and consolidated and heard together. (Post, p. 291.) 5. SAME. Chancery obtaining jurisdiction to set aside the award under a fire policy will dispose of the whole case. Chancery has jurisdiction, upon the ground of fraud, to set aside an award under a fire policy, made under an arbitration agreement, and, having obtained jurisdiction upon this ground, chancery would proceed to dispose of the whole case, even if the other matters referred to in the first headnote were not involved. (Post, pp. 291, 292.) Cases cited and approved: Fire Association v. Allisina, 45 Or., 154, 158; Robertson v. Insurance Co., 68 Fed., 173, 175.
124 Tenn. 293Miller v. State (1910)
1. NAVIGABLE STREAMS. Legislative act declaring a non-navigabie stream to be navigable is unconstitutional because its effect, if valid, would be to deprive the riparian proprietor» of their title and use of the bed of the stream, without compensation. The legislature cannot arbitrarily declare a stream to be navigable, when it is in fact not so in a legal or technical sense, because such legislative act would be void as violative of the constitutional provision (art. 1, sec. 21) against the taking of private property for a public use, without the consent of the owner, through his representatives, and without just compensation therefor, for the reason that such act would, if valid, deprive the riparian proprietors of their title and use of the bed of the stream without compensation. (Post, pp. 300, 301.) Acts cited and construed: Acts 1837-38, ch. 39; Acts 1879, ch. 165; Acts 1893, ch. 118. 0 Constitution cited and construed: Art. 1, sec. 21. Cases cited and approved: Stuart v. Clark, 2 Swan, 17; Railroad v. Ferguson, 105 Tenn., 552; Griffith v. Holman, 23 Wash., 347; Murray v. Preston, 106 Ky., 561; People v. Mill Co., 107 Cal., 221; Bayzer v. Mill Co., 105 Ala., 395; Walker v. Board, 16 Ohio, 540; State v. Pool, 74 N. C., 402; Morgan v. King, 35 N. Y., 454; Partridge v. Eaton, 63 N. Y., 482; Barclay, etc., Co. v. Ingham, 36 Pa., 194; Allen v. Weber, 80 Wis., 531. 2. SAME. Must be navigable in the ordinary state of water, by vessels usually employed for ordinary commerce. A navigable stream is one that in the ordinary state of water, has capacity and suitability for the usual purposes of navigation, ascending or descending, by vessels such as are usually employed in the ordinary purposes of commerce. (Post, pp. ■301, 302.) Cases cited and approved: Elder v. Burrus, 6 Humph.. 358: Stuart v. Clark, 2 Swan, 17; Sigler v. State, 7 Bax., 496; Hol-bert v. Edens, 5 Lea, 204; Webster v. Harris, 111 Tenn., 676. 3. SAME. Streams navigable only for floatage of logs and rafts for ten or twelve days In a year are not navigable In a legal sense. Wolf river is not navigable within the sense of the definition of a navigable stream, because it cannot be navigated profitably for commercial purposes, ascending at any time, and can only be used, descending, for the transportation of logs and rafts for short periods of time, ten or twelve days in each year. (Post, p. 302.) 4. SAME. Public highway easement In streams not navigable In a legal sense, but navigable for the profitable floatage of crafts and rafts at regularly recurring seasons, but the riparian ownership is absolute and exclusive in streams of less size. While the beds of all streams not navigable in the legal sense belong to the riparian proprietors and are private property, yet this ownership of the beds of all such nonnavigable streams is not absolute and exclusive in all cases; for if, in its natural state, the volume of a stream, whether ordinary or swollen by rains occurring with reasonable certainty at regularly recurring seasons, is such that the stream can be used profitably for commercial purposes in the transportation of the products of the forest, mines, tillage of the soil, or other articles of commerce, the public has an easement of highway therein, which the riparian proprietors cannot in law unreasonably obstruct; but the stream must be of sufficient size to float, by the force of the current, and without the aid of persons traveling upon the banks, crafts and rafts sufficiently large to make the business profitable, and it is not sufficient that loose logs or lumber can be floated down the stream when at flood; for streams of that character are not subject to the public servitude, but are private property, absolutely and exclusively owned by the riparian proprietors. (Post, pp.. 303-305.) Cases cited and approved: Stuart v. -Clark, 2 Swan, 17; Sigler v. State, 7 Bax., 496; Irwin v. Brown, 3 Shannon’s Cases, 310; Allison v. Davidson, 39 S. W., 905, 908, 909. 5. SAME. Respective rights of riparian proprietors and the public in streams not navigable in the legal sense, but navigable for the floatage of crafts and rafts of logs. The public easement for the floatage of crafts and rafts of logs in streams not navigable in the legal sense is not an absolute and unqualified right of way, but is subject to the rights of the riparian owners, including a reasonable use for power; for the riparian proprietors have rights in such streams as valuable and sacred as that of the public, and these respective rights of the public and the riparian proprietors must he reconciled and so used and exercised as not unreasonably to interfere with and obstruct each other, so that both can be enjoyed and neither be unnecessarily or unreasonably obstructed or destroyed; and the public, in exercising its rights in it, must do so with unusual care not to interfere with those of the riparian proprietors. (Post, pp. 305-310.) Cases cited and approved: Gaston v. Mace, 33 W. Va., 14; Burke Co. v. Dumber Co., 116 N. C., 731; Ward v. Greenville, 32 Can. S. C., 510; Pearson v. Rolfe, 76 Me., 380; Foster v. Searsport Spool & Block Co., 79 Me., 508; Laneey v. Clifford, 54 Me., 487; Blackman v. Mauldin, 164 Ala., 337. 6. SAME. In prosecution against a riparian proprietor for obstructing a stream, the court should charge the jury concerning the respective and reciprocal rights of such proprietor and the public in a stream navigable only for the floatage of rafts, when. In the trial of a case under an indictment against a riparian proprietor for obstructing the navigation of a stream by the erection and maintenance of a milldam across the same, where the evidence shows or tends to show that such stream is not navigable in the legal sense, hut only navigable for the floatage of rafts of logs during floods, the trial judge should charge the jury concerning the respective and reciprocal rights of the public and the accused defendant as such riparian proprietor in the stream, substantially as defined in the preceding headnote. (Post, p. 311.) 7. SAME. Evidence held insufficient to show unlawful obstruction of a stream navigable only for floatage of rafts. The evidence is stated and held to be insufficient to show an unlawful obstruction of a stream navigable only for floating logs, by the erection and maintenance of a milldam by a riparian proprietor. (Post, pp. 297, 298, 299, 310, 311.)
124 Tenn. 312Bradford v. Leake (1910)
1. WILLS. Testator cannot disinherit his heirs by words of exclusion, but only by giving his property to others. A testator can disinherit his heirs only by giving his property to others, and mere words excluding the heirs, without an affirmative disposition to others, will not suffice to disinherit them; for the right of a person to disinherit his heirs exists, not as a distinctive or abstract substantive power, but merely as a consequence of the power to leave his estate to others, and while a testator may make or revoke his will, he can neither make nor unmake a law of the State. (Post, pp. 315-328, and especially 320-328.) Cases cited and approved: Coffman v. Coffman, 85 Va., 459; Boisseau v. Aldridges, 5 Leigh (Va.), 222; Todd v. Gentry, 109 Ky., 704; Galligher v. Crooks. 132 N. Y., 338; Lawrence v. Smith, 163 Ill., 149, 166; Wells v. Anderson, 69 N. H., 561; Wilder v. Holland, 102 Ga., 44,'45; Bourke v. Bonne, 94 Md., 472, 477. Cases cited and disapproved; Clarkson v. Clarkson, 71 Ky., 655 (overruled by Todd v. Gentry, 109 Ky., 704, to the extent of the conflict on this point); Tabor v. McIntyre, 79 Ky., 505-509 (same as last); Sullivan v. Straus, 161 Pa., 145; In re Tucker’s Estate, 209 Pa., 521; Willis v. Watson, 4 Scam. (Ill.), 65 (overruled by Lawrence v. Smith, 163 Ill., 149, 166, to extent of the conflict on this point). 2. .SAME. Presumption of acceptance of beneficial gift, which begins at testator’s death; renunciation relates to moment of gift, preventing it. A beneficial devise is always presumed to be accepted, and, in the absence of anything to the contrary, the gift begins at the moment of testator’s death; but such a devise may be renounced, and where the renunciation is made, it relates to the moment of the gift, and prevent its ever taking effect. (Post, p. 328.) Cases cited and approved: Bradford v. Calhoun, 120 Tenn., 53. 3. SAME. No presumption of acceptance of an incumbered gift; renunciation relates to testator's death and avoids the gift from the beginning. Where the testamentary gift is not prima facie beneficial, but is burdened with onerous exactions, there is no presumption of acceptance, and where there is an express renunciation, it relates to the testator’s death, and furnishes, conclusive evidence that the gift was void from the beginning. (Post, pp. 328, 329.) 4. SAME. Renounced devise stands as a lapsed or void devise, and the property passes under the residuary clause, if there be one, and if none, it goes to testator’s heirs. A devise, which does not become effective because the devisee renounces it, stands in the category of a lapsed or void devise; and, in such case, the property covered thereby passes under the residuary clause, if there be one; and, in the absence of such clause, such property goes to the heirs of the testator. (Post, p. 329.) Cases cited and approved: Curd v. Curd, 9 Humph., 171; Reeves v. Reeves, 5 Lea, 644-653. 5. SAME. A testator dies intestate as to property not effectually disposed of by his will. Where a testator gave his residuary estate to his mother, coupled with a provision that no part of his estate should come into the possession of his sister or her descendants, and providing that, upon the death of his mother intestate, the property should go to a third person; and where the mother devised certain real estate, received under such residuary clause, to a devisee who renounced the same, it was held that the mother died intestate as to such real estate, and it passed to the third person under the prior will, because a testator dies intestate as to property not effectually .disposed of by his will. (Post, pp. 317, 329, 330.) 6.SAME. Condition that property devised shall not go to a certain person by devise or inheritance does not follow the property as a limitation to the condition, when. The condition in the will that none of the property should pass to testator’s sister or her descendants did not follow the property into the hands of any one upon whom the same might be devolved through the operation of the limitation attached to the condition, and the devisee under the second will, had he accepted the devise instead of renouncing it,. could have made such disposition of the property as he saw fit, and could have either given it away or sold it; and the third person, taking the gift under the first will, upon the death of the mother intestate, as shown in the preceding headnote, could have likewise made any disposition of it he desired, and could sell or give it to the first testator’s sister or to her descendants. (Post, pp. 330, 331.) 7.SAME. Harsh will is entitled to a fair and reasonable construction, but not to a tender or equitable one. A will so harsh as to direct that no part of testator’s estate shall pass to his sister or her descendants is not entitled to a tender or equitable construction; but it is entitled to a fair and reasonable one. (Post, p. 331.) 8.DEEDS OF CONVEYANCE. To one for life, and then to his children, but to revert if his issue should become extinct within twenty-one years, vests a determinable fee in his surviving children, subject to the contingent reversionary estate. Where a mother and father conveyed her land to their son as trustee for himself for life, and on his death to his children, with a provision that, if his issue should become extinct within twenty-one years after his death, the property should revert to the mother; and the mother subsequently devised all her estate, including said contingent reversionary estate, to her husband Who conveyed such contingent estate to his brother; and upon the death of the said son and trustee, the life tenant, leaving two children surviving, it was held that a determinable fee vested in the two children, subject to the contingent reversion-ary interest of the said brother, upon a failure of the issue of the son and trustee within twenty-one years after his death. (Post, pp. 331-333.)
124 Tenn. 334Hitt v. Caney Fork Gulf Coal Co. (1910)
1. RES ADJUDICATA. Defense must be specially pleaded. Tlie defense of res adjudicata cannot be considered, unless specially pleaded. (Post, p. 339.) 2. REDEMPTION. Money may be paid to clerk'of court making sale, and in other cases to clerk of circuit court; and in all cases to purchaser or rightful claimant under him. The true construction of our statutes (Shannon’s Code,' sections 3813 and 3823, and Acts 1897, ch. 132), preserving the beneficient right of redemption and prescribing the method of exercising and making effective that right is that the debtor whose land has been sold may always make certain his redemption by paying the redemption money to the clerk of the court under whose judgment or decree the land was sold; and in other cases, to the clerk of the circuit court in which the land lies; and in this way, the peril of deciding an actual or possible controversy between the purchaser and a claimant under him by transfer or otherwise as to which is entitled to the redemption money may be avoided, although the redemption money may in all cases be paid to the purchaser or to the rightful claimant under him. (Post, pp. 340, 341.) Code cited and construed: Secs. 3813, 3823 (S.); secs. 2949, 2959 (M. & V.); secs. 2126, 2136 (T. & S. and 1858). Acts cited and construed: Acts 1897, ch. 132. S. REGISTRATION. Upon defective probate is inoperative as notice. Tbe registration of a deed of conveyance of land, upon a defective certificate of acknowledgment or probate, does not operate as notice under our registration laws. (Post, pp. 342, 344.) 4. SAME. Same. Deed registered upon defective probate is good between the parties. A deed of conveyance of land is good between tbe parties, and is binding on tbe grantor and bis beirs and representatives, notwithstanding its registration on a defective certificate of acknowledgment or probate. (Post, pp. 344, 345.) 5. SAME. For twenty years on a defective probate becomes a good registration. Where a deed of conveyance of land has been registered for twenty years, upon a defective certificate of acknowledgment or probate, it becomes good, that is, a good registration. (Post, p. 345.) Code cited and construed: Sec. 3761 (S.); sec. 2898 (M. & Y.); sec. 2084 (T. & S. and 1858). Cases cited and approved: Mattbewson v. Spencer, 3 Sneed, 513; Mathewson v. Spencer, 4 Sneed, 383; Green v. Goodall, 1 Cold. 404, 415; Murdock v. Leath, 10 Heisk., 173; Anderson v. Bewley. 11 Heisk., 29, 31; Stephenson v. Walker, 8 Bax., 289; Stroud v. McDaniel, 12 Lea. 619, 620; Kobbe v. Land Co., 117 Tenn., 315. 6. SAME. Same. Successive deeds registered upon defective probates become effective respectively as registered deeds twenty years after their respective registrations; case in judgment. Under the rule in tbe preceding headnote, a deed registered upon a defective probate March 23d, 1851, became effective as a registered deed March 23d, 1871; and a deed of reconveyance registered upon a defective probate October 21st, 1856, became effective as a registered deed October 21st, 1876; and tbe subsequent deed of the reconveying grantor made to a third party and registered upon a defective prohate October 18th, 1859, became effective as a registered deed October 18th, 1879; so that the grantee under the reconveyance obtained the title as against such third party under such subsequently registered deed. (Post, pp. 345-347, 348.) 7. DEEDS OF CONVEYANCE. General warranty of title vests the warrantor’s subsequently acquired title In the warrantor and those claiming under him. But inasmuch as the deed to said third party, made by the said reconveying grantor after his such deed of reconveyance, as appears in the preceding headnote, was good and binding as to him, his heirs, and representatives from its delivery, and contained a general warranty of title, the title, subsequently acquired by the said reconveying grantor, by and under the will of the grantee under his said reconveyance, at once inured to the benefit of said third party and those claiming under him, and such reconveying grantor could not dispose of said title by will or otherwise, because he had no title subject to his disposition. (Post, pp. 346, 347.) 8. REGISTRATION. Upon defective certificate, after twenty years, affects purchasers with constructive notice of conveyances before acquisition of title, when. Where the registration of a deed of conveyance of land, made upon a defective certificate of acknowledgment or probate, has become by the lapse of twenty years, under our statute (Shannon’s Code, section 3761), a valid and effective registration, a purchaser thereafter is affected with constructive notice by reason of such registration; and while the general rule is that the purchaser does not have to go out of the line of title to ascertain whether each successive holder of the title had made any deed before he acquired title, yet he does have to see whether each such holder has conveyed after he acquired title, and he must follow that line to the dimit to which it leads, and be held to notice of what is thereby shown. (Post, pp. 347-349.) But see headnote 10. Code cited and construed: Sec. 3761 (S.); see. 2898 (It. & Y.); sec. 2084 (T. & S. and 1858). Case cited and approved: Wilkins v. McCorkle, 112 Tenn., 688. 9. DEEDS OF CONVEYANCE. That “absolutely give, grant, quitclaim” is not a quitclaim deed, but conveys the grantor’s whole estate. A deed reciting that the grantors do thereby “absolutely give, grant, remise, release, and forever quitclaim unto the grantee” named “all such right and title as * * * the grantors have, or ought to have, in and to the” latid described, is not a quitclaim deed; but, under the statute (Shannon’s Code, section 3672) providing that every grant shall pass all the estate of the grantor, it conveys the grantors’ whole estate in the premises, and refers to and must be taken in connection with the chain of title on which it is based whereby it must appear what was the estate owned by the grantors, and was conveyed by them. Notwithstanding the use of the word “quitclaim,” such deed purports to convey, since the word “grant” is equivalent to the word “convey.” (Post, pp. 349, 350.) Code cited and construed: Sec. 3672 (S.); sec. 2812 (M. & V.); sec. 2006 (T. & S. and 1858). Case cited and approved: Schwoon’s Case, 124 Tenn., 176. 10. REGISTRATION. Ineffective registration is not constructive notice to a devisee of an undivided interest that a devise, to another devisee, of an undivided interest in the same land passed to his prior grantee. Where a search of title would have shown that the testator haci conveyed the entire tract of land to a grantee who reconveyed it to the testator by a deed whose registration became effective and valid before the registration of the deed to a third person, made by the said first grantee and reconveying grantor, became effective and valid, a devisee of an undivided interest in the land under said testator’s will was not affected with constructive notice of the said grantee’s want of title, as was the case in the eighth headnote. (Post, p. 350.) But see headnote 8. 11. TENANCY IN COMMON. One tenant’s conveyance of a specific part is void if complicative, but not, if such part can be laid off without injury to the others, or if such tenant’s interest was reduced to an undivided interest by the wrong of the one under whom they claim. The, rule that a deed by one tenant in common to a specific part of the common ■ land by separate metes and bounds is void, because the title of the other cotenants should not be so complicated without their consent, is not absolute, but is subject to the qualification that if the land can, in partition proceedings, be so laid off as to give the party in question his land at the place his deed covers, without injury to the others, this will be done. The tenants in common claiming under one whose misconduct caused the interest of such party to be reduced to an undivided interest in the land should not be permitted to use that situation to the disadvantage of such party or those claiming under him. (Post, pp. 360-353.) Cases cited and approved: Reeves v. Reeves, 11 Heisk., 669, 674, 675; Aiken v. Suttle, 4 Lea, 138.
124 Tenn. 355Whitworth v. Hager (1910)
1. YEAR’S SUPPORT. Out of personalty of intestate for children of his predeceased wife by a former marriage, when under age of fifteen years. The statute (Shannon’s Code, section 4022), making provision for a year’s support, out of the personalty of a man dying intestate, for the benefit of his children, or those of his widow, or those of both, under the age of fifteen years, includes the children of the intestate’s predeceased wife, by her former husband, where they are under the age of fifteen years at the death of such intestate; and the statute includes' such children of an intestate man, whether they be those of consanguinity or ■ affinity. (Post, pp. 357-365.) Code cited and construed: Secs. 58, 4020-4023 (S.); secs. 42, 3125-3128 (M. & V.); secs. 41, 2285-2289 (T. & S. and 1858). Acts cited and construed: Acts 1813, ch. 119, and sec. 3 [this chapter is numbered 120 in original published Acts, but is numbered 119 in Scott’s “Laws of Tennessee, &c.”]; Acts 1837-38, eh. 13; Acts 1841-42, ch. 4, sec. 1. Cases cited and approved: Sanderlin v. Sanderlin, 1 Swan, 441: Maguinay v. Saudek, 5 Sneed, 147; Vincent v. Vincent, 1 Heisk., 343; Norton v. Ailor, 11 Lea, 565; Compton v. Perkins, 92 Tenn., 715. 2. SAME. Same. Case in judgment. Where a man married the mother of two small children by a former marriage, and took them into his home, and made them members of his household, in which relation they continued until the death of their said mother, and for about three years thereafter, when he sent them to another State to live .with their aunt, and they never again lived with him; and nearly a year thereafter he died intestate while they were under the age of fifteen years, it was 7veld that said children were entitled to a year’s support out of the personal estate of their said stepfather. (Post, pp. 357-365.) See citations under the first headnote.. 3. EXEMPTIONS. Of personalty of decedent goes to children of his predeceased wife by a former marriage, when under fifteen years of age. The children of the predeceased wife of a decedent, by a former marriage, under the age of fifteen years at the death of their stepfather, as shown in the preceding hea,dnotes, where he left no other children under that age, are entitled to all his exempt personalty. (Post, pp. 357, 358, 365-367.) Code cited and construed: Sec. 4023 (S.); sec. 3128 (M & V.); secs. 2288, 2289 (T. & S. and 1858). Acts cited and construed: Acts 1833, ch. 2; Acts 1855-56, eh..99; Acts 1879, ch. 89. Case cited and approved: Thompson v. Alexander, 11 Heisk., 313. See also citations under first headnote. 4. CODE OF TENNESSEE (OF 1858). A legislative act, and not a mere revision. The adoption of the Code of 1858 was a legislative act, and was more than a mere revision of the pre-existing statutes of the State. (Post, p. 360.) Cases cited and approved: State v. Runnels, 92 Tenn., 320; Trust Co. v. Weaver, .102 Tenn., 66; Brien v. Robinson, 102 Tenn., 166. •5. SAME. Repealed ail public and special acts revised therein. Section 41 of the Code of 1858 repealed all public and special acts, the subjects whereof were by that Code revised. (Post, p. 360.) Code cited and construed: See. 58 (S.); sec. 42 (M. & V.); sec. 41 (T. & S. and 1858).
124 Tenn. 369Newsum v. Hoffman (1911)
1. CHATTEL MORTGAGES. Executed and registered in other States, valid and effective there, are so here, by comity; but not if mortgagee consented to removal, when. When a chattel mortgage is executed and duly recorded in another State, where the property then Is, and where the mort-gageor resides, and is valid under the laws of that State, the mortgagee, under the rule of comity between States, has the better right, upon the subsequent removal of the property to another State, as against a levying or attaching creditor of, or an innocent purchaser from, the mortgageor in the State to which the property has been removed, although the mortgage is not recovered in the latter State; a,nd this is true, although the mortgageor is permitted, under the terms of the mortgage, to retain possession until default; but, such comity should not be extended to cases wherein it appears that the mortgagee consented to such removal, or, having knowledge thereof, does not, within a reasonable time thereafter, assert his rights, so as to protect him against incumbrances put upon the property or purchases made in the State to which the removal has been made. Cases cited and approved: Galt v. Dibrell, 10 Yerg., 146, 152-155; Gookin v. Graham, 5 Humph., 480; Beaumont v. Yeatman, 8 Humph., 542, 54'8; Allen v. Bain, 2 Head, 101; Bank v. Hill, 99 Tenn., 42; Hughes v. Abston, 105 Tenn., 70; Snyder v. Yates, 112 Tenn., 309; and numerous federal cases and cases in other States on pages 372 and 373 of the opinion. Case cited, distinguished and modified: Hughes v. Abston, 105 Tenn., 70. 2. SAME. Mortgage executed and registered in another State upon a chattel in this State is not effective as against a purchaser here. A mortgage, executed in another State and duly recorded there, upon a chattel at that time in this State and so remaining, does not confer a right superior to that of an innocent purchaser of the property at a sale made in this State. {Post, p. 375.) Case cited and overruled: Lally v. Holland, 1 Swan, 396.
124 Tenn. 376Hill v. Memphis Hotel Co. (1911)
PROM SHELBY. Appeal from the Chancery Court of Shelby County to the Court of Ciyil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — F. H. Heiskell, Chancellor.
124 Tenn. 385State ex rel. Cannon v. Lee (1911)
1. FACTS. Whether a justice of the peace has removed from his district is purely a question of fact. The question whether a justice of the peace has removed from the district for which he was elected is purely a question of fact. (Post, pp. 386, 387.) Code cited and construed: Sec. 433 (S.); sec. 399 (M. & V.); see. 344 (T. & S. and 1858). 2. SAME. Same. Concurrent finding of facts by chancellor and court of civil appeals will not be reviewed by the supreme court, if supported by any evidence. Where there is a concurrent finding upon any issue of fact by the chancellor and the court of civil appeals, the supreme court will not review that finding, if there is any evidence to support it; as where the chancellor and the court of civil appeals have concurrently found that a justice of the peace has removed from his district. (Post, p. 387.) 3. FACTS AND LAW. Decree reached by applying correct principles of law to conclusive concurrent findings of fact by chancery court and court of civil appeals will be affirmed by supreme court. Where the supreme court, upon examination of the record, is satisfied that both the chancery court and the court of civil appeals applied correct principles of law to their conclusive concurrent findings of facts in reaching their decisions, the decree will be affirmed. (Post, p. 387.)
124 Tenn. 388Scott v. Marley (1911)
1. CONSTITUTIONAL LAW. Statute authorizing judge, in his discretion, to make attorney fees a common charge In partition cases Is not unconstitutional as delegating legislative functions. ■The statute (Acts 188V, ch. 183, compiled in section 5035 of Shannon’s Code), providing that in partition cases the court may, in its discretion, order the fees of the attorneys for both parties to he paid out of the common fund, where the property is sold for partition, and to be taxed as costs where the property is partitioned in hind, is not unconstitutional as delegating legislative functions to the judiciary by authorizing the judge to award, arbitrarily and at his pleasure, attorneys’ fees out of the fund; for the discretion conferred upon the judge is a judicial discretion, a legal and regular power of discretion, the abuse of which may be reviewed. The court simply exercises a sound judicial and, in case of abuse, a reviewable discretion, in applying the law to the ascertained facts. {Post, pp. 393-395.) Code cited and construed: Sec. 5035 (S.). Acts cited and construed: Acts 1887, ch. 183. Constitution cited and construed: Art. 2, sec. 2. 2. WORDS AND PHRASES. Judicial discretion is defined. Judicial discretion, in its broadest meaning, is that sense of right and justice from which has arisen a variety of legal and equitable principles or rules never written into any constitution, code, or legislative act, but which nevertheless, by the sanction and approval of the courts, have become component parts of the law of the land; and in its narrower sense, it is the capacity of the presiding judge to understand and apply the law of the land to the particular facts of each ease in judgment, so that the rights of the parties may be declared and enforced according to the law of the land. {Post, pp. 394, 395.) 3. CONSTITUTIONAL LAW. Legislature cannot delegate power to make laws, but its delegation of judicial discretion already possessed by the courts to apply the law to the facts does not vitiate the law. • While the legislature cannot constitutionally delegate its power to make a law, it can make a law delegating to the courts the power and discretion to determine some fact or state of things to which the law applies or upon which the law operates; for the courts, under the constitution, possess the power to exercise judicial discretion in the application of the laws, and the fact that a particular statute assumes to delegate a judicial discretion already possessed by the courts does not vitiate the statute, nor make it unconstitutional. {Post, pp. 395-397.) Acts cited and construed: Acts 1887, ch. 183. Cases cited and approved: Samuelson v. State; 116 Tenn., 486; Mores v. Reading, 21 Pa., 202; Locke’s Appeal, 72 Pa., 491. 4. SAME. Statute whose title gives ample notice of the legislation contained in its body is not unconstitutional because its body does not cover the whole extent of the title. A statute (Acts 1887, ch. 183, compiled in section 5035 of Shannon’s Code), entitled “An act to regulate the practice in partition cases, and to provide for the expense of the same,” and whose body provides that in partition cases the court may, in its discretion, order the fees of the attorneys of both parties to be paid out of the common fund where the property is sold for partition, and to be taxed as costs in cases where the property is partitioned in kind, is not unconstitutional upon the ground that its title insufficiently expresses the subject of legislation contained in its body, because its title certainly gives ample notice of the legislation contained in its body; and the body of the act is not required to cover the whole domain within the title. {Post, pp. 397, 398.) Acts cited and construed: Acts 1887, eh. 183. Constitution cited and construed: Art. 2, sec. 17. Cases cited and approved: Cannon v. Mathes, 8 Heisk., 519; Frazier v. Railroad, 88 Tenn., 140; State v. Yardley, 95 Tenn., 546; State v. Brewing Co., 104 Tenn., 728. 5. SAME. Statute whose title and body cover the practice and expense in partition cases is not unconstitutional as embracing more than one subject. The statute (Acts 1S87, ch. 183), whose title is quoted and whose body is substantially stated in the next preceding headnote, is not unconstitutional as embracing more than one subject in violation of the constitutional requirement (art. 2, sec. 17) that no hill shall become a law which embraces more than one subject, that subject to he expressed in the title, because there is only one subject covered by the act, namely, the practice, íd partition cases. (Post, p. 398.) Act cited and construed: Acts 1887, ch. 183. Constitution cited and construed: Art 2, sec. 17. Cases cited and approved: Cannon v. Mathes, 8 Heisk., 504; Luehrman v. Taxing District, 2 Lea, 426; Morrell v. Fickle, 3 Lea, 79; Frazier v. Railroad, 88 Tenn., 156; Manufacturing Co. v. Falls, 90 Tenn., 469; State v. Yardley, 95 Tenn., 554; Peterson v. State, 104 Tenn., 131; Condon v. Maloney, 108 Tenn., 99; Furnace Co. v. Railroad, 113 Tenn., 727. 6. SAME. Statute authorizing payment of fees of attorneys out of common fund in partition cases is not unconstitutional as taking property without the judgment of peers, or not by the law of land. Said statute, in authorizing the payment of the fees of the attorneys out of the common fund, or to he taxed as costs, in partition cases, is not unconstitutional as the taking of property of an unwilling or unconsenting party other than by the judgment of his peers, or other than by the law of the land. (Post, pp. 398, 399-404.) Acts cited and construed: Acts 1887, ch. 18Í Constitution cited and construed: Art. 1. sec. 8. 7. SAME. Statute authorizing payment of fees of attorneys out of common fund in partition cases is not unconstitutional as arbitrary or capricious class legislation. The said statute, in authorizing the payment of the fees of the attorneys out of the common fund, or to be taxed as costs, in partition cases, is not unconstitutional as class legislation, Because the classification is reasonable and natural, and not arbitrary or capricious; for partition suits naturally and reasonably belong to a class by themselves. (.Post,' pp. 399-404.) Code cited and construed: Sec. 5035 (S.). Acts cited and construed: Acts 1887, ch. 183. Constitution cited and construed: Art. 11, sec. '8. Cases cited and approved: Davis v. State, 3 Lea, 379; Demoville v. Davidson Co., 87 Tenn., 215; Bierce v. James, 87 Tenn., 538; Cook v. State, 90 Tenn., 407; Railroad v. Crider, 91 Tenn., 490; Turnpike Cases; 92 Tenn., 369; Dugger v. Insurance Co., 95 Tenn., 245; Henley v. State, 98 Tenn., 667; Debardelaben v. State, 99 Tenn., 649; Railroad v. Harris, 99 Tenn., 684; Harbi-son v. Knoxville Iron Co., 103 Tenn., 421; Dayton Co. v. Barton, 103 Tenn., 604 (affirmed by supreme court of the United States in 183 U. S., 23); Leeper v. State, 103 Tenn., 500; State v. Brewing Co., 104 Tenn., 715; Condon v. Maloney, 108 Tenn., 82; Neas v. Borches, 109 Tenn., 398. 8. SAME. Statute authorizing payment of fees of attorneys out of common fund in partition cases is not unconstitutional as taking the property of an unconsenting owner, without just compensation. The said statute, in authorizing the payment of the fees of the attorneys out of the common fund, or to be taxed as costs, in partition cases, is not unconstitutional as violating the constitution prohibition against the taking of property of an un-consenting owner, without just compensation. (Post, pp. 399-404.) Acts cited and construed: Acts 1887, ch. 183. Constitution cited and construed: Art. 1, sec. 21. •'9.. SAME. Statute authorizing payment of fees of attorneys out of common fund in partition cases is not unconstitutional as depriving owner of property without due process of law and as denying the equal protection of the laws. The said statute, in authorizing the p'ayment of the fees of the attorneys out of the common fund or to he taxed as costs, in partition eases, is npt unconstitutional as depriving an un-consenting party of his property without due process of law, and as denying to him the equal protection of the laws. {Post, pp. 399-404.) 'Acts cited and construed: Acts 1887, ch. 183. Constitution cited and construed: 14th am. (U. S.). 10. PARTITION. Fees of the attorneys of both parties may be fixed and paid out of the common fund. The said statute providing that in all partition cases the court may, in its discretion, order the fees of the attorneys of both parties to he paid out of the common fund, is specially applicable where the tenants in common are numerous, and many of them own small interests; and the allowance, amount, and apportionment of the fees of the attorneys in such case is largely in the sound legal discretion of the court in which the partition suit is conducted, subject to review for abuse. No general rule should be laid down by the supreme court as to the application of this statute; but the fees of the attorneys of both parties may be allowed out of the common fund. {Post, pp. 404-414.) Code cited and construed: Sec. 5035 (S.). Acts cited and construed: Acts 1887, ch. 183.
124 Tenn. 415Gamble v. Rucker (1911)
1. MARRIAGE. Regularly solemnized is presumed to be valid; burden to show contrary. The law presumes that a marriage regularly solemnized is valid, and casts upon those asserting its invalidity the burden of showing the same; and this is true when it is asserted against such marriage that it was entered into during a valid prior marriage. (Post, p. 417.) 2. SAME. Presumption of validity of a second marriage when property rights are inoived, and presumption of dissolution of former marriage by divorce; burden to show no divorce. If the former spouse of one subsequently married be living at the time of the subsequent marriage, the law presumes, in cases involving the settlement of property rights, that one or the other party to the former marriage had procured a divorce before the second marriage was entered into; and the burden is upon the person attacking the validity of such subsequent marriage to show that there was no such divorce. (Post, p. 417.) 3. SAME. Absence of divorce may be proved from court records, by direct evidence, or by circumstances. The fact that parties formerly married were not divorced before one of them remarried may be proved by evidence that the court records where the divorce decree or judgment should be found show no divorce; and the fact may also be shown by other direct evidence, or by circumstances. (Post, p. 417.) 4. SAME. Presumption in favor of the validity of marriage; and character of evidence to overcome such presumption. The presumption in favor of the validity of marriage is very strong, and the pressure of that presumption is felt at every stage of the inquiry; and. evidence that a divorce was not obtained before a second marriage was entered into by a party to a former marriage must be cogent and convincing to overcome the validity of the second marriage. (Post, pp, 417, 418.) Numerous cases in other States are cited on page 418 of the opinion. 6. SAME. Evidence held to be insufficient to rebut presumption of divorce before a second marriage. The evidence in the case is stated, reviewed, and held to be insufficient to rebut the presumption that a divorce was obtained before the husband married another woman. (Post, pp. 418-420.)
124 Tenn. 421Jackson v. Weis & Lesh Manufacturing Co. (1911)
FROM MADISON. Appeal from the Circuit Court of Madison County. —S. J. Everett, Judge.
124 Tenn. 429Murphy v. Sullivan (1911)
APPELLATE JURISDICTION. Bills for reformation of deeds, or to set up a trust In lands, are not ejectment suits, and appeals from chancery decrees In such cases lie to the court of civil appeals; transfer by supreme court. Where a bill is filed for the reformation of a deed made to complainant as “guardian,” and to have the word “guardian” stricken out, upon the ground that it was inserted hy inadvertence; and the defendants, the wards of complainant, answered denying the grounds of relief, and hy cross bill sought to recover the land from complainant and his grantees, upon the ground that he held the land as their guardian, and. that his grantees, hy reason of the form of the deed to complainant, took with notice that he held the land in a trust capacity, it is held that such suit is not an ejectment suit, because complainant seeks no recovery of the land, hut is merely asking for the reformation of a certain deed, and because the defendants have no “valid subsisting legal interest” in the land, and have no “right to the immediate possession thereof,” hut only have purely equitable rights therein that can only he set up in chancery, and their effort is in fact merely one to set up a trust in the land. Therefore, the appeal from the chancery decree in such case lies to the court of civil appeals, and if erroneously taken to the supreme court, the cause will he transferred to the court of civil appeals. Code cited and construed: Sec. 4970 (S.); sec. 3953 (M. & V.); sec. 3229 (T. & S. and 1858). Acts cited and construed: Acts 1907, eh, 82, sec. 7, Acts 1909, ch. 192.
124 Tenn. 433Mengel Box Co. v. Ferguson (1911)
1. DEEDS OF CONVEYANCE. Beneficial owner’s conveyance of land, though the legal title is in trustees, will estop him to assert any adverse claim against his grantee or his vendees. A conveyance by husband and wife of land in which the wife owns the beneficial and usufructuary life interest, when the legal title is in trustees, will effectually estop her from asserting any right, title, or interest in the land against their grantee or his vendees. (Post, pp. 438, 439.) 2. SAME. Same. Deed conveying land for a valuable consideration, but operating by estoppel to convey only certain interests, is not void, and will support suit for breach of covenants of warranty and seizin. A deed based upon a valuable consideration, and conveying land in fee simple, but operating only by estoppel to convey a life estate in the whole, and an undivided one-fifth interest therein in fee, is not void as a nude pact, and is sufficient in law to support a suit for the breach of the covenant of warranty and seizin contained in the deed. (Post, pp. 439-442.) 3. SAME. Measure of damages for breach of covenant of warranty of title is the consideration paid, with interest, when; indemnity is the rule. In a suit at law or in chancery, -for the breach of the covenant or warranty of the title to the land conveyed, the measure of damages as between the original parties is the consideration or purchase price paid, together with interest thereon from the date of the deed to the date of the judgment, and not merely from the date of the eviction, where the warrantee is compelled to account for mesne profits; and where there is a partial failure of title,.the vendee may elect to retain the title so far as the title is good, and have an abatement of the purchase price to the extent of the value of the land lost, and the abatement is to he estimated in the relative proportion of the value of the whole land at the agreed price, .with interest; hut where such vendee has not suffered the loss of mesne profits to the holder of the paramount title, or is not liable therefor, interest should he allowed only from the date of the eviction; for the measure of damages recoverable is limited to the actual injury sustained so as to afford indemnity only. (Post, pp. 436, 437, 442-446.) Cases cited and approved: May v. Wright, 1 Ov., 387; Talbot v. Bedford, Cooke, 457; Elliot v. Thompson, 4 Humph., 99; Shaw v. Wilkins, 8 Humph.. 652; Crittenden v. Posey, 1 Head, 321; Key v. Key, 3 Head, 449; Frazier v. Tubb, 2 Heisk., 669; Moses v. Wallace, 7 Lea, 419; Mette v. Dow, 9 Lea, 96; McG-uffey V. Humes, 85 Tenn., 26. Cases cited and distinguished: Crutcher v. Stump, 5 Hay., 100; McNew v. Walker, '3 Hum., 185; Stipe v. Stipe, 2 Head, 169, 4. SAME. Action for breach of warranty of title for failure of part of the title. Where the title to only part of the land, or to a certain fractional part thereof, fails, the warrantee can retain the part of which the title is good, and sue for the breach of the warranty of title of that part to which the title failed. (Post, p. 446.) Case cited and approved: Moses v. Wallace, 7 Lea, 419. 5. SAME. In an action for breach of warranty of title, the war-rantee may recover of warrantor the costs of unsuccessful but proper defense, when. In an action for the breach of warranty of title by eviction by paramount title in a suit against the warrantee, he may recover the taxable costs of his unsuccessful but proper defense, where he notified the warrantor of the suit, who failed to defend (Post, pp. 442, 446, 447.) Cases cited and approved: Hopkins v. Lane, 9 Yerg., 79; Williams V. Burg, 9 Lea, 456. 6. SAME. In an action for breach of warranty of title, warrantee cannot recover counsel fees in unsuccessful defense of title. In an action for the breach of the warranty of title, the war-rantee cannot recover counsel fees properly expended in an unsuccessful defense of the suit resulting in his eviction (Post, pp. 447, 449.) Case cited and approved: Williams v. Burg, 9 Lea, 456. 7. SAME. In an action for breach of warranty of title, warrantee cannot recover taxes paid, if not incumbrances at date of deed. In action for the breach of warranty of title, the warrantee is not entitled to recover the taxes paid on the land from the date of the deed to his eviction, where they were not incumbrances when the deed was executed. (Post, pp. 448, 449.)
124 Tenn. 450Fisher v. Travelers' Insurance Co. (1911)
1. EVIDENCE. Of experiments tending to show that accident could not have happened as contended is competent and admissible, and its exclusion was reversible error. Where, in a suit on an accident policy insuring the deeedént against death from “bodily injuries, effected directly and independently of all other causes, through external, violent, and accidental means * * *, while riding as passenger and being in or on any” such car as that on which the accident happened, the complainant contended that the insured’s death resulted from injuries by being thrown against the seats of the ear by its motion and swerve when rounding a curve, while the defendant claimed that the motion and swerve of the car when rounding the curve could not have caused a person to fall as the deceased did, and that her fall resulted from her physical condition, evidence of the result of experiments made by witnesses with the same car in going around the same curve at various rates of speed from two to ten miles, indicating or tending to show that the motion and swerve of the car would not disturb the balance of any person walking the aisle as the insured was unless the curve was rounded at comparatively high speed] and then it would cause a person to fall in the direction opposite to that in which it was contended by complainant that the insured fell, was competent and admissible, and its rejection or exclusion was reversible error. (Post, pp. 462-473.) Oases cited and approved: Boyd v. State, 14 Lea, 161; Lipes v. State, 15 Lea, 125; Railroad v. Ayers, 16 Lea, 725; Byers v. Railroad, 94 Tenn., 345 (and citations); Railroad v. Champion (Ind.), 32 N. E., 874, 23 L. R. A., 861. 2. CHARGE OF COURT. Proper as to failure of complainant to testify about matters peculiarly within his knowledge. In a suit on an accident policy for the accidental death of the complainant’s wife, based upon the alleged ground that she died as the result of being thrown against the seats of a street car as it was rounding a curve, it was shown that complainant was a physician; that he and his wife did not live happily together; that shortly before her death, another physician, who had been attending her, had visited her, and she then showed no dangerous symptoms, but soon after he left, while complainant was alone with her, her pulse began to decrease, and she died soon thereafter; that, in a prior action against another insurance company to recover upon a policy on her life, complainant had testified, and had been cross-examined at length, and his misconduct and unfaithfulness to his wife was disclosed; that failing to offer himself as a witness in the present suit, the defendant proved parts of his testimony in the former case, showing facts which complainant alone could explain, and which tended to show a motive for ridding himself of his wife; whereupon the court properly charged the jury, substantially, among other things, that the failure to call an available witness possessing peculiar knowledge as to essential facts, especially if such witness would naturally be favorable to the party’s contention, raises an inference, sometimes denominated a “strong presumption of law,” that the testimony of such uninterrogated witness would not sustain the contentions of the party, and that such rule applied with peculiar force to a party to a suit who refuses to testify, and was applicable to complainant. (Post, pp. 473-483.) Cases cited and approved: Dunlap v. Haynes, 4 Heisk., 476, 480; Jackson v. Blanton, 2 Bax., 63, 66, 67; Bennett v. Insurance Co., 107 Tenn., 371; Standard Oil Co. v. State, 117 Tenn., 676; Railroad v. Ellis, 64 Fed., 481, 483, 4 C. C. A., 454, 456; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed., 180, 36 C. C. A., 135; Blateh v. Archer, Cowp., 63, 65. 3. SAME. Improper as to failure of complainant to testify about matters peculiarly within his knowledge, though his former testimony was proved, when. After delivering a proper charge as stated in the preceding head- . note, the court then improperly charged the jury, substantially, that if the jury believed that complainant’s testimony, taken on the trial of a former case, contained all the evidence within complainant’s knowledge which was favorable to defendant, the jury should take that into consideration, since it was not right that the defendant should introduce all the testimony of complainant against his interest and in favor of defendant, and then, in addition, have the full benefit of the presumption against him arising from his not testifying. This charge was erroneous, because there were other facts proven in the record, as to which complainant might have testified, than those contained in the cross-examination, and proved by the record in the previous case. (Post,- pp. 473-483.) 4'. SAME. Proper as to presumptions against a complainant failing to testify and to explain facts peculiarly within his knowledge and seemingly adverse to him. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, complainant failed to testify, notwithstanding the proof of facts showing that he must have had peculiar knowledge of many facts, not known to others, concerning his wife’s death, tending to show that her death was not caused by an accident in the meaning of the policy but imputing to him her death, it was proper to charge the jury that his failure to testify was unaccountable upon any other reasonable hypothesis than that he could not deny the truthfulness of the testimony given against him as to his conduct about the time of his wife’s injury and death, and as to the admissions made by him at a former trial of another case. (Post, pp. 483-489.) Cases cited and approved: Dunlap v. Haynes, 4 Heisk., 476; Jackson v. Blanton, 2 Bax., 63; Bennett v. Insurance Co., 107 Tenn., 371; Dick Co. v. Belke Co. (C. C.), 86 Fed., 149; Societe, etc., y. Allen, 90 Fed., 815, 817, 33 C. C. A., 282, 284; Bank v. Stone, 50 Me., 595, 599; Dickinson y. Bentley, 80 Iowa, 482. 5. EVIDENCE. Litigants are not excused from testifying because of the humiliation to which they may be subjected on cross, examination. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, the defendant proved facts tending to show or to justify an inference that complainant caused her death, and consequently that her death was not caused by an accident within the meaning of the policy, it was not a sufficient explanation of complainant’s failure to testify that he shrank from the humiliation of haying to repeat his infidelities to his wife and other discreditable conduct on his part at the time of and during their marriage, as he had been compelled to do on cross-examination in a former action upon a policy, on his wife’s life in another insurance company. (Post, pp. 473-489 and especially 489.) 6. CHARGE OF COURT. Special request for instruction as to failure of a party to testify that is too strong and too direct, and that invades the province of the jury, is properly refused; suggested modification. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, the defendant specially requested the court to charge, in substance, that it is the duty of a party to a suit in a court of equity to make a disclosure of all material and relevant facts in his possession bearing upon the issues, and to withhold none, so that the merits of the controversy may be fairly and properly determined; that plaintiff is a competent witness, and has not testified; and that his failure to testify is unaccountable upon any other hypothesis than that he could not deny the truthfulness of the testimony given against him as to his conduct about the time of his wife’s injury, and as to his admissions at the former trial; nor can his failure to testify concerning the symptoms, conditions, and appearance of his wife, after the injury, he accounted for upon any other reasonable ground, except that, if he testified, his testimony would have tended to disprove that her death resulted from accidental means, such request is stated in language too strong and too direct, and, if given, would have invaded the province of the jury, and it was, therefore, properly refused. An instruction might have been properly given that the jury would be justified in presuming against complainant, and in assuming as true the facts which he might have disproved by his own testimony if untrue, if they should see proper to do so. (Post, pp. 484, 489, 490.) 7. SAME. As to complainant’s right to recover notwithstanding his bad character and motives, if he made out a case of accidental death of his wife under an accident policy, is not Improper when. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, the court instructs the jury that if they find evidence tending to show discord between complainant and his wife, his bad treatment of her, immoral conduct on his part, his forgery of her will, or that he was guilty of other wrongful conduct, they can consider said evidence as part of the circumstances surrounding and preceding her death, in determining the cause of her death; but that, if the jury conj elude, from the preponderance of the evidence, that the injury received on a street car, directly and independently of all other causes, through external, violent, and accidental means, resulted in and caused her death, then the jury should not allow any prejudice against complainant, by reason of evidence reflecting on his character, to affect the verdict; and if the jury believe from the proof that complainant’s character is bad, they may consider this as bearing on the probability or improbability of bad conduct on his part, and as bearing on the question whether he was impelled by good or bad motives; but if he has made out his case by a preponderance of the proof, he is entitled to recover, no matter how bad his character may be, such instruction, when fairly construed, means that the jury should consider all the facts proven, in determining where the preponderance of the evidence lies as to the cause of death, and is not objectionable as segregating the testimony introduced by the defendant as to the probable cause of the decedent’s death from that part of the testimony which immediately concerned the alleged accident in the car, and as authorizing the jury to consider the latter evidence apart from the former in reaching their conclusion as to the cause of the death. (Post, pp. 490, 491.) 8. SAME. Correct- as to consideration of testimony as to forgery of will in husband’s suit upon accident policy for accidental death of his wife. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, evidence was introduced which tended to raise an inference that complainant had caused his wife’s death, and also that he had forged her will, an instruction that testimony with reference to the forgery of the will was material only as a part of the circumstances surrounding and antedating his wife’s death, and as bearing upon the question of what, if any, motive complainant had to cause her death, and could be considered only in that connection, was correct, and not improper. (Post, pp. 491, 492.) 9. SAME. Immaterial instruction likely to mislead, jury should not be given. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, the defendant contended that complainant himself caused his wife’s death, and had forged her will in his own favor covering certain lands of hers in the State of Mississippi, an instruction was given to the jury, in effect, that, under the law of Tennessee, a will must be proved and recorded, and letters testamentary granted, in-a court of the county where the testatrix had her residence at the time of her death, and that if the jury find that her will was proved and recorded in a certain county where she resided at her death, then that would be the legal way of proving the wiil, and no inference derogatory to complainant can he drawn from Ms proving it there, though she may have had lands in Mississippi' such instruction was immaterial, and should not have been given, because it was of a nature likely to mislead the jury. (Post, pp. 491, 492.) 10. SAME. Same. As to law of inheritance of another State as argument against forgery of will is improper where alleged forger is not shown to have known such law. Where the court, continuing the charge stated in the preceding headnote, instructs the jury that under the laws of Mississippi,' where a wife dies leaving no children, the husband, by virtue of the marital rights, and independent of any will, inherits the real estate of his deceased wife, and therefore that it is immaterial whether said will was proved in Mississippi, or not, in so far as his inheritance of such real estate is concerned, such instruction was improperly given, because there was no evidence or presumption that complainant knew what the law of Mississippi was when the will is said to have been forged by him; for the existence of such law, when not known to him, is no argument against his forging the will. (Post, pp. 491, 492.) 11. EVIDENCE. Expert’s copy of signature is no evidence that a less skilled person could copy it; and exclusion of such evidence is not error. Where, in a suit on an accident policy for the accidental death of the complainant’s wife, it was contended by defendant that complainant had forged his deceased wife’s will, the fact that a controversy arose between counsel as to whether a forged signature should resemble the original in order to be a deceptive forgery did not authorize the admission of a copy of decedent’s alleged signature, made by a handwriting expert, and offered by defendant as an 'illustration of the ease with which the decedent’s name could be forged, to show the expertness of the witness, and in support of defendant’s theory as to how the signature was forged with an indelible pencil, which the expert used in making the illustration, and there was no error in the court’s exclusion of such evidence; for the expert’s imitation of the signature 'would he no reason for believing that any other less shilled person could make a similar imitation with equal ease, and, therefore, the evidence was wholly: immaterial and irrelevant. (Post, pp. 492, 493,) 12. CHARGE OF COURT, As to medical treatment and autopsy that is not erroneous as eliminating other evidence, especially in the absence of a special request thereon. Where, in a sxiit on an accident policy for the accidental death of complainant’s wife, the defendant claimed that she died from the result of drugs administered to her in the course of medical treatment, and not from the result of an accidental injury, as claimed by complainant; and the court charged that the evidence showed, after it was claimed that the insured . was injured, that morphine and other poisonous drugs were given her in the course of medical treatment; that it was immaterial whether such treatment was proper or improper, or whether, it was the intention of saving or prolonging life, but if the jury found from the evidence that such medical treatment caused or in any wise contributed to or acted in conjunction with the injuries to bring about her death, or hastened her death, there could be no recovery; and further instructing the jury, the court said “You may, however, consider whether or not the said medical treatment was in accord with the practice of reputable physicians, and. if you find it was, you may look to this in determining whether or not said medical treatment contributed to or' hastened her death;” and after giving instructions on another subject, the court then also charged that the purpose of an autopsy is to ascertain the exact cause .of death, and that the chemical analysis of the contents of the stomach of the insured decedent was for the purpose of ascertaining whether or not there was any poisonous substance therein, so if the jury found that an autopsy was made on defendent’s body by competent physicians and chemists, and no morphine was found therein, then they might consider such, facts determining whether or not she came to her death hy morphine poisoning, accidental or otherwise, or as the result solely of the accident, the said instruction on autopsy and the quoted portion of the preceding instruction-were not erroneous as eliminating other evidence that the decedent’s stomach, from .the time of her alleged injury to her death, was torpid and unresponsive, and that under such circumstances morphine, even in small doses hy hypodermic injections, would prohahly he fatal, though it might not he disclosed hy a post mortem examination and analysis of the contents of the stomach, in the absence of a special request presenting such phase of the testimony. (Post, pp. 493-499.) 13. SAME. That expert evidence must be received with ''great caution,” and that the jury “must not be misled or confused” thereby, is erroneous, as discriminating too strongly against expert evidence. , A charge instructing the jury that they must receive and consider expert testimony with great caution; that they must make a careful and painstaking investigation of all the facts, with the view of reaching the truth, and must not he misled or confused hy expert testimony, because, while such testimony is sometimes the only means or the best way to reach the truth, yet it is largely a field of speculation, beset with pitfalls and uncertainties, and requires patient and intelligent investigation to reach the truth, was erroneous, as discriminating too strongly against such class of evidence in warning the jury that they “must not he misled or confused hy expert testimony,” and also in charging, in respect of all of the expert testimony in the case, that it must be received with “great caution.” (Post, pp. 499-506.) Cases cited and approved: Persons v. State, 90 Tenn., 291; Wilcox v. State, 94 Tenn., 106, 112; Bateman v. -Ryder, 106 Tenn., 712, 715; Atkins v. State, 119 Tenn., 458, 472. 14. SAME. That the nonexistence of one fact in a hypothetical question asked an expert renders his opinion valueless contains no error. A charge instructing the jury that, in weighing the answers of experts to hypothetical questions, they must look to all the evidence, and determine whether the facts, supposed to exist in the hypothetical questions asked, did actually exist, “because, if one fact, supposed to be true, included in the hypothetical question, is untrue, that is, not supported by the evi dence, then the opinion of the expert would be valueless,” and because the expert witness gives his opinion upon a certain state of facts supposed to be true, and it cannot be known what his opinion would be if one of those facts was withdrawn, is in substantial accord with the authorities, and contains no error. (Post, pp. 506-508.) 15. SAME. That presumptions might be overcome by facts and circumstances which “establish” the contrary contains no reversible error in the use of the word “establish.” Where, in a suit on an accident policy for the accidental death of the complainant’s wife, the court chargéd the jury that the complainant was entitled to the presumption that his wife did not commit suicide, and that she was not murdered by him or any one else; that each of these presumptions might be overcome by facts and circumstances which “establish” the contrary; but that such presumptions stand until they are overcome by the preponderance of the evidence, sufficient for that purpose, does not contain reversible error, because of the use of the word “establish,” when taken in connection with the rest of the paragraph, though its such use in a civil case is unfortunate. (Post, pp. 508, 509.) Cases cited, distinguished, and approved: Insurance Co. v. Bennett, 90 Tenn., 256; Knights of Pythias v. Steel, 107 Tenn., 1, 7, 11. 16. SAME. Same. Requiring the establishment of a fact to the satisfaction of the jury is improper as requiring too high a degree of proof. A charge that it was incumbent upon a party “to establish the fact to the satisfaction of the jury” is equivalent to saying to them that he must make it appear beyond a reasonable doubt, and is, therefore, improper as applied to the party upon whom the burden of proof rests in a civil case, in that it requires a degree of proof entirely too high. (Post, pp. 508, 509.) Cases cited, distinguished, and approved: Insurance Co. v. Bennett, 90 Tenn., 256; Knights of Pythias v. Steel, 107 Tenn., 1, 7, 11. 17. ACCIDENT INSURANCE. Evidence stated and held to be insufficient to prove the fact that proofs of death were sent to the insurer. Where, in a suit on an accident policy for the accidental death of the insured, the insurer’s agent testified that he could not say whether proofs of death were handed into his office or sent directly to the insurer, without, examining his record, such evidence did not show that the proofs were sent either to the office of the agent or to the office of the insurer, especially where such agent testified that he was not in his office at the time the alleged accident occurred, and did not know whether any notice had been sent there- or not, and did not profess to know what was on the records of the insurer at the home office, where the notice was required to be sent; and there was no other evidence upon the subject, except a physician testified that he made out the proofs of death, but had no knowledge as to whether they had been sent to the insurer; such evidence cannot be taken as sustaining in any sense the fact that the proofs of death were sent as required by the policy. (Post, pp. 510, 511.), 18. CHARGE OF COURT. Special request for instruction to jury to find that proofs of death were not furnished as required by accident policy should be given, when. ■Where, in the case shown in the preceding headnote, if nothing else appeared, and there was no waiver of proofs of death, a special request for an instruction to the jury that there was no evidence that the proofs were furnished in the manner required by the policy, and that they should find accordingly, should have been given; but where such proofs of death were waived by the insurer’s demand for an autopsy such request was properly refused. (Post, pp. 510, 511, 512.) 19. ACCIDENT INSURANCE. Policy requiring proofs of death to be sent to home office is not complied with by submitting same to office of local agent. Where an accident policy requires proofs of death to be sent to the insurer’s home office, this requirement is a condition precedent to a recovery, unless it be waived; and submission of such proofs to the office of a local agent of the insurer is not a compliance with such requirement. (Post, pp. 511, 612.) 20. SAME. Insurer’s demand for autopsy waives proofs of death. The insurer’s demand for an autopsy to discover the cause of death constitutes a waiver of the proofs of death required by the policy as a condition precedent to a recovery. (Post, p. 511.) 21. ASSIGNMENT OF ERROR. For refusal of new trial for newly discovered evidence will not be considered where the case is reversed upon other grounds resulting In a new trial. It is unnecessary for the supreme court to consider an assignment of error based upon the refusal of the trial judge to grant a new trial on account of newly discovered evidence, where the case must be reversed upon other grounds, resulting in a new trial, and such newly discovered evidence may be introduced at the next trial, if then deemed material. (Post, p. 512.) 22.' ACCIDENT INSURANCE. Reception and retention of' premiums operates as a waiver of insured’s signature to'certificate, and estops insurer to object for want of same. Where a, beneficiary supplement, insuring the complainant’s wife against accident in his favor, was attached to an accident policy issued to complainant, and the premium was received and retained by the insurer, without requiring the wife’s signature to the certificate, such beneficiary supplement ' having been lost, and a new one issued in lieu thereof, the insurer was estopped to object to the validity thereof, upon the ground that it was not signed by the wife in person, but by plaintiff for her; and a charge of the court in accordance with this view, and the court’s refusal to charge special requests contrary to such view, constituted no error. {Post, pp. 512-515.)
124 Tenn. 516Blackwell v. Memphis Street Railway Co. (1911)
FROM SHELBY. Appeal from tbe Circuit Court of Shelby County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court. — A. B. Pittman, Judge.
124 Tenn. 524Morris v. Illinois Central Railroad (1911)
1. SUPREME COURT JURISDICTION. No direct appellate Jurisdiction where money recovery sought cannot exceed one thousand dollars. The supreme court has no direct appellate jurisdiction in a chancery suit to recover the rental value of complainant’s land as damages or compensation during the time he was wrongfully deprived of its use on account of nonaccess to it caused by defendant’s wrongful obstruction or' destruction of his only way of ingress and egress to and from it, where the recovery could not in any event amount, under the pleadings, to as much as one thousand dollars; for, under the statute (Acts 1907, ch. 82, sec. 7), the supreme court has direct appellate jurisdiction only in those equity cases in which the amount involved or the money recovery sought exceeds one thousand dollars, with certain exceptions inapplicable in this proposition. (Post, pp. 526, 527.) " • Acts cited and construed: Acts 1907, ch. 82. see. 7. Case cited and approved: Chattanooga v. Railroad, 123 Tenn. 497. 2. SAME. No direct appellate jurisdiction of suit incidentally seeking to recover damages exceeding one thousand dollars, but mainly seeking to recover or procure a right of way. The supreme court has no direct appellate jurisdiction in a suit to compel the defendant railroad company to provide for complainant, over its tracks, a suitable way of ingress and egress to and from his land, upon the ground that he is entitled to such right of way, and that the defendant had wrongfully deprived him of such way by the manner of the construction of its tracks and maintenance of'its adjacent property, and also to recover the rental value of his land as damages or compensation during the time that he was wrongfully deprived of its use on account of nonaccess to it, caused by tbe defendant’s wrongful obstruction or destruction of bis only way of ingress and egress to and from it, even tbougb tbe damages recoverable might exceed one thousand dollars, because tbe main object of tbe bill was tbe procurement of a right of way, and tbe damages claimed were only incidental. (Post, pp. 526, 527.) Acts cited and construed: Acts 1907, cb. 82, sec 7. 3. SAME. Suit to obtain or recover a right,of way is not an ejectment suit authorizing a direct appeal to the supreme court.. A suit to compel the defendant railroad company to provide complainant with a right of w-ay over its tracks, and to recover tbe rental value of tbe land, as shown in tbe preceding head-notes; is not an ejectment suit, and tbe supreme court has no direct appellate jurisdiction under tbe statute (Acts 1907, cb. 82, sec 7) authorizing direct appeals to tbe supreme court in. ejectment suits. (Post, p. 527.) Acts cited and construed: Acts 1907, cb. 82, sec. 7. 4. SAME. Supreme court will transfer to the court of civil appeals a case erroneously appealed to it instead of the court of civil, appeals. Where tbe direct appellate jurisdiction is in .the court of civil appeals, and not in tbe' supreme" court, tbe latter court will enter an order transferring to tbe former court a cause erroneously appealed to tbe supreme court. (Post, p. 527.)
124 Tenn. 528Crenshaw v. Moore (1911)
1. INHERITANCE TAX. Is a privilege and special tax; construction of law against government and in favor of taxpayer. Inheritance and succession tax is a privilege tax imposed on the right of acquiring property hy succession; and it is like-, wise a special tax, and the rule is that laws imposing such taxes are to be construed strictly against the government, and favorably to the taxpayers. {Post, p. 531.) Cases cited and approved: State v. Alston 94 Tenn., 674; English v. Crenshaw, 120 Tenn., 531; Knox v. Emerson, 123 Tenn., 409. ' 2. YEAR’S SUPPORT. Widow does not succeed to husband's title, but acquires the title adversely to his administrator, by virtue of statute. The year’s support for the widow is given to her by statute (sec., tions 4020 and 4021 of Shannon’s Code); and she does not succeed to the husband’s title to the property set apart to her as a year’s support, hut she acquires the same adversely to his administrator, by virtue of the said statute conferring the right. It is a special provision made for her in law for the «up-post of herself and family. {Post, pp. 531, 532.) Code cited and construed: Secs. 4020, 4021 (S.); secs. 3125, 3126 (M. & V.); secs. 2285, 2286 (T. & S. and 185.8). Cases cited and approved: Bayless v. Bayless, 4 Cold., 363; Railroad v. Kennedy, 90 Tenn., 185. 3. DOWER. Possesses same qualities as at common law, but the quantity is less. The widow’s right of dower in this State possesses the same qualities as the common law right of dower, but its quantity Is cut down by limiting it to one-third part of all the land of which her husband died seized and possessed, or the equitable owner, and not allowing it in all the lands seized by the husband at any time during the coverture, though aliened by him. (Post, pp. 532-534.) ' . . Code cited and construed: Sec. 4139 (S.); sec. 3244 (M. & V.); sec. 2398 (T. & S. and 1858). ■ - Cases cited and approved: Combs v. Young, 4 Yerg., 226; Ful-wood’s Case, 4 Co., 65. 4. SAME. Widow does not succeed to husband’s title but takes by virtue of the marriage, and adversely to the inheritance from the husband. The widow’s right to dower is not in succession to the title of her husband upon his death; for she does not succeed, in her dower estate, to the husband’s title by the intestate laws, but she derives it by virtue of the marriage and in her right as wife, to be consummated in severalty to her upon the susband’s death, and she takes it adversely to the inheritance from the husband. (Post, pp. 534, 535.) Case cited and approved: Boyer v. Boyer, 1 Cold., 14. Case cited, distinguished, and disapproved: Billings v.. People, 189 Ill., 472., 5. INHERITANCE TAX. Widow’s year’s support and dower are not subject to inheritance and succession tax. Neither the year’s support for the widow given by statute (sections 4020 and 4021 of Shannon’s Code), nor her dower in her -deceased husband’s land given by statute (section 4139 of Shannon’s Code), is subject to the inheritance and succession tax imposed by statute (section 724 of Shannon’s Code, as amended by Acts 1909, ch. 479, sec. 20). Code cited and construed: Secs. 724, 4020, 4021, 4139 (S.); sees. 3125, 3126, 3244 (M. & V.); secs. 2285, 2286, 2398 (T. & S. and 1858). Acts cited and construed: Acts 1909, ch. 479, sec. 20). .
124 Tenn. 536Arlington Hotel Co. v. Ewing (1911)
1. CONTRACTS. For suspension of enforcement or operation of a valid criminal law is illegal and unenforceable. Where an attorney contracted with certain persons engaged in the liquor business, to test the constitutionality of a prohibition act, and for an additional stipulated fee, in the event he succeeded “in suspending the enforcement or operation of the act until the meeting of the next supreme court in the spring of 1910,” such contract, in so far as it provided for the suspension of the enforcement of the act, and thereby to render a valid criminal law of the State nugatory, was illegal and unenforceable, and the attorney cannot recover the additional Stipulated fee for that particular service. (Post, pp. 538-552, and especially 548, 549.) Acts referred to and construed: Acts 1909, chs. 1 and 10. Cases cited and approved: Allen v. Dodd, 4 Humph., 131; Hale v. Henderson, 4 Humph., 199; Yerger v. Rains, 4 Humph., 259; Isler v. Brunson, 6 Humph., 278; Lea v. Collins, 4' Sneed, 393; Nichols v. Cabe, 3 Head, 92; Parks v. McKamy, 3 Head, 297; Rhodes v. Summerhill, 4 Heislt., 204; Heart v. Brewing Co., 121 Tenn., 71. 2. SAME. Enforcement or operation of a valid criminal statute cannot be legally stayed or enjoined. There are no means known to the -law whereby the operation of a valid criminal statute can be legally suspended or its enforcement stayed; for such a statute cannot be enjoined, and if parties are indicted thereunder, and they are defended, this does not legally stay the operation of the statute, since each additional offense under the statute is an additional crime, for which a new indictment may be found and a new prosecution waged. (Post, pp. 549, 550.) 3. SAME. Lawful by its terms is legal, though illegally performed; but contract to violate the law is illegal, though legally performed. If a contract can, by its terms, be performed lawfully, it will be treated as legal, even if performed in an illegal manner; while a contract entered into with intent to violate the law is illegal, even if the parties may, in performing it, depart from the contract, and beep within the law. (Post, p. 550.) 4. SAME. To test the constitutionality of a constitutional statute Is valid; but contract to suspend or nullify Its operation Is void. A lawyer may properly undertake to test the constitutionality of a criminal statute, which is in fact constitutional, and such contracts are often made; but, if, in addition to his undertaking to test its constitutionality, • he contract that he will, pending such test, suspend or nullify its operation, the contract is void. (Post, p. 552.) 5. SAME. No recovery as on a quantum meruit In an action on an illegal contract. ' Where a lawyer sues on an illegal contract for services rendered thereunder, he cannot recover as on a quantum meruit. (Post, p. 552.) 6. PEREMPTORY INSTRUCTIONS. Erroneously refused by the trial court will be granted by the supreme court, and the suit dismissed, when. Where the trial court should have granted the peremptory instructions asked for - by the defendant, the supreme court, rendering such judgment as the trial court should haye rendered, will sustain the motion, and dismiss the suit, with costs. (Post, pp. 548, 552.)
124 Tenn. 553State ex rel. Bigham v. Powers (1911)
1. CONSTITUTIONAL LAW. A drainage statute whose title provides for assessment and collection and manner of obtaining funds for the improvement, and whose body provides a system of taxation, to be exercised by the drainage districts, without limit as to rate or frequency, is not unconstitutional as embracing a subject in its body not included in its title. Where a drainage law (Acts 1909, ch. 185) is entitled “An act to provide for the establishment of levee and drainage districts, for the purpose of the draining and reclamation of wet and swamp lands and lands subject to overflow in the State, and prescribing the method for so doing, and providing for the assessment and collection of the costs and expenses of such improvements, and the manner of obtaining the means or funds therefor,” even though such act be construed to provide in its body a system of taxation, to confer on the several drainage districts the power of taxation, and give to such districts unlimited power as to rate or frequency of taxation, the statute is not unconstitutional as containing in its body, in this particular, matters not embraced in its title, for all these matters are fairly included within the clause of the title as to assessing and collecting and providing the costs and expenses and funds for the work. (Post, pp. 562-564.) Acts cited and construed: Acts 1909, ch. 185. Constitution cited and construed: Art. 2, sec. 17. 2. SAME. Title of a statute providing for establishment of levee and drainage districts and for a method for so doing authorizes a provision in its body for creation of one drainage district within another. Where a drainage law (Acts 1909, ch. 185) is entitled “An act to provide for the establishment of levee and drainage districts, * * * and prescribing the method for so doing,” etc., it is entirely appropriate for the body of the act to contain a provision for the establishment of a drainage or levee district to be created within a drainage or levee district; for such a provision is not a matter distinct and foreign to the title. (Post, pp. 564, 565.) Acts cited ¿nd construed; Acts 1909, ch. 185.® Constitution cited and construed: Art. 2, sec. 17. 3. SAME. Title of a statute providing for establishment of levee and drainage districts and for a method for so doing authorizes a provision in its body for establishment thereof by mutual agreement, when. Where a drainage law (Acts 1909, ch. 185) is entitled “An act to provide for the establishment of levee and drainage districts, * * * and prescribing the method for so doing,” etc., it is entirely appropriate for the body of the act to contain a provision authorizing the owners of land requiring combined drainage to provide by mutual agreement for the establishment of drainage districts, with the power given to thq other districts; for such provision only undertakes to prescribe a method for establishing drainage districts, namely, “by mutual agreement,” and is covered by the title or caption, and is entirely harmonious with the other parts of the act. (Post, pp. 564, 565.) Acts cited and construed: Acts 1909, ch. 185. Constitution cited and construed: Art. 2, sec. 17. 4. SAME. Title of a statute providing for establishment of levee and drainage districts and for funds to pay for the improvements authorizes a provision in its body for exercise of eminent domain. Wbere a drainage law (Acts 1909, ch. 185) is entitled “An act to provide for the establishment of levee and drainage districts, and prescribing the method for so doing, and providing for the assessment and collection of the costs and expenses of such improvements,” etc., a provision in the body of the act for the exercise of the right of eminent domain in the establishment of these districts is germane to the title, and also to the other provisions of the act, and, therefore, does not render the act unconstitutional. (Post, pp. 565, 566.) Acts cited and construed: Acts 1909, ch. 185. Constitution cited and construed: Art. 2, see. 17. 5. SAME. Title of statute providing for establishment of levee and drainage districts and prescribing the method for so doing authorizes provision in its body requiring the county to bridge drainage ditches. Where a drainage law (Acts 1909, ch. 185) is entitled as set out in the preceding headnote, a provision in the body of the act requiring the county to build bridges when necessary over drainage ditches is clearly included in that clause of the title as to the methods to be used in establishing the levee and drainage districts. (Post, pp. 665, 566.) Acts cited and construed: Acts 1909, ch. 185. Constitution cited and construed: Art. 2, sec. 17. 6. SAME. None of said provisions treated in the preceding head-notes are incongruous with the title of the act or with each other. All of the matters urged against the constitutionality of said act are determined against such contention, and held not to be incongruous with the title of the act or with each other, but tliat they are all related to each, other and fall well within the scope of the title. (Post, pp. 564-566.) Acts cited and construed: Acts 1909, ch. 185. Constitution cited and construed: Art. 2, sec. 17. 7. SAME. Special assessments for establishment of levee and drainage districts are not taxes within the meaning of the constitution, and may be made or levied according to benefits instead of value of land. The special assessments authorized by the drainage law (Acts 1909, ch. 185, sec. 11) to he made for the payment of the costs and expenses of the establishment and construction of levee and drainage districts, and to be apportioned and levied upon or against each piece of land within the drainage district according to the benefits accruing thereto by reason of such improvements, are not taxes within the meaning of the constitutional provision (art. 2, sec. 29), giving the legislature power to authorize counties and incorporated towns to impose taxes for county and corporation purposes, respectively, in ■ such manner as may he prescribed by law, and requiring all property to he taxed according to value, etc.; and, therefore, such assessments may, under authority of statute, he made or levied against each piece of land,, not according to its value, hut according to the benefit it may receive from the establishment of the levee and drainage district. (Post, pp. 562, 563, 666-571.) Acts cited and construed: Acts 1909, ch. 185, sec. 11, Constitution cited and construed: Art. 2, sec. 29. Case cited and approved: Arnold v. Knoxville, 115 Tenn., 195. 8. SAME. Statute authorizing preliminary expenses of establishing levee or drainage districts to be paid out of general county funds, to be repaid out.of collected assessments, is not unconstitutional as the lending of the county’s credit; because it is not the lending of the county’s credit, and, even if it were, it is for a county purpose, and may be done without an election. The provision of the drainage law (Acts 1909, ch. 185, sec. 39) that the preliminary expenses for the organization and establishment of a levee or- drainage district may be paid out of the general county funds, to be refunded to the county out of collections of assessments on the lands -benefited; and, if not so repaid, then to be adjudged against and collected out of the bonds of the petitioners applying for the establishment of such district, is not a provision for the lending of the credit of a county in violation of the constitutional inhibition (art. 2, sec. 29) against the giving or lending of the county’s credit to or in aid of any person, company, association, or corporation, except upon the assent of three-fourths of the votes cast, by the qualified voters of the county, in an election held to determine the question, but is rather a provision authorizing counties to appropriate a portion of their general funds for a newly sanctioned county purpose; but even if the statute be construed as providing for the lending of the county’s credit, it is not, for that reason, unconstitutional, because the organization and establishment of such districts is a county purpose within the rule that a county’s credit may be loaned for county purposes by the action of the quarterly court, without submission of the question to an election by the qualified voters. (Post, pp. 572, 573.) Acts cited and construed: Acts 1909, ch. 185, sec. 39. Constitution cited and construed: Art. 2, sec. 29. Cases cited and approved: Lauderdale Co. v. Fargason, 7 Lea, 153; Shelby Co. v. Exposition Co., 96 Tenn., 653; Burnett v. Maloney, 97 Tenn., 699. 9. SAME. Statute authorizing commissioners under the appoint-, ment, direct supervision, and control of the county court to make special assessments for drainage districts is not unconstitutional as the delegation of the taxing power to bodies other than the county or a municipal corporation. The provision in the drainage law (Acts 1909, ch. 185, sec. 11), authorizing the commissioners appointed by the county court, wholly as agents of the county, to levy the special assessments necessary for the establishment and maintenance of levee and drainage districts, to be made under the direct supervision and control of the county court, to which the said commissioners are required to report, and under whose direction they proceed, is not a delegation of the taxing power to a body of persons other than a county or a municipal corporation, in violation of the constitutional provision (art. 2, sec. 29) authorizing the delegation of the taxing power to the several counties and incorporated towns, because (1) these spec-id! assessments are not taxes within the meaning of the constitution, and (2) the court clearly intimates, without expressly deciding the question, that the taxing power, may be delegated to other county agencies than the quarterly court. {Post, pp. 573-576.) Acts cited and construed: Acts 1909, ch. 185, sec. 11. Constitution cited and construed: Art. -2, sec. 29. Cases cited and approved: Cannon Co. v. Hoodenpyle, 7 Humph., 145; Newman v. Scott Co., 6 Sneed, 700; Arnold v. Knoxville, 115 Tenn., 195. Case cited and distinguished: Lipscomb v. Dean, 1 Lea,' 546. 10. SAME. Statute authorizing special assessments for levee and drainage districts is not unconstitutional as taking property without just compensation and without due process of law. The drainage law (Acts 1909, ch. 185), authorizing special assessments against the land benefited, for the purpose of paying for the establishment and maintenance of levee and drainage districts, is not unconstitutional as authorizing the taking of property without just compensation and without due process of law. {Post, pp. 576, 577.) Acts cited and construed: Acts 1909, ch. 185. .Constitution cited and construed: Art. 1, sec. 21. Cases cited and approved: Arnold v. Knoxville, 115 Tenn., 195; French v. Asphalt Co., 181 TJ. S., 324; Cain v. Davie, 86 N. C., 8. 11. SAME. Statute authorizing drainage districts is not unconstitutional as arbitrary class legislation because it exempts Reelfoot Lake from its operation. The drainage law. (Acts 1909, ch. 185), authorizing the establishment of levee and drainage districts for the drainage and reclamation of wet and swamp lands, is not unconstitutional as creating an unnatural, arbitrary, and capricious classification or exemption by the provision contained in its fortieth section exempting Reelfoot Lake from the operation of the statute, because such lake is a navigable water in the ordinary sense, a great game and fish preserve, with many public uses, giving the public an interest in its preservation so as tp prevent its drainage, and, on account of its such characteristics, it furnishes a sound, reasonable, and natural basis for such classification between it and the swamp lands of the State. (Post, pp. 577-579.) Acts cited and construed: Acts 1909, ch. 185, sec. 40. Constitution cited and construed: Art. 11, sec. 8, Cases cited and approved: Stratton v. Morris, 89 Tenn., 497: Harbison v. Iron Co., 103 Tenn., 421; State v. Brewing Co.,- 104' Tenn., 215; Webster v. Harris, 111 Tenn., 668. 12. SAME. Statute authorizing special assessments for drainage districts -is not unconstitutional as the taking of private property for either a public or private use. The drainage law (Acts 1909, ch. 185), authorizing the establishment of levee and drainage districts, and special assessments on the land therein and thereby benefited to pay for the construction and maintenance of the same, is not unconstitutional as taking or authorizing the taking of private property'for private uses, contrary to the implied prohibition of the constitution, because (1) there is not a taking of property in the constitutional sense, and (2) the taking is not for a private purpose, hut for a county purpose and a public purpose. {Post, p. .579.) Acts cited and construed: Acts 1909, ch. 185. Constitution cited and construed: Art. 1, sec. 21. 13. SAME. Statute authorizing special assessments for levee and drainage districts is not unconstitutional in imposing such burden upon homesteads thereih; question reserved, with expression of opinion. The drainage law (Acts 1909, ch. 185) authorizing special assessments on the land benefited by the establishment and maintenance of levee and drainage districts to pay for the costs and expenses of the same is not unconstitutional because the assessment may be levied against the homestead and its collection enforced against the homestead, for the reason that the homestead is not exempt from debts contracted for improvements thereon; but the court reserves the question whether the improvement resulting from the establishment and maintenance of a levee and drain of district is an improvement within the meaning of the constitution, for which the homestead would be liable, but clearly expresses a strong opinion that the homestead is not exempt from such assessments for such improvements. {Post, pp. 579-581.) Code cited and construed: Sec. 3799 (S.); sec. 2935 (M. & Y.) ; sec. 2114a (T. & S.). Acts cited and construed: Acts 1909, ch.' 185. .Constitution cited and construed: Art. 11 ,sec. 11. Cases cited and approved: Dickinson v. Mayer, 11 Heisk., 516; Guinn v. Spurgin, 1 Lea, 228; Nichol v. Davidson' Co., 8 Lea, 389; Fauver v. Fleenor, 13 Lea, 623; Flatt v. Stadler, 16 Lea, 371; McLean v. Lerch, 105 Tenn., 693; MeBroom. v. Whitfield, 108 Tenn., 422. 14. NAVIGABLE STREAMS. Statute authorizing levee and drainage districts is interpreted as not undertaking to authorize interference with navigable waters within the control of congress. The drainage law (Acts 1909; ch. 185) authorizing the establishment of levee and drainage districts for the drainage and reclamation of wet and swamp lands does not undertake to authorize any interference with the free and public use of navigable waters over which congress has control, and does not attempt to confer upon the county courts the authority to change or alter such navigable waters; and if the question was doubtful, the statute would be given that interpretation which would save it, rather than one which would destroy it. (Post, p. 581.) Acts cited and construed. Acts 1909, ch. 185.
124 Tenn. 582Lee v. Security Bank & Trust Co. (1911)
1. DEEDS OF TRUST. Provision for maturing whole indebtedness for default as to part is enforceable both as to foreclosure and personal judgment. Where a trust deed provides that, upon the grantor’s failure to pay promptly any part of the indebtedness, taxes, etc., as it becomes due, all of the indebtedness shall, at the option of the creditor, and without notice to the grantor, become immediately due and payable,, the creditor may, upon default made, exercise his option to accelerate the maturity of the notes, and make them all. due for the purpose of a personal suit thereon as well as for foreclosure, upon the principle that it is a plain matter of contract, which the parties are entitled to have enforced according to its terms; and such action on the part of the creditor is not restrainahle in equity, upon the payment of the amount fallen due, on the ground that it is the enforcement of a forfeiture. (Post, pp. 585-590.) 2. SAME. Same. Tender of part due, to be effective, must be made before exercise of option to mature the whole indebtedness. The creditor secured by a deed of trust must accept a tender of the amount of that part of the indebtedness that has become due according to the terms of the contract, when máde after such default, but before he has exercised his option under the contract to mature the whole indebtedness for nonpayment of part, and such tender will make the option clause inoperative under such default, and will prevent the acceleration of the maturity of the unmatured indebtedness; but a tender of the overdue indebtedness, with interest, made after the exercise of such option and before the sale, or with the accrued costs,' if made after suit brought to enforce the deed of trust, will not prevent such acceleration. (Post, pp. 588, 589, 590, 591.) 3. SAME. Option to mature whole indebtedness for nonpayment of part at its maturity may be exercised in what way; instances of ways. The option of the creditor secured by a deed of trust to mature the whole indebtedness for the nonpayment of any part thereof at its maturity may be exercised in any clear manner evidencing an unmistakable intention to do so, as by taking decisive steps for foreclosure, by suit therefor, or by sale out of court pursuant to the provisions of the instrument; and-the advertisement of the property for sale as provided in the trust deed is a sufficient exercise of the option. (Post, pp. 588-591.) 4. SAME. Charge in bill that sale was advertised by authority of ’owner of indebtedness secured, admitted in the answer, prevents question as to formal meeting of board of directors of bank owning such indebtedness. Where, in the grantor’s suit to enjoin the foreclosure sale of property, attempted to be made under the power of the deed of trust and under the provision therein authorizing the cred- - itor to mature the whole indebtedness for the nonpayment of any part thereof at its maturity, the original bill alleged that the property was advertised for sale to pay the whole indebtedness by authority of the owner of the notes, which the answer admitted, the grantor cannot raise the question that there was no formal meeting by the directors of the. bank owning the notes authorizing the trustee to advertise the property for sale; for the allegation of the original bill, admitted by the answer, is conclusive of the point. (Post, pp. 589, 591, 592.) 5. SAME. Creditor is not estopped to mature whole indebtedness after expiration of agreed postponement. Where a deed of trust securing notes empowered the holder thereof, at his option, to mature the whole indebtedness, upon the nonpayment- of a part thereof, and said holder, after the nonpayment of a part of said indebtedness, agreed not to exercise the option until after the decision of a suit in which the debtor and grantor was interested, and from which he expected to receive money sufficient to pay off the indebtedness, and .after said suit was decided adversely to said debtor, the holder of the notes caused the trustee to advertise the mortgaged property for sale for the whole indebtedness, because of such default, and thereafter the debtor asked the creditor the amount of the indebtedness overdue according to the terms of the contract, and having ascertained- the amount, tendered the same, which the cashier of the bank holding the notes refused to receive, upon the ground that he was not authorized to receive it, unless the whole indebtedness should be paid, such bank holder was not estopped from exercising its option to mature the whole indebtedness by refraining to do so until said litigation was terminated; and the tender after the exercise of the option to mature the whole indebtedness was too late to be effective. (Post, pp. 585-587, 592.) 6. SAME. Option to mature whole indebtedness for nonpayment of part may be exercised without notice to debtor, when so • provided in the trust deed. The holder of notes secured by a deed of trust may exercise his option therein given to mature the whole indebtedness for the nonpayment of a part thereof at its maturity, without notice to the debtor, where the deed of trust dispenses with such notice. (Post, pp. 586, 592.)
124 Tenn. 593Caldwell v. Virginia Fire & Marine Insurance (1911)
1. INSURANCE. Agent, with authority to issue and renew the company’s printed policies, cannot orally renew an outstanding policy. Where the insurance company’s commission to its agent provided that he had been duly appointed as such agent “to issue and countersign” its policies, with authority to renew and cancel them, and to assent to assignments thereof, hut that such authority was subject to the terms and conditions of the “company’s printed policy,” which the acts of the agent were not to contravene, <?r operate to waive; and where an outstanding policy, issued by the agent under said commission, provided that no agent shall have power to waive any provisions or conditions of the policy, except such as by its terms may be the subject of agreement indorsed thereon or added thereto, and any waiver must be written upon or attached to the policy, and that it may be renewed under the original stipulations in consideration of the premium for the renewed term; and where it is undisputed that the entire power and authority of the agent was contained in his said commission and said outstand- ■ ing policy; it was held that the only authority the agent had under his said commission was to issue, countersign, renew or cancel the company’s printed policies and to assent to assignments of such policies, and that .the agent had no authority to make an oral contract of insurance, or renewal insurance, which included the terms of the written policy ■ then issued. (Post, pp. 597-607.) 2. SAME. Agent's oral promise to renew certain outstanding policies at their expiration occurring in the future is only an ex-ecutory contract. A fire insurance agent’s oral statement, made to- the insured, that he would renew certain outstanding policies at their expiration occurring in the future, is at most only an execu-tory agreement to renew, and not an executed contract of insurance. (Post, pp. 607, 608.) 3. SAME. Insured is estopped to set up an oral renewal contract of insurance made without authority and In violation of existing policy as a fraud upon the insured.. Where the insured, at the time an alleged oral contract of fire insurance was made by the agent, the insured was the holder of a policy issued by the insurer, which provided that no privilege or permission affecting the insurance should he claimed by the insured, unless written upon or attached to the policy, such insured was estopped to set up an oral contract of insurance, made, without authority, by the insurer’s agent, while the written policy was in force, and identical with it as to parties, amount of indemnity, and subject-matter, because-such oral contract was in fraud of the rights of the insurer under the policy. (Post', pp. 609, 610.) 4. SAME. No relief under allegation of an executed oral contract and proof of an executory oral contract. The insured is not entitled to any relief where he alleged in his bill the existence of an executed oral contract of fire insur- • anee while the proof only showed an executory contract to . renew a policy; for the variance in the allegation and the proof is fatal to any relief. (Post, pp. 610, 611, 612.) Case cited and approved: Pencil Co. v. Railroad, 124 Tenn., 57. 5. SPECIFIC PERFORMANCE. Remedy is controlled by what; contract must be fair, and its specific performance not oppressive. The remedy of specific performance is governed by the same rules .which control the administration of other equitable remedies, and the contract must be fair and equitable in its terms, and the situation of the parties must be such that its specific performance will not be harsh or oppressive. (Post, pp. 611-615.) Cases cited and approved: Trigg v. Read, 5 Humph., 549; Johnson v. Insurance Co., 119 Tenn., 609. 6. MAXIMS. Seeker of equity must do equity. He who seeks equity must do equity. (Post, p. 611.) 7. SAME. One coming into equity must come with clean hands. He who comes into equity must come with clean hands. (Post, p. 611.5“ 8. SAME. Violator of conscience, good faith, or other equitable principle will be denied affirmative relief in equity. One who has violated conscience or good faith or some other equitable principle in his prior conduct will be denied affirmative relief in equity. (Post, p. 612.) 9. SPECIFIC PERFORMANCE. Of oral executory contract of insurance whose conditions precedent to suit have been violated will be'refused where oppressive to the insurer. Where the oral agreement to renew a policy of fire insurance, sought to be enforced as an executed contract of insurance, was made by the agent without authority or knowledge of the insurance company, and the terms of the existing policy, which the oral agreement contemplated, required the insured to submit the question of the value of his loss to arbitrators, and to give immediate written notice to the company of any loss, and provided that the company should be entitled to prorate the loss with other insuring companies, there being other insurance, and for 'subrogation of the rights of the insured against any person causing the loss, which rights so reserved to the company were made conditions precedent to the maintenance of any suit hy the insured; and where the company was not notified of the loss until forty-two days after it occurred, it tvas held that the oral contract would not he specifically enforced, because its enforcement would not be fair and equitable to the company, but oppressive to it. (Post, pp. 615-617.) Cases cited and approved: Insurance Co. v. Morton-Scott-Rob-erton Co., 106 Tenn., 572; Blackman v. Casualty Co., 117 Tenn., 578; Hamilton v. Insurance Co., 136 IJ. S., 242. 10. INSURANCE. Notice of loss given to agent is not sufficient as notice to the company required by policy. Where the policy of fire insurance required notice of loss to be given to the-company, notice to its agents was not sufficient. (Post, pp. 616, 617.) Case cited and approved: Johnson v. Insurance Co., 119 Tenn., 598.
124 Tenn. 618First National Bank of Elgin v. Russell (1911)
1. BILLS AND NOTES. Merely suspicious circumstances do not coistitute, under negotiable instruments law, sufficient proof of bad faith to impute to purchaser knowledge of infirmity or defect in title. "While the facts that a bank purchaser of notes took them without profit, except the six per cent interest they bore, and sent them to a distant State for collection by suit against the maker, thus ignoring and overlooking the solvent seller and indorser, who had been rendered liable to such holder by demand, protest, and notice, and who lived in the immediate vicinity of such holder’s place of business, constitute suspicious circumstances of collusion between the seller and the purchaser of the notes, yet they are insufficient, without proof of actual knowledge of any infirmity or defect on the part of such holder, to charge it with the knowledge of such facts that its action in taking the notes amounted to bad faith, which will, under the negotiable instruments law (Acts 1899, ch. 94, sec. 56), charge it with notice of infirmity in the notes. (Post, pp. 621-624.) Acts cited and construed: Acts 1899, ch. 94, sec. 56. 2. SAME. Instrument, to be negotiable, must be payable at a determinable future time; what constitutes such time. In order to render any instrument negotiable under the law merchant and under the negotiable instruments law (Acts 1899, ch. 94, sec. 4), it must be payable at a determinable future time; that is, at a fixed period after date or sight; or on or before a fixed or determinable future time expressed therein; or on or at a fixed period after the occurrence of a specified event, which is certain to happen, though the time of happening be uncertain. (Post, p. 625.) Acts cited and construed: Acts 1899, ch. 94, sec. 4. 3. SAME. Same. Note purporting to be payable at a fixed date, but authorizing confession of judgment at any time after date, is not negotiable. 'A promissory note purporting to be due and payable at a fixed date after its execution, but containing a warrant or power of attorney to confess judgment “in favor of the bolder” “at any time” after its execution, with tbe maker’s “consent to immediate execution upon sucb judgment,” is not due at any fixed and determinable period, unless it be treated as due from and after its delivery; and, therefore, such note is not negotiable. (Post, pp. 624-628.) Acts cited and construed: Acts 1899, ch. 94, sec. 4. Cases cited and approved: Stults v. Silva, 119 Mass., 137; Mahoney v. Fitzpatrick, 133 Mass., 151; Richards v. Barlow, 140 Mass., 218; Adam v. Arnold, 86 Ill., 185; Bank v. McGeoch, 73 Wis., 332; Kimball Co. v. Mellon, 80 Wis., 133. 4. SAME. Same. Same. Power of attorney to confess judgment “at any time hereafter” means after the delivery of the note. Where the power of attorney annexed to a promissory note authorizes the confession of judgment thereon, in favor of the holder, “at any time hereafter,” these quoted words fix the time for the confession of judgment at any time after the date, execution, and delivery of the note. (Post, pp. 624-628.) See citations under the preceding headnote. 5. SAME.' Same. Same. Same. Provision for confession of judgment at maturity does not affect negotiability, but prior to maturity destroys negotiability. The statutory provision contained in the negotiable instruments law (Acts 1899, ch. 94, sec. 5, par. 2) that the negotiable character of an instrument is not affected by a power of attorney authorizing a confession of judgment, if the instrument is not paid at maturity, undoubtedly indicates that it was not the intention of said statute to make negotiable an instrument containing a power of attorney for tbe confession of judgment prior to maturity, especially where such time is not determinable, but depends upon tbe wbims or caprice of tbe bolder so as to be absolutely uncertain. (Post, pp. 627, 628.) Acts cited and construed: Acts 1899, cb. 94, sec. 6, par. 2. Cases cited and approved: Wisconsin Yearly Meeting v. Babler, 115 Wis., 289. See, also, citations under tbe third beadnote. 6. SAME. Same. Same. Same. Same. Purchaser from payee of note authorizing confession of judgment, at any time after its delivery and before maturity, takes it subject to defenses. A promissory note which contains a warrant or power of attorney authorizing tbe confession of judgment thereon in favor of tbe bolder at any time after its date, execution, and delivery, and authorizes tbe issuance of execution on such judgment, is thus made enforceable upom its execution and delivery, and a transferee of tbe payee is a bolder after maturity; and, therefore, be takes tbe note subject to defenses existing against tbe payee and transferrer. (Post, pp. 624, 625, 626.) 7. SAME. Same. Same. Same. Same. Same. Peremptory instructions to jury to find that such purchaser took the note free from defenses is erroneous. Where one of tbe issues submitted to tbe jury in chancery in tbe suit of the purchaser against tbe maker of a note authorizing tbe confession of judgment at any time after its date, execution, and delivery, was this: “Is tbe complainant an innocent purchaser in due course of trade for value of said indebtedness without notice of any offset due tbe defendant on tbe same?’* tbe chancellor, was clearly in error, in directing tbe jury to answer this issue in tbe affirmative. (Post, p. 628.) 8. Same. Innocent holder in due course must become such before maturity of negotiable instrument. An innocent bolder in due course of trade must become such before maturity of tbe instrument, which itself must be negotiable. (Post, p. 628.) 9. SUPREME COURT PRACTICE. Errors not raised below nor on appeal may be noticed by supreme court of its own motion, when. When necessary to meet the ends of justice, the supreme court has the right, of its own motion, to notice, and will notice, errors of the lower court, though not raised below nor on appeal, and, when the error is very plain, will, of its own motion, correct it; and, therefore, the court may reverse a judgment against the maker of a note in favor of an indorsee, upon the grounds that the note was not negotiable, and was overdue, when taken by the complainant, so as to let in the maker’s defenses against the payee, though the point was not raised below, nor by appellant’s counsel upon the argument. {Post, pp. 628, 629.)
124 Tenn. 630Chairs v. State (1911)
1. LARCENY. Evidence sufficient to sustain a conviction of. The evidence is stated and held to he sufficient to sustain a conviction of Iarcency. (Post, pp. 634, 636, 648.) 2. INDICTMENT. Constitution of grand jury cannot be questioned by motion to quash, but by plea in abatement. The constitution of the grand jury cannot he questioned by motion to quash the indictment, and can only he assailed hy a plea in abatement. (Post, pp. 635-642, 645-648, and especially 640.) Cases cited and approved: Bennett v. State, M. & Y., 133, 135; State v. Duncan, 7 Yerg., 271, 275; State v. Bryant, 10 Yerg., 527; Jetton v. State, Meigs, 192; State v. Baker, 4 Humph., 12; Jones v. State, 6 Humph., 435; State v. Cole, 9 Humph., 628; State v. Dines, 10 Humph., 512; State v. Wills, 11 Humph., 222; State v. Willis, 3 Head, 157; King v. State, 3 Heisk., 148, 153; McTigue v. State, 4 Bax., 314; State v. Deason, 6 Bax., 511; State v. Swafford, 1 Lea, 274; State v. Maddox, 1 Lea, 671;' Wallace v. State, 2 Lea, 29, 31; Epperson v. State, 5 Lea, 293; Dyer v. State, 11 Lea, 509; State v. Jackson, 2 Shannon’s Cases, 611; State v. Martin, 3 Shannon’s Cases, 479; Turner v. State, 89 Tenn., 547, 558, 559; Ramson v. State, 116 Tenn., 355, 361; Rivers v. State, 117 Tenn., 235; Pennel v. State, 122 Tenn., 622; Tarrance v. Florida, 188 U. S., 519,- quoting from a Florida case citing and reviewing many other Florida cases, as appears on pages 646-648 in the opinion. 3. SAME. Motion to quash indictment is analogous and equivalent to a demurrer, but the trial court may require a regular and formal demurrer, or plea In abatement. A motion to quash the indictment is analogous to an informal demurrer, and in practice is generally treated as equivalent to a demurrer, though not so imperative as a demurrer in due form, as the trial court may in its discretion refuse to act upon the motion, and require the defendant to file a regular and formal demurrer, stating in detail the grounds of objection, or may require a plea in abatement in a proper case for it. (Post, pp. 638, 639.) Cases cited and approved: Ransom v. State, 116 Tenn., 355; Palmer v. State,- 121 Tenn., 465, 490. 4. PLEA IN ABATEMENT. Verification must be positive, and state that the plea is true in substance and fact; otherwise, it is a nullity. The affidavit verifying a -plea in abatement must be positive as to the truth of every fact stated in the plea, and should leave nothing to be collected by inference. It must state that the plea is true in substance and fact. In the absence of such affidavit, the plea may be treated as a nullity. (Post, pp. 642, 643.) Code cited and construed: Sec. 4622 (S.); sec. 3611 (M. & Y.); sec. 2901 (T. & S. and 1858). Acts cited and construed: Acts 1789, ch. 1; Acts 1794, ch. 1, sec. 26. Cases cited and approved: Grove v. Jenkins, 9 Yerg., 10; Settle v. Settle, 10 Humph., 504; Bank v.-Jones, 1 Swan, 391; Baker v. Compton, 2 Head, 471; Trabue v. Higden, 4 Cold., 623, 624; Wrompelmeier v. Moses, 3 Bax., 467, 470; Cheatham v. Pierce, 89 Tenn., 668, 678; Armstrong v. State, 101 Tenn., 389, 391. 5. SAME. Same. Example of insufficient verification. The verification of a plea in abatement, signed by the defendant, is insufficient where it is in these words:' “Subscribed and sworn to before me this 2d day of June, 1910,” and signed “Wm. Creagan, Notary Public.” So, a verification upon “information and belief” is bad. (Post, pp. 642, 643.) Cases cited and approved: Bank v. Jones, 1 Swan, 391; Trabue v. Higden, '4 Cold., 620; Freidlander v. Pollock, 6 Cold., 490, 496, 496; Cheatham v. Pierce, 89 Tenn., 668, 678. 6. SAME. To indictment assailing constitution of grand jury must exclude all legal intendments against it, and must appear to be filed at earliest possible time. A plea in abatement to an indictment, assailing the constitution of the grand jury finding and returning the same as a true bill, must exclude, by proper allegations and averments, every legal intendment or conclusion that otherwise might be made against it by the court. It must appear from its averments to have been filed at the earliest possible time; and if the want of an opportunity to challenge the panel is an element in the right to maintain the plea, the existence of such want of opportunity must he negatived. {Post, p. 644.) Cases cited and approved: Ransom v. State, 116 Tenn., 355; Rivers v. State, 117 Tenn., '235; Pennel v. State, 122 Tenn., 622, 631. 7. SAME. Same. To indictment upon the ground that negroes were excluded from the grand jury comes too late, when; case in judgment. A plea in abatement to an indictment against a negro, assailing the constitution of the grand jury finding and returning the same as a true bill, upon the ground that the jury was composed wholly of whites to the exclusion of negroes, was filed too late, where it was filed nine days after the return of the indictment, which was returned fourteen days after the constitution of the grand jury summoned upon a venire the day before its constitution, and contained no fact or statement showing why it had not been offered earlier, or why no earlier objection had been made to the constitution of the grand jury. {Post, pp. 643-645.) See citations under headnote 6. 8. SAME. Must possess the highest degree of certainty, and be most strictly construed. The general rule is that greatest strictness prevails in the construction and application of pleas in abatement; and they must possess the highest degree of certainty known to the law in every particular. {Post, p. 644.) Cases cited and approved: Grove v. Campbell, 9 Yerg., 7, 10; State v. Bryant, 10 Yerg., 627; Baker v. Compton, 2 Head, 471; Stephens v. Gilbert, 1 Shannon’s Cases, 663, 666; Jackson v. State, 2 Shannon’s Cases, 611; Dyer v. State, 11 Lea, 50.9, 512' (and citations); Ward v. State, 102 Tenn., 724; Smartt v. State, 112 Tenn., 539,' 546; Ransom v. State, 116 Tenn., 355; Rivers v. State, 117 Tenn., 235; Pennel v. State, 122 Tenn., 622, 631. 9. INDICTMENT. Proof to sustain motion to quash indictment after it has been properly overruled is properly refused. A request for permission to offer proof to sustain a motion to quash an indictment was necessarily idle and useless, and was therefore, properly refused, where it was made after the motion had been properly overruled. (Post, pp. 645-648.) Cases cited, distinguished, and approved: Carter v. Texas, 177 U. S., 442; Layton v. Missouri, 187 U. S., 356; Insurance Co. v. McGrew, 188 IT. S., 291; Tarrance v. Florida, 188 IT. S„ 519 (and citations); Hulbert v. Chicago, 202 IT. S.,.275.
124 Tenn. 649Union Planters' Bank & Trust Co. v. Memphis Hotel Co. (1911)
1. INJUNCTIONS. In effect requiring extension of smokestacks is in reality a mandatory injunction, and will be refused. An injunction perpetually enjoining defendant from causing dense smoke, cinders, soot, unconsumed gases, or noxious vapors to issue from the chimneys or stacks of his building, “at an elevation lower than the level of the roof of” complainant’s building, while not so in form, is in reality a mandatory injunction, where its effect is to require the defendant to extend his smokestack some fifty feet higher in the air, in order to bring it on a level with the roof of the complainant’s building; and such injunction will not he granted. (Post, pp. 652-659.) Cases cited and approved: Post v. Railroad, 103 Tenn., 184, 216; Hall v. Railroad, 12 Am. & Eng. R. R. Cas., 41. 2. SAME. Against smoke nuisances will not be granted where against public policy, and the precedent would be intolerable; case in judgment. Where the complainant owned a fifteen story office building in the heart of a city business district, and near the defendant’s ten story hotel, and the smoke, soot,, and unconsumed gases, caused by the soft coal burned in defendant’s furnaces in such hotel, were blown from defendant’s smokestack against and into complainant’s building, in spite of defendant’s care in firing, an injunction will not be granted against allowing the escape of smoke, etc., from the smokestack of defendant’s building at an elevation less than that of complainant’s roof, because there is not any known practicable way of permanently preventing the escape of smoke, etc., where soft coal is used as a fuel, and such injunction would amount to a mandatory injunction that defendant raise his smokestack to the level of complainant’s roof; for the granting of such injunction would be an improper exercise of the court’s discretion, as committing the court to a policy of elevating smokestacks at the suit of adjacent-owners, which might injuriously affect the public safety, and which would be almost impossible to adhere to consistently, and would establish an intolerable precedent. {Post, pp. 652-664.) Cases cited and approved: Post v. Railroad, 103 Tenn., 184, 216; Madison v. Copper Co., 113 Tenn., 331-358; Gilbert v. Shower-man, 23 Mich., 448; Hall v. Railroad, 12 Am. & Eng. R. R. Cas., 41. 3. SAME. Chancery has no jurisdiction to award damages for injury to property involving unliquidated damages, where injunctive and all equitable relief is refused. Where injunctive and all other equitable relief is refused, the chancery court has no jurisdiction to award damages for injury to property involving unliquidated damages. This was the rule before Acts 1877, ch. 97, extending chancery jurisdiction, and this statute expressly excepts from the jurisdiction of chancery the cases of injury to property involving unliquidated damages; and chancery can only take jurisdiction of such matter as an incident to equitable relief granted. {Post, pp. 664-668.) Code cited and construed: Sec. 6101 (S.); sec. 5035 (M. & V.); sec. 4292 (T. & S. and 1858). Acts cited and construed: Acts 1877, ch. 97 (see Shannon’s Code, sec. 6109). Cases cited and approved: Marsh v. Haywood, 6 Humph., 210-213; Riehi v. Brewing Co., 105 Tenn., 651; Mitchell v. Dowell, 105 TJ. S., 430; Kramer v. Cohn, 119 U. S., 356; Gamage v. Harris, 79 Me., 536; Cherokee Nation v. Railroad (D. C.), 33 Fed., 915. Case cited and distinguished: Madison v. Copper Co., 113 Tenn., 331. 4. SÁME. Same. Where injunction against a smoke nuisance is refused, chancery has no jurisdiction to award damages for injuries suffered; case in judgment. Where the only equitable relief sought by bill in chancery, filed by the owner of an adjacent building, was that of an injunction to enjoin the defendant from allowing the escape of smoke from the smokestack in his adjacent hotel, and, in addition thereto, damages for injuries already suffered were sought to be recovered; and the injunctive relief was refused, the court had no jurisdiction to grant the relief for damages, because this jurisdiction could be exercised only as an incident to the grant of the injunctive relief. (Post, pp. 664-668.) See citations under preceding headnote.
124 Tenn. 669Pharr v. Stevens (1911)
1. BILLS AND NOTES. Before negotiable instruments law, accommodation indorser before delivery was liable as maker. Before the enactment of the negotiable instruments law (Acts 1899, ch. 94), there could be no question upon our authorities that the accommodation indorser, of a negotiable instrument, before its delivery, was liable as a maker, without notice of demand and protest at the maturity of the instrument. (Post, pp. 671, 672.) Cases cited and approved: Bank v. Jefferson, 92 Tenn., 638; Society v. Edmonds, 9’5 Term., 53; Bank v. Lumber Co., 100 Tenn., 480. 2. SAME. Since negotiable instruments law, accommodation indorser in blank before delivery is not liable as maker, but only as technical indorser entitled to notice. Since the enactment of the negotiable instruments law (Acts 1899, ch. 94), which provides in section 63 that the person placing his signature upon a negotiable instrument otherwise than as maker, drawer, or acceptor, is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity, and which provides in section 64 that where a person not otherwise a party to such instrument places thereon his signature in blank,, before de- ' livery, he is liable as indorser, it is held that one who indorsed a negotiable promissory note in blank, before its delivery, for the accommodation of the maker, is not liable as maker, but is only liable as a technical indorser, at least, in the absence of a showing that he intended to be bound in some other capacity than that of such indorser. Cases cited and approved: Tool v. Crafts, 193 Mass., 110; Deahy v. Choquet, 28 R. I., 338; Rouse v. Wooten, 140 N. C., 557. 3. SAME. Same. Evidence insufficient to show that accommodation indorser before delivery intended to be bound as maker. Evidence showing the fact that an accommodation indorser of a negotiable ¡promissory note, before its delivery, knew that the note was a renewal of a former indebtedness, for which he was not liable, and that the payee accepted such note upon the faith of such indorsement, and the fact that such indorser and the maker were somewhat intimate, and were interested together in some land purchases in Mexico, does not show that such indorser intended to be bound as maker, or otherwise than as technical indorser. (Post, pp. 673-675.) Case cited and distinguished: Bank v. Busby, 120 Tenn., 652.
124 Tenn. 676Ammons v. Coker (1911)
-1. FORCIBLE ENTRY AND DETAINER. Defendant cannot, within the two days' allowed for appealing, use certiorari without supersedeas in lieu of the appeal. Under onr statutes, it was intended to allow the unsuccessful defendant in an action of forcible entry and detainer before a Justice of the- peace, if dissatisfied, either to appeal and surrender the property, or to retain the property by obtaining a writ of certiorari and supersedeas upon the execution of a supersedeas bond, which would operate as a substitute for the appeal, and give a new trial in the circuit court, but these remedies were not intended to be concurrent, so that within the two days after the justice’s judgment the writ of certiorari without supersedeas cannot be used as a substitute for an appeal. Code cited and construed: Secs. 6108-5111 (S.); secs. 4090-4093 (M. & V.); secs. 3360-3362 (T. & 8. and 1858); secs. 3373a, 3373b (T. & S.). ' 2, SAME. Defendant may appeal upon pauper oath, if willing to surrender possession. A defendant in a forcible entry and detainer suit, if willing to surrender possession pending the litigation in the higher courts, may obtain an appeal without bond upon taking the pauper’s oath. (Post, p. 681.) Case cited and approved: Lynn v. Manufacturing Co., 8 Lea, 29. 3. SAME. Certiorari cannot be used as substitute for appeal without showing sufficient reason for not appealing. Where the writ of certiorari is sought to be used as a substitute for an appeal, the party applying therefor must show in his petition some good and sufficient reason for not taking an appeal, and when such good and sufficient reason is not shown, the writ must he dismissed; and this rule obtains in forcible entry and detainer cases as well as in other cases. (Post, pp. 681-683.) Code cited and construed: Sec. 5111 (S.); sec. 4093 (M. & V.); secs. 3362, 3373b (T. & S. and 1858). Cases cited and approved: Hale v. Landrum, 2 Humph., 32; McM-urry v. Milan, 2 Swan, 176; McCormack v. Murfree, 2 Sneed, 46; Copeland v. Cox, 5 Heisk., 171; Hardin v. Williams, 5 Heisk., 385.
124 Tenn. 684Ashby v. State (1911)
1. STATUTES. Words may be modified, altered, or supplied to reach legislative intent. It is a well settled rule of statutory construction that in order to effectuate the legislative intent, words may be modified,altered, or supplied, so as to obviate any repugnancy or incon- . sisteney' with such intention. (Post, p. 691.) Cases cited and approved: State, ex rel., v. Turnpike Co., 2. Sneed, 88; Nichols & Shepherd Co. v. Loyd, 111 Tenn., 145; Wright v. Cunningham, 115 Tenn., 452. 2. SAME. Words supplied as evidently omitted so as to give a sensible meaning; case in judgment. A statute (Acts 1909, ch. 403) entitled “An act to create a board of jury commissioners for counties * * * having a popu-. lation of 19,100 and less than 19,000 inhabitants by the federal census of 1900,” etc., is meaningless and unenforceable as simply insensate, unless it can be construed so as to give it a sensible meaning by the supplying of words evidently omitted; and it is held, under the rule stated in the preceding headnote, that the words “not more than” should be inserted immediately before the figures “19,100,” and the word “not” should be inserted immediately before the word “less,” so as to make that part of the caption and body of the act relating to the population limits to read “having a population of not more than 19,100, and not less than 19,000 inhabitants, so that the statute will not apply to a county of less than 19,000 inhabitants. {Post, pp. 689-693.) Acts cited and construed: Acts 1909, eh. 403. See citations of cases under preceding headnote. S. PLEAS IN ABATEMENT. Must be strictly construed, and exclude all Intendments against them. Pleas in abatement are not favored in law, and must be construed with much strictness, and must possess the highest degree of certainty known to law in every particular'; and they must exclude, by proper allegations and averments, every legal intendment or conclusion that might otherwise be made against them by the court. (Post, pp. 693, 697.) Case cited and approved: Pennel v. State, 122 Tenn., 631. 4. SAME. Same. To indictment upon the ground that the grand jury was Illegally constituted that Is insufficient. Where a statute (Acts 1909, ch. 403) provides for the appointment of a hoard of three jury commissioners by the circuit judge of each county in which the statute is applicable, and that board shall every two years, or oftener if necessary, place in a jury box a list of names for jury service, and draw therefrom, before each term of court, a sufficient number of names for service at that term; and further provides (in section 12 thereof) that if a regular panel is not furnished for a circuit or criminal • court at any term, as provided in the act, the presiding judge may select a panel, and such additional jurors as may be needed by his court during such term; and where a plea in abatement to an indictment averred that the accused “pleads in abatement to said indictment the provisions of the said act of * * * 1909, and that said indictment was not found and was not returned by a grand jury legally impaneled * * * from a list by the board of jury commissioners, as provided by said act of 1909,” and further averred that it was “impaneled from a venire appointed by the county court of Benton county, Tenn., at its July term, 1910”; and it was held that the plea was insufficient, because it did not allege that the grand jury was not selected by the judge pursuant to the provisions of said section 12; for the judge may have selected- such-jurors from the list furnished by the county court. (Post, pp. 689-697.) Note. The decision made, as shown in this headnote, was based upon the hypothesis that said Acts 1909, ch. 403, was applicable in Benton county; but the court expressly held that said statute was not applicable in said county. — Reporter. Acts cited and construed: Acts 1909, .ch. 403, and specially sections 7 and' 12. Case cited and approved: Pennel v. State, 122 Tenn., 631. 5. CRIMINAL LAW. Corpus delicti Is not provable by confessions alone, but is so provable in connection with other evidence. "While the corpus delicti cannot be established by confessions alone, yet the confessions may be taken in connection with other evidence, direct or circumstantial, corroborating them, to .establish it. (Pos#, pp. 697, 698.) Cases cited and approved: Younkins v. State, 2 Cold., 221; Williams v. State, 12 Lea, 211, 212; Bines v. State, 68 L. R. A., 33, 73, 74, 76. 6. SAME. Same. Preliminary proof of corpus delicti before admission of confessions. Some evidence of the corpus delicti should be introduced so as to show prima facie that fact, before admitting the confessions. (Post, pp. 698, 699.) 7. SAME. Same. Same. Admission of confessions before evidence of corpus delicti is not reversible error, when. The error in admitting confessions before the introduction of evidence establishing prima facie the corpus delicti is not reversible error, where the corpus delicti is afterwards established. (Post, p. 699.) Case cited and approved: Bines v. State, 68 L. R. A., 79, and note. 8. SAME. Same. Same. Same. Corpus delicti may be proved by circumstantial evidence. All the elements constituting the corpus delicti may he proved by circumstantial evidence. (Post, p. 699.) Cases cited and approved: Lancaster v. State, 91 Tenn., 267; • State v. Gillis, 73 S. C., 318. 9. SAME. Same. Same. Same. Same. Circumstantial evidence is stated and held sufficient to prove corpus delicti. Circumstantial evidence in a first degree murder case is stated and held to be sufficient to establish the corpus delicti so as to authorize the admission of confessions. (Post, pp. 699-707.) 10 MURDER IN THE FIRST DEGREE. Evidence of confessions is stated and held sufficient to prove the crime. In a prosecution for the murder of his wife by the accused, the evidence of confessions is stated and held to be sufficient to prove the guilt of the accused. (Post, pp. 707-714.) 11. CRIMINAL LAW. Evidence is stated and held insufficient to prove insanity. The evidence in a prosecution for the murder of his wife by the accused is stated and held to be insufficient to show his insanity when the crime was committed. • (Post, pp. 714-720.) 12. SAME. Absence of motive does not prevent conviction. The absence of any apparent motive is not of itself sufficient for the predication of a conclusion of innocence, nor to prevent a conviction. (Post, pp. 720, 721.) 13. EXPERT TESTIMONY. Failure of witness to qualify as expert physician on insanity. A physician is not qualified to testify as an expert on insanity, where he testified that he was a graduate of a medical school and had been a practicing physician for twenty-four years, but that his experience in treating mental diseases was very limited, as he had had only two or three such cases, and these patients were maniacs, and that he had read several books on mental • diseases, but could not “remember” the names of the authors. {Post, pp. 722, 723.) 14. SAME. Same. A physician is not qualified to testify as an expert on insanity, when.. Where a physician testified that he had practiced medicine about forty-three years, but was not a graduate of any medical school, and had very little experience in treating insanity, though ■ he' had read several medical works on mental diseases, and testified that he was not as well posted on mental diseases as on general diseases, it was held that he was not qualified to testify as an expert on insanity. {Post, pp. 723, 724.) 15. CRIMINAL LAW. Testimony of statements of deceased as to smothering spells is properly excluded as hearsay. Testimony in a prosecution for murder, given in answer to a question as to whether the deceased ever had any smothering spells, that the deceased told the witness on Thursday before her death that she had one at home on the Tuesday night before while the witness was at church, was properly excluded as a matter of hearsay. {Post, pp. 724, 725.)
124 Tenn. 725Hughey v. Warner (1911)
1. SEPARATE ESTATE. Money derived from life insurance on former husband and deposited in bank constitutes separate estate. Money deposited in bank by a married woman belongs to her as her separate estate, where it arose from an insurance effected on her former husband’s life in her favor, procured by him, or with his consent, as a settlement on her, and it will be presumed that such fund was raised, with his knowledge and consent, as such settlement. (Post, p. 727.) Cases cited and approved: Insurance Co. v. Booker, 9 Heisk., 607; Gosling v. Caldwell, 1 Lea, 454; Scobey v. Waters, 10 Lea., 562. 563. 2. SAME. Same. Married woman may by will dispose of her separate estate in personalty so as to defeat her husband. A married woman owning a separate estate in personalty, as money derived and deposited by her in bank, as stated in the preceding hea.dnote, has the right to dispose of it, and may dispose of it by will, so as to defeat the right which her husband would otherwise have to succeed to it as husband, if it were not so disposed of. (Post, w 727, 728.) Cases cited and approved: Perry v. Gill, 2 Humph., 218, 223; Williford v. Phelan, 120 Tenn., 589, 597; Fettiplace v. Gorges (1789), 1 Brown Chy., 6-8; same ease, 1 Ves., Jr., 46; Taylor v. Meads, 4 De Gex, Jones & Smith, 597, 605. Cases cited and distinguished: Hamrico v. Laird, 10 Yerg., 222; Brown v. Brown, 6 Hump., 126; Hays v. Bright, 11 Heisk., 325; Handwerker v. Diermeyer, 96 Tenn., 619;' Weakley v. Woodard, 2 Tenn. Chy. App., 589, 590. 3. SAME. While usually ceasing or suspended during widowhood, it revives upon subsequent marriage. While insurance money collected by the widow on a policy upon a former husband’s life, and deposited in bank by her, possesses the quality of a separate estate, and such quality usually ceases or is suspended during widowhood, yet upon the occurrence of a subsequent marriage, the separate estate revives. {Post, p. 728.) Cases cited and approved: Beaufort v. Collier, 6 Humph., 492; Pooley v. Webb, 3 Cold., 603.