145 Tenn.

Volume 145 — Tennessee Reports

41 opinions

145 Tenn. 1Case v. Brier Hill Collieries (1921)
1. FRAUDS, STATUTE OF. Requisites of valid description of land stated. Under Thompson’s-Shannon’s Code, section 3142, a description o£ land is good if on its face it appears to refer to some definite tract, and if, by the aid of parol proof, it can with reasonable certainty be applied to designate such tract; but tbe descriptive terms employed, together witb the parol proof, must be such as to point out and comprehend some especial parcel, to the exclusion of any other parcel of land; and if the description, on its face, is so indefinite as to be applicable to any tract of land, parol evidence is not admissible at all, because its effect then would be to supply by parol a material part of the agreement which the statute requires to be in writing. (Post, pp. 11-12.) Acts cited and construed: Acts 1801, ch.. 25. Cases cited and approved: Dougherty v. Chesnutt, 86 Tenn., 1; Dobson v. Litton, 45 Tenn., 616; Dry Goods Co. v. Hill, 135 Tenn., 60; Railroad v. Webster, 106 Tenn., 586. Cases cited and distinguished: Sheid v. Stamps, 34 Tenn., 172; Parris v. Caperton, 38 Tenn., 606; Johnson v. Kellogg, 54 Tenn., 262. Code cited and construed: Sec. 3142 (T.-S.). 2. FRAUDS, STATUTE OF. Description shown, by extrinsic proof to apply to more than one tract is void. Under Thompson’s-Shannon’s Code, section 3142, though a description may not be void on its face, as where a local appellation is used, if the extrinsic proof develops it „o be alike applicable to two or more tracts, and does not fasten it to one, then the description fails. (Post, p. 12.) Case cited and approved: White’s Lessee v. Hembree, 1 Tenn., 530. 3. DEEDS. Description not identified as applicable to only one tract not good. A description of land .as the “J. S. tract,” which the evidence showed was applied sometimes to a large tract of land and sometimes to a smaller tract therein, where “J. S.” had his home, held invalid. (Post, pp. 12-18.) Cases cited and approved: Wood v. Zeigler, 99 Tenn., 515; Todd v. Cannon, 27 Tenn., 512; Winchester v. Winchester, 38 Tenn., 488.
145 Tenn. 19Kingsport Brick Corp. v. Bostwick (1921)
PROM JEFFERSON. Appeal from the Chancery Court of Jefferson County to the Conrt of Civil Appeals, and hy certiorari to the Court of Civil Appeals from the Supreme Court.— Hon. Ben W. Hooper, Chancellor.
145 Tenn. 64Born v. Beasley, Inc. (1921)
1. CORPORATIONS. Amendment of charter over protest of minority stockholder, to provide for issuance of preferred stock, held not ' authorized. Where the charter of a corporation, though issued after 1905, contained no provision as to the issuance of preferred stock as provided hy Acts 1905, chapter 174, such act conferred on the corporation no authority to amend its charter so as to allow the issuance of preferred stock over the protest of a minority stockholder, (Post, pp. 72, 73.) Acts cited and construed: Acts 1905, ch. 174. Cases cited and approved: Master, etc., v. Green, 1 Ld. Raym., 113; Rex v. Cutbush, 4 Burr., 2204; R. W. Co. v. Allerton, 18 Wall., 233; Gray v. Portland Bank, 3 Mass., 363. Cases cited and distinguished: Railroad v. Knoxville, 98 Tenn., 21; Kent v. Quicksilver Mining Co., 78 N. Y., 159. 2. CORPORATIONS. Independent of Acts 1905, chapter 174, laws confer no authority to amend charter to provide for issuance of preferred stock. Independently of Acts 1905, chapter 174, relating to the power of corporations to amend their charters so as to allow the issuance of preferred stock, the laws of Tennessee confer no authority on corporations to do so over the protest of a minority stockholder. (Post, pp. 72, 73.)
145 Tenn. 74State ex rel. Armstrong v. Bernstein (1921)
3. NUISANCE. House used for betting on horse races “gambling bouse’’ within nuisance act. In view of Acts 1907, chapter 88, sections 1, 2 (Shannon’s Ann. Code, sections 6817a2, 6817a_3), and chapter 89, sections 1, 2 (Shannon’s Ann. Code, sections 6817a4, 6817a5), a house in which betting on horse races is conducted is a “gambling house” within the nuisance _ act, section 1, though not mentioned as such in Acts 1883, chapter 230, Section 1, and Acts 1899, chapter 5 (Shannon’s Ann. Code, Section 6807). (Post, pp. 81-83.) Acts cited and construed: Acts 1907, ch. 88, secs. 1, 2; Ch. 89, secs. 1, 2; Acts 1883, ch. 230, sec. 1; Acts 1899, ch. S; Acts 1913, ch. 2. Cases cited and construed: Thrower v. State, 117 Ga., 753; Swigart v. People, 154 Ill., 284; People v. Weithoff, 51 Mich., 203; Tatman v. Strader, 23 Ill., 493; Ellis v. Beale, 18 Me., 337; Dyer v. Benson, 69 Ga., 609; James v. State, 4 Okl. Cr., 587; State v. Nashville Baseball Assn., 141 Tenn., 456. Code cited and construed: Secs. 6807, 6817a2, 6817a3, 6817a4, 6817a5 (S.). 2. APPEAL AND ERR,OR. On reversing decree dismissing bill at conclusion of complainant’s evidence, court did not err in remanding for new hearing. In a suit to abate a gambling house as a nuisance, the court of civil appeals, on reversing the chancellor’s decree dismissing the bill at the conclusion of complainant’s evidence on the ground it did not state a cause of action, did not err in remanding the cause for a new hearing; the motion to dismiss being in the nature of a demurrer to the bill. (Post, pp. 83, 84.)
145 Tenn. 85Western Union Telegraph Co. v. Nashville, C. & St. L., Ry. Co. (1921)
1. RAILROADS. Commercial telegraph line not included in railroad’s easement. A railroad company has no such title to its right of way as authorizes it to permit the erection thereon of a commercial telegraph line disconnected from the railroad operation. (Post pp. 87-90.) 2. EMINENT DOMAIN. Rental value of part of railway right of way taken hy telegraph company immaterial. In a condemnation proceeding by a telegraph company against a railway company, it was not error to exclude from the jury’s consideration the rental value that portion of the right of way taken for plaintiff’s poles and wires. (.Post, pp. 87-90.) Cases cited and approved: Western Union Tel. Co. v. Railroad, 133 Tenn., 691; Southern Ry. Co. v. Vann, 142 Tenn., 76; Northern Pac. R. Co. v. North American Tel. Co., 230 Fed., 347; Union Pac. R. Co. v. C., M. & St P. R. Co., 163 U. S„ 564. Case cited and distinguished: Railroad v. Telegraph Co., 101 Tenn., 62. 3. RAILROADS. Easement in right of way. A. railroad company has no such broad easement in its right of way as a city has ir^its streets. (Post, p. 90.) Case cited and approved: Frazier v. Tel. Co., 115 Tenn., 416.
145 Tenn. 91Townsley v. Yellow Cab Co. (1921)
1. NEGLIGENCE. Care as to children defined. Children of tender years are entitled to a degree of care from others proportioned to their inability to foresee and avoid the perils which they may encounter, and those chargeable with a duty of care and caution toward them must calculate upon their action under impulse and take precaution accordingly. (Post, pp. 93, 94.) C^ses cited and approved: Whirley v. Whiteman, 38 Tenn., 610; Robinson v. Cone, 22 Vt., 213; Camden v. Broom, 139 Fed., 595; Deputy v. Kimmell, 73 W. Va„ 595. Case cited and distinguished: Ficker v. Cleveland, etc., R. Co., 7 Ohio N. P., 600. 2. MUNICIPAL CORPORATIONS. Evidence held to raise jury’ question as to negligence of automobile driver who struck child. In an action for the death of an eleven year old girl struck by a taxicab, evidence that the girl and her companion stopped on seeing the taxicab, but after the taxicab had stopped, or practically stopped, the girl started to cross in front of it, and was struck as it was stating up, held to raise a question for the jury as to the driver’s negligence. (Post, pp. 94, 95.) 3. MUNICIPAL CORPORATIONS. Contributory negligence of child struck by automobile held for the jury. Where an eleven year old girl stopped on seeing defendant’s automobile, but started to cross in front of it when she saw the automobile was stopping, the question of her contributory negligence was a question for the jury, in view of the rule that young children are bound to use only such care as is usually exercised by children of the same age ánd degree of intelligence. (Post, pp. 95, 96.) Case cited and approved: Powers v. Harlow, 53 Mich., 507. Case cited and distinguished: Wells v. McNutt, 136 Tenn., 274.
145 Tenn. 97Moore v. Fletcher (1921)
1. MASTER AND SERVANT. Declaration held not to allege violation of Child Labor Law. A declaration for injuries to a minor employee setting out the acts of negligence constituting the proximate cause of injury, hut not including violation of the Child Labor Law (Shan. Code, section 4433a84 et seq.), held not sufficient to count on such statute, though it was alleged that plaintiff was a “minor of tender years.” (Post, pp. 100-102.) Code cited and construed: Sec. 4433a84 (S.). 2. NEGLIGENCE. Proof confined to acts alleged. Where a pleader undertakes specifically to set forth the acts of negligence which constitutes the proximate cause of the injury, he cannot rely on other acts of negligence. (Post, pp. 102, 103.) Cases cited and approved: East Tennessee Coal Co. v. Daniel, 100 Tenn., 65; Railwood Co. v. Lindamood, 111 Tenn., 457. 3. PLEADING. What declaration must allege to count on violation of statute stated. Where a declarant relies on a violation of a statute and does not specifically refer to the statute, but undertakes to state facts which constitute a breach thereof, it is incumbent on him to state all of the facts necessary to constitute such breach, so that defendant pp. 103-105.) Cases cited and approved: Iron & Wire Co. v. Green, 108 Tenn., 161; Harrison v. Roscoe, 139 Tenn., 511. Case cited and distinguished: Finley v. Furniture Co., 119 Tenn., 698.
145 Tenn. 106Key v. Collins (1921)
1. HUSBAND AND WIFE. Antenuptial agreements construed as other contracts. The same rules of law governing the construction of other contracts are applicable to antenuptial agreements, and the entire instrument should be considered, together with its general scope and purpose and surrounding circumstances and conditions, to ascertain the intention of the parties. (Post, p. 109.) Case cited and distinguished: Collins v. Phillips, 259 Ill., 405. 2. HUSBAND AND WIFE. Antenuptial agreements favored. Antenuptial settlements are are favored in law. (Post, pp. 109, 110.) Case cited and approved: Stratton v. Wilson, 170 Ky., 91. 3. HUSBAND AND WIFE. Eight of surviving husband cut off by marriage agreement if language clear. The right of husband as survivor can be cut off or abridged by a marriage agreement, but this must clearly and plainly appear from the language used in the agreement. (Post, p. 110.) 4. DESCENT AND DISTRIBUTION. Husband’s rights as survivor may be exercised where wife dies possessed of separate estate settled by antenuptial agreement. Even though personal property be settled on the wife by antenuptial or other agreement to her sole and separate use with power to dispose thereof by deed or will, nothing else appearing, if she dies possessed of the separate estate and interest, the husband’s rights as survivor may be exercised. (Post, p. 110.) Cases cited and approved: Carter v. Dale, Ross & Co., 71 Tenn., 710; Mitchell v. Bank, 126 Tenn., 669; Hays v. Bright, 58' Tenn., 325; Baker v. Dew, 133 Tenn., 126. 5. HUSBAND AND WIFE. Husband held to have no right as survivor on death of wife under marriage settlement. Husband held to have no rights as survivor in property of wife dying intestate under an antenuptial agreement “to secure to each other, in case of death, each one’s property,” and providing further that the woman should retain all the property she has or may afterwards acquire “to be her own, in fact, and be free from my (the husband’s) control as though we had never been man and wife.” (Post, pp. 111-117.) Cases cited and approved: Hamrico v. Laird, 18 Tenn., 222; Goodrich v. Bryant, 37 Tenn., 325; Marshall v. Beall, 6 How., 70; Dun-lop v. Lamb, 182 Ill., 319; Hayes v. Bright, 58 Tenn., 325; Mitchell v. Chattanooga, etc., Bank, 126 Tenn., 669; Hughey v. Warner, 124 Tenn., 725.
145 Tenn. 118Mays v. State (1921)
1. CRIMINAL LAW. After conviction approved judgment will not be reversed upon facts unless evidence preponderates against guilt. After one accused of murder has been convicted by a jury and the verdict has been approved by the trial judge in order to abtain a reversal upon the facts, accused must show that the evidence preponderates against his guilt and in favor of his innocence. (Post, p. 136.) Case cited and approved: Cooper v. State, 123 Tenn., 37. 2. HOMICIDE. Conviction of murder sustained. In a prosecution for murder, accused’s defense being an alibi, held, that the evidence did not so preponderate against his guilt and in favor of his innocence as to require a reversal. (Post, p. 137.) 8. WITNESSES. Cross-examination as to whether police officers refused to resist mob held properly excluded in murder prosecution. In a prosecution of a negro for the murder of a woman, it was not error to refuse to permit a chief of police captain to testify on cross-examination as to whether they refused to take any stand against a mob or to make any effort to quell it. (Post, pp. 137-139.) 4. HOMICIDE. Statements of eyewitness in identifying defendant held admissible. In a prosecution of a negro for murdering a woman, evidence that an eyewitness, after identifying accused, and after he had denied his guilt, stated to him, “If I had a pistol, I would or could kill you,” held admissible as part of the identification. (Post, p. 139.) 5. CRIMINAL LAW. Statements by police desk sergeant to police officer as to description of murerer held inadmissible. In a prosecution of a negro for murdering a woman, it was not error to refuse to allow a police officer to testify that the police desk sergeant stated to him that a woman had been killed, and that the man who killed her was a low black man and wore overalls. (Post, p. 139.) 6. CRIMINAL LAW. Evidence as to assaults on other persons properly excluded. In a prosecution of a negro for murdering a woman, evidence that subsequent to the murder the homes of a number of women had been entered by some person and either assaults or attempted assaults made upon females held properly excluded. (Post, pp. 139, 140.) 7. CRIMINAL LAW. Evidence that accused had committed other similar crimes generally inadmissible. In a prosecution for a particular crime, evidence which in any manner tends to show that accused has committed another crime wholly independent of that for which he is on trial, even though it is a crime of the same character, is irrelevant and inadmissible. (Post, pp. 140, 141.) 8. CRIMINAL LAW. Evidence of other crimes admissible where tending to prove guilt of crime charged. The rule that evidence of commission of other similar crimes by accused is inadmissible does not apply where the evidence of another and distinct crime tends directly to prove defendant’s guilt of the crime charged. (Post, pp. 140, 141.) 9.CRIMINAL LAW. Evidence of another crime admissible if part of res gestse. Evidence of another and distinct crime is admissible if it was committed as part of the same transaction and forms part of the res geste. (Post, pp. 140, 141.) 10. CRIMINAL LAW. Evidence identifying accused not inadmissible because tending to prove commission of another crime. Where the commission of a crime is proven, evidence to identify accused as the person who committed it is not to be excluded solely because it proves or tends to prove that he wds guilty of another and independent crime. (Post, p. 141.) 11. CRIMINAL LAW. Attempts to commit similar crimes admissible where guilty knowledge must be proven. When the nature of the crime is such that guilty knowledge must be proven, evidence is admissible that at another time and place not too remote the accused committed or attempted to commit a crime similar to that charged. (Post, p. 141.) 12. CRIMINAL LAW. ’ Evidence of other similar crimes admissible when showing particular necessary criminal intent. Evidence of other crimes committed by accused similar to that charged is relevant and admissible when tending to show a particular criminal intent which is necessary to constitute the crime charged. (Post, p. 141.) ' 13. CRIMINAL LAW. Evidence of motive admissible although showing another similar crime. Evdence showing motive is admissible notwithstanding it also shows the commission by the accused of another crime of similar character. (Post, p. 141.) 14. CRIMINAL LAW. Evidence of another offense admissible to show system of criminal action. It is admissible, where the crime charged is a part of a plan or system of criminal action, to offer evidence of other crimes near to it in time and of similar character to show the knowledge and intent of accused, and that the crime charged was not the result of accident or inadvertence. (Post, p. 142.) Cases cited and approved: Parrish v. State, 129 Tenn., 274; Gardner v. State, 121 Tenn., 709; Holder v. State, 119 Tenn., 210; Peek v. State, 21 Tenn., 78; People v. Molineux, 168 N. Y., 264; Hensley v. State, 28 Tenn., 243; Sihle v. State, 50 Tenn., 139. 15. HOMICIDE. Rule admitting evidence that another committed offense changed held inapplicable. In a prosecution for murder, where no evidence whatever was offered tending to prove that any other person committed the crime, the rule that a person charged with crime may offer testimony to show that another committed it is inapplicable. (Post, pp. 142-144.) 16. CRIMINAL LAW. Evidence as to pallbearers at funeral of father of witness held inadmissible. In a prosecution of a negro for the murder of a woman, it was not error to refuse to allow a colored witness to testify as to who were the pallbearers at the funeral of witness’ father; the father having died thirty-four years before. (Post, p 144.) 17. CRIMINAL LAW. Instruction as to prejudice of witness held properly refused. In a prosecution of a negro for murdering a woman, it was not error to refuse to charge that the jury might consider whether a police officer suggested to an eyewitness the identity of the murderer if the officer stated to the driver of patrol wagon that defendant was the guilty party, and that officer had a grudge against him. (Post, pp. 144, 145.) 18. CRIMINAL LAW. Request incorporated in general charge held properly refused. In a prosecution of a negro for murder of a woman, it was not error to refuse to charge that, if a witness bore a grudge against defendant, his evidence should be received with caution; the request having been properly submitted in the general charge. (Post p. 145.) 19. HOMICIDE. Instruction as to motive of a tMrd person not sup- , ported by evidence properly refused. In a prosecution of a negro for the murder of a woman, it was not error to refuse to charge that, if another person had a motive and an equal opportunity to commit the crime, any presumption that might arise against defendant by reason of an alleged motive must be weakened and impaired; such request not being supported by evidence. (Post, pp. 145, 146.) 20. CRIMINAL LAW. Prejudice of juror in murder trial not sustained. In a prosecution for murder, evidence on motion for new trial held not to sustain a charge that a juror had before the trial stated to another that he believed defendant was guilty and should be lynched. (Post, pp. 146, 147.)
145 Tenn. 148Equitable Trust Co. v. Central Trust Co. (1921)
1. CORPORATIONS. Foreign corporation without right to do business without filing charters, etc., as required by statute. Foreign corporations hare no right to do business in the state Without first complying with the provisions of the statutes with reference to the filing of their charters, etc. (Post, pp. 171, 172.) 2. CORPORATIONS. Foreign corporations not complying with statutes ordinarily without standing before the courts. A foreign corporation, failing to comply with the statutes with reference to the filing of its charters, etc., ordinarily has no standing before the cd'urts for the enforcement of its rights. (Post, pp. 171, 172.) t Cases cited and approved: Cary-Lombard Lumber Co. v. Thomas, 92 Tenn., 587; Insurance Co. v. Kennedy, 96 Tenn., 711; New York, etc., B. & L. Ass’n v. Cannon, 99 Tenn., 344; Lumber Co. v. Moore, 126 Tenn., 313; Amusement Co. v. Albert, 128 Tenn., 417; State v. O’Brien, 94 Tenn., 79; Packett Co. v. Agnew, 132 Tenn., 265; State ex rel. v. Telephone & Telegraph Co., 114 Tenn., 194. 3. CORPORATIONS. Stockholders in foreign corporation, doing business without complying with statute liable as partners. Stockholders in a foreign corporation attempting to do business as such in the State, without attempting to comply with the statutory requirements relating to foreign corporations, are liable on their contracts as partners, though made in the name of the coporation, and though they did not know of such noncompliance. (Post, pp. 172, 173.) Cases cited and approved: Cunnyngham v. Shelby, 136 Tenn., 176; Taylor v. Branham, 35 Fla., 297; Bigelow v. Gregory, 73 Ill., 197; Loverin v. McLaughlin, 161 Ill. 417; Hill v. Beach, 12 N. J. Eq., 31; Lasher v. Stimson, 145 Pa., 30; Guckert v. Hacke, 159 Pa., 303. 4. CORPORATIONS. Complainant, seeking to hold stockholders as partners, has burden of showing defendant was stockholder. Complainants, seeking to hold stockholders of a foreign corporation liable as partners on the ground that the corporation had no authority to do business within the State, had the burden of proving that a defendant was a stockholder. (Post, pp. 173, 174.) ■5. CORPORATIONS. Evidence insufficient to show bank sought to be held liable as stockholder held stock otherwise than as collateral security. In a suit to hold stockholders in a foreign corporation not authorized to do business in Tennessee liable as partners, evidence held insufficient to show' that a defendant bank held any stock otherwise than a collateral security for loans to individual shareholders. (Post, pp. 173, 174.) 6. CORPORATIONS. Pledgee of stock not appearing on books as absolute owner not liable to creditors as stockholder. One to whom or for whose benefit stock is transferred merely as security for a debt, and who does not appear on the stock books of the corporation as absolute owner of the stock, is not subject to liability to creditors as a stockholder. (Post, p. 174.) Cases cited and approved; Andrews v. National F. & P. Works, 76 Fed., 166; Sturtevant v. Natl. F. & P. Works, 88 Fed., 613; Pauly v. State, L. & T. Co., 165 U. S., 606; Rankin v. Fid., etc., Co., 189 II. S., 242. 7. CORPORATIONS. Evidence held to show that defendant was stockholder in foreign corporation, and liable as such. In an action against stockholders in a foreign corporation not author! ized to do business in Tennessee, evidence held to show that a bank claiming to hold stock only as collateral security, was a stockholder, and actually participated in the affairs of the corporation. (Post, pp. 174-178.) 8. EVIDENCE. Testimony, based on information derived from books of bank not produced for examination, properly excluded. Testimony that stock was transferred to a bank as security was properly excluded as not the best evidence, where the witnesses’ knowledge was based on information secured from the books of the bank, which were not produced and tendered to the adverse parties for their examination, and they were afforded no opportunity to cross-examine the witnesses as to matters or entries appearing on the books. (Post, p. 178.) 9. CORPORATIONS. Stockholders in unauthorized corporation liable for advances made ouside the state on contracts for the sale of iron to be stacked within the State. Contracts for the sale of pig iron, which the seller contracted to stack on its yards at Dayton, Tenn., subject to the orders of the buyers, who, at points outside the State, made advances to the seller, were Tennessee contracts; and, where the seller was a foreign corporation not authorized to do business in Tennessee, the stockholders were liable as partners for the advances. (Post, pp. 178-180.) Cases cited and distinguished: Hall v. Cordell, 142 U. S., 116; Huljble v. Morristown Land Co., 95 Tenn., 585; N,eal v. New Orleans,-etc., Ass’n., 100 Tenn., 607. * 10. CORPORATONS. Claims for freight charges held claims for which stockholders of unauthorized foreign corporation were liable as partners. Where iron ore was shipped from points in Georgia to Dayton, Tenn., consigned to a foreign corporation not authorized to do business in Tennessee, and the freight charges were payable in Tennessee, the stockholders were liable therefor as partners. (Post, pp. 180, 181.) 11. CORPORATIONS. Persons dealing with unauthorized foreign corporation as such not estopped to deny corporate existence and hold stockholders liable. Persons dealing with a foreign corporation not authorized to do business in the State as a corporation were not thereby estopped to deny its corporate existence and assert liability against the stockholders as partners or otherwise. (Post, p. 181.) Cases cited and approved: Harrill v. Davis, 168 Fed., 187; Empire Mills v. Alston Grocery Co., 15 S. W., 50p. 13. CORPORATIONS. Stockholders in foreign corporation doing business without authority not liable for money borrowed and payable outside the State. Where a foreign corporation, doing business in Tennessee without complying with the statutory requirements, borrowed money at points outside the State, which was used in the prosecution of its business in the State, but 'the loans or advances were payable where negotiated, the contracts were not Tennessee contracts, and the stockholders were not liable thereon as partners. (Post, pp. 181-183.) 13. CORPORATIONS. Error . to stay execution against stockholders liable as partners until ascertainment of amount recoverable -from .corporation’s bankrupt estate. In a suit to hold stockholders in a foreign corporation doipg business in the State without authority liable as partners, it was error to stay executions until the amounts to be received by the creditors in a bankruptcy proceeding against the corporation were ascertained and credited. (Post, pp. 183, 184.) 14, PARTNERSHIP. Partner paying firm debt not entitled to prorate with other creditors of firm. A partner paying a debt of the firm is entitled to contribution from his copartners, but is not subrogated to the right ^ÍE the creditor whose debt he has paid to prorate with other creditors of the firm in the firm’s estate in bankruptcy. (Post, pp. 183, 184.) Case cited and approved: Reyerson & Son v. Shaw, 277 Ill., 524. 15. INTEREST. Allowance within chancellor’s discretion when claims not within statute. Claims for freight charges and advances under contracts for the purchase of pig iron, not being represented by bills single, bonds, notes, bills of exchange, or liquidated and settled accounts signed by the debtor, and therefore not bearing interest as a matter of law under Shannon’s Code, section 3494, the allowance of interest was within the sound discretion of the chancellor. <(Posí, pp. 184-187.). Cases cited and approved: Knights of Pythias v. Allen, 104 Tenn., 633; Railroad v. Port, 112 Tenn., 455; Gibson County v. Rains, 79 Tenn., 24; Davidson County v. Olwill, 72 Tenn., 34; Shoun v. Armstrong, 59 S. W., 790; Stearns, etc., Co. v. Jamestown R. Co., 141 Tenn., 203; Grizzard v. Pits, 137 Tenn., 103. RESPONSE TO PETITION TO REHEAR. 16. ELECTION OF REMEDIES. Rule of judicial estoppel, by assuming position inconsistent with prosecution of alternative remedy, stated. Where two or more inconsistent remedies depend on inconsistent facts, and a suitor necessarily assumes a position inconsistent with the position which he must afterwards assume to prosecute the alternative remedy, an election, deliberately made, with full knowledge of the facts, and without fraud or imposition, works a judicial estoppel against him. (Post, p. 187.) 17. CORPORATIONS. Creditors of unauthorized foreign corporation held not estopped by other proceedings from holding stockholders as partners. Creditors of a foreign corporation doing business in Tennessee without authority, by bringing a suit to wind it up as an insolvent corporation and administer its assets as such, on allegations that it had not complied with the laws of the State respecting foreign corporations and by participating in the distribution of the assets of the company in the bankruptcy court without alleging any different facts, were n-ot estopped to hold the stockholders liable as partners. (Post, pp. 188-190.) Case cited and approved: Cunnyngham v. Shelby, 136 Tenn., 17.6.
145 Tenn. 191Southern Coal & Iron Co. v. Schwoon (1921)
1. EJECTMENT. Burden of proving location of paper title on ground is on plaintiff. In a suit in ejectment, the burden of the evidence is on complainants to show that their paper title can be located on the ground. (Post, pp. 206-208.) 2. BOUNDARIES. Proof of previously located monument corner, or ' marks from which boundary can be ascertained sufficient. To establish boundary, it is not indispensably necessary that some particular corner or marked line should be proven to exist, but it is sufficient if it be proven to have existed or any monument, corner, or marks from which the boundaries called for can be satisfactorily ascertained according to any easy natural interpretation. (Post, pp. 206-208.) 3. BOUNDARIES. Proof held to raise a presumption that entry of state land designated forks of stream by looking down stream. Where any entry of State land called for the beginning point on the right-hand fork of a stream, while the survey made shortly thereafter called for it by the same description as on the left-hand fork, and it was proved that the surveyors designated the forks of a' stream by looking up stream, and that by following that rule a beginning point answering the description can be ascertained, it will be presumed the entry designated the forks by looking down stream, so that the beginning points were the same. (Post, pp. 208, 209.) 4. BOUNDARIES. Location of official survey controls entry. The location of the official survey is controlling over inconsistent descriptions in the' entry. (Post, pp. 209, 210.) 5. BOUNDARIES. Evidence held to locate survey on ground notwithstanding absence of marked corners or lines and discrepancies in descriptions. Evidence that the calls in a grant could he located on the ground only at the points claimed by complainants, and that one corner so located was designated by an old settler as a corner pointed out to him by a son of the original surveyor, held to show the location of the grant on the ground, notwithstanding the absence of marked corners or lines, and certain discrepancies in the description. (Post, pp. 210-221.) 6. TAXATION! Order releasing land on which taxes had been paid by others does not prejudice claim of title.' Where taxes on the lands assessed against complainants had been actually paid by other persons asserting title to the lands, so that complainants could not be compelled again to pay the taxes thereon, it was proper to release complainants therefrom regardless of their actual ownership of land, so that an order for such release does not alone estop complainants from thereafter claiming the land. (Post, pp. 221-223.) 7. .ABANDONMENT. Abandonment of vested legal title unknown without estoppel or adverse possession. Divestiture of a vested legal title by abandonment is unknown at common law unless it results from some estoppel or adverse possession under the statute of limitations. (Post, pp. 223-225.) Cases cited and distinguished: Phy. v. Hatfield, 122 Tenn., 696‘; Vt. 10; McLellan v. McFadden, 114 Me., 242; Houston Oil Co. v. Kimball, 114 S. W., 667. Cases cited and distinguished:' Phy v. Hatfield, 122 Tenn., 696; Bear Valley Coal Co. v. Dewart, 95 Pa., 72; Tennessee Oil Co. v. Brown, 131 Fed., 696. 8. ESTOPPEL. Injury is essential element of equitable estoppel. To entitle a party to rely on alleged equitable estoppel, it must appear that he has been prejudiced in his rights thereby in some way, since estoppel is founded in fraud in the sense that the person estopped is considered to have misled another to his prejudice, so that it would work fraud to allow the true facts to be proven. (.Post, pp. 225, 226.) 9.ESTOPPEL. Judicial estoppel may be invoked by party not prejudiced. Though the doctrine of judicial estoppel is similar in principle to that of equitable estoppel, it may be invoked by any party, whether prejudiced or not. (Post, pp. 226-229.) Cases cited and distinguished: McLemore Case, 111 Tenn., 639; Stearns Coal & Lumber Co. v. Jamestown Railroad Co., 141 Tenn., 203; Stamper v. Venable, 117 Tenn., 557. 10. ESTOPPEL. Unsworn statements by counsel, made in good faith, and which do not prejudice, do not establish judicial estoppel. Judicial estoppel is based upon the principle that a party cannot take advantage of two inconsistent positions in judicial proceedings, and it is not established by mere proof of unsworn statements by counsel, made in good faith, and which do not prejudice the adverse party. (Post, p. 229.) 11. ESTOPPEL. Conclusions of law inconsiderately stated by party do not establish judicial estoppel. Judicial estoppel is not established by inconsistent statements in prior judicial proceedings, even though made under oath whore it appears that they were made inconsiderately, or in ignorance of the facts, and were mere conclusions of law. (Post, pp. 229-232.) Case cited and distinguished: Tate v. Tate, 126 Tenn., 169. 12. ESTOPPEL. Statement of counsel in tax proceeding that complain- , ant did not own land held not to create judicial estoppel. Though proceedings in a county court to be relieved from taxes are judicial proceedings, a statement made in such proceedings by complainants’ counsel, not under oath, that complainants did not own the lands assessed against them, which was a conclusion of law from a complicated state of facts, all of which were not known to counsel making the statement, does not establish judicial es-toppel which prevents complainants from thereafter claiming the land. (Post, pp. 232-235.) 13. PUBLIC LANDS. Grant dates from entry of lands if special. Priority of title which gives superiority between conflicting grants dates from the inception of the title upon which the grant is based, which is the date of the entry, and that is what is termed a special entry, or the date of the grant if the entry was not special. (Post, pp. 235-238.) Cases cited and approved: McEwen v. Coal Co., 125 Tenn., 694; Iron Co. v. Railroad, 131 Tenn., 224. 14. PUBLIC LANDS. Special entry must refer to marks from which land can be ascertained by those acquainted with the neighborhood. An entry of public lands, to be special, must in some part of it refer to something from which the land can be ascertained with reasonable industry by those acquainted in the neighborhood; the object of the requirement being not only to enable the surveyor to properly survey it, but to afford notice to subsequent enterers of the locality appropriated. (Post, p. 238.) Case cited and approved: McEwen v. Coal Co., 125 Tenn., 703. 15. PUBLIC LANDS. Reference to location on well-known tracts makes entry special. The requirement of the law that a special entry must be definitely located is met if the entry calls for a definite tract of land which is sufficiently well known in the neighborhood, and from the calls of which its location can be ascertained by the exercise of reasonable industry. (Post, pp. 238, 239.) Case cited and approved: Bleidorn v. Pilot Mountain, etc., Co., 89 169. 16. PUBLIC LANDS. Grant cannot relate back to entry unless both cover the same land. Por a grant to relate back to the date of the entry on which it is based, it is obvious that the grant must cover the same land as the entry. (Post, p. 239.) Case cited and approved: Kendrick v. Dallum, 3 Tenn., 224. 17. PUBLIC LANDS. Special entry must contain directions for location in addition to known beginning point. An entry is not special merely because the beginning point is definitely located, but it must also contain directions for its location with reference thereto, either by restriction or by operation of law, so that it will afford notice to subsequent enterers. (Post, pp, 239, 240.) 18. PUBLIC LANDS. Entry calling for complement in stated directions from beginning point is special. An entry which has a special locative call, and calls to run in a stated direction for complement, is special because in such case the law requires the survey to be made in a square or oblong form, unless by doing so prior claims are interfered with. (Post, pp. 239, 240.) Case cited and approved: Berry v. Wagner, 73 Tenn., 564. 19. PUBLIC LANDS. Calls for entry restricting form of survey must be special to make entry special. Where the calls of an entry are restricted so as to prevent the surveyor from locating the. land in the form of an oblong or square as required by law, of which subsequent enterers must take notice, the restrictive calls of the entry must themselves possess the requisite character of specialty, so as to enable the entry to be located by those familiar with the neighborhood.' (Post, p. 240.) 20. PUBLIC LANDS. Calls of entry from known beginning point held not to make entry special. Where an entry fixed a definite beginning point, but the subsequent calls were “thence east, south, east again, thence north,” for complement, the surveyor could not comply with the requirement of an oblong or square survey by following the calls, and the calls themselves were not sufficiently definite to make the entry special. (Post, pp. 240, 241.) 21 PUBLIC LANDS. Survey held to show there was no relation between entry and grant. Where the survey of the grant began at the beginning point called for in the entry, but did not follow the calls of the entry, and the lines were run in- a zigzag course, so that it could not be determined therefrom how much, if any, of the entry was áctually located by the survey and the grant, there can be no relation between the entry and the grant. (Post, pp. 241-243.) Cases cited and approved: Douglass v. Harrison, 1 Tenn., 172; White v. Crockett, 4 Tenn., 183. 22. PUBLIC LANDS. Burden is. on claimant to show what lands in grant were contained in entry. Where the claimants of -a grant contended that the entry should be held special to the extent that the grant covered the same lands, the burden was on them to show what part, if any, of the lands granted were contained in the entry, and they cannot recover any of the lands on the strength of the entry in the absence of such showing. {Post, p. 243.) 23. APPEAL AND ERROR. Record will not be searched for evidence not referred to in appellant’s brief. Where claimants, on appeal from a decree for defendants, made no reference in their brief to the evidence with reference to the claim of one defendant, who in his brief set out evidence tending to show title in him, the court is not called on to search the record for evidence to controvert his claim, and no relief can be granted on the assignments' of error in reference thereto. (Post, p. 243.) 24. PUBLIC LANDS. Evidence held to show calls for entry' were sufficient to make it special. An entry fixing the beginning point as the corners of another entry shown by the evidence to be well known in the neighborhood, and running with the lines of that entry, and the breaks of the mountain, and other entries and roads, held to make the entry special, so that the subsequent grant dated from the entry. (Post, pp. 243, 244.) 25. PUBLIC LANDS. Beginning point not defifiitely located in line called for makes entry vague. Where an entry called for a beginning point on a designated line of a prior entry without locating the point at any particular place along that line, and there is nothing else in the entry to compel any specific location, the entry is vague, and not susceptible of being made special by proof. (Post, pp. 244, 245.) Case cited and approved: Fowler v. Nixon, 54 Tenn., 719. 26. ADVERSE POSSESSION. Length of possession must be proved by clear and positive testimony. The rule that one seeking to show title hy adverse possession has the burden of establishing it by clear and positive testimony applies to the length of time of possession, as well as to the character of possession. {Post, pp. 245-251.) Cases cited and approved: Jones v. Coal Creek Min. & Mfg. Co., 133 Tenn., 183; Drewery v. Nelms, 132 Tenn., 254; Harrison v. Henderson, 54 Tenn., 335; Girdner v. Stephens, 48 Tenn., 280. Cases cited and distinguished: Sully v. Childress, 106 Tenn., 177; Criner v. Cherry, 3 Shan. Cas., 496; Neely v. Luster, 54 Tenn., 354. 27. ADVERSE POSSESSION. Possession by timber lessee held that of tenant. Where the purchaser of the timber on a tract of land under a contract giving him no right to possession of the tract constructed some houses thereon where he and his employees lived, his- possession was that of tenant for the vendor of the timber on which the vendor can base a claim by adverse possession. {Post, pp. 251-253.) 28. ADVERSE POSSESSION. Possession of houses by timber tenant gives no claim to entire tract. Where the purchaser of timber on a tract of land constructed some houses on a portion of the land, and occupied them as the vendor’s tenant, the vendor’s claim by adverse possession based on such occupation is limited to the land occupied, and does not extend to the entire tract. {Post, pp. 251-253.) Case cited and approved: Northcut v. Church, 135 Tenn., 541. 29. ADVERSE POSSESSION. Holding of strip accidentally inclosed for defendant held not to give defendant adverse possession of entire tract. Where the owner of a tract included in defendant’s grant accidentally inclosed with his tract a strip of defendant’s land, and agreed to hold possession of the land so inclosed for defendant, defendant cannot base a claim to the entire tract by adverse possession upon possession of that strip. {Post, pp. 253, 254.) 30. ADVERSE POSSESSION. Evidence held not to show possession for period sufficient to give title. In ejectment, where complainants showed title from a superior grant, evidence held insufficient to establish the claim of defendant that his possession of the tract by the erection of a cabin thereon in which he lived part of the time had continued for the seven years necessary to perfect- his title by adverse possession. (Post, pp. 254, 255.) 31. PUBLIC LANDS. Special entry is excluded from subsequent grant excluding legal claims. A grant excluding therefrom the land within the described boundaries held by legal claims excludes an entry made prior to the grant if the entry was special (Post, pp. 255, 256.) Case cited and distinguished: Bleidorn v. Pilot Mountain, 89 Tenn., 169. 32. PUBLIC LANDS. Entry may be either “special entry,’’ “vague entry,’’ or “indifferent entry.’’ In relation to specialty, entries of public lands are divided into three classes, special, which includes those which for locality contain references to historical, traditional, or well-known places, and which require no auxiliary proof, since the court can take judicial notice of the places, vague entries, which are those possessing no call for specialty or requiring more than reasonable exertions to ascertain such specialty, and which cannot be made good by extrinsic proof, and indifferent entries, which may be made special or vague by the proof in the case as to whether the places called for are located on the ground, and are sufficiently described and well known to be ascertainable by reasonable industry by those acquainted in the neighborhood. (Post, pp. 256-258.) 33. PUBLIC LANDS. Entry held indifferent and not special or vague. An entry locating the beginning point on the headwaters of a designated river one-half mile north of a spring that rises near an improvement called the Ambrose Cabin is an indifferent entry, because the court will not presume the existence and notoriety of the objects called for; but the land is sufficiently located if such existence and notoriety are proved. (Post, pp. 258, 259.) 34.PUBLIC LANDS. Survey of indifferent entry raises presumption it is special. Where an entry is indifferent, the burden on the party claiming under it to introduce evidence the land can he located thereby is met by the official plat and certificate of survey, which'show the objects called for, and which are sufficient in the absence-of ■ evidence to the contrary to raise the presumption that such objects existed and were well known in the neighborhood. (Post, pp. 258, 259.) Cases cited and approved: Blei'dorn case, 89 Tenn., 166; McEwen v. Coal Co., 125 Tenn., 694. Case cited and distinguished: Wallen v. Campbell, 2 Tenn., 322. 35. ADVERSE POSSESSION. Possession under color of title to un-granted entry does not extend to limits of (grant surrounding but excluding it. Where the claimant of a grant which excluded therefrom a prior special entry took possession of the special entry under a deed giving color of title thereto, his possession extends only to the limits of the special entry, and he cannot base thereon a claim to the entire grant by adverse possession. (Post, pp. 259, 260.) 36. ADVERSE POSSESSION. Fact that possession was on another entry does not prevent its extension to .entire tract held under different color of title. The mere fact that an improvement had been in possession for more than seven years under color of title to a smaller tract including it does not alone prevent such possession from extending thereafter to a larger tract, including the smaller tract, under a new color of title. (Post, p. 260.) Case cited and approved: Bon Air Co. v. Parks, 94 Tenn., 263. 37. ADVERSE POSSESSION. Possession ripened into title to smaller tract cannot be extended to larger tract under different color of title. Where possession of improvements had ripened into title of a tract to which the possessor held color of title, so that the continued possession of the improvements could not be adverse to any one, the continued possession does not extend to a larger tract under a newly acquired color of title which included the former tract. (Post, pp. 260, 261.) Cases cited and approved: Coal Co. v. Scott, 121 Tenn., 118; Daniel v. Coal & Iron Co., 132 Tenn., 510; Byrd v. Phillips, 120 Tenn., 14; Round ffitt. Lumber Co. v. Bass, 136 Tenn., 687. 88. PUBLIC LANDS. Inferior grant cannot .include ungranted entry excepted therefrom. Where the grant under which defendant claimed was inferior to complainants’ grant, it could give no title to any land, and a fortiori could not draw to it title to land that was excluded therefrom. (Post, pp. 261-263.) 39 PUBLIC LANDS. Subsequent failure to great excluded entry does not vest title in prior grantee. Where the grant under which defendant claimed ’excluded thereTrom when issued an existing valid entry, the subsequent failure of the enterer to acquire a grant based on the prior entry did not give the grantee title to such entry, but that title reverted to the state. (Post, pp. 261-263.) 40. PUBLIC LANDS. Entry beginning at white oak near a path is vague. An entry locating the beginning point at a white oak, near a path cut out on the mountain, and also near the bluff of the gulf, is vague, and not susceptible of proof to identify the beginning point. (Post, p. 263.) 43. ADVERSE POSSESSION. Not limited to invalid grant where possessor also claimed under color of title. Possession within the boundaries of an inferior grant is not limited to the boundaries of that grant where at the time it was instituted the possessor claimed under a tax deed giving color of title to the full extent of a superior grant. (Post, pp. 263, 264.) 42. ADVERSE POSSESSION. Tax deed held to convey color of title. A tax deed which purports to convey the land, and shows that the persons in whose name the land was sold were the owners, gives color of title, though, as a matter of fact, the persons so named were not the owners. (Post, pp. 264, 265.) 43. ADVERSE POSSESSION. Possession under insufficient color of title may thereafter extend to boundaries of subsequent conveyances. Even if a tax deed under which possession was originally taken was insufficient color of title to extend the possession to the entire tract, the possession by subsequent grantees, whose deeds purported to convey the entire tract, would extend to the land described by their deeds. (Post, pp. 264, 265.) 44. ADVERSE POSSESSION. Description in tax deed held sufficient to give color or title to entire tract. A tax deed which does not on its' face identify the land conveyed thereby as a particular grant, but calls for the corners of another grant from which, under the evidence, it is apparent the description in the tax deed .was intended to cover the first grant, is sufficient to give the color of title to that grant. (Post, pp. 264, 265.)
145 Tenn. 266New River Lumber Co. v. Tennessee Ry. Co. (1921)
1. SPECIFIC PERFORMANCE. Relief refused where contract is inequitable without pleading that issue. The court must consider the entire situation and act on its discretion and will not specifically decree the performance of a contract shown to be harsh or inequitable, even though the pleadings did not raise that issue. (Post, pp. 282-284.) 2. SPECIFIC PERFORMANCE. Refused where contract is illegal without pleading that issue. Specific performance of an unlawful contract will not be decreed whether the defense of illegality was specially pleaded or not. (Post, pp. 282-284.) Acts cited and construed: Acts 1897, ch. 10. Cases cited and distinguished: New River Lumber Co. v. Tenn. Ry. Co., 136 Tenn., 661. Code cited and construed: Sec. 3059a (Thomp.). 3. COURTS. ■ Decisions construing interstate Commerce Act are authoritative on construction of state act. Acts 1897, chapter 10 (Thomp. Shan. Code, section 3059a et seq.), creating a Railroad Commission and defining its powers, was modeled after the Interstate Commerce Act of Congress, and practically all the decisions upon the construction of the federal statutes are authoritative upon the construction of the State act. (Post, pp. 284-288.) Acts cited and construed: Acts 1897 ch. 10. On effect of contracts fixing rates other than those established in accordance with interstate commerce act, see notes in 14 L. R. A. (N. S.), 400, and 38 L. R. A (N. S.), 351. Case cited and approved: L. W. Blinn Lbr. Co. v. So. P. Co., 18 Int. Com. Comm. R., 430. 4. CARRIERS. Contract fixing rate for definite period is superseded by new rate established under statute. Even though a rate fixed by a contract for definite period between a carrier and a shipper is the legal rate at the time of the contract, a higher rate thereafter established by the carrier in accordance with the provisions of the Railroad Commission Law renders the contract ineffectual and would subject both the carrier and shipper to indictment if they adhere to the contract. (Post, pp. 288-200.) Cases cited and approved: L. & N. R. Co. v. Mottley, 219 U. S., 467; So. Ry. Co. v. Linear, 138 Tenn., 543. Cases cited and distinguished: Armour Packing Co. v. U. S. 209 U. S., 56; N. Y., N. H. & H. R. Co. v. Interstate Commerce Commission, 200 U. S., 361. 5. CARRIERS. Rate unlawful unless approved by the commission. Under Acts 1897, chapter 10, section 22, concerning the Railroad Commission’s powers over rates, no charge for transportation is lawful unless submitted to or fixed by the Commission, and no departure from the posted rates is lawful except as may be allowed by the Commission. (Post, p. 290.) 6. EVIDENCE. Carrier presumed to have filed tariff as required by law. A carrier is presumed to have filed tariffs of the rates it is demanding from shippers as required by Railroad Commission Act of 1897. (Post, pp. 290-292.) Acts cited and construed: Acts,1897, ch. 10, see 22. Cases cited and approved: So. Ry. Co. v. Lewis & Adcock, 139 Tenn., 37; L. & N. R. Co. v. Hobbs, 136 Tenn., 512. Case cited and distinguished: Cincinnati & T. P. R. Co. v. Rankin, 241, U. S., 319. 7. EVIDENCE. Carriers are quasi-public functionaries within 'presumption they do their duty. Common carriers are quasi-public functionaries, to which the presumption of law that they have complied with their legal duty in the absence of any proof to the contrary applies. (Post, p. 292.) Cases cited and approved: East Tennessee, etc., R. Co. v. G-urley, 80 Tenn., 46; Railroad v. Duffield, 80 Tenn., 63; East Tenn., etc., R. Co. v. Stuart, 81 Tenn., 432; Railroad Co. v. Naive, 112 Tenn., 266. 5. CARRIERS. Special rates to encourage infant industries are illegal unless approved by Commission. Special rates to encourage infant industries as permitted by Railroad Commission Act of 1897, c. 10, § 24, are legal only after they have been submitted to the Commission for revision, and only if they may be permitted without discrimination, so that no shipper and no carrier can make a special contract for special rates independently of the Commission. (Post, pp. 292, 293.) Acts cited and construed: Acts 1897, ch. 10, see 24. 9.SPECIFIC PERFORMANCE. Not decreed where existence of legal contract is doubtful. Where the legality of a contract between a carrier and shipper fixing rates for transportation is doubtful, specific performance thereof will not be enforced. (Post, p. 293.) Case cited and approved: Morrison v. Searight, 63 Tenn., 476. 10. CONSTITUTIONAL LAW. Hardship does not justify judicial change of statute. The hardship resulting to a shipper who had made large expenditures in reliance on a contract with a carrier fixing special rates does not authorize the court to read into the statutes regulating rates any exceptions not contained therein. (Post, pp. 293, 294.) Acts cited and construed: Acts 1897, ch. 10, Acts 1915, ch. 92. Cases cited and approved: Armour Packing Co v. United States, 153, Fed., 1. 11. SPECIFIC PERFORMANCE. Refusal to perform illegal provisions Does' not authorize decree as to legal provisions not breached. Specific performance of the legal portions of a contract between a shipper and carrier will not be decreed where there was no breach of such obligations, though the carrier had refused to perform illegal provisions of the contract regulating rates. (Post, pp. 294, 295.) 12. SPECIFIC PERFORMANCE. Relief not granted where contract is terminable at will. Equity will not decree specific performance where it may be nugatory, as where the contract may be terminated at the will of either party. (Post, p. 295.) Cases cited and approved: Andrews v. Andrews, 28 Ala., 482; State v. Cadwailader, 172 Ind., 619; Alworth v. Seymour, 42 Minn., 526. 18. SPECIFIC PERFORMANCE. Not decreed to enforce rates subject to change by Commission. A court of equity will not decree specific performance of a contract fixing rates to be charged by a carrier, even though the rates therein specified are legal rates, since such rates would be subject to change at the order of the Commission. (Post, pp. 295, 296.) 14. RECEIVERS. Not appointed for railroad for which a receiver had been appointed in another suit. In a suit by a shipper for'specific performance of a contract with it by a carrier, receivers of the carrier will not be appointed to carry out certain provisions of the contract where, after the present suit was instituted, a receiver had been appointed for the same carrier in other proceedings in the same court, but the shipper’s remedy must be sought in the court which appointed the receiver or with the permission of that court. (Post, p. 296.)
145 Tenn. 297J. A. Kreis & Co. v. City of Knoxville (1921)
1. MUNICIPAL CORPORATIONS. Verbal agreement by city official to pay for extra work under construction contract held void under charter. Where during the construction of a pump pit for a city it became necessary to enlarge the pit and the city’s commissioner of waterworks verbally assured the contractor that he would be paid tor the extra work, such agreement was unenforceable, in view of provisions of the city charter that alterations in a contract should not go into effect until the price to be paid should have been agreed upon in writing, signed by the contractor and approved by the board. (Post, pp. B02-304.) Acts cited and construed: Acts 1907, ch. 207. Cases cited and approved; Los Angeles v. Toberman, 61 Cal., 199; Van Reipen v. Jersey City, 58 N. J. Law, 262; Carpenter v. Yeadon Borough, 208 Pa., 396; Jersey City Supply Co. v. Jersey City," 71 N. J. Law, 631; Kelley v. Torrington, 80 Conn., 378; Citizens’ Bank v. Spencer, 126 Iowa, 101; Detroit v. Michigan Paving Co., 36 Mich., 335; Wiley v. City of Columbus, 109 Ga., 295; Frick v. City of Los Angeles, 115 Cal., 513; City of Paxton v. Bogardus et al., 201 Ill., 628; Gas Light Co. v. Memphis, 93 Tenn., 612; Land Co. v. Jellico, 103 Tenn., 320. Case cited and distinguished: Watterson v. City of Nashville, 106 Tenn., 410. 2. MUNICIPAL CORPORATIONS. Agreement by city commissioners to compromise claim under void contract held invalid. Where a verbal agreement by a city’s commissioner of waterworks to pay a contractor for extra work under a construction contract was void because not executed according to charter provisions, the fact that the board of commissioners of the city subsequently agreed to compromise the claim could not give it validity. (Post, pp. 304, 305.) 3. MUNICIPAL CORPORATIONS. One dealing with municipal officers must take notice of limitation of their authority. One dealing with municipal officers, boards, or committees is bound at his peril to take notice of the limitation of their authority. (Post, p. 305.)
145 Tenn. 306Oneida High School v. Scott County Board of Education (1921)
PROM SCOTT. Appeal from the Chancery Court of Scott County.— Hon. John Jennings, Jr., Chancellor.
145 Tenn. 318Willis v. Mann Const. Co. (1921)
1. STATUTES. Act amending prior act by mere reference to chapter number and year of passage held void. A mere reference in an amendatory act to the former act by chapter, number and year of passage does not comply with Constitution, article 2, section 17, requiring a recital of the title or substance of the amended law; and hence Acts 1905, chapter 414, purporting to amend Acts 1897, chapter 78, merely referring to it as “chapter 78 of the Acts of 1897,” is void for failure to comply therewith. (Post, pp. 324, 325.) Acts cited and construed; Acts 1905, ch. 414; Acts 1897, ch. 78, Acts 1899, ch. 182; Acts 1883, ch. 18. Cases cited and approved: Memphis Street Railway v. State, 110 Tenn., 608; Burnett v. Turner, 87 Tenn., 124; Drug Co. v. Stone, 129 Tenn., 608. Code cited and construed: Secs. 1135a-1135a3 (T.-S.). Constitution cited and construed: Sec. 7, art. 2. 2. CONSTITUTIONAL LAW. Act imposing laborers’ lien on effects of corporations and partnerships only held not unconstitutional. Acts 1897, chapter 78, and Acts 1883, chapter 18, imposing a laborers’ lien on the effects of corporations and partnerships only, held not unconstitutional as an unlawful discrimination against employees of individuals, who have a free and unembarrassed right to subject their employer’s property to the satisfaction of their demands. (Post, pp. 325, 326.) Acts cited and construed: Acts 1897, ch. 78; Acts 1883, ch.'18. 3. ASSIGNMENTS. Contractor’s control of funds owing it held to defeat alleged equitable assignment thereof. Where road commissioners on each pay day paid the construction contractor for all work, which in turn gave its own checks Lo subcontractors for amounts due them, the latter, after the contractor’s insolvency, had no prior claim on its funds in the hands of the commissioners by reason of an agreement of its president to appropriate to them a portion of such funds; the assignor’s retention of control of the funds being fatal to the claim of an equitable assignment. (Post, pp. 326,-327.) 4. ASSIGNMENTS. In absence of notice to county of contractor’s assignment of subcontractors of amounts due it, they have no prior claim on funds in commissioner’s hands. In the absence of notice to the county of alleged assignments by a contractor to subcontractors of amounts received from the 6om-missioners for the construction of a road, such subcontractors have no prior claim against such funds, after the contractor’s insolvency; an assignment of a chose in action not being complete without notice to the debtor. (Post, pp. 327, 328.) Cases cited and approved: Mutual Protection Ins. Co. v. Hamilton tk Goram, 37 Tenn., 269; Lambreth & Co. v. Clark & Brown, 57 Tenn., 32; Dews v. Olwill, Ex’r., 62 Tenn., 432; Flickey v. Loney, 63 Tenn., 169; Cates v. Baxter, 97 Tenn., 443; Dillingham v. Ins. Co., 120 Tenn., 302; McGuffey v. Johnson, 77 Tenn., 555; Wharton v. Lavender, 82 Tenn., 178; Crudgington v. Hogan, 105 Tenn., 448. Case cited and distinguished: Clodfelter v. Cox, 33 Tenn., 330. 5. MARSHALING ASSETS AND SECURITIES. Insolvent contractor’s creditors not postponed to subcontractors in distribution of funds in hands of debtor to benefit sureties on contractor’s bond. Brokers, to whom a road contractor agreed to pay a commission on the sale of the road bonds by the county, will not be postponed to subcontractors in distribution of funds owed to the contractor by the road commissioners, in order to benefit the sureties on the contractor’s bond executed in accordance with Thompson-Shannon Code, sections 1135a-1135a3, nor can they force the subcontractors to look first to the bond and deprive the sureties of the benefit of the application of a proportionate part of the funds to the subcontractors’ claims; the doctrine of marshalling assets not being enforced to the prejudice of a third party. (Post, pp. 328, 329.) Cases cited and approved: Gilliam v. McCormack, 85 Tenn., 597; Galliher v. Galliher, 78 Tenn., 23. 6. CORPORATIONS. No lien on assets of insolvent corporation which had ceased to do business when attachment levied. Where, at the time creditors of a road construction company levied an attachment on moneys due it in the hands of the county road-commissioners, it was insolvent and had permanently ceased to do business, and its contract, which was the only business it had, had been abandoned or taken away from it, such attachment fixed no lien on its assets, which had become a trust fund for all its creditors. (Post, pp. 329-332.) ' Case cited and approved: Memphis Barrell Co. v. Ward, 99 Tenn., 177. 7. CORPORATIONS. Where corporation has not committed act of insolvency and was doing business, filing bill to subject assets in hands of debtor to satisfaction of creditors’ claim fixed on lien entitling complainants to priority. Since a lien against the assets of a corporation may be fixed, without attachment, by the filing of a bill to subject funds due it in the hands of a third party to the satisfaction of creditors’ claims only where the inherent jurisdiction of equity, or the jurisdiction extended by statutes, such as Thompson-Shannon Code, sections 6091-6097, is invoked, filing such a bill by other than judgment creditors, for other purposes than to set aside a fraudulent conveyance or enforce a trust or lien, does not fix a lien on the assets entitling complainants to priority over other creditors in the distribution thereof, where the corporation had committed no overt act of insolvency and had not ceased to do business at such time; a court of equity being without jurisdiction to subject an equitable interest to the satisfaction of a purely legal claim, though complainants, under Acts 1877, chapter 97, may recover on their debt and also have an attachment of such assets in the chancery court, which in such case exercises the jurisdiction of a court of law. (Post, pp. 332, 333.) Acts cited and construed: Acts 1877, ch. 97. Cases cited and approved: MeKeldiri v. Gouldy, 91 Tenn., 677; Allen v. Gilliland, 74 Tenn., 521. Code cited and construed: Secs. 6091-6097(T.-S.). 8. CREDITORS’ SUIT. In simple creditors’ suit to reach moneys in hands of third party hill of interpleader held sustainable as general creditors’ bill. In a suit by a simple creditor to subject moneys in the hands oí county road commissioners to the satisfaction of complainants’' claims against a road construction company, which, at the time of the filing of the bill, had committed no overt act of insolvency and had not ceased to do business, so' that, no lien being fixed, complainants were entitled to no preference as against subcontractors to whom the contractor owed money, held, that the subcontractors’ bill of interpleader should be sustained as a general creditors’ bill, in order to remove any question of the court’s jurisdiction over the entire amount of the funds in controversy. (Post, pp. 333, 334.)
145 Tenn. 335Thompson v. Ford (1921)
1. FRAUDS, STATUTE OF. Contract for sale of interest in business held required to he in writing. A contract of sale of an interest in business calling for payments of $50 each over a period of twenty-one months is required to toe in writing, to toe enforceable. ’ (Post, pp. 337, '338.) Cases cited and approved: Deaton v. Tennessee Coal, etc., Co., 59 Tenn., 650; Gregory v. Underhill, 74 Tenn., 207. 2. FRAUDS, STATUTE OF. Notes not delivered before payee’s death held not sufficient memorandum. Notes executed prior to payee’s death, but not delivered until after his death, were not sufficient memorandum of a sale, of an interest in a business which called for twenty-one monthly payments. (Post, p. 338.) 3. WILLS. Contract of sale which would adeem legacy must toe enforceable. A contract of sale of personalty, entered into toy testator during his life, must toe enforceable under the- statute of frauds in order to adeem a legacy, and nothing done after the death of testator by his executor in carrying out ah unenforceable contract can affect the rights of the legatee. (Post, pp. 338, 339.) Cases cited and approved: Banking Co. v. Balfour, 138 Tenn., 390; Ford v. Cottrell, 141 Tenn., 176; Wiggins v. Cheatham, _ 143 Tenn., 410; Donohoo v. Lea, 31 Tenn., 119; Blair v. Snodgrass, 33 Tenn., 1. 4. APPEAL AND ERROR. Appellee cannot complain. Where complainant was successful before chancellor, but decree was reversed in the court of civil appeals, and the complainant alone appealed, the defendant cannot question complainant’s right to maintain the suit. (Post, p. 339.)
145 Tenn. 340Knox County v. Kreis (1921)
1. ANIMALS. County not entitled to salvage value of destroyed cattle after payment of statutory valuation. Where cows infected with tuberculosis were ordered destroyed, and the statutory valuation provided by Acts 1913, chapter 5, amending Acts 1901, chapter 156, to prevent the spread of diseases among domestic animals, was paid, the county was not entitled to recover of the owner salvage value received from a packing company slaughtering the cattle for their hides, fertilizer and like purposes, the statutory value being not more than one-half of the true valuation, and being purely a gratuity. (Post, pp. 342-344.) 2. EMINENT DOMAIN. Act authorizing destruction of diseased cattle a police measure. Acts 1913, chapter 5, authorizing the destruction of infected cattle and payment to the owner of one-half their value, is purely a police measure, and does not authorize the taking of cattle by payment of the statutory valuation so as to entitle a county r.o the salvage value of the destroyed cattle as that would violate Constitution, article 1, section 21, requiring just compensation. (Post, pp. 342-344.) Acts cited and construed: Acts 1913, ch. 5; Acts 1901, ch. 156. Cases cited and approved:- Alloway v. Nashville, 88 Tenn., 510: Lewisburg & Northern Railroad Co. v. Hinds, 134 Tenn., 293; City of New Orleans v. Charouleau, 121 La., 890; Newark, etc., R. Co. v. Hunt, 50 N. J. Law, 308; Houston v. State, 98 Wis., 481. Constitution cited and construed: Sec. 21, art. 1.
145 Tenn. 345Wells v. Holley (1921)
FRAUD. Purchaser’s right of action for shortage in acreage held waived. Where a farm which was represented to contain one hundred and thirty-six acres contained hut one hundred and eight and two-fifths acres, the difference was sufficient, even in the absence of actual fraud, to entitle the purchaser to a rescission of his ex-ecutory contract and to damages for the shortage, hut when he accepted the deed, paid his money, executed his notes, and fully complied with the contract, knowing the acreage, he waived the right to damages for the deficiency, though when completing the contract he asserted his intention to claim damages. Cases cited and approved: Smith v. Bolles, 132 U. S., 125; Sigafus v. Porter, 179 U. S., 116; Kingman & Co. v. Stoddard, 29 C. C. A., 413; People v. Stephens, 71 N. Y., 527; Selway v. Fogg, 5 Mees. & W., 83; Fitzpatrick v. Flannagan, 106 U. S., 648; Saratoga & 8. R- Co. v. Row, 24 Wend., 74; McLean v. Clapp, 141 U. S., 429; Cozart v. Georgia Co., 54 Ga„ 384; Gamble v. Knott, 48 Id., 109; May v. Memphis Co., 40 Id., 190. Cases cited and distinguished: Ponder v. Altura Farms Co., 57 Colo., 519; Grymes v. Sanders, 93 II. S., 55; Hunt v. Hardwick Co., 08 Ga., 100; St. John v. Hendrickson, 81 Ind., 350.
145 Tenn. 361Greenwood v. Rickman (1920)
1. SCHOOLS AND SCHOOL DISTRICTS. Legislature may create special school district. The legislature has power to create a special school district. (Post, p. 370.) Acts cited and construed: Acts 1921, ch. 490. Case cited and approved: Quinn v. Hester, 135 Tenn., 373. Constitution cited and construed: Sec. 3, art. 2. ' 2. CONSTITUTIONAL LAW. Statute creating special district held not to make voting bonds a condition precedent. Private Acts 1921, chapter 490, creating special school district, held not to depend on the voting of bonds by the electorate of such district, such election being merely an incident to its general purpose, so that it is not subject to the objection of being invalid for making voting of bonds a condition precedent. (.Post, pp. 370, 371.) Case cited and approved: Wright v. Cunningham, 115 Tenn., 445. 3. STATUTES. Act establishing special district need not recite in caption title and substance of act repealed or partly repealed by implication. If Private Acts 1921, chapter 490, establishing special school district, repeals any portion of the general school law (Act 1907, chapter 236), under which Putnam county was laid off into five school districts, it does so only by implication, and hence a recital in its caption of the title and substance of the act repealed or partly repealed was unnecessary. {Post, p. 371.) Acts cited and construed: Acts -1907, ch. 236; Acts 1921, ch. 490. Cases cited and approved: State v. Yardley, 95 Tenn., 558; Hunter v. Memphis, 93 Tenn., 571; Ballentine v. Mayor, 83 Tenn., 833; Railroad v. Crider, 91 Tenn., 507; Home Ins. Co. v. Taxing Dist., 72 Tenn., 650. Constitution cited and construed: Sec. 17, art. 2. 4. TAXATION. Additional poll tax for school purposes not objectionable as double assessment. Private Acts 1921, chapter 490, establishing a special school district in Putnam county, does not contravene Constitution, article 2, section 25, because levying a $1 poll tax on each legal voter within the district on the ground that it is a double assessment, since the legislature may authorize an additional poll tax for school purposes. {Post, pp. 371, 372.) Constitution cited and construed: Sec. 25, art. 2. 5. STATUTES. Act creating special school district held not to violate Constitution as to recital as to amended law in its caption. Private Acts 1921, chapter 490, creating a special school district in Putnam county, does not violate Constitution, article 2, section 17. because by section 12 of the act poll taxes to be collected by the municipality of the town of Algood and appropriated to such district, since its caption expressly recites that it is to amend the charter of such town, so as to appropriate the poll taxes therein to the school fund of such district. {Post, pp. 372, 373.) Acts cited and construed: Acts 1921, ch. 490. Case cited and approved: Van Dyke v. Thompson, 186 Tenn, 136. Constitution cited and construed: Art. 2, sec. 17. 6. STATUTES. Liberal interpretation rule in upholding amendatory-acts where body and caption indicate legislation 'sought to he effected. A liberal interpretation in upholding amendatory acts is the rule where the body and caption of the act, taken as a whole, and from a practiced viewpoint, indicate the legislation sought to be effected. (Post, v. 373.) Cases cited and approved: Heiskell v. Knoxville, 136 Tenn., 376; Luchrman v. Taxing Dist., 70 Tenn., 425. 7. STATUTES. Act establishing special school district held to repeal provision of former act by implication, if at all, so that its caption need not recite title or substance of act affected. If Private Acts 1921, chapter 490, section 9, does not violate Constitution, article 2, section 17, because it repeals a provision of the charter of the town of Algood creating such town and making it a special school district, and makes no reference to such repeal in its caption, thus making the body of the act broader than the caption, such repeal is by implication, so that the title or substance of the act affected need not be .expressly recited in the caption of such repealing act. (Post, p. 373.) Acts cited and construed: Acts 1911, ch. 615; Acts 1921, ch. 490, sec. 9. Constitution cited and construed: Sec. 17, art. 2. 8. CONSTITUTIONAL LAW. Act creating special district held not to discriminate against colored children. Private Acts 1921, chapter 490, does not violate Constitution U. S. Amendment 14, nor Constitution Tennessee, article 11, section 8, because discriminating against colored children, since it provides for giving them equal opportunities for securing an education in the free schools of said district. (Post, pp. 373, 374.) 9. TAXATION. Exemption of school district bonds from taxation not violation of uniformity provisions. Private Acts 1921, chapter 490, establishing a special school district in Putnam county,'does not violate Constitution, article 2, section 28, relating to uniformity of taxation, because undertaking to exempt bonds of the district from taxation, since the General Assembly has power to exempt State, county, municipal, and school bonds. (Post, pp. 374, 375.) 10. TAXATION. Act establishing special district held not in contravention of Constitution as to delegating taxing power. Private Acts 1921, chapter 490, establishing a special school district in Putnam county, is not in contravention of Constitution, article 2, section 29, which impliedly forbids the General Assembly to delegate the power of taxation except to counties and incorporated towns, since it gives no discretion to the school district by the act relating to the exemption of school bonds to be issued from taxation. (Post, pp. 374, 375.) Acts cited and construed: Acts 1921, ch. 490. Cáse cited and approved: Foster v. Roberts, 142 Tenn., 350. Constitution cited and construed: Sec. 28, art. 2. 11. STATUTES. Act establishing a special school district held not invalid for embracing more than one subject. Private Acts 1921, chapter 490, establishing a special school district in Putnam county, and providing for the issuing of bonds, and for the levying of taxes to pay the same and interest thereon, and to provide a fund to lengthen the school term, and to amend the charter of a town, held not invalid for the reason that its caption and body embraces more than one subject, since such matters are directly and ‘intimately connected with its general purpose, and necessary to carry it out. (Post, pp. 375, 376.) Acts cited and construed: Acts 1911, ch. 615; Acts 1921, ch. 490. Cases cited and approved: State v. Schlitz Brewing Co., 104 Tenn., 715; Memphis Street Railway Co. v. State, 110 Tenn., 598; Cannon v. Mathes, 55 Tenn., 504. Constitution cited and construed: Sec. 17, art. 2. 12. TAXATION. Act establishing special district held not invalid for double taxation. Private Acts 1921, chapter 490, establishing special school district in Putnam county, embracing part of a town, held not invalid because of double taxaton as to those outside of the town of Algood, in view of its charter, article 7, section 4, providing that the poll tax should go to the public schools. (Post, pp. 376, 3'77.) 13. APPEAL AND ERROR. Objection to demurrer should be made in lower court by motion to strike or make more definite. An objection that a demurrer was defective because failing to state specifically the objections made to the bill, as required by Shannon’s Code, section 4655, must be made below by motion to strike or to make more specific. (Post, p. 377.) Code cited and construed: Sec. 4655 (S.).
145 Tenn. 378Jordan v. Jordan (1921)
1. COURTS. Power of chancellor cannot he enlarged by consent. A court cannot validly adjudicate a matter which does not fall within its jurisdiction, and the consent of the parties or waiver of the court’s action cannot confer power upon the court in cases where it is not conferred by law. (Post, p. 403.) Acts cited and construed: Acts 1903, ch. 248; Acts 1905, ch. 427. Case cited and approved: Chickamauga Trust Co. v. Lonas, 139 Tenn., 228. Code cited and construed: Secs'. 6228al, 6228a5, (S.). 2. JUDICIAL SALES. Chancellor cannot confirm in chambers except on conditions stated in act of 1903. Acts 1905, chapter 427, amending Acts 1903, chapter 248, by adding to the powers of the chancellor at chambers the power to hear and determine by final decree causes when the parties consent to such hearing and any action desired (except to confirm sales where ten days notice is required), did not change the clear provision of the act of 1903, permitting confirmation of sales in chambers only on conditions therein stated. (Post, pp. 403-406.) 3. PARTITION. Invalidity of decree of confirmation does not invalidate sale. The invalidity of a decree confirming a sale for partition because it was made in chambers without compliance with the conditions prescribed by Acts 1903, chapter 248, as amended by Acts 1905, chapter 427, does not invalidate the sale, but the sale, if otherwise regular and valid, could be confirmed by decree at the regular term of court. (Post, pp. 406-408.) 4. DEEDS. Remainder to class is contingent. A deed to a woman for life and at her death to her children, as it conveys the remainder to the children who may be living at her death, is a conveyance to a class, and therefore contingent, and not vested. (Post, pp. 408-412.) Cases cited and distinguished: Sanders v. Byrom, 112 Tenn., 474; Tate v. Tate, 126 Tenn., 173; Satterfield v. Mayes, 30 Tenn., 58; Forrest v. Porch, 100 Tenn., 391; Bigley v. Watson, 98 Tenn., 353. 5. EVIDENCE. Possibility of issue exists in law during life. In contemplation of law there is a possibility of issue so long as life lasts. (Post, pp. 413, 414.) Case cited and approved: List v. Rodney, 83 Pa., 483. 6. DEEDS. Elements of conveyance to class stated. The three elements essential to the application of the rule governing-conveyances to a class are a class subject to increase or diminution, a conveyance to the class, and a time of distribution fixed at a subsequent period. (Post, pp. 414-416.) 7. PARTIES. Doctrine of virtual representation requires party with actual interest similar to that of unknown party. The equitable doctrine of virtual representation cannot be invoked merely for the benefit of unknown or unborn persons, but there must be a person with an actual interest similar to that of an unknown party in order to bind the party not before the court in person, (Post, pp. 414.-416.) 8. PARTIES. Chancellor held to have jurisdiction over unborn children under doctrine of virtual representation. In a suit to partition land, where the remainder had been given to the children of the life tenant as a class, the living remaindermen at the time of the sale represented the interest of any possible unborn children so as to give the court jurisdiction to bind all parties by decree as to the title under the equitable doctrine of virtual representation. {Post, pp. 416-430.) Acts cited and construed: Acts 1827, ch. 54; Acts 1835, ch. 20; Acts 1829, ch. 35. Cases cited and approved: Denegre v. Walker, 2 Ann. Cas., 787; Rutledge v. Fishburne, 97 Am. St. Rep., 757; Reynoldson v. Perkins Ambl. (Eng.), 564; Miller v. Texas, etc., R. Co., 132 U. 5., 662; McCampbell v. Mason, 151 Ill., 500; Temple v. Scott, 143 111., 290; Hermann v. Parsons, 117 Ky., 239; Mathews v. Lightner, 85 Minn., 333; Collins v. Crawford, 214 Mo., 183; Woolsey v. Woolsey, 78 N. J. Eq., 579; Faulkner v. Davis, 18 Grat., 690; Cannon v. Barry, 59 Miss., 305; Bowen v. Gent, 54 Md., 571; Card v. Finch, 142 N. C., 149; Williamson v. Jones, 43 W. Va., 562; Walker v. Des Portes, 92, S. C., 515; Mosely v. Hankinson, 22 S. C., 323; Faber v. Faber, 76 S. C., 156; Ridley v. Halliday, 106 Tenn., 607; Leonard v. Lord Sussex, 2 Vernon, 527; Gaskell v. Gaskell, 6 Simon, 643; Gifford v. Plart, 1 Sch. & Lef. — ; Gavin v. Curtin, 171 Ill., 640; Ruggles v. Tyson, 104 Wis., 500; Sweet v. Parker, 22 N. J. Eq., 454; Baylor v. Dejarnette, 13 Grat., 152; McArthur v. Scott, 113 U. S., 391; Plurt v. Long, 90 Tenn., 445; Lancaster v. Lancaster, 81 Tenn., 132; Thompson v. Mebane, 51 Tenn., 370; Norment v. Wilson, 24 Tenn., 311; Helm v. Franklin, 24 Tenn., 405; Brown’s Case, 27 Tenn., 207. Cases cited and distinguished: Finch v. Finch, 2 Vesey, Sr., 492; Kent v. Church, 136 N. Y., 10. 9. EQUITY. Adjudication outside of pleadings is void. Nothing is properly before the court of chancery for its determination except what is submitted to it in the pleadings, and an adjudication outside of the scope of pleadings is void. (Post, p. 430.) Cases cited and approved: Wilson v. Schaefer, 107 Tenn., 300; E. Tenn. Coal Co. v. Daniel, 100 Tenn, 65. 10. EQUITY. Can grant relief to which answer shows complainant is entitled. A chancellor may give to a complainant relief to which the answer shows complainant was entitled, though the bill did not contain facts essential to granting the relief or ask for such relief. (Post, pp. 430, 431.) Cases cited and approved: Tenn. Ice Co. v. Raine, 107 Tenn., 151; Dollman v. Collier, 92 Tenn., 660; Cox v. Waggoner, 37 Tenn., 543; Rose v. Nynatt, 15 Tenn., 3.1; Neal v. Robinson, 27 Tenn., 435; Mulloy v. Young, 29 Tenn., 298; Bartee v. Tompkins, 36 Tenn., 623. Case cited and distinguished: Bang v. Windmill Co., 96 Tenn., 361. 11. PARTITION. Petition and answer held to authorize decree vesting purchasers with perfect title. Where a petition by purchasers at a sale for partition alleged the sale was invalid for numerous reasons, And sought to have it set aside, and the answer alleged that the sale was for the best interest of all the owners of the land, and that they desired to have it confirmed and full title vested in the purchaser, a decree of the chancellor denying the right of the purchasers to have the sale set aside, but confirming the title in them as against all the former owners, was authorized by the pleadings. (Post, pp. 431, 432.) 12. PARTITION. Purchasers of contingent interest held not entitled to relief for want of warranty of title. Where the sale for partition was made on the theory that 'the interests of the remainderman were vested, whereas in fact they were contingent, the purchasers are not entitled to be relieved from their purchase on their contention that they were thereby deprived of the implied warranty of title, given by Shannon’s Code, section 5917, where a sale for partition was made at the voluntary instance of the parties. (Post, pp. 432, 433.) Code cited and construed: Sec. 5917 (S.). 13. VENDOR AND PURCHASER. Executory contract can he rescinded for defects in title though executed contract cannot. Though in the case of an executed contract for the purchase of land the purchaser must rely upon the covenants of the deed for protection against defects in title, and cannot, before eviction, come into equity for rescission of his contract except for fraud, a purchaser under an executory contract is not required to complete his purchase and accept his conveyance unless title can be made according to the vendor’s contract. (Post, pp. 433-445.) 14. PARTITION. Purchaser cannot rescind, before confirmation for defects in title which can be corrected. The fact that a purchase at a judicial sale for partition is executory until confirmed by the court does not entitle the purchaser to rescind before confirmation because of defects in the title where those defects can be- cured and perfect title vested in the purchaser without unreasonable delay. (Post, pp. 433-445.) Cases cited and approved: Elliott v. Blair, 45 Tenn., 185; Frazier v. Panlcey, 31 Tenn., 75; Woods v. North & Johnson, 25 Tenn., 309; Blakemore v. Shelby, 27 Tenn., 430; Frost v. Brunran, 14 Tenn., 36; Ex parte Kirkman et al., 40 Tenn., 518; Swann v. Newman, 40 .Tenn., 290; Topp. v. White, 59 Tenn., 165; Kennedy v. Wood-folk, 4 Tenn., 195; Buchanan v. Alwell, 27 Tenn., 516; Humbard v. Humbard, 40 Tenn., 101; Maney v. Porter, 22 Tenn., 363; Gwm-ther v. Gerding, 40 Tenn., 197; Trigg v. Read, 24 Tenn., 529. Cases cited and distinguished: Ex parte Kirkman, 40 Tenn., 518; Swan v. Newman, 40 Tenn., 289; Davidson v. Bowden, 37 Tenn., 129; Bryant v. McCollum, 51 Tenn., 511; Nichol v. Nichol, 63 Tenn., 145; Baker v. Shy, 56 Tenn., 85; Blackmore v. Shelby, 27 Tenn., 440. 15. PARTITION. Purchaser can rescind for fraud. Where a decree for sale of property for partition is void for fraud, the contract to purchase cannot be enforced against the purchaser even though the court can decree a good title. (Post, p. 445.) 16. PARTITION. Allegation remainders were vested held not fraudulent misrepresentation. In a bill for partition by sale, allegations that the remainders conveyed by deed referred to in the bill were vested, due to a misconstruction of counsel as to the effect of the deed, were not fraudulent misrepresentations entitling the purchaser to rescind the sale after he discovered the remainders were contingent, where the court could decree a good title to him. (.Post, pp. 445, 446.) IV. JUDGMENT. Courts cannot determine question within subject-matter of jurisdiction unless authorized by law. Even though a court may have jurisdiction of the general subject-matter of a bill, it cannot make a valid adjudication with reference thereto which is not within the powers granted to it by law. (Post, pp. 446, 447.) IS. PARTITION. Chancery cannot decree partition between life tenant and remaindermen. Though chancery has general jurisdiction over the subject-matter of partition, it has no power to decree a partition between a life tenant and a remainderman, and a decree attempting such partition is a nullity. (Post, pp. 447-450.) Case cited and approved: McConnell v. Bell, 121 Tenn., 198. Cases cited and distinguished: Chickamauga Trust Co. v. Lonas, 139 Tenn., 228; Holt v. Hamlin, 120 Tenn., 496. 19. PARTITION. Cotenants in remainder may have partition with consent of life tenant. Cotenants in remainder have a right to partition by sale of the land and distribution of the proceeds when it is to the advantage of all parties that that be done, and the life tenant consents to such a sale. (Post, pp. 450, 451.) 20. LIFE ESTATES. Life tenant may consent to partition by joining in bill of remaindermen. A life tenant may manifest her consent to sale for partition by joining in a bill filed by some of the remaindermen against the others praying for such relief. (Post, pp. 450, 451.) 21. PARTITION. Cannot be maintained by contingent remaindermen. There can be no partition or sale for partition among contingent remaindermen, so that purchasers at a sale based upon a bill alleging the remainders were vested can rescind the purchase upon discovering that the remainders were contingent. (Post, pp. 451-453.) Case cited and approved: Land Co. v. Hill et al., 87 Tenn., 589. Case cited and distinguished: Rutherford v. Rutherford, 116 Tenn., 388. 22. JUDGMENT. Petition before confirmation of partition sale to have title perfected or to rescind is a “direct attack.” A petition by purchasers at a sale for partition alleging that the remainders which were alleged in the bill to be vested were contingent, and asking to have the sale set aside, or to have title perfected in the purchasers, is, when filed before the confirmation of the sale, a direct attack, which is defined as an attempt to amend, correct, reform, vacate, or enjoin the execution of a judgment in a proceeding instituted for that purpose. (Post, pp. 453-456.) 23/ JUDGMENT. Equity can set aside void judgment regular on its face. Equity has power to set aside and enjoin the enforcement of a judgment which is absolutely and entirely void, and especially where the judgment is regular on its face and does not disclose the grounds of its invalidity. (Post, p. 456.) 2-i. JUDGMENTS. Bill attacking judgment for want of jurisdiction a direct attack. A bill in equity to set aside and enjoin the enforcement of a judgment which is void for want of jurisdiction is a direct attack, and the facts necessary to determine the question of jurisdiction may be inquired into at the hearing on such bill. (Post, p. 456.) Case cited and approved: Nashville v. Fisher, 1 Shan. Cas., 345. 25. PARTITION. Remedy of purchaser under void decree before confirmation is by petition in same cause. The remedy of a purchaser at a sale for partition under a decree which was void, is before confirmation of the sale, by a petition in the cause in the court where the sale was ordered. (Post, pp. 456, 457.) Cases cited and approved: Read v. Fite, 27 Tenn., 330; Blackmore v. Barker, 32 Tenn, 342; Spence v. Armour, 56 Tenn., 167; Majors v. McNeilly, 54 Tenn., 294; Bryant v. McCollum, 51 Tenn., 513; Greenlaw v. Greenlaw, 84 Tenn., 435. 26. Judgment. Deed showing want of jurisdiction held part of hill, and, if it shows want of jurisdiction, decree is .suhj'ect to direct or collateral attack. Where a hill for partition by sale alleged that the parties claimed under a deed recorded in the register’s office, a certified copy of which would he filed on or before the hearing, if necessary, the deed was a part of the hill, and, if it shows lack of jurisdiction, the decree for sale can he set aside either by direct or collateral attack. (Post, pp. 457, 458.) McKinney, J., dissenting.
145 Tenn. 459Murray v. Nelson (1921)
1. PLEADING-. Allegations of binding on pleader. Tlie allegations of a pleading are binding on the pleader. (Post, pp. 461-463.) Cases cited and approved: Central Bank v. Davis, 19 Pick., 373; Lyndon Savings Bank v. International Co., 75 Vt., 224; Farmers’ Exchange Bank v. Altura Gold Mill, etc., Co., 129 Cal., 263; Parsh-ley v. Heath, 69 Me., 90; Loveday v. Anderson, 18 Wash., 322; Farmers’ Bank v. Ewing, 78 Ky., 264; Johnson v. Parker, 86 Mo. App., 666; Portsmouth Savings Bank v. Wilson, 5 App. D. C., 8. 2. BILLS AND NOTES. Subsequent indorsers do not impliedly adopt waiver of notice in prior indorsement. Under Uniform Negotiable Instruments Act section 110, as to waiver of demand and notice, where words of waiver are used in the body of the instrument, all becoming parties to the instrument are bound by the waiver and not entitled to notice; but, if the waiver is not in the instrument itself, it may be written on the instrument by an indorser, and,, if it is, it binds him only, and does not affect other parties who become- indorsers either before or after him and,who did not themselves waive. (Post, pp. 463-465.) 3. BILLS AND NOTES. Indorsers subsequent to indorsement waiving notice and guaranteeing payment held indorsers only, not guarantors. Where, upon transfer of negotiable notes by payees, they wrote above their indorsement, “Notice, demand and protest waived and we guarantee the payment of the within note and interest,” subsequent indorsers, under Uniform Negotiable Instruments Act, section 63, were indorsers only, and not guarantors. (Post, pp. 405-467.)
145 Tenn. 468Tanksley v. Tanksley (1921)
PROM DAVIDSON. Appeal from tbe Chancery Court of -Davidson County to the Court of Civil Appeals, and by certiorari to the Court of Civil Appeals from the Supreme Court. — Hon. Jas. B. Newman, Chancellor.
145 Tenn. 471Cavender v. Hewitt (1921)
1. GARNISHMENT. Statute authorizing garnishment of wages of county and. municipal employees not void on ground of public policy. Public Acts 1921, chapter 29, authorizing garnishment of county and of county and municipal officers and employees, held not void on the ground that it violates public policy; the legislature having-exclusive power to determine the public policy of the State. (Post, pp. 475, 476.) Acts cited and construed: Acts 1921, ch. 29. Case cited and distinguished: Parsons v. McGavock, 2 Tenn., ch. 581. 2. CONSTITUTIONAL LAW. Legislature has exclusive power to determine public policy of State. The legislature has exclusive and ample power to determine the public policy of the State. (Post, pp. 475, 476.) 3. CONSTITUTIONAL LAW. Statute authorizing garnishment of county and municipal officers and employees, held not void as “class legislation. ’ ’ Public Acts 1921, section 29, authorizing garnishment of county and municipal employees and officers, held not void as class legislation, in violation of Constitution, article 11, section 8, notwithstanding immunites from garnishment of State officers and employees. (Post, p. 476.) 4. CONSTITUTIONAL LAW. Legislature has wide "range of discretion in making classification. The legislature has a wide range of discretion in distinguishing, selecting, and classifying objects of legislation and classification made, if practical, is not reviewable unless palpably arbitrary. (Post, pp. 476-478.) Constitution, cited and construed: Art. 1, see. 8. 5. STATUTES. Courts not 'bound by 'grammatical rules, and may ascertain meaning of words by context. In the interpretation of statutes, courts are not bound by grammatical rules, and may ascertain meaning of words by context, (Post, p. 478.) 6. STATUTES. Statute for garnishment of public officers and employees held not violative of Constitution as embracing more than one subject. Public Acts 1921, chapter 29, authorizing the garnishment of city and county officers and employees, held not violative of Constitution, article 2, section 17, providing that no act shall embrace more than one subject, which shall be stated in the caption, as against contention that clause making it lawful for judgment creditor to “garnishee” funds due such officer and employee does not provide for the garnishment of such funds, in that such word cannot be used as a verb, the meaning of the statute being perfectly plain and unambiguous. (Post, p. 478.) 7. GANISHMENT. Policeman employed by city held a ‘municipal officer or employee” within statute authorizing garnishment of municipal officers and employees. A policeman in the employ of a city held, a municipal officer or employee within Public Acts 1921, chapter 29, authorizing the garnishment of wages of municipal officers and employees, as against contention that he was an officer of the State. (Post, pp. 478, 479.) 8. CONSTITUTIONAL LAW. Statute authorizing garnishment of city and county employees deals with remedy, and is applicable to judgments rendered before passage of act. Public Acts 1921, chapter 29, authorizing the garnishment of county and municipal officers arid employees, held applicable to judgments rendered prior to the enactment of such statute, notwithstanding Constitution, article 1, section 20, relating to the passage of retrospective laws, since such statute does not deal with any right existing in- such county or city employee or officer, but merely deals with a matter of remedy for the enforcement of the right of the judgment creditor by process of garnishment against a county or municipal officer or employee. (Post, pp. 479-481.) Cases cited and approved: Laird v. Carton, 196 N. Y., 169; Fisher v. Hewey, 6 Colo., 16; Stratton Claimants v. Morris Claimants, 89 Tenn., 516; City of Knoxville v. Yardley, 141 Tenn., 19. Case cited and distinguished: Leake v. Gay, 107 N. C., 468.
145 Tenn. 482Fox v. Cortner (1921)
1. BILLS AND NOTES. Accommodation maker could prove recall-of • signature under plea of non est factum. In action on note, accommodation maker could defend on ground that he recalled his signature before the note was accepted in due course under a plea of non est’factum,. (.Post, pp. 488-491.) Case cited and approved: Johl v. Fernberger, 57 Tenn., 37. Cases cited and distinguished: State v. Roberts, 30 Tenn., 541; Furnish v. Burge, 101 Tenn., 538. 2. BILLS AND NOTES. Accommodation party may revoke signature before note taken by holder for value. The rule that an accommodation party, at any time before the note is negotiated and. value given for it, may revoke his indorsement, is not changed by Thompson-Shannon Code, section 3616a28. (Post, pp. 491-493.) Cases cited and approved: Downs v. Richardson, 5 Barnwell & Alder-son, 674; Dogan v. Dubois, 2 Richardson’s Eq. R., 85; Marvin v. McCollum, 20 Johns. R., 288; Skelding v. Warren, 15 Johns. R., 272; Cox v.'Troy, 5 Barn. & Aid., 474. Case cited and distinguished: Bank v. Johnson, 31 Tenn., 217. Code cited and construed: Sec. 3516a28 (T.-S.). 3. BILLS AND NOTES. Letter written by accommodation maker’s attorney held to revoke signature. Where payee, on receipt of new note in settlement of original note to which he had objected because signatures of accommodation maker and indorser had been forged, wrote person whose signature appeared on new note as accommodation maker to inquire as to genuineness of signature, a letter written by such person’s attorney in response to inquiry stating that the signature was a forgery, and threatening to prosecute persons who forged signature, held to revoke accommodation maker’s signature if he had in fact signed note. (Post, p. 493.) 4 BILLS AND NOTES. Revocation of accommodation maker’s signature accomplished either hy erasure or notification. A revocation of accommodation maker’s signature is accomplished either hy erasing the signature or hy notifying those interested that the party revoking does not desire or intend to he hound hy his signature. (Post, pp. 493, 494.) Cases cited and approved: Teague First State Bank v. Hare, 152 S. W., 501; Second Nat. Bank v. Howe, 40 Minn., 390; Dogan v. Duhois, 2 Rich. Eq., 85; May v. Boisseau, 35 Va., 164. Code cited and construed: Sec. 3516a57 (T.-S.). 5. BILLS AND NOTES. Accommodation maker could not recall signature hy notice to transferee of holder in due course, where transferee had knowledge of, hut was not party to, fraud. Accommodation maker could not recall signature hy notice of revocation to transferee of holder-in due course with good title, not himself a party to any fraud or illegality affecting the note, though he took the note with knowledge of fraud hy which accommodation maker’s signature was obtained; tlie transferee having all the rights of such holder in due course under Thompson-Shannon Code, section 3516a57. (Post, pp. 494-497.) 6 BILLS AND NOTES. Payee of note never in possession thereof not holder “in due course.’’ Under Thompson-Shannon Code, sections 3516a29, 3516al89(7), payee of note, who was never in possession of it or the bearer of it, was not a holder in due course within section 3516a57, providing that a holder who derives his title through a holder in due course, and who is not himself a party to any fraud or illegality affecting the instrument, has all the rights of such former holder in respect of prior parties. (Post, pp. 494-497.) Case cited and approved: Bank v. Bank, 115 Tenn., 64. Case cited and distinguished: Bank v. Chatfield, 118 Tenn., 481. Code cited and construed: Secs. 3516a29, 351Gal89(7); 3516a58. 7. BILLS AND NOTES. Indorsee seeking to avoid revocation of accommodation maker’s signature required to prove indorser a holder in due course. Under Thompson-Shannon Code, section 3516a58, providing that ■ where it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to prove that he or.“some person under whom he claims” acquired 'title as holder in due course, where it appeared that the maker obtained accommodation maker’s signature* to note "by fraud, an indorsee, to avoid accommodation maker’s revocation of signature by notice to him on the ground, under section 3B16a57, that he derived his title through a holder in due course, was required to show his in-dorser was a holder in due course. (Post, pp. 497, 498.) Case cited and approved: In re Hopper-Morgan Co., 156 Fed., 525.
145 Tenn. 499Sherrill v. Thomason (1921)
1. CONSTITUTIONAL LAW. Constitutionality may he questioned only hy one adversely affected. He who undertakes to question the constitutionality of an act must show that he is adversely affected hy it. (Post, pp. 514, 515.) Acts cited and construed: Acts 1921, ch. 115; Acts 1907, ch. 602; Acts 1909, ch. 586; Acts 1911, ch. 87. Cases cited and approved: Patton v. Chattanooga, 108 Tenn., 197; Richardson v. Young, 122 Tenn., 522; Kelly v. State, 123 Tenn., 554; Palmer v. Express Co., 129 Tenn., 149; Noell v. Power Co., 130 Tenn., 245; Hyde v. State, 131 Tenn., '215; City of Memphis v. Enloe, 141 Tenn., 618; Pope v. Dykes, 116 Tenn., 230. Case cited and distinguished: Ogilvie v. Hailey, 141 Tenn., 392. Constitution cited and construed: Art. 11, sec. 8;'Art. 1, sec. 17. 2. CONSTITUTIONAL LAW. One not adversely affected hy tax collection law cannot question its constitutionality. The constitutionality of a statute for the collection of delinquent taxes cannot be questioned hy a taxpayer not in the delinquent class, where the effect of the statute is to reduce rather than increase his tax burdens, as he is not adversely affected hy it. (Post, pp. 515, 516.) 3. CONSTITUTIONAL LAW. Officers. Legislature may abolish fees, hut not deprive officers of fees earned. The legislature may abolish, diminish, or enlarge fees for services not yet performed hy an officer, hut not fees for services actually performed hy an officer, since, as to the latter, the right of the officer to the fees has become vested. (Post, p. 516.) 4. 'CLERKS OF COURTS. Constitutional law. - Tax collection statute does not deprive clerk of fees actually earned in delinquent tax cases. In view of Shannon’s Code, section 61, providing that the repeal o£ a státute does not affect accrued rights, the Delinquent Tax Lav,7, although repealing prior acts, is not unconstitutional as depriving clerks of circuit court of fees actually earned by them as clerk in the delinquent tax cases pending at its passage, although it applies to all delinquent realty taxes to collect which hills may be filed by the State revenue agent, which would include suits instituted to collect taxes growing out of the sale of realty for taxes as shown by the tax records on file at the time of its passage in the offices of the State circuit court clerks. (Post, pp. 5X6-519.) Cases cited and approved: Richardson v. State, 43 Tenn., 124; Hill v. State, 73 Tenn., 730; State v. Bank, 84 Tenn., 118. Cases cited and distinguished: Wallace v. Goodlett, 104 Tenn., 670; People v. McNulty, 93 Cal., 437. 5. TAXATION. Delinquent Tax Law does not affect pending suits. The Delinquent Tax Law does not undertake to oust circuit courts of their jurisdiction in tax cases pending at the time of its passage in those courts where realty has been sold for delinquent taxes under prior laws, by transferring such cases from the circuit court to the chancery court, but merely provides an additional remedy to' the State for the collection of such taxes, and comes under the rule that statutes relating to remedies alone, and which do not impair the obligation of contracts, or affect vested rights, but provide a new or additional remedy for the enforcement of such rights, are not unconstitutional and void. (Post, pp. 519, 520.) Cases cited and approved: Hope v. Johnson, 10 Tenn., 125; Brandon v. Green, 26 Tenn., 130; Gardenhire v. McCombs, 38 Tenn., 86; Mc-Adoo v. Smith, 64 Tenn., 695; Collins v. Railroad Co., 56 Tenn., 841; Shields v. Land Co., 94 Tenn., 148. 6. CONSTITUTIONAL LAW. Delinquent Tax Law not unconstitutional as retrospective. The Delinquent Tax Law is not retrospective within Constitution, article 1, section 20, as it merely gives an additional remedy for the collection of delinquent taxes due at the time of its passage. (.Post, p. 520.) Acts cited and construed: Acts 1907, ch. 602. Constitution cited and construed: Art. 1, sec. 20. 7. TAXATION. Remedies for collection of delinquent taxes are under legislative control. Remedies by which delinquent taxes are to be collected are under the control of the legislature, and it may modify an existing remedy, or may abolish such remedy altogether and substitute therefor a new one, or may add a cumulative remedy for the enforcement of the right of the State in such matters. (Post, pp. 520, 521.) S. TAXATION. Delinquent Tax Law held constitutional. The Delinquent Tax Law hold constitutional. (Post, p. 521.)
145 Tenn. 522Love v. Bass (1921)
1. ARREST. Sheriff or private person can arrest without warrant one transporting whisky in his presence. The transportation of sixty gallons of whisky over the public roads of the State was a public offense, though Public Acts 1919, chapter 124, making it a felony, was invalid; so that the person guilty thereof could be arrested without a warrant by the sheriff, or, under Thompson-Shannon Code, section 7002, by a private person, in whose presence the offense was committed. •(Post, pp. 527, 528.) Acts cited and construed: Acts 1919, ch. 124. Code cited and construed: Sec. 6998 (T.-S.) 2. ARREST. Notice of cause of arrest held unnecessary. Under Thompson-Shannon Code, sections 6998, 7003, requiring notice of cause of arrest except when a person is in the actual commission of the offense, a notice was not essential to a legal arrest of a person who was transporting whisky by automobile and who refused to stop when ordered to do so, so that there was no opportunity to give notice. (Post, p. 528.) Case cited and approved: Lewis v. State, 40 Tenn., 127. Code cited and construed: Secs. 6998, 7003 (T.-S.) 3. HOMICIDE. Attempt to run down sheriff with automobile held assault with intent to murder. Where an attempted arrest of an automobile driver by the sheriff was lawful, the attempt of the driver to run down the sheriff with his automobile was an assault with intent to murder, since the attempted arrest would not justify passion reducing the offense to manslaughter if the sheriff had been killed. (Post, pp, 528.) 529.) Case cited and distinguished: Galvin v. State, 46 Tenn., 283. 4. ARREST. All necessary means can he used to prevent “escape” after felony in officer’s presence. ■ Where an automobile driver had committed the felony of assault with intent to kill, by attempting to run down the sheriff when the latter sought to make a lawful arrest, the sheriff was justified in killing the driver if necessary to prevent his escape in view of Thompson-Shannon Code, section 7000, and the term “escape” is not used in its technical sense as implying previous custody by the officer, but must be understood in its popular sense, which is to flee from, to avoid, to get out of the way. (Post, p. 629.) Case cited and distinguished: Reneau v. State, 70 Tenn., 720. Code cited and construed: Sec. 7000 (T.-S.) 5. DEATH. Necessity for killing felon held question for jury. Whether the escape of an automobile driver, who had committed a felony in the sheriff’s presence and whose way was almost completely blocked by the sheriff’s automobile, could have been prevented without killing the driver, held a question for the jury under the evidence. (Post, pp. 529, 530.) 6. ARREST. Killing to take felon justified only if necessary. An officer cannot kill a felon either to capture him or to prevent his escape if with diligence and caution he might otherwise be taken or held. (Post, pp. 529, 530.) Case cited and approved: Jackson v. State, 66 Miss., 95. 7. SHERIFFS AND CONSTABLES. Sheriff is liable for acts of special deputy. A sheriff is liable for the acts of a special deputy appointed to assist in making a particular arrest, since in the case of a sheriff there is an exception to the general rule that a public officer is not liable for the acts of his deputies. (Post, pp. 530, 531.) Cases cited and approved- Glasgow’s Lessee v. Smith, 1 Tenn., 144: Rose v. Lane, 22 Tenn., 218-220; Vance v. Campbell, 27 Tenn., 527; Robertson v. Lessan, 47 Tenn., 160; Reves v. State, 79 Tenn., 124; State ex rel. v. Slagle, 115 Tenn., 337; Estes v. Williams, 3 Tenn., 413; Todd v. Jackson, 22 Tenn., 398; Lunsford v. Johnston, 132 Tenn., 618. Code cited and construed: Sec. 448 (S.).
145 Tenn. 532Tennessee Chemical Co. v. Smith (1921)
1. MASTER AND SERVANT. Finding of accidental death within Compensation Act sustained. In a proceeding under the Workmen’s Compensation Act to obtain compensation for death of a servant, evidence held to sustain a finding that death was caused by accident arising out of and in the course of employment; body of deceased being found in reservoir near plant. (Post, pp. 536, 537.) 2. MASTER AND SERVANT. Accidental death within Compensation Act provable by circumstantial evidence. That death of servant was caused by accident may be shown by circumstantial evidence in a proceeding under the Workmen’s Compensation Act. (Post, pp. 536, 537.) Cases cited and approved: Flucker v. Carnegie Steel Co., 263 Pa., 113; Donlon v. Kips Bay Brew. & Malt. Co., 189 App. Div., 415; Hollenbach Co. v. Hollenbach, 181 Ky., 262; Manziano v. Public Service Gas Co., 92 N. J. Law, 322; Steel Sales Corp. v. Ind. Comm, of Ill., 293 Ill., 435. 3. MASTER AND SERVANT. Injury while washing after work held one “arising out of and in course of employment’’ within Compensation Act. A servant, who fell into a reservoir and was drowned while washing up preparatory to going home according to custom, died as the result of an accident “arising out of and in the course of employment” under the Workman’s Compensation Act. (Post, pp. 537-540.) Cases cited and distinguished: Johnson Coffee Co. v. McDonald, 143 Tenn., 505; Terlecki v. Strauss, 85 N. J. Law, 454; Whiting-Mead Comm. Co. v. Ind. Acc. Comm, of Calif., 178 Cal., 505; In re Ayers, 66 Ind. App., 458; Milne v. Sanders, 143 Tenn., 602. 4. MASTER AND SERVANT. Dependency within Compensation Act question of fact. Question of the dependency of a father and mother is one of fact under Workmen’s Compensation Act, section 30, suhsecs. 3, 3a, and a finding of dependency will not he disturbed if there is any evidence to support it. (Post, pp. 540-542.) Acts cited and construed: Acts 1919, ch. 123, sec. 30, subsecs. 3 & 3a. 5. MASTER AND SERVANT. Finding of partial dependency within Compensation Act sustained. In proceedings by parents under the Workmen’s Compensation Act to obtain compensation for the death of nineteen year old son; a finding that the parents were partial dependents held sustained by the evidence. (Post, p. 542.) 6. MASTER AND SERVANT. Compensation to parents for minor son’s death not limited to minority. Parents, who were partial dependents of a minor son, were entitled to compensation for a period extending beyond minority under the Workman’s Compensation Act. (Post, pp. 542, 543.) Cases cited and approved: Parson v. Murphy et al., 101 Neb., 542; Belcher v. Campo, 1 Conn. Com. Dec. Dig., 612; In re McMahon, 229 Mass., 48.
145 Tenn. 544Hughes v. State (1921)
1. CONSTITUTIONAL LAW. Objection need not point out by number provisions of Constitution claimed to have been violated. It is not necessary for accused to point out specifically by numbers • the particular sections of the Constitution which he claimed were being violated by the evidence offered against him, but it was sufficient to call attention to the particular right guaranteed to him by the Constitution. (Post, pp. 550, 551.) 2. CONSTITUTIONAL LAW. Objection to evidence held not to raise question under Constitution, protecting against compulsory incriminating testimony. An objection that the conduct of officers in searching defendant’s automobile and seizing liquor therein without a search warrant violated his constitutional rights against unreasonable search and seizure does not raise the objection that thereby accused was compelled to give evidence against himself, contrary to Constitution, article 1, section 9. (Post, pp. 550, 551.) ' Acts cited and construed: Acts 1917, ch. 12. Cases cited and approved: Cohn v. State, 120 Tenn., 61-75; Amos v. U. S., 255 U. S„ 313. . Constitution cited and construed: Art. 1, sec. 7, 9. 3. CRIMINAL LAW. Searches and seizures. Constitutional protection applies only to governmental acts, and not to evidence of individuals unlawfully obtained. The provisions of the federal and State constitutions against unreasonable searches and seizures protect the citizens only against action by the federal or state governmental agencies, respectively, and do not make inadmissible evidence unlawfully obtained from accused by private individuals. (Post, pp. 551-555.) Cases cited and approved: Cohn v. State, 120 Tenn., 61; Boyd v. U. S., 116 U. S., 619; Adams v. New York, 192 U. S., 586; Burdeau •«•. McDowell, 255 U. S., -. 4. CRIMINAL LAW. Evidence procured hy State agents in violation of constitutional protection cannot he used. Where agents or officers of the State procure evidence against accused by an unreasonable search and seizure, contrary to Constitution, article 1, section 9, the State will not be permitted, in prosecution of accused, to use such evidence against hiih. (Post, pp. 555-566.) Cases cited and approved: Boyd v. U. S., 116 TJ. S., 616; Weeks v. U. S., 232 U. S„ 383; Silverthorne Lbr. Co. v. U. S., 251 U. S., 385; Langdon v. People, 133 Ill., 382; Com. v. Dana, 2 Mete. 329. 5. ARREST. Person lawfully arrested may be searched. Though the statutes authorize search only by search warrant, under Shannon’s Code, sections 7296 to 7311, or by order of the magistrate and in his presence, under section 7312, searches are allowable at common law in all cases where a person is lawfully arrested, for the purpose of taking from him dangerous weapons or articles which may be used in evidence against him.' (Post, pp. -566-569.) Cases cited and approved: Boyd v. U. S., 116 U. S., 616; Chastang v. State, 83 Ala., 30; Ex parte Hurn, 92 Ala., 10?. Code cited and construed: Secs. 7296-7311, 7312, /|79'7 ',r”’9, 4745 (S.) Constitution cited and construed: Art. 1, sec. 7. 6. ARREST. Transportation of liquor concealed from sight is not an offense in the presence of an officer. A person who is engaged in transporting liquor does not commit the offense in the presence of an office!, so as to authorize the officer to arrest without warrant, where the liquor was concealed from the officer’s sight prior io the arrest. (Post, pp. 569, 570.) Case cited and apv''i»vv;i, Hurd v. State, 119 Tenn., 583. Code cited and cobm rued: Sec. 6997 (S.) 7. ARREST. Information leading officer to believe offense had been ■ committed does not authorize. An arrest by an officer without warrant is not justified by the fact that the officer had information leading him to believe that an offense was being committed. (Post, pp. 5Y0, 571.) & ARREST. May be made to prevent threatened breach of the peace in officer’s presence. An officer may lawfully arrest a person without warrant, if a breach of the peace, which includes unlawful transportation of liquor, is threatened in his presence, and in such a case it is not necessary for the officer to see and know that the law is being violated. (Post, pp. 570-574.) 9. ARREST. Criminal law. Facts held to warrant belief offense was about to be committed in officer’s presence, justifying arrest and search, and evidence seized was admissible. Where an officer had seen accused bringing to his automobile a keg having the appearance of a nail keg from a direction in which there was no store qr other place where nails could be obtained, and knew that accused was reported to be engaged in the -unlawful sale of liquor, the officer was justified in believing that a violation of the law against transportation of intoxicating liquors, which was a breach of the peace, was about to be committed, and in arresting accused without warrant, and searching him for evidence ' to be used against him, so that liquor seized by the officer at the time of making the arrest is admissible in evidence against accused. (Post, pp. 570-574.) Case cited and approved: Hayes v. Mitchell, 69 Ala., 454. Case cited and distinguished: State v. Reichman, 135 Tenn., 653.
145 Tenn. 575Eaton v. Nashville Trust Co. (1921)
1. WILLS. Executory limitation invalid if first taker may defeat it. It is of the essence of a valid executory limitation ’ that it he not in the power of the first taker to defeat it by sale or otherwise at his will and pleasure. (Post, p. 578.) 2. WILLS. Unlimited power of disposition may be implied. While an unlimited power of disposition must be given by the will and cannot arise as a mere incident to the estate devised, yet such power may be given, not'only by express words, but by words necessarily implying an unlimited pow,er of disposition, (p'osc, p. 578.) Cases cited and approved: Booker v. Booker, 24 Tenn., 505; Bradley v. Carnes, 94 Tenn., 27; Overton v. Lea, 108 Tenn., 505. 3. WILLS. Inconsistent estates cannot stand. If the estate given is inconsistent with a limitation over, they cannot stand together. (Post, p. 578.) Case cited and approved: Meacham v. Graham, 98 Tenn., 200. 4. WILLS. Bequest in trust until donee attained fifty held to give unlimited power of disposition after that age, so that on his death property passed to his heirs. A bequest of $7,000 in trust for testator’s son until he attained fifty years, to prevent his squandering it, “at his death the remaining money to be equally divided between” a brother and a sister, impliedly gave full power of disposition to the donee after he attained fifty, and, since the limitation over took effect, if at all, not merely at his death before fifty, but at his death before or after that period, the limitation over was ineffective because inconsistent with the previous absolute estate, and, on the donee’s death before fifty leaving a wife and minor child, the trust fund passed to them as his distributees. (Post, pp. 578-582.) Case cited and approved: Clark v. Henry, L. R. 11 Eg.., 222. Case cited and distinguished: Stones v. Maney, 3 Cooper’s Chy., 731.
145 Tenn. 583Spofford v. Rose (1921)
1. DESCENT AND DISTRIBUTION. Land inherited by intestate from sister was “acquired” by her, within statute of descent. Land inherited by intestate from her sister was “acquired” by her, within Shannon’s Code, section 4163, subsec. 2, and on her death, unmarried, without issue and without surviving parents or brothers or sisters, passed one-half to the heirs of the father and one-half to the heirs of the mother, under subdivision “c.” (.Post, p. 592.) 2. DESCENT AND DISTRIBUTION. Maternal grandfather’s kindred not “heirs” of mother, within statute of descent. Where intestate died single and without surviving parents or brothers and sisters, land received by intestate as a gift from her maternal grandfather vested in the grandchildren of the mother s deceased brothers and sisters, under Shannon’s Code, section 4163, subsec. 3, subd. “c,” providing that in such case the land shall pass to the “heirs of the parent from whom or whose ancestor it came,” to the exclusion of the maternal grandfather’s collateral kindred; since the word “heirs,” when used relative to real estate, has reference to persons appointed by law to succeed to the real estate in case of intestacy, and since the grandchildren of the mother’s brother and sister were the heirs, under section 4164, because of death of the brother and sister, who would otherwise have been the heirs, ahd the death of the'children of such.brother and sister. (Post, pp. 592-596.) Acts cited and construed: Acts 1784, ch. 22, sec. 7; Acts 1841, ch. 171, sec. 1. Cases cited and approved: Towls v. Rains, 49 Tenn., 356; Beaumont v. Irwin, 34 Tenn., 291; Alexander j. Wallace, 76 Tenn., 569; Swanson v. Swanson, 32 Tenn., 446; Gosling v. Caldwell, 69 Tenn., 455; Paine v. Gupton, 30 Tenn., 402; Ware v. Sharp, 31 Tenn., 490; Forrest v. Porch, 100 Tenn., 391; Barnes v. Redmond, 127 Tenn., 45. Code cited and construed: Sec. 4164 (S.). 3. TRUSTS. Grantee presumed to hold land in trust for person who paid consideration. Where land is conveyed to one person, though consideration is paid by another, it will be presumed that the grantee holds the property in trust for person who paid the consideration. (Post^p. 596./ Case cited and approved: Dudley v. Bosworth, 29 Tenn., 12. 4. DESCENT AND DISTRIBUTION. Equitable interest as well as legal title passes by descent. Where husband held legal title in trust for wife, property, on death of daughter to whom property had descended, passed to the heirs of the wife instead of to the heirs of the husband, since under the statute all interest passes by descent, whether legal or equitable. (Post, pp. 597, 598.) Cases cited and approved: McKinney v. Stacks, 53 Tenn., 290; Alexander v. Miller’s Heirs, 54 Tenn., 65. 5. TRUSTS. Trustee presumed to have acted in conformity with the authority vested in him. A trustee, in expending money out of the personal estate for improvement of the real estate, will be presumed to have acted in conformity with the power and authority vested in him as trustee. (Post, pp. 598-601.) C. TRUSTS. Court had power to appoint successor of trustee, even if not empowered by will to so do. The court had power to appoint a successor to testamentary trustee, even if it had not been empowered by the will to so do. (Post, pp. 598-601.) 7. CONVERSION. Real estate acquired on court’s investment of funds of non compos who died intestate without regaining her reason passes as personalty. Where a court lawfully invests the funds of a non compos in real property and the non compos dies intestate, never having regained her reason, the real property so acquired passeses as personalty and not as realty. (Post, pp. 601-607.) Cases cited and approved: Rogers v. Clark, 37 Tenn., 666; Jones v. Walkup, 37 Tenn., 135; Smalling v. King, 73 Tenn., 590; Cow-den v. Pitts, 61 Tenn., 60; Ex parte Moore and Wife, 40 Tenn., 171; Wayne v. Pouts, 108 Tenn., 153; Singleton v. Love, 38 Tenn., 357; Ex parte Phillips, 19 Yes., 123; Snowhill v. Snowhill, 3 Green’s ch. 20; Oberle v. Lerch, 3 C. E. Green’s ch., 346. Case cited and distinguished: Paul v. York, 1 Tenn., ch., 560; Matter of McMillan, 126 -App. Div., 155; McClain v. McClain, Ann. Cas., 1915a, 158; Pickens’ Ex’rs v. Kniseley, 86 W. Va., -794; Oberly v. Lerch, 18 N. J. Eq., 346. 8 CONVERSION. Trustee’s expenditure of funds in improvement of real estate a conversion, though beneficiary was non compos. Where testator directed trustee to improve real estate, the investment or expenditure of funds in improving the property was a conversion, so as to pass as realty on beneficiary’s death intestate, though beneficiary was non compos, since even if beneficiary had become sane she would have had no voice in the matter. (Post, pp. 607-611.) Case cited and approved: Todd v. Superior Court, 181 Cal., 406. 9. ATTORNEY AND CLIENT. Clients may change counsel at any time. Generally, clients have the right to change attorneys at any time, and to substitute other counsel during the further progress of the litigation, which right does not preclude discharged counsel from recovering compensation. (Post, pp. 611-613.) 10. APPEAL AND ERROR. Concurrent finding of fact by chancellor and court of civil appeals conclusive. The supreme court is bound by the concurrent finding of the 'chancellor and the court of civil appeals. (Post, pp. 611-613.) 11. APPEAL AND ERROR. Question on -which no error has been assigned not considered. Questions on which no -error has been assigned will not be considered in supreme court. (Post, pp. 613, 614.)
145 Tenn. 615Chero-Cola Bottling Co. v. McDaniel (1921)
1. LICENSES. Manufacturer selling its own goods too jobbers and commission men held not liable to transient merchant tax. Section 4 of the transient merchant tax statute applies to vendors coming to a place' for temporary or brief stay with salvaged goods or merchandise which they, advertise to retail at wholesale prices, or represent as coming direct from factories, and does not apply to a bottling company selling nothing except the product of its own factory and taking only the manufacturing and not a dealer’s profit; the sales being only to jobbers and commission men, and its dealings being merely incidental to its occupation of manufacture. (Post, pp. 618-622.) 2. STATUTES. Tax statutes will not be extended by implication beyond their clear import. Statutes levying taves or duties on citizens will not be extended by implication beyond the clear import of the language used, nor will their operation be enlarged so as to embrace matters not specifically pointed out, although standing on a close analogy. (Post, pp. 618-622.) Acts cited and construed: Acts 1919, ch. 134, sec. 4. Cases cited and approved: English v. Crenshaw, 120 Tenn., 531; Memphis v. Bing, 94 Tenn., 644; Crenshaw v. M,oore, 124 Tenn, 528. Case cited and distinguished: Plow Co. v. Hays, 125 Tenn., 148.
145 Tenn. 623Wright v. Curtis (1921)
COURTS. On appeal from demurrer to petition for writ of error coram nohis, judgment does not determine the amount in controversy. On dismissing a writ of error coram nobis, the trial oourt may affirm the judgment under Thompson-Shannon Code, section 4842, hut an appeal from an order overruling a demurrer to the petition for the writ brings up only the court’s action thereon, and the supreme court is without jurisdiction, though judgment is for more than $1,000. Cases cited and approved: Patterson v. Arnold, 45 Tenn., 364; Mahalovitch v. Vaughn, 60 Tenn., 325; Upton v. Philips, 58 Tenn., 215; Carney v. McDonald, 57 Tenn., 232; Gallena v. Sudheimer, 56 Tenn., 189. Code cited and construed: Sec. 4842 (T.-S.). .
145 Tenn. 626Hitchcock v. State (1921)
CRIMINAL LAW. Judgment of imprisonment pronounced after judgment of fine at prior term of court held illegal. Where defendant pleaded guilty to gaming, and judgment was rendered, assessing a fine and reserving the question of jail sentence until the next term of court, when a judgment of jail sentence was rendered in addition to the fine, since upon adjournment the power of the court over the record is at an end, the judgment of imprisonment was illegal. Cases cited and approved: State v. Dalton, 109 Tenn., 544; Spencer v. State, 125 Tenn., 64.
145 Tenn. 629Hayes v. State (1921)
1. INTOXICATING LIQUORS. Evidence lield not to prove possession of liquor received from a carrier. Evidence of defendant’s possession of intoxicating liquor in his residence held not to sustain conviction for Raving possession of intoxicating liquor received from a carrier in violation of Acts 1917, chapter 12, in tRe absence of evidence tRat he received the liquor from a carrier, since the defendant miglit Rave manufactured the liquor himself or might have personally transported it to his residence. {Post, pp. 631.) Acts cited and construed: Acts 1917, ch. 12. 2. INDICTMENT AND INFORMATION. Defendant charged with Raving possession of liquor received from a carrier could not Re convicted of manufacturing liquor or transporting it personally. A defendant charged with Raving possession of liquor received from a carrier in violation of Acts 1917, chapter 12, could not be convicted of manufacturing the whisky or of personally transporting it to his residence. {Post, p. 631.) 3. INDICTMENT AND INFORMATION. Defendant cannot be convicted for an offense with which he is not charged. A defendant cannot be convicted for an offense with which he is not charged. {Post, p. 631.) Case cited and approved: Holt v. State, 107 Tenn., 539. 4. INTOXICATING LIQUORS. Possession of quart of whisky in one's residence not an offense, The bare possession of one quart of whisky in one’s residence is not an offense. {Post, p. 631.)
145 Tenn. 632Patten Hotel Co. v. Milner (1921)
1. MASTER AND SERVANT. Death of fainting cook injured by truck held “arising out of and in course of employment’’ within compensation act. Where a cook employed in a hotel kitchen became overheated and fainty, and stepped into the alley to get fresh air, fainted and fell, and his arm was run over by the wheels of a passing truck, from which injury he died, and it was shown that the kitchen was always warm, and it was necessary for employees to step into the alley for air, the fainty condition arose out of employment and a. casual connection between the employment and injury appeared justifying recovery under the Workmen’s Compensation Act. (Post, pp. 637, 638.) Acts cited and construed: Acts 1919, ch. 123. Cases cited and approved: McNicol’s Case, 215 Mass., 497; Pekin Cooperage Co. v. Industrial Com., 285 Ill., 31. Cases cited and distinguished: Connell v. Daniels Co., 203 Mich., 73; Baum v. Industrial Com., 288 Ill., 516. 2. MASTER AND SERVANT. Want of notice presented by record in compensation case. Where in the record there was no minute entry of the court which showed that an amendment to an answer setting up as a defense that failure to give the notice required by the Workmen’s Compensation Act was ordered made, hut the recital in the final judgment showed that the amended answer was considered by the court in determining the case, a motion to strike the amended answer from the record must be overruled, and the defense treated as properly presented by the record. (Post, pp. 639-642.) Cases cited and approved: Black Diamond Collieries v. Deal, 234 S. W. 322; Smith v. C. N. R., 7 West, W. Rep., 596; Mercer v. Dublin Co., 6 B. W. C. C., 441; Murphy’s Case, 226 Mass., 60. Case cited and- distinguished: Bloomfield v. November, 219 N. Y., 374. 3. MASTER AND SERVANT. Compensation claim barred by want of notice. Workmen’s Compensation Act, section 30, sub-section 6, provides that compensation shall be paid to deceased’s widow, and failure to give the thirty day. notice required by section 22 and 23, for injury occurring May 24, 1920, until August 4, 1920, or show excuse for not giving such notice, defeats a recovery, notwithstanding a minor child of five was one of the claimants. (Post. p. 642.)
145 Tenn. 643Bragg v. Yeargin (1921)
1. EMINENT DOMAIN. Statute giving school hoards right of eminent domain held unconstitutional as not providing just compensation. Public Acts 1915, chapter 149, sections 1-4, authorizing county boards of education and county high school boards to condemn land for public school purposes held violative, of Constitution, article 1, section 21, and Constitution, U. S. amendment 5, prohibiting the taking of private property "without just compensation, in that it does not provide for the assessment of the land at its fair cash value and does not afford the owner a remedy for the collection of the amount fixed by the court, on appeal from the determination of the board of appraisers, in excess of the amount fixed by such board. (Post, pp. 647-649.) Acts cited and construed: Acts 1915, ch. 149. Cases cited and approved: Wright v. Donaldson, 230 S. W., 605; Tuttle v. Knox County, 89 Tenn., 157; Water Co. v. Scott, ill Tenn., 322; Memphis v. Hastings, 113 Tenn., 157. 2. CONSTITUTIONAL LAW. Owners’ failure to appeal from board of appraisers in condemnation proceedings did not preclude them from later questioning constitutionality of statute. The owners’ failure, in school board’s proceeding to condemn land for school purposes under Public Acts 1915, chapter 149, to appeal from the action of the board of appraisers under section 4, did not preclude them from attacking the constitutionality of such statute in school board’s suit to require them to surrender possession of the property, since, if the statute was invalid, the owners had a right to disregard it and to refuse to surrender the possession of their property sought to be taken thereunder. (Post, p. 649.) ,
145 Tenn. 650Rogers v. Colville (1921)
1. APPEAL AND ERROR. Motion for new trial necessary to appeal from 'judgment on stipulated facts. In a will contest, decided on stipulated facts, tlie defendant was required to move for new trial in order to appeal to the court of civil appeals from the judgment for plaintiff. (Post, p. 657.) Cases cited and approved: Railroad v. Egerton, 98 Tenn., 543; Road Comins. v. Railroad, 123 Tenn., 257; Shelton v. Wade, 139 Tenn., 685; Seyrnoor v. Railroad, 117 Tenn., 102; Barnes v. Noel, 131 Tenn., 126; Bostick v. Thomas, 137 Tenn., 101. 2. APPEAL AND ERROR. Objection to appeal for failure to move for new trial cannot he raised for first time on petitión for rehearing. Objection to appeal on the ground that there was no motion for a new trial in the circuit court could not be made for the first time in petition for rehearing, after' the court of civil appeals had passed upon the case on its merits. (Post, p. 657.) Case cited 'and distinguished: Hamburger v. Railroad, 138 Tenn., 123. 3. WILLS. Testator’s son, who purchased land at executor’s sale, held not estopped from contesting will. Testator’s son, who purchased real estate at executor’s sale, was not, by reason thereof, estopped to contest the will on the ground of insanity, where neither the executor nor the beneficiaries were misled to their prejudice. (Post, pp. 657-659.) 4. ESTOPPEL. Not favored. Estoppels are not favored. (Post, p. 659.) 5. ESTOPPEL. One is not estopped unless his conduct has prejudiced rights of another. A party will not be estopped from asserting the truth or enforcing a right which he is otherwise entitled to, unless by his conduct another’s rights have been prejudiced. (Post, p. 659.) Cases cited and approved: Russell v. Colyar, 51 Tenn., 193; Hume v. Commercial Bank, 77 Tenn., 728. 6. ESTOPPEL. Doctrine of “estoppel” stated; Estoppel is a branch of the law of evidence, and' has its foundation in fraud, not that there must be intentional fraud, but the person estopped is considered by his admissions, declarations, or con- ■ duct to have misled another tq his prejudice, so that- it would work a fraud to allow the true state of facts to be proven. (Post, pp. 659-667.) Cases cited and approved: Decherd v. Blanton, 35 Tenn., 373; Reeves v. Hager, 101 Tenn., 712; Brant v. Virginia Coal, etc., Co., 93 U. S., 326; Steel v. St. Louis Smelting Co., 106 U. S., 447; Storm v. Baker, 150 XJ. S„ 312; Galbraith v. Lunsford, 87 Tenn., .108; Taylor v. Railroad Co., 86 Tenn., 246; Lockett v. Kinzell, 99 Tenn., 713; Dickerson v. Colgrove, 100 XJ. S., 580; Miller v. Miller, 52 Tenn., 725. Cases cited and distinguished: - Taylor v. Railroad Co., 86 Tenn., 228; Elev. Light Co. v. Gas. Co., 99 Tenn., 383; Crabtree v. Bank, 108 Tenn., 483; Parkey v. Ramsey, 111 Tenn.,'302.
145 Tenn. 668Williams v. City of Nashville (1921)
1. MUNICIPAL CORPORATIONS, Notice unnecessary where city's own negligent acts caused injury. Where the negligence which resulted in injuries to plaintiff from an obstruction in the street was the act of the city itself, the notice of injury required to be given by Acts 1913, chapter 55, is unnecessary. (Post, p. 676.) Acts cited and construed: Acts 1913, ch. 55. Cases cited and approved: McCarty v. Town of Mountain View, 136 Tenn., 183; Elrod v. Franklin 140 Tenn., 228; Dunnington v. Columbia, — Tenn.,—; McCaTty v. Town of Mountain View, 136 Tenn., 133; Elrod v. Town of Franklin, 140 Tenn., 243; City of Nashville v. Black, 142 Tenn., 397; Hilson v. City of Memphis, 142, Tenn., 620; Lansden v. City of Jackson, 142 Tenn., 651; Thompson v. City of Chattanooga, 143 Tenn., 477; Maness v. Coal Corp., 128 Ténn., 143. Case cited and distinguished: Hughes v.' City of Nashville, 137 Tenn., 177. 2. MUNICIPAL CORPORATIONS. Declaration held to allege negligent failure to guard the city’s own act. A declaration, alleging that the work in the street was being performed by the city directly and that a pile of dirt was left there by its own servants, alleges that the negligent failure to guard, as well as the negligent placing in the street, was the act of the city itself. (Post, pp. ,676, 677.)
145 Tenn. 678Minter v. State (1921)
1. INTOXICATING LIQUORS. Evidence held sufficient to support conviction of possing and transporting. In prosecution for unlawfully possessing and transporting intoxicating liquors, evidence held sufficient to support verdict of guilty. (Post, p. 680.) Acts cited and construed: Acts 1917, ch. 12. 2. CRIMINAL LAW. Where whole charge complained of is not set out it is not reviewable and instructions presumed correct. Where error is based on charge to the jury and only an extract is set out, it cannot be reviewed on appeal, and it will be presumed that the charge as a whole correctly stated the law. (Post, pp. 680, 681.) 3. STATUTES. Statute held not unconstitutional for failure to refer to laws amended by it. A statute (Pub. Laws 1921, chapter 130) whose caption was “An act to provide that the minimum fine in all cases of conviction for the violation of the laws . . . prohibiting the manufacture, sale, importation, transportation or possession of intoxicating liquors shall not be less than one hundred dollars,” is a sufficient reference to the laws amended thereby and is not contrary to Constitution, article 2, section 17, providing that all acts which repeal, revive, or amend former laws shall recite in their caption, or otherwise, the title or substance of the laws repealed, revived, or amended. (Post, pp. 681, 682.) Constitution cited and construed: Sec. 17, art. 2. 4. STATUTES. Certainty required in citing or referring in repealing or amending law to laws repealed or amended stated. If a citation or reference to a former law in a repealing or amending law is of such certainty as will unerringly point to the subject of tlie law souglit to be repealed or amended so that the mind of lawyer and layman alike shall so understand it constitutes a sufficient index of the law sought to be repealed or amended regardless of mere formality. (Post, p. 682.) Case cited and approved: Heiskell v. City of Knoxville, 136 Tenn,, 376. 5. CONSTITUTIONAL LAW. All doubts resolved in favor, of constitutionality of act. All intendments will be made and all doubts will be resolved in favor of that interpretation which will support an act challenged and avoid conflict with Constitution. (Post, pp. 682, 683.) Acts cited and construed: Acts 1909, chs. 1, 10; Acts 1917, ch. 12. Cases cited and approved: State v. Tardley, 96.Tenn., 560; Heiskell v. City of Knoxville, 136 Tenn., 376. Constitution cited and construed: Sec. 17, art. 1.
145 Tenn. 684Ragsdale v. McFall (1921)
1. ADVERSE POSSESSION. Deed, not identifying land insufficient as a basis for constructive possession. A deed must contain some definite description which will identify the lands claimed thereunder, in view of Acts 1819, chapter 28, section 1, and - if the description is indefinite so as to make it impossible from the deed to locate the laód, the conveyance and holding thereunder is void as a basis for constructive purposes. (Post, p. 689.) Acts cited and construed: Acts 1819, ch. 28. Cases cited and approved: Slatton v. T. C. Iron & Coal Co., 109 Tenn., 415; Hebard v. Scott, 95 Tenn., 467; Goodloe v. Pope, 3 Shan. Cas., 634. 2. EVIDENCE. Parol evidence is permissible to apply, but not to supply, description. Parol evidence is admissible to show where the land is that fills the description given in a deed, but it cannot supply material parts of the deed; it is permissible to apply, but not to supply, description. (Post, pp. 689.-691.) Code cited and construed: pp. 2278 to 2286 (S.). 3. ADVERSE POSSESSION. Description under deed held so uncertain as not to extend adverse holding beyond improvements themselves. In ejectment, where adverse possession under a deed was interposed ■as a defense as to two tracts of land, a description in a deed as to one tract held so vague and uncertain that it could not operate as a proper location of the boundaries thereof so as to' extend the operation of the statute of limitations beyond the improvements themselves. (Post, p. 691.) 4. ADVERSE POSSESSION. Description in deed held sufficient basis for adverse possession as to entire tract described. In ejectment, where adverse possession under a deed as to one tract was interposed as a defense, and the exact location of the corners called for by the deed could be found by trees on the boundary line of adjoining lands, held that the description was sufficient to fix the definite boundaries of that tract so as to extend the operation of the statute of limitations to the entire tract. (Post, p. 691.) 5. Adverse possession. Defectively acknowledged deed, not entitled to record, not color of title. Where the certificate of acknowledgment of a married woman’s deed was insufficient under the statute to entitle it to registration, it could not operate as color of title so as to perfect title by adverse possession, notwithstanding it was found in the records in the register’s office, in view of Acts 1895, chapter 88. (Post, pp, 691, 692.) 6. ADVERSE POSSESSION. Married woman’s deed without privy examination held color of title. That a deed was executed by a married woman without any privy examination did not prevent the deed from being an assurance of title under which title could be perfected by adverse possession. (Post, pp. 691, 692.) Acts cited and construed: Acts 1895, ch. 38. Cases cited and approved: Byrd v. Phillips, 120 Tenn., 14; Smith v. Cross, 125 Tenn., 159; Hanks v. Folsom, 79 Tenn., 558. 7. ADVERSE POSSESSION. Registration of deed held not essential to adverse possession under statute. Registration of a deed is not essential to entitle one to rely upon the statute of limitations under Acts 1819, chapter 28, section 2, and adverse possession, within the boundaries of the deed will operate to the full extent thereof, and, if continued for more than seven years, will, under such section, prevent recovery of the land. (Post, p. 692.) Acts cited and construed: Acts 1819, ch. 28, sec. 2. Case cited and approved: Kittel v. Steger, 121 Tenn., 400.
145 Tenn. 693Lea v. Lea (1921)
1. DEEDS. Remainder to “issue” includes Both children and grandchildren, all of whom take per capita. Under a deed giving land to grantor’s son for life and providing that on his death it should pass to and vest in his issue, the term “issue” includes grandchildren as well as children, and the children and grandchildren take per capita, unless a contrary intention can he found in the instrument jtself-. (Post, pp. 697-706.) Cases cited and approved: Remhert v. Vetoe, 89 S. C., 198; Rhode Island Hospital Co., Executor, etc. v., Samuel W. Bridgham, 42 R. I., 161; Pearce v. Rickard, 18 R. I., 142; Petry v. Petry, 186 App. Div., 738; Ferrer v. Pyne, 81 N. Y., 284; Vincent v. New-house, 83 N. Y., 513; Palmer v. Horn, 84 N. Y., 519; Drake v. Drake, 134 N. Y., 220; Soper v. Brown, 136 N. Y., 244; Chwatal v. Schreiner, 148 N. Y., 683; N. Y., L. Ins. Co. & T. Co. v. Viele, 161 N. Y., 19; Re Union Trust Co., 170 App. Div., 176; Emmet v. Emmet, 67 App. Div., 183; Re Van Cleef, 99 Mise. Rep., 405; Wood v. Robertson, 113 Ind., 323; Crozier v. Cundall, 99 Ky., 207: Gerrish v. Hinman, 8 Or., 349; Burrell v. Baskerfield, 11 Beav., 525; Thomas v. Safe Deposit, etc., Co., 73 Md., 451; Dexter v. Inches, 147 Mass., 327; Jackson v. Jackson, 153 Mass.,' 374; Manning v. Manning, 229 Mass., 527; Scott’s Estate, 163 Pa., 169. Cases cited and distinguished: Ridley v. McPherson, 100 Tenn., 402; Freeman v. Parsley, 3 Ves. Rep., 421; Chancellor v. Chancellor, 32 L. J. Ch., 17; Fox v. Fox, 102 Tenn., 77; Rivenett v. Bourquin, 53 Mich., 14; Matter of Farmers’ Loan & Trust Co., 213 N. Y., 168: Petry v. Petry, 186 App. Div., 738; Brisbin vr Huntington, 128 Iowa, 166. 2. TKUST. Under deed in trust to grantee for his own benefit for life with remainder to his issue, trust estate not contemplated beyond grantee’s life. Under a “deed conveying land to the grantor’s son, “his heirs, etc., as trustee,” to have and to hold to the son, "his heirs, as trustee,” in fee simple, with a further provision that the son was to hold the land for his own use and benefit for life, and that on his death it was to pass to his issue, no trust estate "beyond the life of the son was contemplated; there being no duties for a trustee to perform, no provision for a successor to the son as trustee, and nothing to vest in a trustee. (Post, p. 706.) S. DEEDS. Under remainder to "issue” children and grandchildren held not to take per capita in view of other provisions. A deed conveyed land to the grantor’s son, “his heirs, etc., as trustee,” to have and to hold to the son “his heirs, as trustee, . . . in fee simple forever,” but further provided that the son was to hold the land for his own use and benefit for his life, that on his death it was to vest in his issue, and that, if he died without issue or issue should become extinct within twenty-one years after his death, the land should revert. Held that, the conveyance was to the son as trustee and his heirs in fee simple (or fee determinable), and, a subsequent provision limiting the son’s estate to a life estate, the word “issue” merely limited the heirs to descending heirs and did not give the property to the son’s children and grandchildren per capita. (Post, pp. 706-708.) 4. DEEDS. Intention controls; court should consider surrounding circumstances. In the interpretation of deeds the controlling rule is the intention of the grantor, and in arriving at such intention the court should put itself as near as possible in the place of the grantor and may consider the circumstances surrounding him, the state and condition of his property, his family, and the objects, of his bounty, (Post, p. 708.) • Case cited and approved: Hottell v. Browder, 81 Tenn., 676.