87 Tenn.

Volume 87 — Tennessee Reports

77 opinions

87 Tenn. 1Andrews v. Warner (1888)
X. Appeal. Discretionary. Not premature, when. An appeal is not prematurely granted — when allowed by the Chancellor, in the exercise of his discretion under §3874 (M. & V.) Code, before report by the Master — from a decree, upon a bill to enforce a mechanic’s lien, adjudging that complainant is entitled to recover the contract price for erecting a building “less the value of work necessary to its completion,” and ordering an account “to ascertain the exact amount due complainant on this basis.” Code construed: § 3874 (M. & V.); § 3157 (T. & S.). 2. Same. Same. Exercise of discretion presumed. ■ Where an appeal lies in the Chancellor’s discretion, the mere grant of the appeal, without more, is a sufficient exercise of his discretion. (See x Heis., 752.)
87 Tenn. 4Bradford v. Foster (1888)
1. Specific Performance. Contracts enforceable. “Options." Consideration. Defendant having bid off lands held in common by complainants and others, at a chancery sale thereof for partition, and not being able to give the required security for the purchase price, agreed in writing with complainants that, in consideration of their waiver of such security, they should have the option to purchase the lands from him, at any time within two years, at the amount of his bid, with interest. The sale was reported and confirmed, and title vested in defendant pursuant to this agreement. Complainants having elected, within the two years, to purchase the lands at the price stipulated, offered to perform said agreement, and demanded conveyance, which was refused by defendant. Complainants filed bill for specific performance. Held: That said agreement is supported by a sufficient consideration ; that it was irrevocable by defendant, and stood open for complainants’acceptance at any lime within two years; and that complainants, having within that period exercised their option to take under it, and tendered performance, are entitled to specific performance thereof. Cases cited and approved: Cherry v. Smith, 3 Hum., 19; 8 Wall., 358. Case cited and overruled: Gillespie v. Edmondson, II Hum., 553. 2. Same: Same. Effect of subsequently given notes. Complainants’ right to specific performance of such agreement is not affected by the fact that defendant, after its execution, gave security on his notes for the purchase price of the land, especially if the security given was not solvent, and, although accepted by the Master, would have been rejected on exception by the parties. 3. Same. Saíne. Purchase of entire estate by a tenant in common. Nor by the fact that defendant’s agreement was made with, and for the benefit of, only part and not all the tenants in common. A tenant in common may legally purchase the entire estate for himself in such case. A third person could not, however, make the question if the purchase were illegal. 4. Same. Same. Champerty. Nor by the fact that complainants, in order to raise money to pay for the lands, had contracted a portion of it to third persons who were not parties to the original agreement. Such contract is not cham-pertous. 5. Same. Tender. By check. Waiver of objection. Objection that tender of the price of land, in an action for specific performance of a contract for its sale, was made by check accompanying the bill, cannot be made after final decree, upon petition for rehearing. (See Polk v. Mitchell, 85 Tenn., 634.) 6. Same. Same. Same. Check is not payment. The check should, in such case, be treated as a mere offer to pay the money into Court, and not as payment; and, in the event of a decree in complainant’s favor, he should be required to pay the money into Court. 7. Same. Same. Tender unnecessary. Formal tender of the purchase price of land is not required of the vendee before making application for specific performance of the contract of sale, where the vendor denies all liability under the contract. (See Pearson v. Douglass, I Bax., 151.)
87 Tenn. 13McBrien & Holly v. Martin (1888)
1. Witness. Competency. Interested, but not a parly. A person interested in but not party to a suit against an administrator-, is a competent witness therein for either party. Interest constitutes no disqualification. Code construed: \ 4565 (M. & V.) ; \ 3813d (T. & S.). Cases cited and approved: Fuqua v. Dinwiddie, 6 Lea, 646; Hudgins v. Fanning, 4 Bax., 578; Godfrey». Templeton, 85 Tenn., 161. 2. Same. Case in judgment. In a suit against an administrator to recover money paid to the deceased for the plaintiff’s benefit, the person making the payment is a competent witness to prove that fact.
87 Tenn. 17Clift v. Clift (1888)
1. Dower. In lands held in common. Assignment. A widow is entitled to dower in all lands of which her husband died seized and possessed, whether held by him in severalty or as tenant in common; and where there are several distinct tracts — some -held in severalty and others in common — the entire dower may, under our statutes, be laid upon one or more of the tracts held in severalty, and need not be apportioned with exactness among the several tracts. Code cited : \\ 3244, 3249 (M. & V.); \\ 2398, 2403 (T. & S.). Case cited and approved: Walker v. Walker, 6 Cold., 571-581. 2. Same. In coal mines. Assigmnent. A widow is entitled to dower in coal mines, on lands of which her husband was owner either in severalty or in common, and operated at time of his death by lessees who paid certain stipulated “rents and royalties; ” and a just and proper method of assigning such dower is to give her one-third of the proceeds derived from the mines to her husband’s share. Cases cited and approved: I Vern., 218; I Taunt, 402; I Law, 460; 10 Pick., 460; 45 Maine, 493 ; 6 Munf., 134; I Rand., 258 ; 61 Ind., 473 i 73 IU-. 405; 13 N- J-. 384- 3. Same. Lands sold by heirs. Value. If in assigning to the widow out of the remaining lands an equivalent for her dower in other lands sold by the heirs, the Commissioners adopt the price realized by the heirs as the true value of the land sold, the beirs are estopped to complain. 4. Same. Assignment. Province of Cotirt. Direction to commissioners. In proceedings for assignment of dower the Court may, and, in complicated cases, should determine such questions and give such directions, in advance of the assignment, as are requisite to enable the commissioners appointed to discharge their duties properly, and such as will prevent litigation, delay, and expense in contests over their report. 5. Same. Account for rents. In proceedings for assignment of dower the widow is entitled to an account for rents against the heirs. Cases cited and approved: Summers v. Donnell, 7 Heis., 565; Lewis v. James, 8 Hum., 537; London v. London, I Hum., 1.
87 Tenn. 32Bank v. Buchanan (1888)
Principal and Surety. Discharge of surety. Renewal with forged note. Sureties are not discharged from liability on their note, where, without fraud or negligence of the payee, their obligation is surrendered upon the faith of a renewal note to which their insolvent principal has forged the names of other sureties. The forged note, being void, does not satisfy the original note. Cases cited and approved: Wade v. Street, 2 Head, 609; Wright v. Overall, 2 Cold., 345; Naff v. Crawford, I Heis., 124; Kirtland v. Railroad, 4 Lea, 421 ; McNaiiy v. Marshall, 7 Hum., 229; Hubbard v. Fra veil, 12 Lea, 304; Box v. McElvey, 8 Heis., 861; 37 Ind., 68; 73 Penn. St., 400; 3 Hawk’s, N. C., 568; 3 Penn., 330.
87 Tenn. 36Davis v. Norvell (1888)
EROM M’MINN. Writ of County. error to County Court of McMinn
87 Tenn. 41Cate v. Cate (1888)
Vendor and Vendee. Vendor's lien. Assignment of note as collateral. The lien or equity implied, in the absence of any reservation of an express lien, in favor of the vendor of land, as security for the purchase price, is not extinguished by the vendor’s assignment of the notes given for the purchase price as collateral security for his debts. Cases cited and approved: Greenv. Denross, loHum., 371; Thompson v. Pyland, 3 Head, 537; Thorpe v. Dunlap, 4 Heis., 674; Cowan v. Sharpe, 11 Heis., 450; McWhirter v. Swoffer, 6 Bax., 342; Pillow v. I-Ielen, 7 Bax., 545; 32 Ark., 258; 28 Ark., 66; 40 Miss., 778. Cited and distinguished: Bowlin v. Pearson, 4 Bax., 343.
87 Tenn. 46Stevenson v. Ewing (1888)
PROM HAMILTON. Appeal in error from Circuit Court of Hamilton County. L>. 0. Teewhitt, J.
87 Tenn. 52State v. McClellan (1888)
1. Constitutional Law. Convicts' '■‘■good time" laws. Retrospective laws. Pardoning power. Statutes allowing to convicts certain credits on their terms of imprisonment in consideration of good conduct, are unconstitutional as to all sentences in force at time of their passage, as unauthorized exercise of pardoning power. Constitution: Art. I., j)20; Art. III., §6. Act construed: Acts 1885 (extra session), Ch. 15. (See 16 Lea, 136.) 2. Criminal Law. Convict’s term of imprisonment. Illegal release on ha-beas corpas. Where a convict obtains his release before expiration of his term, by an erroneous judgment on writ of habeas corpus, which is subsequently reversed, he is not entitled to credit on his term of imprisonment for the period of his illegal release. (See Code, ?¿ 5576 (M. & V.) ; ?¿ 4781 (T. & S.). 3. Same. Same. “ Good time account." Failure to keep. Parol evidence. The record of the conduct of-prisoners — termed the “good time account” — if omitted by the Superintendent of the Penitentiary, cannot be supplied by parol evidence; but if properly kept it may be sustained and corroborated by parol evidence, and, on behalf of the convicts, contradicted if untrue. Acts construed: Acts 1869-70, Ch. 59, \ 7 (Code, § 5559:2, subsec. 7 (T. & S.); Acts 1883, Ch. 171, \ 14 (Code, ? 6338 (M. & V.). 4. Same. Same. Same. Presumption when no record is kept. ■ Where no “good time account” is kept by the Superintendent, it is conclusively presumed that the prisoner’s conduct was unexceptionable, and he is entitled to full benefit of “good time” credits; so where it is kept he is entitled to full credits for “good time” from date of last entry showing misconduct. 5. Judgment. Collateral attack. Notice. Presumption. On collateral attack of a judgment of this Court it will be presumed that notice of certiorari, if necessary, was properly given, unless the contrary affirmatively appears in the record. 6. Habeas Corpus. Appeal. Appearance bond. A bond given by a convict released on habeas corptts, for his appearance before this Court upon appeal by the opposite party, is valid and enforceable. (See Acts 1887, Ch. 157.)
87 Tenn. 60Allison v. Coal Co. (1888)
1. Corporations. Director's individual liability for debts of company. Where the charter of a corporation provides that: “If the indebtedness of said company shall at any time exceed the capital stock paid in, the directors assenting thereto shall be individually liable .to the creditors for said excess,” in such case, the directors are individually liable for such specific debts only as were contracted with their assent in excess of the paid-up capital and remain unpaid after the corporate assets are exhausted. Acts construed: Acts 1875, Ch. 142, ?¿ 11 (Code, \ 1858 (M. & V.); $ 1461 (T. &S.). Case cited and approved ; 93 U. S., 231. 2. Same. Sanie. Sufficiency of evidence. The evidence in this case, set out in the opinion, is held sufficient to charge the directors individually with debts of the corporation. 3. Witness. Impeachment. Contradictory statements. In order to impeach a witness by his former inconsistent statements, he must be asked about them. Merely filing his former deposition containing them is not sufficient.
87 Tenn. 69Jackson v. Meek (1888)
1. Corporations. Stockholders’ liability for wages of employes. Estoppel. Ail employe is not estopped to proceed against stockholders of an insolvent corporation for his wages — where the charter provides for their individual liability — by taking note and obtaining judgment against the corporation for such wages, and by receiving pro rata on his claim out of the corporate assets. The individual liability of stockholders was designed merely to supply any deficiency of the corporate assets. Act construed: Acts 1875, Ch. 142, \ 21 (Code, \ 1889 (M. & V..). 2. Same. Same. Effect of transfer of stock. Stockholders are not relieved, by transfer of their stock, from, their individual liability to employes of the corporation for wages previously earned.
87 Tenn. 74Wright v. Thornton (1888)
FROM HAMILTON. Appeal from the Chancery Court of Hamilton County. D. C. TREwiiitt, J.., sitting by interchange.
87 Tenn. 78Prater v. Prater (1888)
1. Homestead. Widow’s right of. Non-residence. Elopement. A woman who has, without cause, deserted her husband, and eloped with another man, and taken up permanent residence with him in another State, and there continued to live in adultery with him, until her husband’s death, forfeits her right, as widow, to homestead in lands owned by the husband at his death. Constitution construed: Art. XI., § n. Code construed: 2935, 2943 (M. & V.); £§ 21x4a, 2119a (T. & S.). Cases cited and approved: Emmett v. Emmett, 14 Lea, 370; Hawkins v. Pearce, II Hum., 45; Lesenbee v. Holt, 1 Sneed, 50. 2. Same. Same. Wife's domicile. In such case the wife has acquired a domicile in the State of her actual residence, independent of her husband’s domicile. Cases cited and approved : 36 Tex., 661; 9 Tex., 643.
87 Tenn. 89Galbraith v. Lunsford (1888)
FROM KNOX. Appeal' from Chancery Court of Knox County. H. R. G-ibson, Oh.
87 Tenn. 109Hyman v. State (1888)
EROM KNOX. Appeal in error from tbe Criminal Court of Knox County. S. T. Logan, J.
87 Tenn. 114State v. Lee (1888)
ER0M ICNOX. Appeal in error from Criminal Court of Knox County. H. K. Gtbson, Ch., sitting by interchange.
87 Tenn. 119State v. Lewis (1888)
1. Criminal Law. Inquisitorial power of grand jury. Riot. Grand juries have no inquisitorial power touching the offense of riot. Case cited and approved: State v. Lee, ante p. 114. 2. Same. Same. Same. Motion to quash. Presumption. A presentment for riot will not be quashed on motion, because it fails to show upon its face that it was found upon the knowledge or information of the jurors, or because of an unauthorized indorsement by the foreman showing that witnesses were sworn. The presumption, that the grand jury acted regularly and legally, obtains in such case. Code cited : ?¿$ 5918, 5920 (M. & V.); $ 5092 (T. & S.). Case cited and approved: State v. Darnal, 1 Hum., 292.
87 Tenn. 124Burnett v. Turner (1888)
FROM HAMBLEN. Appeal from the Chancery Court of Hamblen County. JohN P.'Smith, Ch.
87 Tenn. 131Nichols v. Allen (1888)
TROM COCKE. Appeal from Chancery Court of Cocke County. JNo. P. Smith, Ch. O. W. Allen made the will set out in the opinion, in 1864, and died in 1876, having in the interval acquired a large amount of personal property. He was never married. His heirs and, next of kin were eight brothers and sisters and their descendants. He provided for only three of these under his will.
87 Tenn. 135Steffner v. Burton (1888)
FROM SULLIVAN. Appeal in error from Circuit Court of Sullivan County. A. J. Brown, J.
87 Tenn. 143Threat v. Moody (1888)
Homestead. Widow’s right of. Under Code of iSgS and subsequent acts. Widow’s right to homestead is determined by the laws in force at date of her husband’s death; therefore, where the husband, being “head of a family,” died in this State in 1863, owning land, his widow is not entitled to homestead under the laws subsequently enacted; nor under then existing laws, unless the husband had filed declaration of his intention to claim homestead. Acts cited: Acts 1867-8, Ch. 85; Acts 1870 (second session), Ch. 80; Acts 1879, Ch. I7i.„ (See Code, ?§ 2935-2946 (M. & V.) ; 2ii3<z^2i22« (T. & S.). Cases cited and distinguished: Vincent v. Vincent, I Heis., 343, 344; Merriman v. Lacefield, 4 Heis., 209. HOMESTEAD. I. STATUTES. i. Code oe 1858, ?¿% 2114-2123. Under Code of 1858, “each housekeeper or head of a family in this State ” was allowed a homestead worth five hundred dollars out of real estate occupied by him and including mansion and out-houses, provided he had registered a declaration of his intention to claim it. After its assignment the husband could not alien the homestead without the wife’s joinder in his deed; and upon his death it passed to his widow “during life or widowhood,” then to his minor children; and upon failure of both, it went first to pay the husband’s debts, then the wife’s, and then to the husband’s heirs. 2. Acts 1866-7, Ch. 36. Made leasehold estates of two to fifteen years subject to homestead exemption, except as to rents. Code, $$ 2938, 2939 (M. & V.); 2113a, 2113^ (T. & S.). 3. Acts 1867-8, Ch. 85 (March 12, 1868). Extended homestead exemption to equitable estates, increased its value to one thousand dollars, and dispensed with declaration of claimant’s intention. (See 11 Heis., 45.) It excepted purchase money and previous contracts. 4. Acts 1870, Ch. 80 (June 27, 1870). Passed to enforce Art. XI., § II, of the Constitution. It repeals the provisions of the Code of 1858, and the Act of 1867-8, Ch. 85. See Code, 211411-2122a (T. &S.); Shanldand, pp. 117-119. 5. Acts 1873, Ch. 98. Provides for assignment of homestead and dower. Code, i 2944 (M. & V.) ; l 2119^ (T. & S.) Addenda. 6. Acts 1879, Ch. 171 (March 26, 1879.) Amended Act of 1870 so as to dispense with the requirement of occupancy, and gave claimant the right of election. Code, \ 2935 et sec]. (M. &: V.). II. DECISIONS. Abandonment. By widow’s removal to another State with infant child. (Act 1870); I Bax., 42. Aliter as to child since Act of 1879. 16 Lea, 470. Infant’s removal by his guardian is not. (Act 1870) ; 13 Lea, 120. By permanent removal of husband and wife from the premises. (Act 1870); 2 I.ea, 633, 237; 9 Lea, 176; 11 Lea, 478; 14 Lea, 336; 4 Lea, 672. Temporary removal to serve as jailer is not. (Act 1870); 9 Lea, 671. Alienation. (See Waiver, Fraudulent Conveyance.) By joint deed of husband and wife. 9 Bax., 299, 393 ; 4 Lea, 672. Of assigned homestead by husband’s deed without wife’s joinder, invalid. (Act 1868) ; I Bax., 220; 4 Bax., 232; 8 Lea, 389;. 9 Lea, 563. Otherwise as to unassigned homestead. Id. By husband’s deed without wife’s joinder invalid, and cloud upon title. (Act 1870); 7 Bax., 116 ; I Lea, 543 ; 15 Lea, 527 ; 1 Leg. Rep., 316 ; 2 Leg. Rep., 248; 1 Bax., 220; 2 Tenn. Ch., 606. By deed signed but not acknowledged by wife, invalid. (Act 1870) ; 1 Lea, 543 ; 10 Lea, 630. By deed properly executed by wife but purporting to be the husband’s alone, invalid. 2 Tenn. Ch., 606; 2 Lea, 271. Husband alone may alien all his lands, reserving his homestead. 6 Lea, 659; 11 Lea, 228. His deed passes the remainder interest in homestead. 1 Lea, 543; 1 Leg. Rep., 22; 2 Leg. Rep., 248; 15 Lea, 527. By deed of deserted husband; effect. IX Lea, 478. Infant’s rights not affected by widow’s deed. (Act 1879) ; 16 Lea, 470. Husband’s mortgage, after Act of 1870, for debt contracted before, defeats homestead. 11 Lea, 327; but see 1 Bax., 220. Express waiver in deed not essential. 9 Bax., 393, 299; 5 Lea, 100; 2 Lea, 237.; 6 Lea, 575; 86 Tenn., 451, 2 Leg. Rep., 68. Not by husband’s acts in pflis under Act 1868. II Lea, 642. Assignment. (See Value.) Commissioners must be freeholders, and not related to parties. 7 Cold., IS3- As to fees of. (See Code, \ 5333 (M. & V.). Proceedings may be reviewed by certiorari. 7 Cold., 153. By County Court in insolvent proceedings proper. 6 Lea, 605. By Circuit Court in action of ejectment proper. 9 Lea, 545; 10 Lea, 564. Officer’s failure to set it apart does not defeat homestead. 4 Lea, 212. Sale, subject to unassigned homestead, valid. (Act 1879) ; 16 Lea, 371- Mode of assigning dower and homestead. .1 Leg. Rep., 281; (Acts 1873, Ch. 98). Re-assignment not allowed. 6 Lea, 379. Sheriff, not necessary party to bill for assignment of homestead out of lands ordered to be sold under attachment. I Tenn. Ch. R., 174. Constitutional Questions. Homestead laws allowing or increasing the exemption cannot operate upon pre-existing contracts. 11 Heis., 48; I Bax., 220; 6 Bax., 225 ; 7 Bax., 384; II Lea, 327; I Lea, 384. Requirement that wife shall join in conveyance of homestead may operate retrospectively. I Bax., 220. So as to liability for torts, homestead laws may be retrospective. 6 Lea, 406. Construction. Of homestead laws should be liberal. 11 Heis., 515; 9 Lea, 548; 11 Lea, 649. Debts. (See Purchase Money.) Homestead exemption is allowed against— # —Money borrowed to pay for land to which it attaches. 4 Lea, 212. (But see 1 Lea, 228.) • — State’s claim against delinquent tax collector. 11 Lea, 642. —Liability for a tort, when. 6 Lea, 406. —Debts created since Act 1868, and prior to Constitution and Act 1870, $i,ooo exempt. 11 Heis., 45; 1 Bax., 220. Aliter, as to debts created prior to Act 1868. 6 Bax., 225; 7 Bax., 384; I Lea, 384. Exemption is not allowed against— —Novated or other purchase money debt. 3 Lea, 353 ; 1 Lea, 228; 5 Heis., 58. (But see 4 Lea, 212.) —Debts created prior to Act, though reduced to judgment or revived by new promise since. 9 Bax., 592; 7 Bax., 384. —Debts created for improvements, whether secured by mechanic’s lien or not. 9 Bax., 216; II Lea, 327; 1 Leg. Rep., 209. Estates and Lands. Homestead is a life estate. 13 Lea, 622; 1 Leg. Rep., 23. Estates and lands subject to homestead— —Life estates. 9 Lea, 548. —Equitable estates. 13 Lea, 622; 3 Temí. Ch., 550. —All of debtor’s lands, whether occupied or not, since Act 1879. 15 Lea, 527. Estates and lands not subject to homestead— —Lands leased on shares. (Act 1870) ; 9 Bax., 612. —Undivided interests. (Act 1870) ; 3 Lea,'76. —Lands purchased by fraudulent conversion of debtor’s assets. 2 Leg. Rep., 74. —Lands purchased by guardian with his ward’s funds. 3 Lea, 634. —Lands purchased with partnership assets. 3 Lea, 118. —Lands fraudulently conveyed by husband and wife to third person, and by that person to the wife. Cowan v. Johnson (MSS.), cited in 2 Lea, 183; 3 Lea, 302; 8 Lea, 395; 3 Tenn. Ch., 553. —•Remainder interest in homestead. 2 Lea, 579; 3 Lea, 203. Fraudulent Conveyance. Reservation of homestead in deed is not badge of fraud. 2 Lea, 511 ; 6 Lea, 49. Of husband to wife — effect on wife’s right to homestead. 2 Lea, 180; 3 Lea, 302 ; 8 Lea, 389. Purchase of homestead, with debtor’s individual or firm assets, or with his ward’s funds, fraudulent. 2 Leg. Rep., 74; 3 Lea, 634, 118. Husband and Wire. Husband procuring wife to join in mortgage to be considered credit- or’s agent. 9 Lea, 204. Wife may by next friend, or jointly with her husband, maintain bill guia timet to set aside husband’s deed as cloud on title. 7 Bax., 116; 1 Lea, 543; 1 Leg. Rep., 316, 326. Improvements. No exemption as to debt created for. 9 Bax., 216; 11 Lea, 327; 1 Leg. Rep., 331. Non-resident. Not entitled to homestead. 1 Bax, 42; 14 Lea, 369; 87 Tenn., 78. Occupancy. Essential as to husband and wife. (Act 1870); 2 Lea, 633; 9 Lea, 176; 14 Lea, 336; (but see 11 Heis., 515.) As to infants. (Act 1870) ; I Bax., 42; contra 13 Lea, 120. Lessor, not occupant of land. (Act 1870) ; 9 Bax., 612; II Lea, 478. Using lot as garden, though not residing on it, is occupancy. (Act 1870); 11 I-Ieis, 515. Not essential since Act 1879. 15 Lea, 527. Marshaling Securities. (See 11 Lea, 391; 86 Tenn., 451, 659; White v. Fulghum, post, p. —, overruling 11 Lea, 391.) Persons Entitled to Homestead. Head of family— —Husband, who has lost wife and children after acquiring homestead. 5 Lea, 722. —Widow, living on dower with orphan children of relatives. 2 Tenn. Ch., 33. —Widower with two children. 3 Tenn. Ch. R., 464; (see generally 1 Lea, 751; 3 Hum., 216; 8 Bax., 420. Widow and children— —Widow, as against adult heirs or devisees. (Act 1870) ; 1 Lea, 701; 87 Tenn., 78. Aliter under Act 1868. 9 Bax., 127. —Widow entitled to both homestead and dower. (Act 1870) ; (see Acts 1873, Ch. 98); 1 Lea, 701; 1 Leg. Rep., 281. Aliter under Act 1868. 9 Bax., 127; 4 Heis., 220; 1 Leg. Rep., 328. —Widow of an insolvent tdstator without dissent. 4 Lea, 671. —Widow, removed from premises by husband, entitled against husband’s vendee. (Act 1870) ; 1 Leg. Rep., 28. —Widow entitled in remaining lands, though husband had conveyed to her other lands. 85 Tenn., 211. —Infant removed by its guardian. (Act 1870); 13 Lea, 120; (but see 1 Bax., 42.) Delinquent tax collector as against the State. 11 Lea, 642. As to liability on guardian’s bond renewed after homestead acts. 10 Lea, 630; (see also 11 Lea, 327.) Persons not Entitled. Non-resident widowsi (Act 1870); 14 Lea, 369; 87 Tenn., 78; 1 Bax., 42. Widow, as against adult heirs under Act 1868. 9 Bax., 127. Heirs, in lands descended, as against their ancestor’s debts contracted prior to 1868. 1 Lea, 384. Widow and heirs under statutes giving them exempt property. 9 Bax., 127; 4 Heis., 209. Widow who had eloped. 87 Tenn., 78. Wife, where marriage is void. 7 Lea, 448. Wife, where, after sale of husband's other lands by his deed or under execution, she joins in conveyance of homestead. (Act 1870); 6 Lea, 659; 85 Tenn., 351. Purchase Money. What is purchase money. 1 Lea, 228 ; 3 Lea, 353 ; 5 Heis., 58. What is not. 4 Lea, 212. Remainder Interest. May be sold for decedent’s debts. 2 Lea, 579. 1 Or under execution. 3 Lea, 203 ; 9 Lea, 545; 10 Lea, 564; 16 Lea, 371. Or conveyed by husband’s sole deed, f Lea, 543 ; 15 Lea, 527; 1 Leg. Rep., 22; 2 Leg. Rep., 248. Sale of Homestead. For re-investment. 3 Lea, 354; 3 Tenn. Ch.,465. Value. Once valued, no re-valuation allowed. 6 Lea, 379. (Unless perhaps for fraud. Id.) Fixed by value of the fee. 9 Lea, 545 ; 13 "Lea, 622. Waiver. Express, not essential in deed. 9 Bax"., 393, 299; 5 Lea, 100; 2 Lea, 237; 6 Lea, 575; 86 Term., 451. Not effected, under Act of 1868, by husband’s acts in pais. II Lea, 642. By wife’s joinder in conveyance of homestead after husband’s other lands have been sold, homestead in the latter is defeated. 11 Lea, 228 ; 85 Term., 351. "Widow and Children. (See Persons.)
87 Tenn. 155University of the South v. Skidmore (1888)
FROM FRANKLIN. Appeal from tlie Chancery Court of Franklin County. W. S. Bearden, Ch.
87 Tenn. 163State v. Algood (1888)
1. Constitutional Law. Caption of amendatory statutes. The caption of an amendatory statute need not indicate the particular character of the proposed amendment, provided the title of the original act is therein set out, and the purview of the amendatory statute is germane to, and embraced within, the title thus recited. Constitution construed: Art. II., § 17. Case cited and approved: Hyman v. State, 87 Tenn., 109. 2. Same. Same. Case in jttdgment. An amendatory statute, transferring two counties from their respective judicial circuits to others, is constitutionally enacted under the caption, “An Act to amend an Act of the Extraordinary Session of 1885, passed June 11, and approved June 12, 1885, entitled ‘An Act to divide the State of Tennessee into judicial circuits and chancery divisions, and provide for the administration of justice and equity in the Circuit, and Chancery, and other inferior Courts of this State, and to fix the time for holding said Chancery, Circuit, and other Courts'.’ ” Act construed: Acts 1887, Ch. 144. (See 3 Lea, 340,) 3. Same. Passage of laws. Entries omJournals. Presumptions. Where an Act of the Legislature has been signed by the respective Speakers of both Houses in open session, and that fact noted on the Journals, and has been approved by the Governor, every reasonable presumption and inference will be made in favor of the regularity of its passage, and it will be upheld unless the Journals affirmatively show that it was defeated. Constitution construed: Art. II., §18. Cases cited and approved: State v. McConnell, 3 Lea, 333; Hays v. State (oral opinion). (See also 6 Lea, 549; 4 Lea, 611.) Case cited and distinguished : Brewer v. Huntingdon, 86 Tenn., 732. 4. Same. Same. Same. Case in judgment. Journals showed Bill passed by Senate and transmitted to House, where it was passed with an amendment. Amended Bill was returned to Senate, where it was rejected. Motions to reconsider were made, but Journal was silent as to any disposition of them. Subsequently the amended Bill was signed by the Speakers in open session, and that fact noted on the Journals. It was also approved by the Governor, and appeared in the printed Acts. Held: The Act is valid. The presumption obtains that the motion to reconsider prevailed. 5. Same. Same. Call of “ ayes and noes.” Not required, when. The constitutional requirement that “ the ayes and noes shall be taken in each House upon the final passage of every bill of a general character” has no application to an Act changing two counties from their respective judicial cii-cuits to others, and fixing the time of holding courts therein and in one other county. Such Act is of a local, not “of a general character. ’ ’ Constitution construed: Art. II., §21. Act construed: Acts 1887, Ch. 144.
87 Tenn. 172Alvis v. Oglesby (1889)
x. Statute of Limitations. Distributee*$ suit against personal representative barred by ten years' statute. Suit, either at law or in equity, by a distributee against a personal representative, for an accounting, a devastavit, or distributive share, whether brought technically on his bond or otherwise, is barred (saving disabilities) under \ 2776 of Code of 1858, unless it is commenced within ten years “after the course of action has accrued.” Code cited: ?¿fr 3153, 3466, 3473 (M. & V.); \\ 2312, 2769, 2776 (T. & S.). Cases cited and approved: 3 Yer., 231; 5 Hum., 291: 6 Lea., 471 ; 7 Johns Ch.-- Cited and overruled: Taylor». Walker, I Heis., 740; Carr v. Lowe, 7 Heis., 98. Cited as showing state of the law prior to Code of 1858 : 3 Hay., 221; 4 Hay., 134; 8 Yer., 145; 3 Sneed, 157; 6 Hum., 446. 2. Same. Distributee’s right of action accrues, when. Distributee’s right of action against the personal representative accrues, as to assets then in the representative’s hands, at the time he is required by law to make distribution, and then the statute begins to run. 3. Same. Disabilities. Burden of proof. The burden is on the party claiming the benefit of a disability to show himself within the saving of the statute, which otherwise bars his action. Cases cited and approved: Shropshire v. Shropshire, 7 Yer., 165; Mc-Clung v. Sneed, 3 Head, 219; Chaney v. Moore, 1 Cold., 48. 4. Same. Same. Successive or Cuimilative. Disabilities occurring after right of action has accrued cannot be added to pre-existing disabilities so as to save the bar of the statute of limitations. (See Code, 2 2759 (T. S.), and §3453 (M. & V.), and notes.) 5. Same. Guardian barred, ward not. Though guardian’s suit is barred, the ward may maintain suit for his distributive share if brought within saving of statute after his majority. Case cited and approved: Henley v. Robb, 86 Tenn., 474. 6. Administration. Accounting. Surcharging and falsifying settlements. Burden of proof. Administrator’s settlements, made in County Court, are to be taken as prima facie correct, in a proceeding brought to surcharge .and falsify them. Therefore, an order for an account, made in such proceeding, is erroneous, which, without proof showing errors, disregards such settlements, and directs an account de novo, taking the inventory and list of sales as basis for charges against the administrator, and' requiring of him independent proof of the credits allowed in his settlements. The settlements are, in such case, the proper basis for the account. Co.de cited: §3146 (M. & V.); § 2305 (T. & S.). (See also H-535 (M- & v-)i 2 37^6 (T. & S.) ; 14 Lea, 555; 15 Lea, 627; 86 Tenn., 326, 474.) 7. Same. Same. Same. Payment of barred debts. Where an administrator has been allowed, in his County Court settle-' ments, credit for debts paid by him after lapse of the time within which he could be sued, it will be presumed, in the absence of proof to the contrary, in a proceeding to charge him for devastavit, that the delay of creditors was at the administrator’s request, and that the debts were not barred. The same strictness of proof is not required to exonerate the administrator, in such case, as is required of the creditor seeking to recover his debt. Case cited and approved: Puckett v. Jones, 2 Hum., 568. 8. Same. Same. Compoicud interest chargeable -to administrator, when. Nothing but very culpable conduct will justify charging an administrator with compound interest in stating his accounts. 9. Same. Same. Interest on credits allowed. Where an administrator is charged interest upon debits in stating his account, he should be allowed interest upon his credits. His disbursements should be credited upon the principle of partial pay-payments.
87 Tenn. 186Bright v. Moore (1889)
Statute of Limitations. Suspension of, as to suits against administrators. ' The statute of limitations of six years does not run against creditors of a decedent, either during the six months immediately after administration, or during the period, not exceeding six months, actually elapsing between the decedent’s death and the granting of administration on his estate. Both periods must be excluded. Code cited: §§ 3112, 3454 (M. & V.) ; % 2274, 2760 (T. & S.).
87 Tenn. 190Telegraph Co. v. Munford (1889)
1. Telegraph Companies. Contract against liability for negligence of connecting line valid. A telegraph company, that receives a message to he sent over its own line, and becomes the sender’s agent to forward it over an independent connecting line, may, by contract with the sender, protect itself from all liability for negligence of the latter company. Such contract is legal and valid. Cases cited and approved: Marr v. Telegraph Co., 85 Tenn., 536; Brumley v. Railroad, 5 Lea, 401. 2. Same. Negligence. Proximate Cause. Negligence of a telegraph company, whereby the address of a message is changed in transmitting it to a connecting line, is not the proximate cause of loss occasioned by delay in its delivery; where it appears that the connecting company received the message promptly, and was not misled by the change of address, but negligently delayed delivery solely from other causes.
87 Tenn. 198Dyer v. Hutchins (1889)
FROM DEKALB. Appeal in error from Circuit Court of DeKalb County. M. D. SmallmaN, J. W. C. Dyer sued J. C. Hutchins and J. S. Hutchins jointly, before a Justice of the Peace, for damage done to his sheep by their dogs. He recovered before the Justice and in the‘Circuit Court. Defendants appealed, and assigned as error that a joint action could not be maintained.
87 Tenn. 200Davis v. Davis (1889)
1. County Court. Jurisdiction. Sale of decedents’ lands to pay debts. County Courts have jurisdiction of proceedings to sell decedents’ lands to pay debts, and, as incident thereto, to hear proof and adjudicate the claims of creditors presented in such proceedings, although there has been no suggestion of insolvency of the estate. Code cited: % 3105, 3106, 4980, 5004, 5005 (M. & V.) ; 2267, 2268, 4201, 4232, 4233 (T. &S.). Cases cited and approved: Burgner v. Burgner, II Heis., 732; Kindell v. Titus, 9 Heis., 727; Norville v. Coble, 1 Lea, 467; Connell v. Walker, 6 Lea, 712. 2. SLANDER. Charge of Perjury. Oath. Action for slander can be maintained by a witness who has been wrongfully accused of perjury in his deposition given in such proceedings. The oath administered to such witness is legal and binding. Cases cited and distinguished: Jones v. Morris, 11 Hum., 216; 10 Bush.,, 758.
87 Tenn. 206Brakefield v. Anderson (1889)
EROM ERANKLIN. Appeal from the Chancery Court of Eranklin County. ~W. S. Bearden, Ck.
87 Tenn. 214Demoville & Co. v. Davidson County (1889)
EROM DAVIDSON. Appeal from the Chancery Court of Davidson County. AndRew Allison, Ch. The State and Davidson County had, prior to Act 1887, releasing druggists from liquor dealers’ taxes, recovered decree in Supreme Court against complainants for such taxes, in consequence of sales of liquors made by them during' the years 1881 to 1886, inclusive, under their druggist’s license.
87 Tenn. 226Gross v. Davis (1889)
EROM ERANKLIH. Appeal from tlie Chancery Court of Franklin County. W. S. Bearden, Oh.
87 Tenn. 233State v. Fisk University (1889)
FROM DAVIDSON. Appeal from tlie Chancery Court of Davidson County. ANDREW Allison, Ch.
87 Tenn. 244Pennegar v. State (1889)
i. Marriage and Divorce. Marriage celebrated in another State invalid in this State, when. Marriage, celebrated in anotliei Stale, between citizens and residents of this State, temporarily there, is invalid here, where the contracting parties — being a wife, divorced for adultery, and her adulterer —procured the solemnization of their marriage abroad for the purpose of evading our statute inhibiting such marriage during the lifetime of the former husband. The marriage is void, as being contrary to a settled public policy of this State. Code cited: \ 3332 (M. & V.) ; $2475, (T. & S.). Cases cited and approved : Owen v. Brackett, 7 Lea, 448; Carter v. Montgomery, 2 Tenn. Ch., 225; State v. Bell, 7 Bax., 9; 30 Grat., 858; 76 N. C., 251, 242; 39 Ga., 321; 10 Da., 411; 5 Ired. L., 535. Cited and distinguished: Dickson v. Dickson, i Yer., no; 71 Penn. St., 240. Cited and disapproved: 16 Mass., 157; 9 H. of L. Cases, 193; 113 Mass., 458; 8 IJick., 433; 17 B. Mon., 193. 2. Same. Same. Leaodness. The parties to such invalid marriage are -guilty of lewdness, if they live together as man and wife in this State.
87 Tenn. 262Morrow v. Iron & Steel Co. (1889)
1. Corporations. Ultra vires. Stipulation in contract for subscription of initiatory capital stock void. A stipulation in a contract of subscription to the original or initiatory capital stock of a mamifacluring corporation, organized under the general incorporation law of this State, is without consideration, tdtra vires, and absolutely void, where it provides that the subscriber shall receive, upon consideration of his subscription, bonds to the full amount thereof, secured by first mortgage “ upon the company's plant," in addition to his stock shares for like amount; and the corporation may repudiate such illegal stipulation without releasing the subscriber from liability for his subscription, or subjecting itself to action by him. Act construed: Acts 1875, Ch. 142; Code, §2 1851-1874 (M. & V.). Cases cited: 17 Wall., 610; 105 U. S., 143. 2. Same. Stipulation in contracts for subscription of capital stock. Conditions precedent. Covenants. Such stipulation is to be regarded as an independent covenant, and not a condition precedent to payment of subscription, where the subscriber paid part of his subscription in cash, and gave notes for remainder to be paid when called for, and after organization become director of the corporation — especially as the mortgage to secure the bonds was to embrace the “ company’s plant,” to be erected out oi the fund subscribed. Case cited and approved: Railroad v. Parks, 86 Tenn., 560.
87 Tenn. 281White v. Fulghum (1889)
FROM CHEATHAM. Appeal from tlie Chancery Court of Cheatham County. Geo. E. Seay, Ch.
87 Tenn. 291Turnpike Co. v. Hearn (1889)
1. Evidence. Of habit of ajiimal. Habit of animal is a continuous fact to be shown by proof of successive acts of similar character. 2. Same. Same. Subsequent, acts. Subsequent acts of similar character are competent to prove fixed habit of animal at a previous date — there being also evidence of conduct of animal at and prior to that date. Case cited and approved: 8 Allen, 51.
87 Tenn. 294Rogers v. Stokes (1889)
EROM WILSON. Appeal from Chancery Court of Wilson Comity. (xBORge E. Seay, Cb. STATEMENT OE EACTS. On the 5th day of December, 1859, one Josephus Walker drew a bill of exchange for $2,500 which became the property of the Planters Bank. On January 28, 1861 the bank recovered judgment for $2,698.49. Defendants appealed and gave as securities on their appeal bond S. B. Hardy, John L. Clemmons and A. G-. Bogers.
87 Tenn. 300Chapman v. State (1889)
Criminal Law. Recommendation for pardon of accomplice testifying for State. Stcpreme Court Practice, Recommendation for pardon will not be granted by this Court to an accomplice, who, before sentence on his plea of guilty, had secured an equitable claim to executive clemency by testifying fully and fairly, as witness for the State, on the trial of his co-defendants; where the record fails to show that any application was made or acted on in the lower court, or that the accomplice’s equitable claim to clemency Was not considered in the mitigation of his sentence to imprisonment on a capital charge. (See United States v. Ford, 99 U. S., 594.)
87 Tenn. 304King v. State (1889)
EROM WILSON. Appeal in error from Circuit Court of Wilson County. Robert Cantrell, J. King was indicted for felonious assault with, intent to commit murder in second degree. Upon bis trial tbe jury were at first permitted to disperse without objection. Subsequently, upon bis request, tbey were placed in charge .of a sworn officer. He was convicted and sentenced to imprisonment in tbe penitentiary. He appealed.
87 Tenn. 308Quarles v. Clayton (1889)
1. Kiris Insurance. Nature of contract. Contract of fire insurance is mere personal indemnity against loss to the person with whom it is made, or those falling within the scope of its provisions. Cases cited and approved: Hobbs v. Insurance Co., I Sneed, 444; 73 N. Y., 447; S. C., 29 Am. Rep., 180; 93 N. Y., 75; S. C., 45 Am. Rep., 176. 2. Same. Consimction of policy. Loss payable, to whom. Under a fire policy upon a dwelling-house, providing that loss should be “payable to the assured, his executors or administrators,” and prohibiting any change in title or possession of the property insured, “ except by succession by reason of death of the assuredf the widow oc-copying and having a life estate in such dwelling-house, by virtue of her marriage contract with the assured, has no interest, legal or equitable, in funds due upon loss occurring after the assured’s death. She takes by purchase, not by “succession.” * Aliter, if widow had been entitled to dwelling as homestead or dower. Question reserved: Would heirs or next of kin take the funds arising from such loss? Cases cited and approved: Galyon v. Ketchen, 85 Tenn., 55; 8 Paige, N. Y., 436; 101 U. S., 436; 112 Inch ; 535 S. C.; 2 Am. Rep., 219. 3. Same. Same. Insurer’s option to 7-ebuild. That the insurance company, having the option, chose to pay the loss instead of rebuilding the premises affords no grfiund of equity in the widow’s favor.
87 Tenn. 319Bates v. Taylor (1889)
FROM DAVIDSON. Appeal from Chancery Court of Davidson County. AndRbw Allison, Ch.
87 Tenn. 334Collins v. Boyett (1889)
FROM MARSHALL. Appeal from Chancery Court of Marshall County, W. S. Fleming, Ch. On March 15, 1873, complainant and her husband occupied the lands in controversy as their homestead. At that date the husband sold the land's and conveyed same' without the wife’s joinder in the deed. Subsequently they removed from the premises. The purchaser took possession and paid the purchase price in full.
87 Tenn. 341Ligon's v. Insurance Co. (1889)
PROM WILSON. Appeal in error from Circuit Court of Wilson County. Robert Cantrell, J. Suit by Ligon’s Administrators, upon a fire insurance policy field by tlieir intestate in the defendant Company, to recover for loss of the insured property — a livery stable. The materia] matters of defense were that the insured had failed to comply with the conditions of policy with reference to furnishing preliminary proofs of loss to the insurer.
87 Tenn. 350Grissom v. Commerial National Bank (1889)
FROM DAVIDSON. Appeal from Chancery Court of Davidson County. AndRew Allison, Ch.
87 Tenn. 386Ferriss v. Tavel (1889)
FROM DAVIDSON. Appeal from Chancery Court of Davidson. County. Andkew Allison, Ch.
87 Tenn. 393Bank v. Shelton (1889)
EROM GILES. Appeal from Chancery Court of Giles County. A. J. Abernathy, Ch. Bill to recover lands. Both parties claim under John P. C. Reed. Complainants purchased the land at judicial sale. Defendants, as widow and child of said Reed, claim it as their homestead. The facts are undisputed. In 1877 the land in controversy was set apart to said Reed as his homestead by an officer having execution against him. Reed then had a wife, but no children.
87 Tenn. 398Louisville & Nashville Railroad v. Martin (1889)
FROM ROBERTSON. Appeal in error from Circuit Court of Robertson County. A. II. Muneord,. J.
87 Tenn. 406Street Railroad Co. v. Morrow (1889)
FROM DAVIDSON. Appeal iii error from Circuit Court of Davidson County. W. K. McAlister, J.
87 Tenn. 442Weeks v. Mays (1889)
EROM WAYNE. Appeal in error from Circuit Court of Wayne County. E. D. Patterson, J.
87 Tenn. 445Robinson v. Queen (1889)
PROM RUTHERFORD. Appeal from Chancery Court of Rutherford County. ~W. S. Beab,den, Ch.
87 Tenn. 458Graham v. Gunn (1889)
1. Land Law. Grant of land lying in two counties valid. Grant of land, lying “ north and east of Congressional Reservation Line,” issued in 1840 * upon entry for 5,000 acres made under Act 1829, Ch. 8$, and having its beginning corner in one county, but including lands lying in another county, is valid as to lands situated in both counties, although both entry and grant purport to be for lands lying wholly in the former county. Acts cited and construed: Acts 1823, Ch. 49; Acts 1825, Ch. 28; Acts 1827, Ch. 46; Acts 1829, Ch: 85; Id., Ch. 87. (See Vol. 2 of Haywood’s & Cobbs’ Statutes of Tennessee, pp. 118, 121, 123, 124.) 2. Same. Same. Recording copy of survey in other county. Such grant is not void as to lands lying in a county other than that in which the beginning corner of entry was located, by reason of the failure to record a copy of the survey of the entry in the entry taker’s office of the “other county,” as required by Acts 1825, Ch. 28, and 1827, Ch. 46. This requirement of said Acts, even if essential to validity of the grant, had been, prior to 1840, abolished by Act 1829, Ch. 87, which substituted in lieu thereof the requirement “that the entry and survey shall not interfere with any other prior legal claim.” Acts cited and construed: Acts 1825, Ch. 28; Acts 1827, Ch. 46; Acts 1829, Ch. 87. Case cited and distinguished: Crutchfield v. Hammock, 4 Hum., 204. 3. Statutes. Construction. In pari materia. Statutes in pari materia are to be construed together as one system. This case affords a striking illustration of this rule.
87 Tenn. 467Greenlaw v. Pettit (1889)
PROM SHELBY. Appeal from Chancery Court of Shelby County. W. W. McDowell, Oh.
87 Tenn. 490Dispatch v. Johnson & Guinee (1889)
Common Carriers. Contract affecting measure of damages. Not applicable to a conversion. The ordinary measure of damages, to wit, the market value of the goods at place of destination, less freights, is applicable to a case where the carrier has been guilty of a conversion, although the bill of lading contain a stipulation that the carrier, in case of loss, shall be liable only for the value of the goods at time and place of shipment. Such stipulation, if valid, does riot cover the case of a conversion by the carrier. Case cited and approved: Dean v. Voccaro, 2 Head, 489.
87 Tenn. 494Railroad v. Scott (1889)
1. Supreme Court. Practice. Several bills of exceptions. Supreme Court will consider record of each trial separately and in order of time, M'here bills of exceptions have been taken upon several successive trials of a case in the lower Court. Act cited: Act 1875, Ch. 106. ' Code cited: $ 3836-7 (M. & V.h 2. Railroads. Killing stock. Statutory precautions. Charge of Court erroneous, when. The Court erroneously declares the law, and invades the province of the jury, where, in an action against a railroad company for value of animal killed by collision, he instructs the jury that observance of the statutory precautions in atzy special arbitrary order,, without reference to their effectiveness, tinder the particular circumstances, to prevent the accident, will excuse the company from liability. Code construed: £ 1298, subsec. 4 (M. & V.); jj 1166, subsec. 4 (T. &S.). 3.Same. Same. Same. Province of jury. Proper charge. It is for the jury — not the Court — to determine whether the railroad company has shown proper observance of the statutory precautions. The proper instruction in such’case is, that it was the duty of the company to observe all of the precautions prescribed by the statute, together with every other means at its disposal, to stop the train and prevent the accident; but if it was impossible, for want of time, to observe all the precautions, or if some precautions were, under the particular circumstances, more effectual than others, then the company must first observe those precautions, which, from their nature, are best calculated and most effectual, under all the circumstances, to prevent the accident. Cases cited and approved: Railroad v. Scales, 2 Lea, 688; Railroad v. Swayne, 5 Lea, 119; Railroad v. Thomas, 5 Heis., 266; Hill v. Railroad, 9 Heis., 827; Railroad v. Pratt, 85 Tenn., 13.
87 Tenn. 504Cumberland Telephone Co. v. Loomis (1889)
Master and Servant. Erroneous charge as to servants duty. Charge to the effect that servant may assume that a telephone pole, which he is required to climb in due course of his employment, is safe, and suitable for that purpose, is erroneous in a suit brought by the servant for injuries caused by the breaking of the pole, in that it relieves him from the exercise of ordinary care for his own safety, and decides that he was not the company’s “inspector” of poles — a disputed fact in the case.
87 Tenn. 506McGhee v. Edwards (1889)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
87 Tenn. 513Whitzman v. Hirsh (1889)
EROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.
87 Tenn. 522Railroad v. Bingham (1889)
FROM SHELBY. Appeal in error from Circuit Court of Shelby County. L. H. Estes, J.
87 Tenn. 538Bierce v. James (1889)
PARTITION. Of remainder and reversionary estates. Estates in land, in remainder or reversion, are subject, under our statute, to partition, or sale for partition, upon application of any person having an interest therein in common with others. Code construed: §3993, et seq. (M. & V.); §3262, et seq. (T. & S.). Cases cited and distinguished: Norments, Admr. v. Wilson, 5 Hum., 310; Robertson v. Robertson, 2 Swan., 197.
87 Tenn. 554Pepper v. Telegraph Co. (1889)
FROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Cli.
87 Tenn. 575Erck v. Church (1889)
EROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch. Ejectment bill. Decree for complainant. Defendant appealed. J. M. Gregory for ' Complainant. G-antt & PatteksoN for Defendant.
87 Tenn. 589Land Co. v. Hill (1889)
* I. Will. Remainder to children as a class. A devise to a daughter for life, with remainder to her children, the survivors or survivor of them living at her death, vests the estate in remainder in the children living at the death of the testator, as a class, and such estate will open and let in after-born children, and will be defeated as to any child or children dying in the life-time of the mother. Cases cited: Satterfield w. Mays, n Hum., 57; Bridgewaterv. Gordon, 2 Sneed, 5; McClung v. McMullen, 1 Heis., 655, 660. 2. Same. Same. Deed of one of the children. In such case, the children living at testator’s death do not take as tenants in common, during the life-time of the mother, but only as members of a fluctuating class, with no specific or fixed interests, and a conveyance by one of them to a third party by deed with covenants of seizin and general warranty, of the whole of a tract of land so devised, does not impose upon the vendee, toward the other children, the duties and obligations of one tenant in common to another. 3. RESCISSION. Executed contract. Fraud. Insolvency. A purchaser, after deed made and possession taken under it, in the absence of fraud, is not entitled to rescission, or to resist payment of the purchase money so long as he remains in possession, unless the seller is insolvent. Authorities cited: 1 Sugden on Vendors, 251, 8 Am. Ed.; Abbott v. Allen, 2 Johns. Ch. R., 519; 12 I-Ieis., 175; 5 Sneed, 505; 1 Head, 640. 4. Fraud. In obtaining sale tinder trust deed, what is not. That a party desirous of acquiring land incumbered by a trust deed made by a testatrix in her life-time for the security of debt, procures the trustee or a creditor to foreclose, and buys at the sale made openly and fairly upon public advertisement and competitive bidding, in strict accordance with the terms of the trust, is no evidence of fraud against the devisee, where such purchaser is ignorant of the existence and terms of the will, and believes the land had descended, to the sole heir at law, whose vendee proposes to convey to him upon such sale being made by the .trustee, and where the sole object in procuring the foreclosure is the exhaustion of the creditor’s remedies against the land, although the vendee of the heir had assumed the-payment of- the incumbrance. 5. SAME. Notice of existence midterms of will, what. The notice of the existence and terms of a will, implied by a charge of fraud in concealing them, is actual, and not merely constructive notice. 6. Constructive Notice. Extends to whom. Constructive notice of a will, arising from the fact that it is a public record, extends only to persons acquiring rights or titles which are in some way resting on, or subordinate to, or affected by, the will, and does not extend to those acquiring rights or titles wholly independent of and superior to the will. 7. Same. Deeds and instruments referred to in title papers, how far constructive notice. The general rule that a party is held to have constructive notice of what appears in the deeds and instruments referred to in the title papers constituting his chain of title, does not, in principle, apply to-collateral and immaterial deeds or instruments incidentally referred to, not as relating in any way to the title or land conveyed, but only to the consideration. Cited : Bigelow on Estoppels, 341, et seq. ; 2 Devlin on Deeds, 1000,. 1006.
87 Tenn. 614Harmon v. Railroad (1889)
* 1. RAILROAD. Nuisance.. Successive actions. If a railway company, lawfully located upon a street in a city, under its charter, and by permission of the local government, uses the street in the operation of its road beyond what is necessary for the proper running of its trains, and by such excessive and improper use substantially destroys the easement of way, and of ingress and egress appurtenant to an abutting lot, the owner of such lot can maintain successive actions for such nuisance, recovering the damages that have accrued up to the time each action was brought, and a recovery in one action will not bar a subsequent one brought for a continuance of such wrongs. Cited and approved: Uline v. N. Y. C. & H. R. R. Co., ioi N. Y., 98; Bingham v. I. M. R. R. Co., 87 Tenn., p. 522; Smith v. Street Railway Co., 87 Tenn., p. 626. Same. Measure of damages. The measure of damages in such cases is the impairment of the value of the use of such property by such nuisance during its continuance. The difference in the market value of the property cannot be considered. Cited and approved: G. R. & I. R. R. Co. v. Heisel, 38 Mich., 62; 31 Am. Rep., 313. 3. Res Adjudicata. If suit be brought for such nuisance, and the entire destruction of the easement be alleged, and a charge is submitted to, fixing the permanent impairment of the value of the property as the measure of damages, and there is a recovery and payment, plaintiff cannot bring a subsequent suit for the continuance of such nuisance.
87 Tenn. 626Smith v. Street Railroad (1889)
1. Street Railroads. Construction of charier. Abutting owners. Street railway company organized under our General Incorporation Act (Acts 1875, Ch. 142, ? 13), having, .by lawful contract with the city, permission to construct its road over the public streets, is not required, in addition, to obtain consent .of abutting lot owners where they do not own the fee in the street, or in any case where the proposed road is not of a character to be an additional burden upon the fee in the street. Act construed : Acts 1875, Ch. 142, ji 13 ; Code, 1920-1925 (M. & V.) 2. Same. Not additional burden upon the fee, when. Street railroad operated by horse power is not an additional burden upon the fee in the street, but an improved use of the street strictly within the original purpose for which it was appropriated to public use. Case cited and approved: 38 Mich., 63 (S. C., 31 Am. Rep., 309.) Question reserved: Is a steam dummy line an additional burden upon the fee in the street ? 3. SAME. Powers. Liability to abutting owners. Ingress and egress. Street railway companies have no right of eminent domain; and can acquire no right by contract with city to obstruct, for purposes of its construction, the right of ingress and egress appurtenant to the abutting lots, even where the owners thereof have no fee in the street. But construction of road upon city’s established grade of the streets, under a lawful contract with the city authorities, and in a lawful manner, exonerates the company from liability, in this particular, to the abutting owners. 4. Same. Unlawful operation of road. After a street railroad has been lawfully constructed the company is liable to abutting owners for any damages resulting to them from the unlawful or excessive use of the road. Cases cited and approved: Bingham v. Railroad, ante, p. 522; 31 Am. Rep., 312; 108 U. S., 3x7. 5. Measi^re of Damages. Nuisance. The rule laid down in Harman v. Railroad, ante, p. 614, approved.
87 Tenn. 638State v. Hill (1889)
EROM SHELBY. Appeal from Chancery Court of Shelby County. B. M: Estes, Ch.
87 Tenn. 644Woodward v. Woodward (1889)
1. Guardian and Ward. Non-resident ward's age of majority. Lex doitiicilii. A minor domiciled in another State, and emancipated, under its laws, from all disabilities of infancy, can receive or recover, in the same manner as an adult, persona^ funds to which he is entitled by the law of his domicile, held for him by a guardian appointed and resident in this State, and administered under our laws. Lex domicilii controls as to ward’s capacity. Code construed : 2 3419 (M. & V.) ; 2 2544 (T. & S.). Cases cited and approved: Robinson v. Queen, ante, page 445 ; 10 How., 93; 129 Mass., 243; 1 Hagg. Ecc. R., 273; 8 Irish Eq. R., 444. 2. Domicile. Of adopted minor child. Domicile of minor orphan child, who has been adopted under laws of this Stale, is that of the adoptive parent with whom it resides. Bona fide change of domicile to another State by the parent effects a like change of the child’s domicile. Code construed: ? 4390 (M. & V.) ; 23645 (T. &S.).
87 Tenn. 668Heiskell v. Chickasaw Lodge (1889)
FROM SHELBY. Appeal from Chancery Court of Shelby County. JB. M. Estes, Ch.
87 Tenn. 689State v. Mathews (1889)
Larceny. What is. Where triable. Larceny is consummated in Tennessee, where goods stolen in another State are carried by the thief,' * animo furandi, into this State; and the offense is triable in any county into which the goods are brought — • each removal being a continuance of the trespass, and, in legal contemplation, a new caption and asportation. Code construed: § 5805 (M. & V.), $4977 (T. & S.). Cases cited and approved: Henry v. State, 7 Cold., 334; State v, Margerum, 9 Bax., 362; 3 Stewart, 123; 39 Ala., 654; 12 Mo., 453; 11 Wend., 129; 40 Ala., 44; 24 Mich., 166. Cited and distinguished : Simpson v. State, 4 Hum., 456.
87 Tenn. 693State v. Wilson (1889)
1. Justices of the Peace. Authority to administer oath to surety for appeal. Justices of the Peace, being required by statute to take “bond with good security ” front parties prosecuting appeals from their judgments to the Circuit Courts, are thereby invested with implied authority to administer oaths to proposed sureties for such appeals, and to examine them touching their solvency. Code construed: §3857 (M. & V.); ¡¡141 (T. &S.). 2. Perjury. AtUhorized oath. Such oath is material, and required or authorized by law, within the meaning of our statute defining perjury to be willful and corrupt swearing in regard to a “ material matter upon any oath * * required or authorized by law.” Code construed: g 55S7 (M. & V.) ; §4793 (T. & S.).
87 Tenn. 698Railroad v. Greer (1889)
PROM SHELBY. Appeal from Chancery Court of Shelby .County. B. M. Estes, Ch.
87 Tenn. 712Dyer County v. Railroad (1889)
FROM DYER. Appeal from the Chancery Court of Dyer County. H. J. Livingston, Ch.
87 Tenn. 725Moore v. Tate (1889)
EROM SHELBY. Appeal in en’or from Circuit Court of Shelby County. JL. H. Estes, J.
87 Tenn. 746Railway Co. v. State (1889)
1. Street Railway. Continuing duty to repair. A street railway company is bound to keep its entire road-bed, to the ends of its ties, and its crossings, in repair, so as not to obstruct travel across its road or longitudinally upon it, and this duty is a continuing one, whether the charter so expressly requires or not. Cases cited and approved : L. & N. Railroad Company v. The State, 3 Head, 524; Am. and Eng. Railway Cases, Vol. X., page 332, note Burritt 7J. City of New Haven,.42 Conn., 174. ’ Cited and overruled: Railroad w. The State, 16 Lea, 300. 2. Street Railway Company. Indictment. A street railway company, failing to so repair, and thereby obstructing travel, is indictable for maintaining a nuisance, and, upon failure to abate the nuisance, the obstructions may be removed by order of the Court.
87 Tenn. 756McDaniel v. Adams (1889)
PROM BENTON. Appeal in error from Circuit Court of Benton County.
87 Tenn. 759Read v. Mosby (1889)
FROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.
87 Tenn. 771Boyd v. Sims (1889)
PROM SHELBY. Appeal from Chancery Court of Shelby County. B. M. Estes, Ch.
87 Tenn. 781Nelson v. Haywood County (1889)
PROM HAYWOOD. Appeal in error from Circuit Court of Haywood County. January Term, 1889. W. H. Swiggert, J.