93 Tenn.

Volume 93 — Tennessee Reports

66 opinions

93 Tenn. 1Boyd v. Robinson (1893)
I. Wills. Construction of. A testator devised his real estate absolutely to two sons, providing, in the same clause, that if either should die intestate, and without children born in lawful -wedlock, his share should go to the survivor, and, in the next succeeding clause, that if both sons should die without children, the whole estate should go to a daughter. Held: The daughter takes only in the contingency that both sons die without children and intestate. (Post, j>f. 4, 5, 29-33.) 2.. Same. Same. A testator, having only one brother and one sister surviving, bequeathed his entire estate to the brother “and his lawful heirs,” and in the event of the brother’s death without “such heirs,” then to the sister. Testator had no children, and his brother and sister would have been his heirs. Held: The bequest to the sister is valid. The phrase “ lawful heirs ” means in this will “children.” And hence it is neither a perpetuity, nor an estate tail which would by our statute be converted into an estate in fee. {Post, pp. 5, 6, 33-40.) Code construed: {$2813, 2814, 2815 (M. & V.); ¿§2007, 2008, 2009 (T. & S.). Cases cited and approved: Armstrong v. Douglass, 89 Tenn., 223; Franklin v. Franklin, 91 Tenn., 123; Cowan ». Wells, 5 Lea, 682; Pettys'. Moore, 5 Sneed, 126; Bramlett v. Bates, x Sneed, 555. Cited and distinguished: Middletons'. Smith, 1 Cold., 144; Kirk v. Ferguson, 6 Cold., 484, 485; Skillin v. Lloyd, 6 Cold., 563; Wynne v. Wynne, 9 Heis., 308; Grimes v. Orrand, 2 Heis., 298, 300; Read v. Fife, 8 Hum., 328; Polk v. Faris, 9 Yer., 234; Turley v. Massen-gill, 7 Lea, 356; Hooberry v. Plarding, 3 Tenn. Ch., 677. 3. Family Settlements. Sustained in Courts of Equity, when. Family settlements will be sustained in Courts of Equity, unless it clearly appears that there is manifest error, and, even in cases of persons under a disability, will not be disturbed after a long lapse of time, and the accrual of other rights thereon. {Post, p'p. 6,11, 26,2J.) Cases cited and approved: Summers v. Wilson, 2 Cold., 469; Williams v. Sneed, 3 Cold., 533; Farnsworth r-. Dinsmore, 2 Swan, 38; Owen v. Hancock, 1 Plead, 563; Reynolds v. Brandon, 3 Ileis., 593; Andrews v. Andrews, 7 Heis., 235; Darden v. Harrell, to Lea, 421. 4. Res Adjudicata. Extent of. The plea of res adjudicata covers, except in special cases, not only the points upon which the Court was required by the parties to form an opinion and pronounce judgment, but every point which properly belongs to the subject of litigation, and which the parties, by the exercise of reasonable diligence, might have brought forward at the time. {Post, pp. ig, 20, 27, 28.) Cases cited and approved: Nicholson v. Patterson, 6 Hum., 394; Thompson v. Blanchard, 2 Lea, 528; Parks v. Clift, 9 Lea, 524; 7 Wall., 623; 53 Am. Dec., 325. 5. Same. Same. Pleadings. Where lands have been sold for the ancestor’s debts by judicial proceedings to which the heir was a party, the latter will be precluded from setting up title in himself, upon the ground that the ancestor held the lands under a deed that gave him only a life-estate, with remainder to the heir. In such case the construction of the deed is necessarily involved, and; whether correctly or incorrectly done, becomes res adjudicata. [Post, pp. 21 — 2p.) Cases cited and approved: Shepherd v. Shepherd, 13 Heis., 280; Whiteley v. Davis, 1 Swan, 333; Bartee v. Tompkins, 4 Sneed, 638; Hoyal v. Bryson, 6 Heis., 141; Scott v. Fowlkes, 12 Heis., 700; Allum u. Stoclcbridge, 8 Bax., 358. 6. Infant. Party to suit, when. An infant becomes party to a suit in such sense as to be bound by the result, where, in several consolidated cases, he is described in one of them as an unborn child and a necessary .defendant, and is subsequently brought before the Court by process issued upon order of the Court, and in another of the consolidated cases he becomes a complainant by next friend. [Post, pp. 21, 22, 27.)
93 Tenn. 41Theus v. Dugger (1893)
1. MARRIED Woman. Not personally liable upon firm note. Personal judgment cannot be obtained against a married woman, over her plea of coverture, upon a note executed by a firm of which she is a member. (Post, pp. 46, 50.) 2. Same. Method of charging her separate estate. A married woman’s separate estate cannot be charged with her debts unless she has entered into an express contract that it shall be bound for the particular debt. It cannot be so charged by mere implication* (Post, p. 4^.) , Cases cited and approved: Jordan v. Keeble, 85 Tenn., 412; Chatterton v. Young, 2 Tenn. Ch., 768; Ragsdale v. Gossett, 2 Lea, 739;. Litton v. Baldwin, 8 Hum., 209; Cherrys. Clements, 10 Hum., 552;, ICirby v. Miller, 4 Cold., 3; Shacklett v. Polk, 4 Heis., 115. 3. Same. Same. Example. A married woman’s separate estate, embarked by her in a mercantile' business, as partner with another, cannot be subjected to the payment of a note executed by the firm in due course of the partnership, business, in the absence of an express contract on her part to that effect. (Post, pp. 46-50.) Cases cited and approved: Federlicht v. Glass, 13 Lea, 481; Frank v. Anderson, 13 Lea, 695; Chatterton v. Young, 2 Tenn. Ch., 768;, Jackson v. Rutledge, 3 Lea, 626.
93 Tenn. 53Pullman Palace Car Co. v. Gavin (1893)
1. Sleeping-car Companies. A sleeping-car company is not a common carrier or an inn-keeper. (Post, pp. 56-58.) • 2. Same. Liability for porters theft. The theft of the money of a passenger on a sleeping-car by a porter in charge of the car, renders the sleeping-car company liable therefor to the passenger. (Post, pp. Jf, ¿8.) Cases cited: 124 N. Y., 58 (S. C., 21 Am. St. Rep., 644); 74 Texas, 654. . _ 3. Same. Liable to ctt.slodi.an of passenger's money. A passenger who is intrusted with the money of another in his care for the journey, has such a right in the money that he can recover from a sleeping-car company by whose servant it is stolen. (Post, pp. jg-61.) Cases cited and approved: Criner v. Pike, 2 Head, 397; Logan v. Hartford City Coal Co., 9 Heis., 690; 42 N. Y., 326 (S. C., 1 Am. Rep., 527); 74 N. Y., 116.
93 Tenn. 62Poole v. Jackson (1893)
1. Assignment of Error. Insufficient, when. An assignment of error that “ the verdict is against the evidence, which largely preponderates against the finding of the jury,” is bad, in not stating that there is no evidence to support the verdict. (Post, p. 6j-) 2. Evidence. Irrelevant, -when. In suit against a city for injuries resulting to plaintiff from an alleged defective sidewalk, it is irrelevant for plaintiff to testify on his own behalf that he borrowed the money to build certain houses, as to the erection of which another witness had incidentally testified. {Post,, pp. 65, 66.) 3. Same. As to condition of sidewalk. In suit against a city for personal injuries resulting to the plaintiff from . an alleged defective sidewalk, it is competent to prove, on behalf off the city,, that the sidewalk was laid down in the ordinary way, and constructed out of sound and suitable material, as tending to rebut notice of defects by the city authorities. {Post, pp. 66, 6y.) 4. Same. Same. And it is likewise competent, in such case, to prove, on behalf of the-city, that the sidewalk was in apparently safe condition, as tending to rebut constructive notice of defects therein. {Post, p. 6y.) Cases cited: Poole v. Jackson, 91 Tenn., 457; 30 Ind., 235; 83 Ind.,. 566. 5. Charge of Court. As to city's liability for injuries resulting from de--feclive sidewalks. The Court’s chargé in a suit against a city for personal injuries resulting' to plaintiff from a defective sidewalk is not erroneous, being properly qualified in other portions of the charge, when given in this language, viz.: “The defendant is not an insurer against accidents upon its - streets and sidewalks, but is bound to keep them in a reasonably safe condition, but not absolutely so. Its duty is only to see that sidewalks and streets are reasonably safe for persons traveling on them while exercising ordinary care and caution. It is only bound to use-ordinary care and attention to keep its streets and sidewalks in a1 reasonably safe condition for persons traveling in the ordinary modes, by night as well as by day, while exercising reasonable care and caution.” [Post, p. 68.) Case cited and approved: Poole v. Jackson, 91 Tenn., 457. 6. Same. Same. Actual notice of defects. The Court’s charge, in such case, defining actual notice of defects, is correct in this language, viz.: “By actual notice is meant that, if there was a defect in the sidewalk, and some member of the Board of Mayor and Aldermen, or some agent or employe of the defendant whose duty it was to keep, or see the streets were kept, in repair, saw it, or that some one notified or informed them or some of them of its existence.” (Post, p. 68.) 7. Same. Satne. Constructive notice of defects. The Court’s charge, in such case, defining constructive notice of defects, is correct in this language, viz.: “By constructive notice is meant that, if there was a defect in the sidewalk, and that the defect was so patent and obvious as to be generally noticed by persons passing over it, and this continued to exist for such a length of time prior to the time of the alleged accident as that it might be reasonably inferred that some member of the Board of Mayor and Aldermen, or employe of defendant whose duty it was to keep the streets in repair, had notice of such defects.” (Post, pp. 68, 6g.) 8. Same. Same. Notice unnecessary. The Court’s charge, in such case, that no other proof of notice, actual or constructive, of defects is required if the sidewalk causing plaintiff’s injury was originally laid down in a defective condition, and so remained until the injury, is correct. (Post, p. 6g.) 9. Same. Refusal of special request. The refusal of the Court to give special requests in charge to the jury is not erroneous, when the original charge is full and correct, and covers the matter embraced in the requests. (Post, p. 70.)
93 Tenn. 71Peterson v. Richman (1893)
Married Woman. Title-bond for her separate estate valid without privy examination, when. A bond for title by a married woman and her husband, to land conveyed to her for her sole and separate use, “with full power and authority as a feme sole” to covey it in any manner, is valid, although there -was no privy acknowledgment by.her. Case cited and approved: Sherman v. Turpin, 7 Cold., 382. Cited and distinguished: Jarnigan v. Levisy, 6 Lea, 400; Wright v. Dufield, 2 Bax., 218; Moseby v. Partee, 5 liéis., 30; Robinson v. Queen, 87 Tenn., 445.
93 Tenn. 77Public Ledger Co. v. Memphis (1893)
Injunction. Of municipal Corporation. Injunction does not lie to restrain a municipal corporation from executing a contract, made with a newspaper owner without advertising forbids, to insert its advertisements, notices, and other printing in his paper for one year, to be paid for by the line, square, or column, and in no event to exceed a stipulated amount, under a provision in its charter that, before entering into any contract for any purpose, the Commissioners shall advertise for bids.
93 Tenn. 84C. F. Simmons Medicine Co. v. Mansfield Drug Co. (1893)
1. Chancery Court. Complainant must have clean hands. It is a maxim of Courts of Equity, applicable in the consideration of cases brought to prevent the unlawful infringement of trade-marks or unfair competition in business, that the complainant seeking the Court’s interposition in his behalf must come with clean hands; and that he will be repelled at the threshhold of the Court, if it appear from the case made by him, or by his adversary, that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud. [Post, p. 94.). Cases cited: 8 Sim., 477 (R. Cox, 640); 2 Sandf. Ch. Rep., 662 (R. Cox, 72); 19 How. Pr., 567 (R. Cox, 287); 5 Phila., 464 (R. Cox, 307) ; 108 U. S., 28; 33 La- Ann., 946; 8 Mo. App., 277. 2. Same. Same. Defense good without pleading. And this defense is available without pleading. {Post, pp. 98, 99.) Cases cited: 13 How. Pr. R., 38 (R. Cox, 180); 128 Mass., 477. 3. Trade-mark. Conduct that will not repel complainant seeking to restrain unlawful infringement. Issuance of a large number of copies of a single false circular, eight years before an action to restrain the use of a certain package for sale of medicine is brought, and forty years after the business is established, is not such deception as will disentitle the plaintiff to relief. [Post, pp. 93, 94, 99, 100.) Case cited: 14 Blatch., 262. 4. Same. Same. A statement on a package of medicine: “Trade-mark registered, consisting of name, picture, and autograph,” in a designated year, in which there was no provision for registration of trade-marks, by one who had filed a book title in that year showing his connection with the business, is not such a misrepresentation, when made witho'ul fraudulent intent, as will disentitle him to relief in an action to restrain the use of a similar package. (Post, pp. g4, 100-102). 5. SAME. Same. A statement on a package of' medicine that “ this is the original and only genuine Simmons’ Liver Medicine,” when made in good faith, will not disentitle one to relief in an action to restrain the use of a similar package, although there are other preparations from the original formula, if they are known under another name. {Post, pp. g4, 102-103.) 6. Same. “ Simmons' Liver Medicine’' is not. The use of the term “Simmons’ Liver Medicine” cannot be appropriated by one person as a trade-mark, where it has become merely descriptive of medicine prepared under an original formula, and used by many people in connection with such medicine. {Post, pp. 118, ng.) Cases cited and approved: I38U.S., 537; i3Wall., 311; 52 Wis., 572. 7. Unfair Competition in Business. Enjoined, when. The use of a package for medicine so closely resembling that already appropriated by another as to deceive an ordinary observer, and employed for that purpose, will be enjoined, although the differences between them are readily seen when they are placed side by side. {Post, pp. ng-146.) Cases cited: 39 Fed. Rep., 777; 2 Keen, 213; 2 Bos., 1; 81 Ky., 75; 23 Fed. Rep., 275; 26 Fed. Rep,, 410; 24 Fed. Rep., 149; 7 Beav., 84; 138 U. S., 537; 43 Fed. Rep., 800; L. R., 41 Ch.'Div., 35-50; 139 U. S., 540; 10 Fed. Rep., 838. 8. Laches. Does not bar accoimt for infringement of trade-mark, when.' A delay of one year to begin an action to restrain the use of a package for medicine as an infringement of.the plaintiff’s trade-mark, is not such laches as will disentitle him to an accounting, especially where he made immediate complaint thereof. {Post, pp. 146, 147.) Cases cited: 6L. R. A., 824; 20 Fed. Rep., 217; 27 Fed. Rep., 24; 96 U. S., 245.
93 Tenn. 149Burns v. Allen (1893)
1. Parol Evidence. Of testator's declarations, inadmissible, when. Parol evidence is inadmissible under $3033 (M. & V.) Code (providing that a child born after the making of a will, “not provided for nor disinherited, but only pretermitted in such will,” nor provided for by settlement, shall succeed to the same portion of the testator’s estate as if he had died intestate), of declarations by the testator before and after making his will, showing that an omission to provide therein for a posthumous child was intended as a disinheritance. Code construed: § 3033 (M. & V.) ; § 2193 (T. & S.). 2. Deed. Construction of. A deed reciting that it is given to a divorced wife “ in settlement of all demands for homestead, alimony, counsel fees, and support of child,” is not such a settlement on a posthumous child as will prevent it from inheriting under § 3033 (M. & V.) Code, providing that a child, if unprovided for by will and not disinherited therein or provided for by settlement, shall inherit as if the testator had died intestate, especially if the decree of divorce has settled the same property on the wife with a provision that it shall not be construed as in any way “to militate against the yet unborn child” of complainant. Code construed : § 3033 (M. & V.); ¡1 2193 (T. & S.).
93 Tenn. 155Cole v. Warner (1893)
Bail-bond. Creates no lien upon obligor's lands. The execution of a bail-bond does not create a lien on the lands of the obligor. •Cases cited and distinguished: State v. Miller, n Lea, 620; State v. Winn, 3 Sneed, 393 ; Pugh v. State, 2 Head, 228.
93 Tenn. 161Allen v. Maronne (1893)
1. Measure of Damages. For illegal discharge of employe. For his illegal discharge before expiration of his stipulated term of service, an employe is entitled to recover of his employer full wages or salary for the entire term, less payments and such further sum as he did earn or might, by due diligence, have earned during the remainder of the term. 2. Same. Same. Acceptance of new employment not an abandonment of his claim. Acceptance of new employment by the illegally discharged employe, during the unexpired term of his service, is not a waiver or abandonment of his claim for damages against his first employer. It is the employe’s legal .du.ty to use due diligence to obtain new employment. 3. Same. Same. Discharge of employe from the new employment. The lawful discharge from the new employment of an employe illegally discharged from a former employment cannot affect the right or amount of his recovery against his first employer, where, immediately after his lawful discharge, he obtains other employment for better wages and a longer time.
93 Tenn. 166Blass v. Helms (1893)
WILL. Class doctrine illustrated. A testator devised certain lands to his widow for life, and “at her death” to his son, and then provided that if the son should “die without any child or children living at the death of my wife, or if he should die after the death of my wife, without leaving any child or children, I devise the same to the living children of my daughter, Mrs. B., and the child or children of any of her children that may be dead.” Both widow and son survived testator. The widow survived the son, who left no children. Testator’s daughter, Mrs. B., had two children at the date of the widow’s death, one of whom subsequently died without issue. She had likewise two other children born after the widow’s death. Held: i. The children of Mrs. B. living at the date of the widow’s death took the lands as a class, to the exclusion of the after-born children. 2. The survivor of the class took the entire fee upon the death of the other, to the exclusion of the after-born children. Case cited and approved: Satterfields/. Mays, II Hum., 58.
93 Tenn. 173Railroad v. Spence (1893)
1. Master and Servant. Conductor is not fellow-servant of fireman. A conductor in charge of a freight-train, with authority to direct and control its movements, bears the relation of vice-principal, not of fellow-servant, to a fireman thereon. (Post, pp. 177-187.) Cases cited and approved: Railroad w. Wheless, io Lea, 746; Railroad v. Lahr, 86 Tenn., 340; Railroad v. Collins, 85 Tenn., 227; Railroad v. Bowler, 9 Heis., 866; Railroad v. Handman, 13 Lea, 423; Mining Co. v. Davis, 90 Tenn., 718; Railroad v. DéArmond, 86 Tenn., 78; Railroad v. Kenley, 92 Tenn., 207; 112 U. S., 390; 3 Ohio St., 210; 13 Sup. Ct. Rep., 914. 2. Same. Railway company's liability for injury caused by conjoint negligence of condtictor and engineer. A railway company is liable for an injury to a fireman resulting from the negligence of the engineer in the operation of its train, if the negligence of the conductor, having charge of the train as a vice-principal, contributed thereto materially and proximately. (Post, pp. 177-187.) 3. Charge of Court. Innoctious error. An objectionable statement in a charge of the court, if fully'explained in immediate connection therewith, so that it could not have misled the jury, is not reversible error-. (Post, p. 187.) 4. Evidence. Erroneous exclusion cured by subsequent admission. Sustaining an objection to a question is not reversible error if the answer is subsequently obtained by other questions. (Post,pp. 187,188.) 5. Damages. Method of calculation. Amount of damages for the wrongful taking of life must be left to the soumj. discretion of the jury, upon consideration of the several elements involved, and cannot be made the subject of mere mathematical calculation, upon the basis of what the deceased would have earned during his expectancy of life. (Post, pp. 188-190.) Case cited: Railroad v. Stacker, 86 Tenn., 343.
93 Tenn. 191Reliance Coal, etc., Co. v. Kentucky Coal, etc., Co. (1893)
I. Lease. Reservation in lease of coal' lands touchmg ways and slruchtres construed. A clause in a lease of coal lands, reserving to the lessors such portions of the leased lands as may be necessary for roads, railways, waterways, side-tracks, and other structures necessary for the profitable working of other lands of the lessor, but not to injuriously interfere with the lessee, applies only to surface-ways and structures, and does not authorize underground entries and ways or the establishment of tipples, chutes, and other mining conveniences, in the absence of express terms to the contrary, since such ways are not of necessity. Case cited and approved : Pearne v. Coal, etc., M. & M. Co., 90 Tenn.,. 629. 2. Same. Same. A reservation in a lease of coal lands, retaining to the lessor or its assigns the joint use with the lessee of all such portions of the land as may be necessary for roads, tracks, or structures for the profitable working of other lands in the vicinity, does not authorize a structure designed for the exclusive use of the lessor’s assigns.
93 Tenn. 201Chadwell v. Chadwell (1893)
Boundary. Estoppel as to. A land-owner and his heir are estopped to dispute the correctness of a boundary line established by the former and asserted or acquiesced in by both for a period of thirteen years, during which the adjoining lands have been purchased to and upon faith of that line, especially where the line has been established in conformity to the more reasonable construction of the conflicting calls of the title-papers of the adjacent owners. Cases cited and approved: Spears v. Walker, I Head, 165; Merri-wether v. Larmon, 3 Sneed, 447.
93 Tenn. 208Bank v. Morristown (1893)
Taxation. Exemption of $1,000. Each citizen, whether a married woman or other person, owning taxable personal property is entitled to exemption out of same to the extent of $1,000 from State, county, and municipal taxation. Constitution construed: Art. II., Sec. 28. Acts construed: Acts 1891, Ch. 26, Sec. 1, Subsec. 6 (Ex. Sess.). t
93 Tenn. 213Guy v. Lumber Co. (1893)
FROM ANDERSON. Appeal in error from tbe Circuit Court of Anderson County. W. R. Hicks, J.
93 Tenn. 216Boyer v. State (1893)
Criminal Practice. Erroneous method of charging the jury. .The Court erroneously invades the province of the jury by stating to them, in his charge in a criminal case, that certain enumerated facts shown in proof, “ strongly indicate” the defendant’s guilt. Constitution construed: Art. VI., Sec. 9. Cases.cited and approved: Jones v. Iron Co., 14 Lea, 157 j Leihl v. „ Ottenville, 14 Lea, 191; Cantrell v. Railroad, 90 Tenn., 638; Bank v. Harris, 2 Hum., 311 ; Ivey v. Iiodges, 4 Hum., 154; Kirtland v, Montgomery, I Swan, 452. Cases cited and distinguished: Poe v. State, 10 Lea, 679; Wilcox v. State, 3 Heis., 118; Plughes v. State, 8 Hum., 75.
93 Tenn. 221Downing v. Dunlap Coal, Etc., Co. (1893)
Supersedeas. Of appointment of receiver. A supersedeas is properly granted by a judge of this Court to stay an interlocutory order of a Chancery Court, based alone upon bill, answer, and ex parte affidavits, placing a solvent and going corporation in the hands of a receiver pending a suit by the minority of its stockholders, seeking to'wind up its affairs, thereby determining, finally, in advance of a hearing on the merits, issues made by the pleadings vital to the interests of the parties, and wresting the management of the corporation from the majority of its stockholders, and changing a deliberate policy of great importance, asserted by the defendants in their answer to have been adopted by assent of complainants. Cases cited: Railroad v. Huggins, 7 Cold., 217; Mabry v. Ross, 1 Heis., 7^9; Park». Meek, 1 Lea, 80; Redmond v. Redmond, 9 Bax., 561; Roberson v. Roberson, 3 Lea, 50; Baird v. Turnpike Co., 1 Lea, 394; Enochs v. Wilson, 11 Lea, 228; Richmond v. Yates, 3 Bax., 204; Cone». Paute, 12 Heis., 506; Ho ge». Hollister, 8 Bax., 534; Payne ». Johnson, 1 Leg. Rep., 363.
93 Tenn. 239State v. Morristown (1893)
1. Municipal Corporations. Subscriptions to railroads. A subscription by a municipal corporation to the capital stock of a proposed railroad cannot be sustained under Acts 1887, Ch. 3, unless the application therefor purports in terms upon its face to have been ^made under that statute. This requirement of that statute is mandatory. (Post, pp. 241-248.') Acts construed: Acts 1887, Ch. 3. 2. Same. Same, A subscription by a municipal corporation to the capital stock of a proposed railroad cannot be sustained, under our statutes, when the application therefor describes two lines beginning at the same point, one with fixed terminus at the other end, and its line located by survey and cost of its construction estimated, as required by the statutes, and the other left wholly indefinite, but suggesting a different line and terminus, without estimate of cost of construction, arid the road is actually built upon a line and to a terminus other than that defined in the proposition. (Post, pp. 248-250.) Code construed: §§491 a, 1142-1165 (T. & S.); 1278-1297 (M. & V.). Cases cited and approved: Pulaski v. Gilman, MS., Nashville, 1880 Winstons. Railroad, I Bax., 60. 3. Same. Same. Estoppel. A municipal corporation cannot be estopped to deny its liability upon? a subscription to the capital stock of a proposed railroad, made without a.lawful vote authorizing it,'by the failure of its Board of Mayor and Aldermen to object to the construction of the road over a route- and to a terminus other than that defined in the proposition upon which the subscription was made. (Post, pp. 250-252.) Case cited and approved : Milan v. Railroad, II Lea, 329.-
93 Tenn. 253Henegar v. Seymour (1893)
1. Boundary. Between the Hiwassee and Ocoee Districts. The Court determines, upon the facts stated in the opinion, that there is not a strip or ‘‘gore” of vacant, unsectionized land between the Hiwassee and Ocoee Land Districts. 2. Evidence. Preponderance of. In ejectment for a strip of land claimed by the plaintiff to have been left unsurveyed and unsectionized, evidence in support of plaintiff’s theory by a surveyor of only five years’ experience, and none in the mountains of East Tennessee, who is shown to have made numerous mistakes in the survey, which is controverted by four exjierienced surveyors of many years’ practice, does, not warrant a judgment for plaintiff, where a part of the land has been in defendant’s possession, under inclosure and in cultivation for over forty years, and other portions for more than seven years, and it was the evident purpose of the Legislature to sectionize all the lands in the district, and abutting land-owners recognized that no strip was left unsurveyed.
93 Tenn. 261Marshall v. Russell (1893)
Gift. Sufficiency of delivery. Marshall went to Shown’s office and handed him a note case containing a batch of notes aggregating about $12,000, stating that he had given them to his wife, and that he desired Shown, who was an attorney, to collect or renew them in the name and for the benefit of the wife. Shown accepted the trust. After Marshall had left Shown’s room, but before he had retired from the building, he returned and obtained one of the notes, for $r,ooo, and immediately took and presented it to another person (Brumley), stating his reasons for making the gift. Held: The Court cannot affirm that the delivery of the $1,000 note to Shown was not inadvertent, and therefore the subsequent gift to Brumley is valid. Cases cited and approved: McEwen v. Troost, 1 Sneed, 185; 2 Edw. Ch. (N.'Y.), 92; 46 Maine, 48; 104 Pa. St., 593.
93 Tenn. 270Headrick v. Fritts (1893)
1. Adverse Possession. Continuity of not broken, when. The continuity of adverse possession of land is not broken by the possessor’s offer to purchase a hostile claim for the purpose of quieting his own title. (Post, pp. 271 — 274.) 2. Outstanding Title. Effect of pleading. Pleading an outstanding title as a defense in ejectment does not estop, the pleader to dispute its validity or to set up his adverse holding against that title in a subsequent suit brought to enforce it against him. (Post, pp. 274, 273.) 3. Estoppel. Between attorney and client. An attorney having furnished, abstract of title, upon faith of which another has purchased and paid for land, cannot defeat such purchaser’s title by subsequently becoming the purchaser, at a nominal price, of an outstanding superior title, of which he had knowledge at the time, but did not mention in the abstract nor inform the purchaser until the purchase-price was fully paid. (Post, p. 275.)
93 Tenn. 276Citty v. Manufacturing Co. (1893)
Statute of Frauds. Must be specially pleaded. The statute of frauds must be specially pleaded whenever it is desired to rely upon it as a defense. Cases cited: Brakefield v. Anderson, 87 Tenn., 206; Sneed v. Bradley, 4 Sneed, 304; Townsend v. Sharp, 2 Overton, 192; Patton v. McClure, M. & Y., 348; Newman v. Carroll, 3 Yer., 26; Pipkin v. James, I Hum., 325; Crippin v. Bearden, 5 Hum., 130; 86 Am. Dec., 682; 10 lb., 747; 68 /A, 191; 78 Ala., 243; 32 Ark., 97; 69 Ill., 639; 82 Mo., 193; 76 Maine, 227; 143 Mass., 386.
93 Tenn. 281McDonald v. Railroad (1893)
1. Railroad Construction. Relation of railroad and conslmction company lo latter’s contractors. The railroad company and its construction company are jointly liable, upon the facts stated in the Court’s opinion, to persons employed by the latter to furnish labor and materials for the construction of the road. (Rost, pp. 283-288.) Cases cited:, 36 Fed. Rep., 815; 15 Am. & Eng. Ry. Cas., 100; 15 Id., 210; 2 Id., 7,7. 2. Same. Contractor's lien exists, when. And, in such case, persons furnishing labor and materials under contract with the construction company for the construction of the road, have a mechanic’s lien thereon as contractors of the railroad company and the construction company jointly. (Post, pp. 283 — 288.) Act construed: Acts 1883, Ch. 220. 3. Same. Same. A contractor with a railroad, who has negotiated notes received in part payment of his claim, is not first required to take up such notes before obtaining a judgment and lien for his services, but the judgment may provide for their payment out of the sum allowed. (Post, p. 289.) 4. Same. No lien for superintendent's salary. A superintendent of a railroad company is not entitled to a lien for his salary, although his services are rendered while the company is engaged in the construction of the railroad. (Post, pp. 290, 291.) Act construed: Acts 1883, Ch. 220. 5. Same. No lien for money advanced to purchase right of way. One who loans money for the purpose of procuring the right of way for a railroad is not entitled to a lien upon the specific right of way, in the absence of any agreement to that effect. (Post, pp. 291, 292.} 6. SAME. Engineer's estimates conclusive, when. In an action by subcontractors to recover for services performed in the construction of a railroad, a decree based upon the final estimate of a chief engineer is proper where there was an agreement between the parties that upon all matters of difference such estimates should be conclusive. (Post,pp. 2¶‡, 2gg.) 7. Judgment. Confession of void, when. A confession of judgment by a railroad company to a construction company is void as against creditors of the railroad company, where the two companies are in reality but one, having the same officers and managers. (Post, pp. 28q, 2go.) S. Attorney’s Lien. Exists, when. An attorney from whom papers, which he has a right to hold against a railroad company for the payment of his fees and for money loaned by him, have been taken under orders and decrees of the Court, thereby swelling the funds for the payment of creditors of the railroad company, is° entitled to be paid, out of the funds realized from the sale of the road, the debts for which such papers were held. (Post, pp. 2()1-20)‡.) Case cited: 3 Tenn. Ch., 621. 9. Attachment Lien. Does not attach to property in mstodia legis, when. No lien is acquired under an attachment made after the Court has taken charge of the attached property, although its receiver has not taken actual manual caption thereof. (Post, pp. 2go, 2gi.)
93 Tenn. 296Foy v. Sinclair (1893)
i. Principal and Surety. Relation exists, when. Where two joint owners of property convey it to secure the debt of one of them, the other assumes in the transaction the attitude of surety for the debt to the extent of the value of his interest in the property thus conveyed. 2. Same. Marshaling securities between creditors of. And judgment creditors of such surety, having obtained return of execution nulla bona, may, by appropriate proceedings in a Court of Equity, compel his principal’s creditors thus secured by conveyance of their joint property, to exhaust the principal’s interests embraced in the conveyance, and leave the surety’s interests, so far as practicable, for the benefit of his own creditors. Cases cited and approved: House v. Thompson, 3 Plead, 512; 41 N. J. Eq., 519. 3. Same. Release of sj.ireiy. And such surety and his property embraced in the joint conveyance, are released from all liability for the principal’s debt therein secured, where the principal, without the assent of the surety, renews the note evidencing the indebtedness, with different indorsers, and is granted by the creditor an extension upon the foreclosure of the joint trust conveyance.
93 Tenn. 305Taylor v. Railroad (1893)
1. Master and Servant. Who are not fellow-servants. A car-inspector and the crew of a switch-engine, employed by the company in the same railroad yard, are not fellow-servants. [Post, p. 307•) 2. Contributory Negligence. Proper request. In suit by a car-inspector against a railroad company for injuries sustained by him from being run over by a switch-engine while standing upon the track performing his duties in the company’s yard, where there is controversy as to whether the plaintiff looked and listened continuously while upon the track, it is reversible error for the Court .to refuse to charge, upon defendant’s request, that it was plaintiff’s duty to look and listen continuously, so long as he remained upon the track, and that his failure to do so would constitute such contributory negligence on his part as would defeat his action for any negligence of the crew of the switch-engine, unless they saw him on the track and could have prevented the accident and failed to do so. (Post, p. soy.) 3. Same. Incorrect requests. And in such case, there being evidence tending to show that plaintiff' was properly on the track, and exercising due diligence at the time of the accident, and also evidence tending to show the contrary, it was not error for the Court to refuse, upon defendant’s request, to give additional instruction to the jury to the effect that plaintiff’s action would be barred by his contributory negligence if he was upon the track and knew that in the usual course of business an engine was likely to pass about the time of the accident, and failed to keep out of its way. Such request invades the province of the jury and ignores material features of the case. (Post, pfi. 310-313.)
93 Tenn. 314Stewart, Ralph & Co. v. Gracy & Bro. (1893)
I. Common Carrier. Not liable for loss by fire, when. The. destruction, by accidental fire, of goods in the custody of the owner’s warehouseman is not imputable to the negligence of a carrier who, four dáyá previously, had contracted to remove them, where it appears that the carrier had been diligent, and had been misled as to the warehouse in which the goods were stored, and that the delay was caused by an unusual press of business and the intervention of Sunday and a holiday. (Post, pp. SIS~SI9-) iz. Same. Same. The delivery of goods to a carrier is not complete, and, therefore, his liability for their accidental loss by fire does not attach, where the goods are destroyed in the custody of the owner’s warehouseman, after the carrier had contracted to ship the goods and had received the owner’s warehouse coupon and an order for delivery of the goods, but had not presented same or issued receipt or bill of lading for the goods. [Post, pp. 319, 320.) Cases cited and distinguished: Deming v. Railroad, 90 Tenn., 306; Watson v. Railroad, 9 Heis., 255.
93 Tenn. 322Webster v. Helm (1894)
i. Married Woman. Power to charge her equitable separate estate. A married woman having unlimited power of disposition may, as surety on a promissory note, bind and charge her equitable separate estate with its payment by express contract to that effect therein contained. [Post, pp. 323-327.) Cases cited and approved: 22'Wall., 337; 15 Vesey, 596; L. R., 6 Ch. Div., 166; Il>., 728; 2 Atlcyn, 68; 1 L. C. E. (W. & T.), *394. Cited and distinguished: Embry & Frierson v. Hodge, MS., Nashville, 1879; Maberry v. Neely, 5 Hum., 337; Chatterton v. Young, 2 Tenn. Ch. 7/2; Arrington v. Roper, 3 Tenn. Ch., 572; McClure 7). Harris, 7 I-Ieis., 379; Robertson v. Wilburn, I Lea, 633. 2. Same. Same. And her power of disposition is unlimited, and consequently her power to charge her separate estate by express contract is absolute, when the instrument under which she derives title contains no restrictions upon her power. [Post, pp. 32$~337')' Cases cited and approved: Young v. Young, 7 Cold., 461; Parker zc Parker, 4 Lea, 392; Lightfoot v. Bass, 8 Lea, 350; Grotenkemper v. Carver, 9 Lea, 281; Scobey v. Waters, 10 Lea, 551; Menees v. Johnson, 12 Lea, 563; Steifel v. Clark, 9 Bax., 470; Williams v. Whiteman, MS., Jackson, 1875; Lytton v. Baldwin, 8 Hum., 210; Cherry v. Clements, 10 Plum., 552; Kirby v. Miller, 4 Cold., 3; Shaclclett w. Polk, 4 liéis., 115; Ragsdale v. Gossett, 2 Lea, r73Ó; . Jordan v. Keeble, 85 Tenn., 412; Warren v. Freeman, 85 Tenn., 513; Eclcerly v. McGhee, 85 Tenn., 661. 3. Same. Same. And it is not material that she owns only a life estate and not the fee. (Post, p. 32S.) Cases cited and approved: 17 Vesey, 365; 2 Beavan, 245; 1 L. C. E. (W. &T.), *394. 4. Same. Same. And privy examination is not essential to her contract to charge her equitable separate estate. The contract may be by parol. (Post, ÍÍ- 327> 32$-) Code construed: 3347, 3350 (M. & V.); §§ 2486^, 2486c (T. & S.). Cases cited and approved : Warren z/. Freeman, 85 Tenn., 513 ; Eckerly v. McGhee, 85 Tenn., 661; Menees v. Johnson, 12 Lea, 561.
93 Tenn. 334Gates v. Card (1894)
1. Deed. Delivery and acceptance. A deed becomes irrevocable, and invests the grantee with absolute title, where, after being signed, and acknowledged, it is delivered to the grantee unconditionally, and retained by him for nearly two years, both parties intending that it should take effect. {Post, pp. S3SS39-) 2. Same. Second deed void. And, in such case, no title remains in the vendor, and none can be passed by his subsequent deed to another for the same land. {Post, PP- 339> 34°•) 3. Same. Purchaser's rights. And a purchaser from the first grantee upon the faith of his duly registered deed is not affected by the subsequent destruction or cancellation of that deed and conveyance of the land to another by the original grantor. {Post, pp. 339, 340.) 4. Resulting Trust. Insufficient evidence of. ' The uncorroborated evidence of husband and wife will not support the wife’s claim to á resulting trust in the husband’s property where the rights of third persons are involved. {Post, 340, 341.') Cases cited and approved: Page v. Gillentine, 6 Lea, 240; Groten- ' kemper v. Carver, 9 Lea, 280; Hardison v. Billington, 14 Lea, 346. 5. Same. Not available against an innocent purchaser. A resulting trust cannot be set up against an innocent purchaser. {Post, P- 341 ■) Cases cited and approved: Sandford v. Weeden, 2 Heis., 71-81; Gordon v. English, 3 Lea, 640; Chad well v. Wheless, 6 Lea, 312; Moore v. Walker, 3 Lea, 665. 1 6. ESTOPPEL. Of married woman by joining husband in signing deed. By joining her husband in the execution of his deed, the wife estops herself to dispute the grantee’s title thereunder, although her name does not appear in the face of the deed as a grantor. (Post, pp. ¡41, 342.) Cases cited and approved : Berrigan v. Fleming, 2 Lea, 271; Anderson v Akard, 15 Lea, 192.
93 Tenn. 343Roberts v. Lamb (1894)
Slander. Variance between pleadings and proof. Rule. In actions for defamation, the material and actionable words must be proved strictly as they are alleged in the declaration. It is not sufficient to prove equivalent words. The plaintiff need not prove all the words laid in the declaration, unless it takes all of them to constitute the cause of action; but he must prove enough of the words laid to amount to the substance of the charge, and this must be done by proof of the identical words laid. Equivalent words, or words of similar import, will not do. A variance is fatal. •Cases cited and approved: Hancocks'. Stephens, n Hum., 506; Dawson v. Holt, 11 Lea, 592.
93 Tenn. 346Irvine v. Dean (1894)
1. Attachment. Parties. A debtor who has made a general assignment, though a proper party, is not a necessary party, to an attachment suit brought against his assignee and a secured cz-editor to impound the amount due'to the latter under the assignment, and to subject it to the payment of his debts. {Post, pp. 347-350.) 2. Same. - Set-off not allowable. Where the creditor of a bank cashier has attached the latter’s deposit in the bank, no set-off can be allowed the bank upon the cashier’s account, as against such attaching creditor, for unliquidated damages resulting from the cashier’s gross mismanagement of the bank’s affairs. {Post, pp. 350, 331.) 3. Chancery Practice. Sworn answer to a petition. The answer, upon oath, of thg complainant in a chancery cause to the petition of an intervenor setting up an adverse claim, has not the weight and effect of a sworn answer to a bill where the oath is not waived. Its denial may be overcome by the testimony of a single witness. {Post, pp. 331, 332.)
93 Tenn. 353Akin v. Jones (1894)
FROM MAURY. Appeal from Chancery Court of Maury County. A. J. AbeRNathy, Oh.
93 Tenn. 369Postal Telegraph-Cable Co. v. Zopfi (1894)
1. Contributory Negligence. Correct charge. In an action against a telegraph company for injuries incurred by plain tiff’s infant daughter by her fall upon a telegraph-pole negligently left in front of his residence, where the defense is plaintiff’s contributory negligence in failing to remove the pole himself within a reasonable time,, it is not error for the Court to state, in addition to other unexceptionable propositions, that if such negligence of the plaintiff simply contributed to or assisted in bringing about the injury without being its efficient cause, while the defendant’s negligence remained as the efficient and controlling cause, then plaintiff’s contributory negligence will not defeat the action entirely, but must be considered in mitigation of damages only. Cases cited and approved: Dush v. Fitzhugh, 2 Lea, 307; Whirley v. Whiteman, I Head, 610; Railroad v. Fain, 12 Lea, 40; Railroad v. Fleming, 14 Lea, 135. 2. Same. Concurrent with natural cause. One who has negligently left a telegraph-pole in an improper position is liable for injury sustained from a fall upon it by one necessarily stepping over it, although the wetting, by rain, of the platform on which such person steps may contribute partially or wholly to his fall, when it is reasonably certain that the latter cause alone would not have been sufficient to produce the injury sustained. Cases cited and approved: Deming v. Cotton Press Co., 90 Tenn., 353; Railroad v. Kelly, 91 Tenn., 705; 41 Am. Rep., 612; 27 Am. Rep., 396; 50 Am. Rep., 567; 22 4.m. Rep., 733; 16 Am. Rep., 33 ; 4 L. R. A., 406.
93 Tenn. 377Moulton v. Connell-Hall-McLester Co. (1894)
1. Corporations. Suit by creditor to recover outstanding corporate assets. A few, less than all, of the creditors of an insolvent corporation, that has made a general assignment, cannot'maintain suit to recover an outstanding asset of the company for their exclusive benefit, or at all, unless the assignee has refused, upon proper request, to bring the suit. (Post, pp. 381-385.) Case cited: Wallace v. Bank, 89 Tenn., 530. 2. Same. Enforcement of director's statutory liability. The statutory liability of directors for debts of the corporation, contracted, with their consent, in excess of the amount of the capital stock paid in, cannot be enforced by the suit of a few, less than all, of the creditors of the corporation, whose'debts have been thus created, but must be recovered by suit brought by all, or by some on behalf of all, of the creditors for whose debts the directors of the company have rendered themselves liable. (Post, pp. 385-388.) Cases cited: 93 U. S., 231; 20 Wall., 520; 113 U. S., 302. 3. Same. Directors' statutory liability. Assent. The facts of this case do not show such assent of the directors to the creation of debts by the corporation in excess of its paid-up capital stock, as is requisite to fix upon them the statutory liability under that clause of the company’s charter providing: “If the indebtedness of such company shall, at any time, exceed its capital stock paid in, the directors assenting thereto shall be individually liable to-creditors for such excess.” (Post, pp. 378-381, 385, 386.) Act construed: Acts 1875, Ch. 142, §11.
93 Tenn. 390Jordan v. Everett (1894)
1. Separate Estate. Priority of creditors' liens thereon. Between creditors of a married woman whose several debts constitute chaiges upon her separate estate, that one secures the first lien, and is entitled to priority of satisfaction, whose suit in equity for enforcement of his charge is first perfected into a lis pendens. [Post, pp. 39*~395-) Cases cited and approved: Petway v. Hoskins, 12 Lea, 107; Tharpe v. Dunlap, 4 Heis., 685. 2. Same. Jurisdiction of Chancery Courts over. The jurisdiction of Chancery Courts to enforce payment of debts charged upon a married ■woman’s separate estate is inherent and exclusive. It has not been changed by statute. (Post, pp. 394, 395-) Code construed: §§5022, 5026-5030 (M. &V.); $¡4279, 4283-4287 (T. & S.) ; Graham v. Merrill, 5 Cold., 632; Cowan v. Dunn, 1 Lea, 68; Brooks v. Gibson, 7 Lea, 271; Jordan v. Keeble, 85 Tenn., 416; Warrens. Freeman, 85 Tenn., 513; Eckerly v. McGhee, 85 Tenn., 661. 3. Same. Pleadings. And the creditor ripens his charge upon the separate estate into a fixed lien thereon, and becomes entitled to priority of payment, by filing his bill and securing issuance and service, of process, although he had'not previously obtained judgment upon his debt, and did not make affidavit to his bill, and did not seek or obtain attachment or injunction thereunder. (Post, pp. 395, 396.) Cases cited and approved: Petway v. Hoslcins, 12 Lea, 107; Brooks r. Gibson, 7 Lea, 271; Cowan v. Dunn, I Lea, 68; Shelton v. Johnson, 4 Sneed, 680; Whiter. Railroad, 7 Heis., 5x9; Roberts v. Francis, 2 Heis., 133; Tharpe v. Dunlap, 4 Heis., 685; Jordan v. Keeble, 85 Tenn., 416. ‘
93 Tenn. 397Steedman v. Dobbins & Dazey (1894)
1. Assignments, General. What is not. From the face of the conveyance alone il must be determined whether or not an instrument constitutes a general assignment within the meaning of Acts 1881, Ch. 121. Hence, an instrument which does not, upon its face, purport to be a general assignment, and does not comply, nor purport to comply, with said Act, but, on the contrary, creates preferences and omits schedules, cannot be converted into a general assignment by parol proof that it embraced all the maker’s property, and then set aside as illegal and void for failure to comply with the Act. Such instrument does not fall within said Act, and is valid as a special assignment. [Post, pp. 398-405.) Acts construed: Acts 1881, Ch. 121. Cases cited and approved: Belding Bros. v. Frankland, 8 Lea, 67; Ord-way v. Montgomery, 10 Lea, 51S — 520j Cowan, McClurg & Co. v. Gill, 11 Lea, 675 ; Flays v. Covington, 16 Lea, 262 ; Hill, Fontaine & Co. v. Alexander Bros., 16 Lea, 496; Rosenbaum v. Miller, 85 Tenn., 653; Lookout Banks'. Noe, 86Tenn., 21; Scheibler v. Mundinger, 86Tenn., 674; Kinsey & Franklin v. Wakely, MS. (1877); Orr, Jackson & Co. v. Buchanan, MS. (1889); Morrow?/. Hughes, MS.; Lemon, Hale & Co. v. Johnson, MS. (1893). 2. Stare Decisis. Example. Acts of 1881, Ch. 121, relating to general assignments, having through a period of thirteen years been uniformly construed, by repeated decisions of this Court, to require that the instrument shall disclose its character upon its face, and that construction having been acquiesced in by the Legislature and acted upon by the legal profession and the business public, it will not be changed, in the absence of the most urgent reasons and convincing evidence that more good than evil would result from the change. (Post, pp. 405, 406.) 3. Construction. Of Acts 1881, Ch. 121, strict. It is settled that Acts 1881, Ch. 121, must be strictly construed. (Post, p. 407.) Cases cited and approved : Hill, Fontaine & Co. v. Alexander, 16 Lea,, 496; Lookout Bank v. Noe, 86 Tenn., 26; Scheibler v. Mundinger, 86 Tenn., 674.
93 Tenn. 409Kirkpatrick v. Puryear (1894)
1. Payment. By check. The indorsement of the check of another to a creditor, in settlement of notes and an account, accompanied by a surrender of the notes and a receipt in full of the account, will be regarded as payment, in the absence of any agreement to the contrary. {Post, ftp. 410-413.) Cases cited: Springfield v. Green, 7 Bax., 301; 75 Va., 726; 86 Va. 2. Bills and Notes. Release of indorser of check. The indorser of a check is released by failure, for several days, to present it at a bank in the same place, during which the bank fails and the collection of the check is rendered impossible, when there was a deposit out of which it would have been paid if promptly presented. {Post, ftp. 414, 413.) Cases cited and approved: Bank v. Merritt, 7 Heis., 193; Schoolfield v. Moon, 9 Heis., 173. 3. Same. Same. Burden of proof . The holder of a check has the burden of proving that the indorser was not injured by delay in presenting it until after the bank had failed, where the indorser has proved that it was not duly presented for payment; and this is the rule, whether the suit is brought on the check, or on an indebtedness to pay which the check was transferred and indorsed. {Post, ftp. 413-421.) Cases cited and approved : Bank v. Merritt, 7 Heis., 177; Betterton v. Roope, 3 Lea, 215. Cited and distinguished: 38 N. Y., 289; 3 Lansing, 29; 43 N. Y., 171; 10 Wend., 304; 13 Id., 549; 2 Hill, 425; 2 Black, 350; 43 Ohio St., 53. .4. Same. Same. Extinguishment of original indebtedness. The extinguishment of the liability of an indorser of a check by failure to present it until after the bank has failed, extinguishes1 his liability also on an indebtedness for payment of which the check was indorsed. {Post, pp. 415-421.)'
93 Tenn. 422Maupin v. Blanton (1894)
x. Redemption of Land. To whom redemption-money must be paid. To effect redemption of his land sold for debt, either under execution at law or under decree of the Chancery Court, the.debtor must pay the redemption-money either to the purchaser personally, or, in case that is impracticable, to the Clerk of the Circuit Court of the county in which the land lies. Code construed : \ 2959 (M. & V.). Acts construed: Acts 1889, Ch. 83. • Case cited: Rothwell v. Gettys, II Hum., 135. 2. Same. Same. And payment of the redemption-money to the Clerk and Master is ineffectual, even where the sale was made by him under decree of the Chancery Court and the fund realized placed in his hands as receiver, to be loaned out for the benefit of the creditor.
93 Tenn. 428Nelson v. Kinney (1894)
1. Fraudulent Conveyance. What is not, betiveeiz husband and wife. A conveyance by a husband to his wife, at a time when he is solvent,, and not in anticipation of insolvency, and without any intent to defraud existing or subsequent ci*editors, in consideration pf his moral duty to provide for her and to protect her against his recklessness, dissipation, and gambling debts, is not fraudulent as against creditors of a firm of which he is a member, whose debts were contracted without knowledge of the property conveyed to the wife. (Post, pp. 440,441.) 2. Same.' What is not, between parent and child. A father has the right, upon becoming insolvent and unable to provide-for his debts, owing to general financial depression throughout the country, to prefer a debt due his daughter, by conveying properly to her in which he has an equitable interest, and such conveyance, made in good faith, is not fraudulent as against his creditors oir creditors of a firm of which he is a member.
93 Tenn. 446State v. Odom (1894)
1. Criminal Costs. State’s liability is strictissimi juris. The liability of the State for costs of criminal prosecutions is strictissimi juris. It does not attach except in the special cases, and cannot be enforced except in the particular manner, distinctly prescribed by statute. Cases cited and approved: State v. Delap, Peck, 91; Tucker v. State, 2 Head, 555; Avery v. State, 7 Bax., 328; State v. Nolan, 8 Lea, 663; State v. Martin, 10 Lea, 549; Morgans. Pickard, 86Tenn., 211. 2. Same. Same. Example. To justify judgment over against the State for State’s costs previously adjudged against a defendant upon conviction for a felony, the Court must either adjudge defendant insolvent or have return of execution milla bona. The certification of the bill of costs by the judge and district attorney, and its payment by the county, does not supply the want of such adjudication of insolvency or return of nulla bona. Cases cited and approved: State v. Delap, Peck, 91; Tucker v. Slate, 2 Head, 555; State w. Martin, ro Lea, 550. 3. Same. Retaxation. A county that has improperly paid a duly certified bill of costs in a larceny case, for which the State and not itself was liable, cannot subsequently recover of the State the amount thus paid, by mere motion to retax costs in 'the original case. The proceeding would be, in effect, a suit against the State, which is forbidden by statute. Such payment would be voluntary and officious. The county’s claim is not for costs, but for money paid for use and benefit of the State. The remedy, if any, is by appeal to the Legislature. Code construed : §3507 (M. & V.).
93 Tenn. 451State v. Ledford (1894)
FROM MONTGOMERY. Appeal in error from Criminal Court of Montgomery County. M. Savage, Sp. J.
93 Tenn. 454Colvert v. Wood (1894)
1. Wills. Election and its effects. Testator devised to his widow and eight children, or their representa■tives, specific and distinct interests or parcels of realty. Three dev-isees declined to take under the will, and recovered, by suit, three undivided fifths in the lands devised to themselves and two others, respectively, upon the theory that these lands were the property of a firm composed of testator, said three dissenting devisees, and another. The testator’s one-fifth interest in the partnership lands devised to the three dissenting devisees, and withdrawn from the operation of the will by their dissent, having been sold, the present contest arose over the distribution of this fund, the three dissenting devisees claiming that it should be distributed as in case of intestacy, and the disappointed devisees, who were deprived of their portions under the will by the action of the said dissenting devisees, claiming that it should be applied to compensate them for the loss thus inflicted. Held: The dissenting devisees are estopped, by their election, to take any thing under the will, and further estopped to take, as heirs, any part of said fund until the disappointed devisees have been fully compensated for their loss. (Post, pp. 456-463.) 2. SAME. Same. And the facts stated make a clear case where the three dissenting de-visees were put to and exercised their right of election. {Post, pp. 459’ 4b°-) 3. Same. Not annulled by devisees' dissent, when. And the devises and legacies of this will, being specific and independent, and for the most part not affected by the action of the three dissenting devisees, the entire will is not thereby rendered nugatory. {Post,pp. 463, 464.)
93 Tenn. 469Phillips & Buttorff Mfg. Co. v. Campbell (1894)
1. JURISDICTION. Of Circuit Court to enforce mechanics' lien. Circuit Court has not jurisdiction of suit to enforce mechanics’ lien, where the amount involved does not exceed fifty dollars. Code construed: ¡¡§ 2747, 4286, 4290, 4898, 4997, 5002 (M. & V.) ; 22 1987» 3543. 3547, 4123, 4225, 4230 (T. & S.). Cases cited and approved: Brown v. Brown, 2 Sneed, 437; Reeves v. Henderson, 90 Tenn., 523; Spradlin v. Bratton, 6 Lea, 685. 2. Mechanics’ Lien. What is. And the furnishers’ lien is, for this purpose, treated as the mechanics’ lien. Cases cited and approved: Bassett v. Bertorelli, 92 Tenn., 553; Cole Mfg. Co. v. Falls, 90 Tenn., 468; Reeves v. I-Iendefson, 90 Tenn., 523; Green v. Williams, 92 Tenn., 221; Lumber Co. v. Thomas, 92 Tenn., 588.
93 Tenn. 476Kirkman v. Brown (1894)
1. Statute of Limitations. Accidental inclosure and occupation of land not advet'se to owner. Accidental and unintentional inclosure and occupation of land for the term of seven or more years does not affect the rights of the true owner or invest the possessor with any right whatever to the land or to its possession. To invest the possessor with title or a pos-sessory right, his possession must have been taken and held intentionally and adversely for the requisite term, and m such open and notorious manner that the true owner may he reasonably presumed to have known and acquiesced in it. Cases cited and approved: Pullen v. Hopkins, I Lea, 744; Brocltw. Burchett, 2 Swan, 31; Harrs'. Gilliam, I Cold., 502; Gates s'. Butler, 3 Hum., 447. 2. Same. Same. Case in judgment. Complainants owned a 1,000-acre tract of land, within the boundaries, of which was included a 40-acre tract owned by defendants under a confessedly superior title. Defendants undertook to build a house and make inclosures upon their 40-acre tract, but, in doing so, accidentally and unintentionally extended their inclosures over their line in two places, thereby including about one acre of the 1,000-acre tract outside the 40-acre tract. The house was built upon the line of the 40-acre tract, two-thirds being situated accidentally outside of it and on the 1,000-acre tract. The defendants occupied the house and kept up their inclosures for more than seven years, but not claiming or paying taxes on any part of the 1,000-acre tract outside the forty acres. Complainants claimed and paid taxes on the 1,000-acre tract for thirty years. Held: Defendants acquired no interest in the 1,000-acre tract outside their 40-acre tract, not even a defensive title.
93 Tenn. 482Read v. Telephone Co. (1894)
1. Principal and Agent. Agent’s powers. An agent, with authority implied from a general agency, or expressly conferred, to sell the shares of stock of his principal, has no power to pledge them for his own individual debt or benefit. (Fast, pp. 488, 489.) Case cited: 120U. S., 20. 2. Corporations. Unauthorized transfer of stock. If a corporation transfers its stockholders’ shares upon its books, upon the assignment of the owner’s agent, without requiring production or proof of the agent’s authority, and the transfer proves to have been unauthorized, the company will be compelled, at the suit of the share-holder, to re-instate him to his rights. {Post, pp. 489-491.) Cases cited and approved: Caulkins v. Gas-light Co., 85 Tenn., 683; Smith v. Railroad, 91 Tenn., 230.
93 Tenn. 492Cumberland Telegraph & Telephone Co. v. United Electric Railway Co. (1894)
1. Electric Street Railways. Constructed and operated upon streets are not additional burden upon fee. An electric street railway, constructed and operated by means of an overhead trolley wire supported by poles, with the permission of the public authorities, for the transportation of passengers only, and conforming its track to the surface of the ground, is not an additional servitude upon the fee within the street, but a legitimate use of the streets within the purpose of their original dedication. But this principle does not extend to property rights outside the streets, which are subjected to loss or burden by reason of the extraordinary incidents attending the operation of such railways, and which were not contemplated or compensated for in the original dedication of the streets to public use. (Post, pp. 502-505.) Judges Wilkes.and Bright dissenting. Cases cited: 2 Am. R. R. & Corp. Cas. (R. I.), 44; 6 Am. R. R. & Corp. Cas., 335; 47 N. J. Eq., 380; 3 Ohio Cir. Ct. R., 425; 85 Mich., 634; 12 L. R. A. (Ohio), 534; 139 Pa. St., 419. 2. Same. Is ordinary use of streets. An electric street railway whose lines are constructed and operated in such manner as to constitute a legitimate use of the streets, and to impose no additional burden upon the fee, is an “ordinary use” of the streets, which telephone and other like companies are forbidden to obstruct by the terms of the statute authorizing them to occupy the streets. (Post, pp. 502-505.) Judges Wilkes and Bright dissenting. Act construed: Acts 1885, Ch. 66. 3. Electric Street Railways and Telephone Companies. Their status and rights upon the streets. The rights of electric street railway companies, and of telephone companies, to construct and operate their lines upon the public streets are, under our statutes, co-ordinate. Each is independent of the other within its own sphere. Neither is subservient to the other, though the sphere of telephone companies is circumscribed by the condition that they shall not obstruct the ordinary use of the streets. Each must exercise its powers with a careful and prudent regard for the other’s rights. Both are quasi public corporations, deriving their rights and franchises from the same source, and exercising them by the same authority. They are equally indispensable to the public, and should exist under conditions equally favorable to the accomplishment of the purposes of their creation. (Post, p. 502.) Acts construed: Acts 1885, Ch. 66; Acts 1887, Ch. 65; Acts 1889, Ch* 49. 4.Same. Conflict of poles and wires. An electric street railway company whose lines are constructed and operated in such manner as to constitute an “ordinary use” of the streets, is nevertheless liable to a telephone company for the damages inflicted, where the railway company enters upon a street, one side of which is already occupied by the poles and wires of the telephone cbmpany, and, by erecting its poles on both sides of the street, when one side would have sufficed, necessitates the change and removal of the poles and wires of the telephone company. (Dost, pp. goo, 5OIi SOS-) 5. Same. Damages cattsed by induction or parallelism. An electric street railway whose lines, constructed and operated in such manner as to constitute an “ ordinary use ” of the streets, are parallel to the pre-existing lines on the same streets of a telephone company, both companies using the earth as a return conductor, is not liable for damages inflicted upon the telephone company by those electrical disturbances attending such parallelism, known as “induction.” The occupation of the streets by telephone companies is upon condition that they shall not obstruct the “ordinary use” thereof. Liability for consequences of induction obstructs the railway’s free use of the streets. The telephone company’s damages therefore result from its own wrongful act. (Dost, pp. 499, goo, yog, goó.) 6. SAME. Damages caused by conduction or leakage. An electric street railway, lawfully constructed upon the streets, and, in its operation, using the earth as a return conductor, according to an approved system, and producing non-natu'ral electric conditions on and beyond the limits of the streets by reason of its collection and discharge into the earth of large and unusual quantities of electricity, must compensate a pre-existing contiguous telephone plant, constructed according to a long used plan, and also using the earth as a return conductor, but causing no disturbance of ordinary electric conditions anywhere, for damages inflicted upon it by the process-known as “conduction” or “leakage,” where the telephone exchange is located, and the telephone wires are grounded, on private properties outside the streets, and are there invaded and injured by the excess of electricity thrown off in the operation of the railway. (Post, pp. 4gS, 4gg, 306-326.) 7. Same. Same. Expense of putting in “McLeuer Device.” The “ McLeuer Device,” a large copper wire, attached at both ends to the outgoing telephone wires, and constituting a return conductor, being the cheapest effective remedy for injury by “conduction,” and capable of being applied alone by the telephone company, it is the right and duty of such company to resort to said “Device” for its own protection against loss by “ conduction,” and it may recover the cost of the same of the railway company. (Post, pp. 4gg, 324-326.) 8. Telephone Companies. Use of streets. By the terms of the statute granting telephone companies the use of' the streets, they are forbidden to obstruct their “ordinary use” by others. This limitation does not attach, however, to the use of their properties outside the streets. [Post, pp. 307, 308.) Act construed: Acts 1885, Ch. 66. 9. Same. Rights and franchises not revoked by statutes for benefit of street railways. The statute conferring franchises upon telephone companies is not repealed by implication by later statutes conferring franchises upon street railway companies. Repeals by implication are not favored. Repugnancy between statutes must be plain and unavoidable, or a later statute will not operate to repeal an earlier one. [Post, p, 308.) Acts construed: Acts 1885, Ch. 66; Acts 1887, Ch. 65; Acts 1889, Ch. 40. 10. Corporations. Revocation of franchise. Although the Legislature has power to revoke the franchises of a foreign corporation, and, since the Constitution of 1870, those also of any domestic corporation, yet this power cannot be exercised in a manner that would operate as a confiscation of the properties of such corporations for the benefit of others. And revocation of such franchises will not be presumed, but must appear by the clearest expression of' th'e legislative intent, especially where corporations have made large investments upon the faith of these grants. [Post, pp.308, 3og.) 11. Eminent Domain. What is a taking of property. The injury by “conduction” is a taking of the property of the telephone company by the street railway company, within the constitutional provision requiring compensation to be made for private property taken for public use. It imposes a burden upon telephone company’s property that impairs its use and value. The loss is fixed and definite in amount. It makes no difference that no material- thing was taken, or that the loss resulted, not from contact of material things, but through the agency of the subtle and impalpable electric fluid. The important consideration is that a thing of value has been taken from the telephone company for the benefit of the street railway company, as the representative of the public, and for that thing compensation must be made. (Post, pp. 310-524.) 12. Same. Same. Loss by conduction is not to be classed as a mere “inconvenience” or “consequential injury,” that must be borne without compensation, as a common burden for the public benefit. (Post. pp. 522, 323.)
93 Tenn. 542Seat v. McWhirter (1894)
1. Deeds. Capacity. Undue influence. Where the maker of a voluntary conveyance is capable of doing the act, and there is no fraud, no concealment, and no advantage taken, the Court will not interfere. (Post, pp. 558-569.) Cases cited and approved: Hadley®. Latimer, 3 Yer., 537; Coffee v. Ruffin, 4 Cold., 514. 2. Same. The law does not require that persons shall be able to dispose of their property with judgment and discretion in order to the validity of a conveyance. It is sufficient if they understand what they are about.' (Post, p. 569.) 3. Same. The fact that grantees advised and encouraged the execution of the voluntary deeds does not impair the validity of the instruments, unless the free agency of the grantor was destroyed. (Post, pp. 569, 570.) 4. Wife’s Rents. Where wife leaves entire management of her property to her husband, and does not, during his life, seek to charge him with rents, his representative cannot be called on to account for such rents and interest. (Post, pp. 556, 557.) Cited and approved : Lishey v. Lishey, 6 Lea, 418.
93 Tenn. 571Hunter v. Memphis (1894)
'I. Taxation. Effect of clause “in lieu of all other taxes." A statute imposing upon each insurance agent or firm doing business in this State a specific-State privilege tax declared to be “in lieu of all other lax,” repeals, by implication, an earlier statute levying a specific municipal privilege tax upon agents of foreign insurance companies doing business in a named taxing district. Acts construed: Acts 1893, Ch. 89; Acts 1879, Ch. 84. .3. Statutes. Repeal by implication. .Doctrine re-affirmed that repeals of statutes by implication are not -favored, and that a later statute will not be held to operate as a repeal of an earlier one unless the repugnance and conflict between them is such that they cannot stand together. Cases cited and approved: Insurance Co. v. Taxing District, 4 Lea, 644; Maney v. State, 6 Lea, 221; Knoxville v. Lewis, 12 Lea, 181; Ballentine v. Pulaski, 15 Lea, 633; The Druggist Cases, 85 Tenn., ' 450; Poe v. State, 85 Tenn., 495; Terrell v. State, 86 Tenn., 523.
93 Tenn. 577Grosvenor v. Bethell (1894)
i. Mortgage. Of opera-house. A mortgage by an incorporated opera-house company, made after purchase of lot and while theater buildings are in course of erection thereon, conveying the lot “and all the buildings and improvements thereon, or to be erected thereon,” operates to pass all furniture, fixtures, and furnishings then or thereafter placed in the theater building and essential to its successful operation. (Post,pp. 583-387.') Case cited and approved: Halley v. Alloway, 10 Lea, 524. 2. Same. Liability for taxes. The purchaser of real estate at mortgage sale is liable for taxes accrued thereon for the year of the sale, which are not due and have not been assessed at that date, when the mortgage, though containing covenant against incumbrances, provides that “all past-due taxes” shall be paid out of the purchase-price, and public announcement is made at the sale that the purchaser must pay the taxes of that year. (Post, PP- S87, 388.) 3. Same. Purchaser's claim to rents of leased property. The purchaser at mortgage sale of an opera-house then leased for a rental payable in quarterly installments, is not entitled to that portion of a quarter’s rental that accrues between date of sale and the date of his full compliance with its terms, when the purchaser is the sole cause of delay. (Post, ‡. 588.) 4. Taxation of Costs. Is a matter of discretion. The taxation of costs in equity causes is very largely in the discretion of the Chancellor, and will not be disturbed unless there has been manifest and palpable abuse of that discretion. [Post, pp. 588, 589.)
93 Tenn. 590Milan Milling, etc., Co. v. Gorten (1894)
Foreign Corporations. Their acts of interstate commerce valid and en-forcible. Where a foreign manufacturing corporation that has not complied with our statutes by registering its charter, contracts with a resident to-furnish, deliver, and put in position for him within this State certain mill machinery, and accepts for the work and materials furnished the purchaser’s notes for deferred payments, secured by mortgage upon real estate situated within this State, the transaction constitutes interstate commerce, which is not subject to regulation by State laws, and the notes and mortgage are valid and enforcible. Acts construed: Acts 1891, Ch. 122; Acts 1877, Ch. 31. Case cited and approved: 113 U. S., 727. Cited and distinguished: Cary-Lombard Lumber Co. v. Thomas, 92 Tenn., 587.
93 Tenn. 598Wallace v. Goodlet (1894)
FROM SHELBY. Appeal from Chancery Court of Shelby County. W. D. Beard, Ch.
93 Tenn. 603Gwynne v. Memphis Appeal-Avalanche Co. (1894)
1. Supersedeas. Of interlocutory decree of Chancery Court by Supreme Court. The interlocutory decree of a Chancery Court, rendered in a general creditor’s proceeding before adjudication of the rights and priorities of creditors, directing sale of the insolvent debtor’s property, consisting of a going daily newspaper plant and its appurtenances in the hands of and conducted by a receiver of the Court, will not be superseded by this Court, o.n application of the insolvent debtor based upon the ground that the decree will deprive him of .his property without a hearing on the merits, where it appears that the debtor’s assets are grossly insufficient to pay his debts, and rapidly depreciating in value, and in great peril of utter loss or destruction if sale should be delayed until final hearing. Code construed: §4701 (M. & V.) ; §3933 (T. & S.). Cases cited : Redmond -o. Redmond, 9 Bax., 561; Blake v. Dodge, 8 Lea, 464; Railroad v. Huggins, 7 Cold., 217. 2. Receiver. Of newspaper. While a Chancery Court has the power to appoint a receiver to manage and conduct the publication of a newspaper, it “will not take upon itself the responsibility of continuing the publication of a political paper by a receiver any longer than is absolutely necessary to prevent a sacrifice of the property.” Cases cited: 4 Paige, 480; 17 How. Pr., 510; 17 W. R., 425.
93 Tenn. 612Gas-light Co. v. Memphis (1894)
1. Municipal Corporations. Statute of limitations. A municipal corporation that levies and collects a specific tax for tile purchase of gas to light its streets, which tax, under the city charter, cannot be lawfully diverted to any other purpose, bears the relation of express trustee to a party who, under a valid contract, has furnished gas to the city, agreeing to receive the proceeds of said tax in payment; and no statute of limitation can bar the right of such party to recover of the city the proceeds of said tax. [Post, pp. 615, 616.) 2. SAME. Implied contract. A municipal corporation, restricted by its charter to contract in writing, and to create no general liability, is nevertheless liable, upon an implied contract, to compensate a party who has furnished gas for use upon its streets, when a specific tax has been levied and collected for that purpose, which cannot be lawfully diverted to any other. {Post, pp. 616-61S.) 3. Interest. Not allowed. Interest is not allowed, in this case, upon the recovery of the gas-light company against the city, although the debt had been due, and the tax which had been levied for its payment had been collected, for several years. {Post, p. 618.)
93 Tenn. 619Williams v. Dental Examiners (1894)
i. Dentistry.- Powers of State Board of Examiners. Under Act of 1891, regulating the practice of dentistry in this State, the State Board of Examiners therein created has power to refuse an application for license to practice dentistry based solely upon the diploma of a dental college, if the board shall deem that the college is not reputable; and the decision of the board in this regard cannot be coerced or reversed by the Courts, in the absence of arbitrary and oppressive conduct on the part of the board. Act construed: Acts 1891, Ch. 108. Cases cited and approved: Turnpike Co. v. Marshall, 2 Bax., 122; Whiteside v. Stuart, 91 Tenn., 710; 5 Col., 60; 83 Mo., 123; 15 S. W. Rep., 322; 32 Minn., 324; no Ill., 180; 20 N. W. Rep., 238; 51 N. W. Rep., 283; 18 N. W. Rep., 85; 28 N. E. Rep., 178; 17 How., 235, 2. Same. Same. The Court finds no evidence in this record of arbitrary or oppressive conduct on the part of the Board.
93 Tenn. 630Rogers v. Betterton & Co. (1894)
1. Chancery Practice. Waiver of deimirrer. A demurrer separately filed, and overruled upon argument, with leave to rely upon it in the answer,- is waived, though set up in the answer, unless it is again called up and disposed of before the cause is heard . upon its merits. (Post, pp. 632, 633.) » Cases cited and a]3proved: Boyd v. Sims, 87 Tenn., 774; Stephens v. Martin, 85 Tenn., 278; Kyles'. Riley, II Heis., 230; Caruthers s'. Caruthers, 2 Lea, 77> Hardin v. Eagin, 2 Tenn. Ch., 39. 2. Partnership. Partner's powers. A partner cannot, without the assent of his co-partners, apply firm assets to the payment of his individual debts. And the creditor of a single partner, knowingly receiving firm assets in payment of his debt, must account to the firm for its assets thus misappropriated. (Post, pp. 633-638.) Cases cited and approved: Foundry Co. v. Wisdom, 4 Lea, 699; Atkin v. Berry, I Lea, 91; 7 Wend., 326; 4 Johns., 251; 75 Va., 534; 94 Pa. St., 31-36; 33 La. Ann., 1455; 74 Mo., 138; 49 Miss., 761; 28 Ohio St., 55, 60; 46 Ill., 211; 54 N. H., 414; 18 Conn., 294; 15 Ala., 273; 10 Iredell, 89; 6 Jones, 44; 49 Ind., 530; 27 Minn., 390; 46 Ill., 211; 16 Johns., 34; 36 Wis., 131; 46 Conn., 592; 56 Mo., 558-562; 124 Ill., 474.
93 Tenn. 639Clark v. Jones (1894)
1. Bills and Notes. Indorsement of carries mortgage security. The transfer by indorsement of a promissory note carries with it, without formal assignment, the benefit of a deed of trust upon land given to secure the note. Cases cited and approved: Graham v. McCampbell, Meigs, 52; Cleveland v. Martin, 2 Head, 129; Roberts v. Francis, 2 Heis., 133; Mc-Callum v. Jobe, 1 Leg. R., 244; Anthony v. Smith, 9 Hum., 511 ; Thompson v. Pyland, 3 Head, 539. 2. Deeds of Trust. Foreclosure bill. Bill to foreclose a trust-deed is maintainable, although no obstacle exists, or is averred, to prevent sale by the trustee. Cases cited and approved: Bennett v. Union Bank, 5 Hum., 615; 56 Miss., 497. 3. Same. Same. Costs. But if foreclosure suit is needlessly resorted to, when sale by the trustee would have been equally effectual, the complainant will be taxed with the additional costs and expenses incident to his unnecessary suit. 4. Same. Same. Attorney's fees. And complainant’s attorney’s fees for the prosecution of such needless-suit will not be allowed against the defendant, under a stipulation in the note sued on that the maker should pay reasonable attorney fees for collection of the note, if it should be “necessary to resort” to-suit for that purpose. 5. Chancery Sale. Terms of under mortgage or trust-deed. Sale cannot be decreed, barring the right of redemption, upon foreclosure of a deed of trust providing for cash sale with right of redemption. The Court’s decree must conform to tlie contract of the parties. Cases cited and approved: Knox v. McCain, 13 Lea, 199; Frierson v. Blanton, I Bax., 272.
93 Tenn. 645Lookout Bank v. Aull (1894)
i. Bills and Notes. Rights of bona fide holder. The bona fide holder of a negotiable note, who acquired it in due course of trade, for value, before its maturity, and without notice of any condition affecting its delivery, can enforce it against a surety who signed and placed it in the hands of the principal, perfect upon its face, upon an express collateral agreement, which was never complied with or waived, that it should not be delivered to the payee until it had been signed by another designated person. Cases cited and approved: Merritt v. Duncan, 7 Heis., 156; Jordan v. Jordan, 10 Lea, 124; Perry z/. Patterson, 5 Hum., 132. 2.Same. Same. Note payable to bank cashier. < A note discounted for a bank, with its funds, but made payable to its cashier^ is the property of the bank, upon which it can, without the cashier’s indorsement, maintain suit in its own name with the same advantages as if the note had been made payable to the bank. Cases cited and disapproved: 20 Vt., 666; 4 Dev. & B., 274. 3.Same. Same. Payee protected as bona fide holder. The payee of a note will be protected as a bona fide holder to the same extent and under like conditions as an indorsee. , Case cited and approved: Jordan v. Jordan, 10 Lea, 134. 4.Same. Same. Taken for pre-existing debt. A note is not given for a pre-existing debt in such sense as to let in defenses against a bona fide holder who acquired it before maturity, where it is accepted in renewal and satisfaction of an older note with different sureties. Cases cited and approved: Nichol v. Bate, io Yer., 429; Cherry v. Frost, 7 Lea, 1; Jordan v. Jordan, 10 Lea, 134.
93 Tenn. 650Dun v. Garrett (1894)
.1. Bonds. Delivery in escrow. Where an unofficial bond, regular in form aud perfect on its face, has been delivered by the principal maker to the obligee, and accepted in good faith by the latter, as a complete instrument, without knowledge on his part of any fact calculated to excite suspicion or cause inquiry as to the manner of its execution and delivery, a surely thereon cannot successfully defend himself against liability that has already accrued by reason of the principal’s breach of the bond, upon the ground that the bond had been delivered by the principal maker to the obligee in violation of a private agreement between the principal and surety, made at the time the latter signed the bond and placed it in the principal’s hands, that it should not be delivered to the obligee until another person designated had signed it. Cases cited: Perry v. Patterson, 5 Hum., 132; Carriclc v. French, 7 Hum., 457; Majors z\ McNeilly, 7 Heis., 294; Breedin v. Grigg, 8 Bax., 163; Quarles v. Governor, 10 Hum., 121; Bryán v. Glass, 2 Hum., 390; Governor v. Organ, 5 Hum., 161; Ezell v. Justices, 3 Head, 587; Amis v. Marks, 3 Lea, 573; Jordan v. Jordan, 10 Lea, 124; 2 Durn. & East, 21 ; 63 Mo., 212 (21 Am. Rep., 440); I Salkeld, 289; 23 Mich., 457; 27lnd.,368; 32lnd., 1; 53 Maine, 284; 2 Met. (Ky.J, 608; 24 Grattan, 202; 16 Wall., I; 4 Cranch, 219; 32 N. Y., 445; 56 N. Y., 67; 1 Southern Rep., 276; 6 Ga., 202. 2. Same. Same. Burden of proof'. But it must affirmatively appear, in such case, that the obligee took the bond without notice of its conditional delivery by the surety to the principal maker.
93 Tenn. 661Crawford v. Carroll (1894)
Exemptions from Debt. Judgment for value of exempt property is exempt. A judgment, obtained by the owner of exempt property against a tort-feasor for its wrongful conversion or destruction, is exempt from the owner’s debts in like manner as the property itself had been. Code construed : § 2931 (M. & V.); \ 2lo8« (T. & S.). Cases cited and approved: Duffs'. Wells, 7 Heis., 17; Halls'. Fulghum, 86 Tenn., 451; White v. Fulghum, 87 Tenn., 281.
93 Tenn. 666Ross v. Meek (1894)
i. Chancery Practice. Final decree at return term proper, when. Final decree may be properly entered in a chancery cause at the return term of the process, where, after demurrer had been interposed and overruled, pro confesso was properly entered in default of an answer, which, under the practice of the Court, operated as an admission of averments of the bill, sufficient, without other proof or a reference, to entitle complainant to the relief sought. Code construed: $$112, 5113, 5137, 5138 (M. & V.); §§4369,4370, 4394, 4395 (T. & S.). Case cited and approved: Stone v. Duncan, 1 Head, 103. .2. Same. Effect of pro confesso. Where, in a suit upon a note exhibited with the bill, the complainant distinctly avers ownership of the note in himself, but his name appears indorsed in blank upon the back of the note, pro confesso operates as an admission by defendant of the fact of ownership as stated on the face of the bill.
93 Tenn. 671Galyon v. Gilmore (1894)
1. Homestead. County Court has not jurisdiction to assign* when. The proceedings of a County Court, though had without objection of parties, are void even upon collateral attack, for want of jurisdiction in the Court, and estop no one, whereby the homestead reserved in general terms by an insolvent debtor in making a general assignment is set apart to him, under decrees of the Court, upon the petition of’ the assignee filed against the debtor for that purpose alone. Code construed: {¡$4980-4984 (M. & V.). Cases cited: Rhea v. Meredith, 6 Lea, 605; Arnold v. Jones, 9 Lea, 545; Dean v. Snelling, 2 Heis., 484-487; Agee v. Dement, 1 Hum.,, 332; Dickson v. Caruthers, 9 Yer., 30. 2. Same. JVaiver of right not presumed» Where an insolvent debtor reserved his homestead in general terms in making a general assignment, and, by a subsequent arrangement between himself and the assignee, was assigned as homestead a portion of the estate incumbered with a lien, it is the duty of the assignee, in the absence of an express agreement of the debtor to assume the risk of the lien, to protect the homestead by paying off the lien out of the assets assigned, and upon his failure to do so, and consequent loss of the homestead, the debtor will be indemnified by an allowance out of the funds in the assignee’s hands. Cases cited and approved: Gray®. Baird, 4 Lea, 212; Bennett®. Austin, 10 Lea, 564; White v. Fulghum, 87 Tenn., 281. 3. Same. Same. And any agreement of the debtor to waive any of his rights to homestead must, in such case, be established by plain, positive, and direct proof.
93 Tenn. 679State v. Butcher (1894)
FROM KNOX. Appeal from Chancery Court of Knox County. Joseph W. Sneed, Sp. Ch.
93 Tenn. 687Underwood v. Smith (1894)
LlBEL. jRes adjudicata. A person responsible for the publication of a libel in different newspapers on different days, cannot plead a recovery for a publication in one paper on one day in bar of an action for a publication in another paper on a different day. Cases cited: Saunders v. Baxter, 6 Heis., 369, 392; 94 U. S., 4775 *6 N. Y., 548; 32 Am. Dec., 448.
93 Tenn. 691Grant v. Lookout Mountain Co. (1894)
1. Corporations. Liability for stockholders’ attorney fees. A corporation is liable for complainants’ reasonable attorney fees, incurred in the successful prosecution of a just and necessary suit by a minority of its stockholders against itself, its officers and directors, for the benefit of the company, to enjoin the fraudulent disposition of its properties, or to recover properties already fraudulently transferred. (Post, pp. óg^-yoil) Cases cited: Wallace v. Bank, 89 Tenn., 635; Deaderick v. Wilson, 8 Bax., 131; 45 Fed. Rep., 668; 17 Fed. Rep., 48; 105 U. S., 527; 113 U. S., 116; 151 U. S., 343. 2. Same. Same. Lien. And the attorney fees, in such case, constitute a lien upon the property recovered by the suit. Cases cited and approved: Perkins v. Perkins, 9 Heis., 95; Keiths'. Fitzhugh, 15 Lea, 50; Garner v. Garner, 1 Lea, 29.
93 Tenn. 702Rhodes v. Wood (1894)
Fraudulent Conveyance. Burden of proof. Where the husband’s creditors seek to set aside, as fraudulent, his deed to his wife, upon the averment, which is denied by an unsworn answer, that the recited consideration was fictitious and colorable, the burden is upon the complainants to prove the truth of this averment. Cases cited: Cox v. Scott, 9 Bax., 305; Yost v. Hudiburg, 2 Lea, 627; Washington v. Ryan, 5 Bax., 626.
93 Tenn. 708O'Connor v. Knoxville Hotel Co. (1894)
1. Chancery Pleading and Practice. Relief. Chancery Courts may grant, under the prayer for general relief, any relief other and different from that specifically indicated and prayed, which is justified by the averments of the bill. (Post,pp. 710-717.) Case cited and approved: Dodd?/. Benthall, 4 Heis., 608. 2. Corporations. Jurisdiction of Courts of Equity to wind tip defined. Chancery Courts will not entertain suits of minority stockholders to wind up the affairs of a corporation and distribute its assets, upon the averment that they disapprove of the management, or consider the speculation a bad one. Their remedy is to elect new officers ot-to sell their shares and withdraw. {Rost, p. 717.) 3. Same. Same. But, whenever, in the course of events, it'appears beyond question that it is impossible to attain the objects for which the corporation was formed, and that failure is inevitable, Chancery Courts will, upon the failure and refusal of the officers and directors of the company to put an end to its operations and wind up its affairs, enjoin, at the suit of stockholders, the use and diversion of the company’s property by the majority, and order its affairs to be wound up and its assets distributed among those equitably entitled. (Rost,pp. 711-713.) 4. Same. Same. Case in judgment. A stockholder can maintain a bill, filed on behalf of himself and all other slockholdeis, against the corporation, its officers and directors, to wind up its affairs and distribute its assets, when the complainant avers that the corporation was formed for the purpose of erecting, furnishing, and operating a hotel at a cost of $200,000; that only $72,000 had been subscribed, of which part was uncollected and part insolvent, and that no further subscriptions could be had; that, for a period of four years, nothing had been done in the enterprise; that, in the meantime, the tide of business had receded, so that the site purchased was no longer desirable for hotel purposes ; that taxes, interest, and expenses are rapidly absorbing the assets, which are entirely unproductive, and that debts are pressing, without cash assets to 'meet them; that, in fine, the original scheme has become utterly impracticable; and that the directors have refused, upon proper application, to call a meeting of the stockholders to take steps to wind up the company’s affairs and distribute its assets. {Post, pp. 713-717.) Code construed: ?¿ 4168 (M. & V.); ?¿ 3431 (T. & S.).