Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-03-28

Of the suit in favor Of the title Of the infant If
this be not sufficient to render him incompetent It
certainly tends to impair his credit. His claims to
credit must also be somewhat Impaired By the fact,
that the deposition taken at d time when ne was
Just recovering from state Of mental and physical
arrangement, result Of excessive intOxication, to
which he was subject. This fact is established, not
only By the proof Of Miss Burns but also by the de-
position of Mrs. Logan.
Ifhowevcr, we overlook the exceptions to testmo-
ny Of A Kernahan does it sustain the assumption,
that the lot paid for by him with his money?
The witness states the fact to be that he paid for
except the sum Of twenty dollars paid by Thomas
Patterson and that he obtained the money from the
Farmers and Merchants Bank
This is the only proof in support of the allegation
that the lot was paid for by Kernahan 1t is true
Titus proves he Endorsed note for Kernahan about
the year 1870 for about the sum Of $780, to be used
he understood, in building house. or in purchas-
! ing lot for his family. But whether or not the
money was actually received on the note thus in
dorsed. Is not proved or if received, there is no
! proof that 1t was applied to the payment of the
price Of the lot. except the uncorrobOraed state
ments Of kernahan IN opposition to which there Is
an overwhelming weight of evidence, direct and cir
cumstantlaL The whole testimony in the case, how
ever is perfectly recOncilable The fact that Kerr
nahan received $3.50 from the Bank may be admit
/ ted as proved; but was it applied? Titus says it
/ was to be used in building a house in the pur-
/ chase Of lOt-he does not know which. Now the
fact is shown that Immediately after the sale of the
house on said lot, and it is not questioned but that
all that ever was paid towards the expenses of build
ing the house, was paid for by Kernahan.
And from the whole record, tho conclusion is
forced upon the mind, that the $3.50 procured from
the bank must have been expended in paying for the
materials and the building of the house This view
recOnces the testimony of the witnesses with each
/ other and with what appears to be the very truth
of the case. And at most, it merely involves Ker-
nahan IN mistake as to the fact Of the apprOpra-
/ ton Of mOney-or rather perhaps, that in taking
his deposition he was, by misrepresentation or other
/ wise. made to say that the money was applied to
the payment Of the price Of the lot instead of to
! the purchase Of lumber and the expenses of the
building, which, 1t is admitted, he put upon the lot
In any lOther view Of the case it is impossible to
! give credit to Kernahsn's statement.
The proof establishes positively, that the purchase
| Of the lot was negotiated by Joseph Henderson on
behalf Of the wife and infant daughter of Kernahan
! who were reduced to the necessity of going into a
| shanty, by the intemperance and improvidence of
! the husband and father Top proves that Hender-
son paid the money for the lot that it was made up
as he understood, by the friends Of Mrs. Kernahan
| who had high esteem and affection for her. and
deeply sympathzed with her and her infant in their
abiect poverty. He further proves that he Vance,
(who owned the lot estimated its value at five or
six hundred dollars, but at the importantly of Hen
dersOn, Charles Lofand and other friends of Mrs.
Kernahan, agreed to take $3.50, intending the diff
ference between that sum and the value of the lot
as contribution on their part to Mrs. Kernahan
and her infant. And Top likewise proves that the
title was made to the infant daughter by the direc
ton OF the persons who made up the money to pay
for the lot
The witness, C. D. Mclean, proves that he was
called on by Joseph Henderson, as a friend of the
family Of kernahan, to assist in making up the money
| to purchase house for them, and that an appeal
! was made to him a brother Mason, to assist IN
the ante-TUOm Of the Lodge in the presence of Fra
| ser Titus E. Titus, Charles Lohand and others.
whose names he had forgotten, all of whom cOntri-
! buted, and handed the money over to Joseph Hen
derson, the witness himself, paying $40, and said
money, as he understands, appropriated to pay
| for the lot for kernahan's infant daughter.
Other testimony of a circumstantal character,
goes 70 place the truth of this fact beyond all rea-
sOnabe doubt and the allegation of the bill that the
| lot was thus purchased and paid for we regard as
sufficiently proved.
This single matter of fact is decisive of the case.
The consequence is that the sale of the lot upon an
execution against Andrew kernahan was simply
nulllty, and in way affected the the title OF the
infant daughter. And for this the auxiliary pro-
ceeding in Chancery alike imperative and void
and If necessary to the decision of this case, we
should likewise declare it void the ground, that
1t was in its inception, well in its progress and
: final cOnSummatOn. meditated scheme of fraud
between the next friend of the infant and the agent
Of Andrew Henderson, to take from her the bounty
intended to be secured TO her by friends of herself
and mother.
The decree Of the Chancellor will therefore be
affirmed. so far it gOes but the complanants are
seeking Equity, and must do Equity by accounting
permanent improvements made by Andrew Kerna-
han.
But the extent of tire liability will be left open I'M
til the final hearing. Decree for complainant
MCKINNEY.
Test: N. D. WEIGH, Clerk.