Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-12
sy-puEyIr COuRF OF rHE STATE OF
TENEESsEE.
Aprn Tcrm, 1866.

4" twenty OF more, eacn "
srPnEnE COURT OF rHE STATE OF
TENN ESsEE
Aprn Term, 1866.
Eveliue E. c. Gillespie VS. a. B. warford.
This was a bill brought by complain
ant in the common law and chancery
court of the city OF Memphis, to set
aside a deed of conveyance executed by
her husband, Charles *. Gillespie, under
a power of attorney from her made
during eoverture.
THE chancellor dismissed the bill in
fhe court below, and an appeal in error
is prosecuted to this court. The facts
necessary to be noticed, and about which
there is no controversy, are briefly as
follows:
MANY years ago, James P. Layton, the
father of complainant, died, seized Of
large landed estate, lying IN different
counties of the state Of Tennessee, which
on his death descended to complainant
and her two brothers, Nathaniel q. ana
Alfred ii. A. Taylor, among which was
one tract of6l acres in Shelby county,
TO recover One-third of which this Dill
was filed.
I
with Charles X. Gillespie, and by whom
she had issue born alive, and to whom,
during her cOverfure on the 18th OF
Juue. 1913, she and her brothers jointly
executed a power of attorney authorizing
and empowering him " to sell and con
vey any and al lands in Tennessee ~
which descended to them from their
father or mother. This power is general
and contained no limitations as TO price
Oh conditions in the terms of the sales
contemplated under it.
Acting under this authority, which
was duly acknowledged under prlVy
examination of the complainant and reg
istered; the attorney, in fact, on the
I4th Of March, lS4S, sold, and for the
consideration of STOPS, as appears on the
face of the deed, conveyed the go acre
tract in Shelby county to Joseph 1.
Watkins and the defendant, a. B. War
ford. The deed was duly signed and ac-
knowledged by the attorney in fact, and
thereafter regularly registered in Shelby
county.
Watkins failed to pay his part Of the
purchase money, and On,i2 Dill llleu by
| tbe attorney in fact TO e~.orce the ven
doris lien, his interest in the land was
/ sold, and the defendant Warford became
the purchaser, and now claims title 10
the whole tract.
Subsequently in April, 1850, the attor-
uey in fact, Charles X. Gillespie aban-
doned his wife, and she afterwards hled
/ her bill in the chancery court at Jones
! bOrO for a divorce, on the grounds ol
malicious absence. The bill was heard
and, on the I4th of May, 1859, . decree
Dronounced dissOlVing the bonds Of mat
rimony, and restoring her to all the
rights and privileges Of a JcUle sole
/ thereupou this bill was filed, to set aside
( the conveyance executed by her nus
band and attorney in fact, during heI
! cOverture, so far as her rights were
affected by it, and for partition OF the
l land.
The defendant answered, and substan-
TALLY admitted the facts as charged II
I the bill, but relied on his deed, as con-
veying an absolute estate in the land, ol
at least the life estate of the husband, as
I tenant by the courtesy initiate
/ The propositions have been insisted on
] in the argument here, which have been
/ enforced on the one side and resisted OF
/ the other, with much research and abil
/ ity on both sides.
A fenls eoJc.s under the statutes ef TIM
state, has no authority OF law TO make
valid power Of attorney to any one
much less to her husband, to convey he
estate in fee in lands cast upon her by
descent.
If tenant by the courtesy initiate
sell and convey in fee, and afterward hl'
I wife obtain a divorce, giRcW0 TN
estate OF the tenant by the courtesy
initiate is thereby terminated IN hl
vendee.
In support Of the first proposition, it i
insisted that under the act Of 1889, lch
92 which is amendatory Of the act o
1881, fch. gO,l the power of disposal by s
fe0le coreTf of her freehold estate, as j
vested under the act OF l7l5, ,ch. .,
and so enlarged IS 70 authorize her e
execute. under the forms Of Law pre-
seribed, a power of attorney 70 her bus
band OF Jointly with him, 10 any othe
person, which would authorize suci
agent to sell and by deed convey vali'
title to her real estate. To this PROPOSE
ton we are unable to assent. lne acts 0
1881 and 1888, construed together, COME
no new OF additional power upon -feiRe
-opeyf to pass their freehold estate, whicl
they did not POSSESS under the act OF ifl5
nor do they in any substantial respee
change the mode of conveyance. IN
node Of conveyance by deed jointly exc
euted by husband and wife, aecompanie
bv the private examination OF the WIG
substituted under the act Of l7l3, lnstea
of fine aud common recovery at com
{ mon law. remains unchanged by all tn
subsequent legislation on this suhlee
! 10 this state.
The first section of this act Of 1888, I
terms recognizes this mode Of convey
! anee, and by no just rule Of intepretatlo
5 can the phrase, other instruments
; writing executed by husband and wife,
: occurring ia the third section, he cor
5 strued to refer to and include the word
+ 81 al p0ioers Of attorney, isatRQr57iag q
S Conveyance u real eState,h employed J
b the FIRST section Of the act of 1881
J The objects Of the act Of 1881 and IS
I was not to enlarge the power OF feSi,
q cocert to dispose of their real estate, or
: create any new method o disposal OF !
S any manner 70 alter or substautiaii
S change the recognized formula
: doing so. But it was to correct the MOI
s obvious defects 10 the registration law
s ander which in the language OF the pr
: amble to the act Of 1903, numefol
s frauds were daily and secretly prs
s tieed . and at the same time TO aliol
: an easy and certain mode Of taxing 4
Z 1 probate or acknowledgement OF deeds
I law, 10 be registered either u or out
Z term time, before the clerks of the coui
i Is courts. instead Of IN open court
= heretofore.
The power Of feDies cogcTt to dispo
IS Of their freehold estate, IS not chang
9 by these statutes or any new or acc
Z tionai mode OF doing so created, and y
IS courts cannot now do by construction =
g directly what the legislature has fail'
4 to do directly.
: The only mode recognized by our Ia
3 IS by solemn deed, jointly executed
3 husband and wife, with the priTy exaf
= inaIi0n OF the wife.
is This doctrine is fully recognised So q
: settled law OF the state, as Il has pe'
y repeatedly held, and IS approPrlsle
= illustrated IN the ease Of Cope 4 Co.
: Meek, ct al. Head, S57. In that ca'
IS the court says I" by the common Jaw
. conveyance Of p fen1e covert, except
= matter OF record was ABSOLUTELY Vol
q qhe only mode 81 which she could co
= Vey, was by fine and common recover
s. Kents com, 100.
These modes Of passing the tfeelas
> estate OF the wife was neRef "a ioft'e
this state. The act Of lIlo, ch. =, *
slituted a deed Jointly executed ey p
UAfiH ana Mlitf dtl4 tA~ANAF ~ & -,
!. the form prescribed, instead Of the COZ
mon lag mode Of eonyeyauee, inc IN
other way can the wife's elIate p
under our s1w.
It IS indispensable that the htlsea
r. shall be a party to his wife's cenFeyan
She has 40 powe under the statute
convey by her own deed, and such
conveyance Is simply a nullity- kel
I com. i5l; , L0wrys' eq. jur. 1891 a
: 1892.
4 This case, although not direct auth
fty on thep0wef OF q married woman 70
=. by attorney, what she can only dc By Jo
y deed with her husband, is peverthei
incidentally conclusive of il. II sett
the law that there is but one wsy
which q fe0ic copert can dispose Of
real estate-and that Is by deed Join
Is. executed with her husband according
the precribed form OF the statute, .
that being 50. it necessarily follows. q
iili che cannot ennpoWer an agent or SIT