Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1867-11-06
SUPREME COURT OPINION.
KNOXVILLE, TENNESSEE, SEPTEMBER TERM, 1851
THOMAS n. colDvrll, ATTORNEY GENERAL AND rrroarrs


RACHEL HARRELL vs.. BENJAMIN HARRELL EFT AL.
This is bill filed n the Chancery Court of Granger conn
~ by the complainant Rachel Hsrre widow Calvin Har
tract Of lend of which she alleges her husband seized
The biII alleges that some time from six 10 twsly.
before the death Of compsinant husband was lev
IN sEo 70 De SOLD 70 satisfy judgment
Jacob shsIds. '-'-' - Ou'
The land was sold on the 2sh of October 1s57 and td "a
BY the Judgment CREDITOR Jacob Shields who afterwards
transferred his bid TO Rodmsn Harre and j. J. HarreI
The land sold before of the compIainaat
band but deed by the Sheriff until after hi,
deeh. The bill further alleges the defendants have
obtained sheTi Decd and instituted action of eject
nent for the recovery of the land which complainant
seeks 70 enjoin and have her dover assigned
The defendants and admit substantially an~a
ons OF the BILL but aeGe by Of cross bill in answer
that the husband at his DEATH only had title
70 the dover Interest in said lands which had assigned
TO the widow OF John Ham, deceased The title papers
set out in Che record
The Chancellor the hearing, dismissed the bill award
ca writ Of possession to the defendants and com
me ecment suit from which the complainant appealed
The title papers set out in the record do not thu
legations IN the cross bill and il they did, no
uGe OF II as a cross Dill Tor want Of bond &C., &c.
levy and sale Of the lands in the lifetime husband and
the subsequent the deed by the sher after hi
DEATH bar the complainant Of the right of dover?
The husband having died before the went into effect
the case must be determined by the existed when
her right Of dover would BY provisions of the
act the wife entitled dover the lands Of
provisions this act this Court held Yerger o.S if bs
husband die after his lands are levied upon and before sale
his widow IS entitled TO DOVER"
The referred to determined TIE widows right to dow
er were superior to the general credtors that levy
ecution such diyestture title as would defeat
her dover The same principle recognized Humph
deed of trust though not registered passed the title and
defeated the widows right of DOVER though husband
tanned the actual possession the legal seizure passed
trustee mortgages That provided that the hus
band died before the mortgage forecosed or sale of
land under the trust deed the widow should be
the lands.
The Courts have always given broad and liberal
s q has
been favored 1t is founded the moral obligation the
husband to provide for the wife, not only during the coYer
ture but after his death
During the existence of the cOyerture, her rights all
her the right all the lands of which her husband
seized curing the overture and he could defeat
It is right as old and venerable the Common law
Lord Bacon sit Is transmitted to as a maxim that
favoureth three things life liberty and dover
Bacon Did the levy aud sale property in the
lifetime OF the husband dvet him Of the title
complainant
The provides she shall endowed of all the lands of
which he died seized and possessed.
II is insisted that the levy of an execution upon
and the return Of the sheriff that he had sold it. vests
of Crutsinger Catron 10 Humph a. he levy
cuon land does not dyest the seizure of the owner
No title interest thereto is vested Sheriff by the
levy, he is the mere agent under the law to SELL the udg
ment and the execution constitute his authority TO make the
sale but when he exposes the land public auction and
knocks down the highest bidder there nothing but
executed by conveyance which made by the Sier
IT, and until this done title TO the purchasers if
he's and he may he choose refuse to complete the purchase
he be willing submit himself to the legal consequences Of
such REFUSAL 1t held in the of 0veren
10th YeTger 9S2 the levy did not dvest the title
other effect than to TX the particular
jet from which the particular named in the
raised The Sheriff. after the levy and sale cannot
deliver the possession to the purchaser If he the
session. he must his deed aud action of
ejectment.
1t held in the referred to- Crusnger vs. Cat
when execution levied land interest
is vested there by the Sheriff Upon sale made he
of bargain ard sale made thereon by operation trans
rs the legal title and the purchaser entitled his eject
ment to get into possession tae seizure
by the levy and SALE in whom the legal until the
execution Of the shers deed Not the purchaser can
be considered in the custody OF the law allowance
il must therefore have remained in the husband of
panant who seized and of the land
his death descended to his heirs and
be dissezed by the execution of the deed Of the Sheriff.
But before the execution Of this deed the rights
gent the death of the husband Can that defeated
the subsequent execution of the sheriff. decd We think
not
It is insisted that upon execution related back
and took effect from the levy and 1ae and thereby defeated
the right of dover
$685. the doctrine of relation fiction
subserve the ends of justice will it apply any
cept between the parties and for the but
shall work wrong to strangers defeat collateral
acts which lawful.-Frost Etheridge, Dew. 80
Cooke 90 Hob 222. the husband the right
of dover in the lands vested in the complainant
be defeated by the subsequent execution OF the
deed She takes the estate vested in her by operaon Of
ion therefore, that by the levy sale and payment of the
chase money equitable title to the land only
purchase and under the liberal construction bound
the act Of 1884, the levy and sale of the lands this
blythe Sheriff did not dseize the husband of the te
he died seized and the land contemplated
the provisions of the act of 1884, giving the widow the
right of dover The subsequent execution of the Sherh
defeat the right Of DOVER which had attached by proy
ions Of the act aforesaid.
The complainant entitled to the relief and have her
dover assigned her in the land The decree the Chancellor
will be reversed, and decree for the complainant
A true copy. sHAOKLEFORD,
NJ L. PATTERSON Clerk