Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-03-02

United States, under which this proceed
ing is had, are also the law of this
State, and under them the cause
is simply transferred by q purely
interlocutOry order from one tribunal to
another. If we can control the action of
inferior courts in granting orders of this
nature in any mode, it cannot be done
upon an appeal from the order.
The appeal must be dismissed upon the
ground that an appeal will not lie from
the order in question and the cause re-
mitted to the Circuit Court of Franklin
county. GEO ANDREWS, Judge.
Yanzant, Administrator, etc, vs.. Smith, Admin
istrator, etc,
The various orders of the Circuit Court
awarding the writ of scirefacias in this
case are unauthorized and erroneous.
There is no authority under our prac-
tice for suing out an original scirefaeias
in the Circuit Court to revive judgment
before Justice of the Peace.
a scirefacias to revive judgment is
in the nature of a suit, and the appeal in
this case from the judgment Of the JUS
tice upon the scirefacias issued by him,
did not have the effect TO remove the
suit, in which the original judgment had
been rendered into the Circuit Court.
The scirefacias issued by the Justice,
and which had been taken to the Circuit
Court by appeal, is clearly defective, so
much so that no judgment of reviyOr can
be pronounced upon it, but the remedy is
not by suing out an original scirefacias in
the Circuit Court, but by amending the
process issued by the Justice of the Peace
under the provisions of Sec. 4, III of the
Code.
No application however TO amend the
process was made, and no disposition
whatever of that writ has been made in
the Circuit Court.
The Judgment of the Circuit Court,
from which an appeal in error is prose
cuted to this Court is not a judgment OF
revivnr, but is one of recovery, and IS
clearly erroneous upon that ground, and
must be reversed. If the case was before
us for adjudication we should have no
hesitation in declaring the judgment
sought to be revived in this case, rs the
same appears in the bill of exceptions,
absolutely void and incapable of being re-
vived, but we do not think the appeal
from the judgment of the Circuit Court
upon the sci. ia. sued out in
that court can authorize us to
adjudicate the right of the plaintiff in the
sci. ia. issued by the Justice and carried
into the Circuit Court by appeal to have
the original judgment revived.
The sci. ia. carried into the Circuit
Court by appeal is still pending in that
Court.
The cause will be remanded to the Cir
cult Court where, if the plaintiff desires
it, upon proper application the sci. ia.
issued by the Justice, may be amended
upon such terms as the Court may deem
Just and proper. HAWKINS, Judge.
ton ct ais.
The plea of defendants sets up the adj
verse possession of the defendants under
deeds purporting to convey an estate in
fee, in bar of compliments rights, and is
in substance a plea of the statute of lin
itations.
1t is insisted in argument that the case
falls within the principles of the case of
Guion VS.. Anderson, Sth Hump. 29S.
We do not think so. In that case it
was held the husband and wife were
Jointly seized Of the lands which had de-
seconded to the wife. The husband by
virtue of the marriage had an estate of
freehold, in right of his wife, in her in
heritance, which might continue during
their joint lives, and possibly might last
during his own life.
There was a joint estate in husband
and wife. The disscizeR was of the en-
tire joint estate, and to recover
the possession they must have Joined
in the suit. And in such case the statute
of limitations would begin to run against
both husband and wife at the time of the
adverse entry; hence the joint right OF
action was barred, by an adverse posses
sion or seven years, under an assurance
of title purporting TO convey an estate in
fee simple. The heirs of the wife in
such case, must sue within three years
next after the death of the wife or they
would be barred.
In this case, the conveyance TO the wife
is for lite, and TO her sole ana separate USE,
consequently the husband by virtue OF
his marital right took no estate whatever
in the lands conveyed to the wife. There
was no joint estate. But suppose we were
wrong in this conclusion, the result mus
be the same upon another ground.
Excluding the time from the 9Th OF
May, 1861, when the statute of limi.
tations ceased to run to the 1st OF
January, 1867, when it again began
its course, defendant Hoffman and those
under whom he claims, have not had the
adverse possession of the land in contro
versy for seven years, next before the
filing of this bill.
The possession of Blanton commenced
Sept. 6, 1854, and this bill was fled il
January, 1867.
The decree of the Chancellor is erronc
Gus, and must he reversed.
HAWKINS, Judge.