The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-01-01
THE SUP HME COURT.
Decisions Upon Cardinal Points OF Law
Rendered,

Rendered.
The following are some OF the recent de-
cisions OF the supreme court OF Tennessee:
fercheval, trustee, VS.. Robinson--A
rescission was sought OF deed executed
by Kercheyal, as trustee Of Mrs. M. NJ.
Brien, by her authority, on the ground
she yielded her assent under duress and
because OF fraudulent representations to
her. Robinson had been surety on her
husbands bond MS guardian, and judg.
ment had been rendered against them on
IL for large amount. To save himself
from loss he had attached property belong
ing TO M. nj. Brien, and to release the at
tached property the deed in question to
the property of the wife was executed To
the extent OF the valueof the attached prop
erty he had been induced to release by
virtue OF the execution TO him OF the decd,
he was an innocent purchaser
for value and in any event
would be protected. As TO the
duress complained of in the threats her
husband made II she refused TO execute
the deed, which only she and one Of the
witnesses 10 written authority TO her
trustee to execute the deed, prove, NJ is
clearly an afterthought, as the transactions
extended over period OF several months,
and though she had abundant opportunity,
| yet she had made complaint 10 no one OF
the duress, and during that time executed
six papers conscnting TO and ratifying tho
sales and joined her husband for petit
ton to tho county court to have u re-
fractory trustee, who refused TO have the
deed removed and new one appointed.
| AS to the deceit practiced on her by her
husband in misreprescnting the character
OF his title TO the property he proposed TO
convey TO her in consideration of the exc
cution OF the deed by her, she must have
known the character of the title he held,
as its nature is rccited on the face OF tho
deed 20 her. A rcscission OF her deed Is
refused, but decree is rendered emitting
her 70 receive whatever balance Of the
| price agreed on remains after paying tho
surety debt, and il is declared lien on
the house and lot. The costs are divided
equally. Decree reversed.
by Caldwell, J.-Reese vs. Bell-When
two persons engage in series OF gaming
transactions they are 10 be taken rs a
whole and considered ~ one transaction.
So, where a man has u series OF dealings
with "bucket-shop," sometimes losing
and sometimes winning, and after the cx-
| piraiion OF ninety days and before the end
Of twelve months his wife sues 10 recover
| the amount OF his losses, she can only re-
| cover the amount he could have recovered
had he sued in ninety days; and he could
| have recovered only the amount Of his net
losses. In this case his winnings exceed
ed his losses, MS the prepondcrancc of the
proof goes TO show. The decree Of the
chancellor reversed and the bill dismissed.
Whitworth & Moore w. Moorc-Thc
chancellor on the hearing on his own mo-
ton and without an exception by either
| party, excluded all the paral testimony
taken in aid OF the written instrument con-
tanning the contract Of the parties, on the
ground that the writing was unambiguous.
| lie has the right 10 exclude incompetent
evidence on his own motion, and the EVIL.
dencc excluded/in this case was clearly In
competent The chancellor's construction
Of the instrument was the correct one. DE.
cree affirmed.
BY Folkes, J.-when n train Is ap.
preaching public crossing, n view Of
which Is shut of by deep cut, IL IL not
bound 10 slackcn It's speed NO ~ 10 be able
10 stop after the engineer can catch sight
OF one attempting 10 cross the track on
emerging from the cut. II is not negligence
on the part of railroads 10 run its train
under such circumstances at speed
greater than thirty miles an hour. provided
the alarm whistle was sounded oil
quarter Of a mile from the crossing. II IL
not negligence 10 fail TO sound the alarm
whistle and reverse the engine when the
engineer sees someone approaching the
| track, though of some distance, unless II
IN evident he intends 10 try 10 cross from
/ IT, The proof was sufficient 10 show all
tho statutory precautions had been OBJ
served in this case. Judgment affirmed.
BY Lurton, J.-lIudson w. Carbett-
| Tho plaintiffs were real estate brokers, and
sought 10 recover commissions because
they had procured purchaser for some
property OF defendant, and tho defendant
had refused 10 execute him deed on the
ground the property had been previously
| placed in the hands OF another broker,
who had negotiated sale 20 another
party. There was conflict In the evidence
as 10 whether or not the defendant by his
contract placed his property In their hands
| for sale or merely gave them an option.
The circuit judge found they placed the
property with them for sale, and the cvi.
dcncc IL sufficient 10 sustain tho finding.
Judgment affirmed
Bond W. Clark-Plainliffs were real O..
| tate brokers and sued 10 recover commits
sions on the sale Of some property that had
been placed In their hands on the ground
that they had influenced the purchaser 10
buy. The circuit Judge decided that they
had, and the evidence IL sufficient 10 sus-
tain him. Judgment affirmed.
Mayor and City Council Va. Cornelius
Cornelius was fined for making burial In
the old city cemetery in Nashville for lot
owner in lot that had been sold and con-
vcycd Ia him by the city, without procur-
ing permit from the sexton, In violation
Of city ordinance, ~ well In violation Of
| the act Of the Legislature Of 1885.
The city ordinance Is valid, and was
within the scope Of the legislative and
police power OF the city. Tho ordinance
prohibits burials by lot owners, ~ well ~
all Others, unless made by the city sexton.
Tho act Of 1885, Chapter ll6, prohibiting
burinls within the limits Of certain cities il
valid. Tho caption Of the act, while gcn.
ernl. yet does indicate the character of
held that the general OF ultimate object
Of the legislation must be stated In the
title, and not the details by which the OBJ
| jcct II attained.
The legislation was In the police power
OF the legislature, II was no, a taking Of
private property ior public use without
compensation. buta restraint Of an inju.
rions private use by the owner. Every
holder OF property holds II under an Inn
piled obligation tina, his use Of II shall not
be injurious 20 others nor 10 the rights Of
the community. II his Use he or becomes