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harvard-lil

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cold-cases

like 14

[ "43 Tenn. 533" ]

[ { "author_str": "Hawkins", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHawkiNS, J.,\ndelivered the opinion of the Court.\nThe material facts, as presented by this record, are substantially as follows: Abraham Overall died in 1843, after having made and published his last Will and testament, which was afterwards admitted to probate as to personalty, but not as to real estate.\n*535The Will contains the following clause, to-wit: “I give and bequeath to the separate use of my daughter, Nancy C. Sneed, one-seventh part of all my real and personal property, not otherwise bequeathed by this instrument; which shall not, in any event, be subject to the debts or contracts of her husband, but to be hers during her natural life, and at her death to be equally divided among her children.”\nJohn J. Sneed, Sr., and one H. A. Overall, were appointed and qualified administrators, with the Will annexed, of the estate of said testator, and afterwards filed their petition in the Circuit Court of DeKalb county, praying for a sale of the slaves belonging to said estate. A sale was directed, and accordingly, on the 8 th of January, 1846, said slaves were sold by the Clerk of said Court. At the sale, John J. Sneed, Sr., one of the administrators, and who was also the husband of Nancy C. Sneed, became the purchaser of three of the slaves, to-wit: Caswell, Nelson and Sylvia, at the aggregate price of $1,307.50, for the payment of which he executed and delivered to the Clerk his notes, with security, due at twelve months, to defendants. John J. Sneed, Sr., took said slaves into his possession at the time of his purchase, and has held them until since the filing of the bill in this cause. Nancy C. Sneed died in November, 1848, leaving her said husband, and the following children, surviving her, to-wit: Cynthia, who has intermarried with John W. Botts; Eliza Ann, who has intermarried with William Paty; Harriet, who has intermarried with Yandle Wood; Caroline, Thomas J., Louisa, who has inter*536married with A. N. Williams; and M. F., who has intermarried with Yancey Lamb; Martha, who has intermarried with one Briggs; (and died, leaving one child, to-wit, Nancy Briggs;) and A. W. H. Sneed; (who has died, leaving issue, to-wit, Horace J.;) and Caroline S. Sneed.\nThis bill was filed in 1859, by Williams and wife, Lamb and wife, and Botts and wife, against the husband and other children and grand-children of Nancy 0. Sneed, deceased; and alleges, in substance, that said purchase by defendant, John J. Sneed, Sr., was made for the benefit of his wife, Nancy C., and paid for out of the money belonging to her for life, and then to her children, under the Will of her father, Abraham Overall, deceased; and that the money to which she was entitled under that clause of the Will, amounted to $1,437.37; that said slaves having been purchased with the money belonging to the said Nancy C., during her life, and to her children after her death, complainants are entitled to them and their increase, and to an account for hires since the death of the said Nancy C.; and also to an account for the balance of the money, to which the said Nancy 0., was entitled, under said Will, for life, in excess of the price of the slaves. And the prayer of the bill is, that said slaves and their increase, be decreed to the children of the said Nancy C. Sneed, deceased, according to the provision of said Will; that an account of hire be taken, etc., and for such other, further and different relief, as the facts set forth in the bill may justify. Botts and wife having refused further to prose*537cute the suit, they were made defendants by order of the Court, and required to answer, which they neglected to do.\nWilliams and wife, by leave of the Court, filed an amended bill, making Overall the co-administrator with Sneed, a party defendant. John J. Sneed, in his answer, denies that the children of Nancy C. Sneed have acquired, under the Will, any right to the bequest, and insists, that, by virtue of his marital rights, he became entitled to the property. And, it is now insisted in argument, that, under the operation of the rule in Shelly’s case, the remainder to the children of Mrs. Sneed, after her death, was inoperative and void, and that Mrs. Sneed took the absolute estate, and that the marital rights of the husband having attached, he is entitled to the bequest, to the exclusion of his wife’s children.\nIf these propositions can be maintained, the rights of the parties are settled, and, without any further investigation, complainant’s bill must be dismissed. The rule before referred to, and which has been so often stated, is this: “Where any person takes an estate of freehold, legally or equitably under a deed, Will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of an intervening estate, of a right of the same legal or equitable character, to his heir ['or heirs of his body, as a class of persons, to take, in succession, the limitation to the heirs entitles the ancestor to the whole estate;” and in Roper on Legacies, p. 393, it is stated, *538as a principle of law, that, “ If personal estate be given by testament to A, and the heirs of his body, as such words would create an express estates tail in freehold lands if applied to them, so in personal estate if applied to it ; and such words will have the effect to vest the absolute interest, because such property cannot be entailed ; therefore, the first taker will take the absolute interest in the bequest, and the remainder and executory limitations to the heirs of the body,- will have no effect.” The language of the bequest under consideration, after giving to Mrs. Sneed an absolute and separate estate for life, is, “and at her death to be equally divided among her children;” and the question now presented is this: Is the word “ children,” as used in this clause of the Will, to be construed- as a word of purchase, or of limitation ? If the former, the remainder takes effect; if the latter, it is void, and Mrs. Sneed took the absolute interest.\nThe word “ children” is strictly a word of purchase, and must be so construed, unless it clearly appears that it was intended to be a word of limitation; and, as a general rule, such intention must be gathered from the instrument itself. There is nothing whatever, in this Will, from which we can draw even an inference that the testator intended the word “ children” to be construed, or to take effect, as a word of limitation; and if we look outside of the instrument, and to the fact that his daughter, Nancy C. Sneed, had several children living at the date of the Will, who are declared to be the objects *539of Ms bounty, it is very apparent the word was used in its strictly legal sense, and as a word of purchase.\nWe are, therefore, of the opinion, the bequest does not fall within the extent and operation of the rule in Shelly’s case, or the principle before referred to, as laid down in Roper’s Treatise on the Law of Legacies.\nIt appears that the note, given by Sneed for the purchase money of the slave, was delivered over by the clerk to the administrators. as so much money, and is still in the hands of defendant Overall, and has never been, in fact, paid. No final settlement has ever been made between Sneed and his co-administrator, of their administration; but it was understood between them that it was to be received by Sneed in payment of so much of the fund of $1,487.37, arising from the sale of slaves, and to which Mrs. Sneed was entitled under the Will of her father; and although it was never in fact delivered up by the clerk to Overall, and retained by him with that understanding; and all parties, we have no doubt, regard the matter as virtually settled in that way; and so we must regard it.\nIt follows, then, the slaves having been purchased with the funds belonging to Mrs. Sneed’s children at her death, they would be entitled to them with their increase; also to an account for hire from the death of Mrs. Sneed.\nThis brings us to the consideration of another question, and one which presents the greatest difficulty in the case. It appears, that, after the breaking out of the late civil war, and in 1863, Mrs. Paty, Mrs. Botts, *540Mrs. Williams and Mrs. Wood, during the absence of their husbands, some of whom were then confined in military prisons, went to the house of the defendant, John J. Sneed, and took the slaves out of his possession by force, alleging in justification for doing so, that their husbands were gone, the slaves belonged to them, and they needed their services to get wood, make fires, etc. Soon thereafter, a compromise was entered into between the father and his daughters, above mentioned, and Caroline Sneed, and which was intended by them as a final settlement of all the matters in controversy between them. By the terms of the compromise the children of ÜSTancy C. Sneed were to have all the slaves in controversy, except the youngest girl, Fanny, which was to be delivered up by them to the father, and be his during his life, and at his death to go to his wife’s children ; the father also agreed to deliver up all the household furniture that came by1 his wife, and was to remain in the peaceable possession of the balance of his property. This agreement was reduced to writing, and signed by all the parties to it, except Caroline Sneed. She was, however, an active participant in affecting the compromise and urged the settlement of the difficulties, law suit and all, upon the ground that they were disgraceful to the family. There was no agreement to dismiss the suit, and this was all that was said about it.\nSo far as we can see, the terms of the agreement were strictly and in good faith complied with, on the part of the contracting parties; and the question now is, what effect is to be given to an agreement and settle*541ment, entered into by tbe married women, concerning their rights then in litigation..\nThey certainly had the power to receive the slaves in litigation, and, upon their delivery to either of the parties entitled to such delivery and possession, based upon the rights of all the parties, discharged the father from further liability as to them, and inured to the benefit of all the parties in interest.\nThis was a family settlement, concerning property and rights in litigation. Such settlements, when made without fraud, are favored by the law, and should be encouraged and upheld by the Courts, when it can be done without a clear violation of some established rule of law.\nAs a general rule, a married woman is incapable of contracting, or binding herself or her husband. There was a litigation pending between the father and the children, growing out of difference of opinion as to their rights under the Will. In consequence of the war, the Courts were suspended in some localities. The children, by force, took the property into their own possession, after which the compromise was entered into, which, the witness says, was intended as a final settlement of all matters in controversy between them — not only the slaves in controversy, but also all the household furniture which he had acquired by his wife; and, in accordance with this compromise, the father did deliver to his daughters, the furniture aforesaid, and the same was received by them; and, from all we can see in this record, the same remains in their posses*542sion up to this time. Indeed, it is not pretended that such is not the fact. There is no pretense, in this record that either of the parties to that settlement have ever returned, or offered to return, to the father, any portion of the property received by them under the compromise, or that either the femes covert, or their husbands, or Caroline Sneed, have ever in any manner, disaffirmed it, unless we take the continued prosecution of this suit as an act of disaf-firmance. That, of itself, is not sufficient. Covert-ure, like infancy, cannot, at the same time, be used in the capacity of both a shield and a sword. A feme covert may be guilty of a fraud, in consequence of which she would be repelled from the Courts. In this case the slaves were claimed in right of the femes covert, who, without fraud, advantage, or undue influence, after due deliberation, under the advice of counsel, and apparently with a full understanding of all their rights, and a correct appreciation of the perils of the law suit in which they were engaged, voluntarily entered into this compromise with their father, for the purpose of settling a family controversy, which, at least one of them felt, was disgraceful to the family. They have received, according to its terms, the benefit of that compromise.\nWe are of opinion that courts of equity, at least, should be slow to disturb the sanctity and validity of such contracts, made under such circumstances; and, in this case, we are constrained to hold, that the husbands, having failed in any manner to disaffirm the *543contracts entered into by their wives, have affirmed the same, and it has thereby become binding upon all the parties thereto.\nComplainants, Lamb and wife, neither of whom were parties to the compromise, are entitled, under this bill, to an account for the hire' of the slaves, from the death of bfancy C. Sneed, until possession thereof was surrendered to Mrs. Paty and others, in 1863, with interest; also, to an account for the excess which came into the hands of the husband, John J. Sneed, under said clause in the Will of Abraham Overall, over and above the prices paid for said slaves, with interest; and are entitled to a decree against John J. Sneed for one distributive share of the same.\nBy their bill they have elected to take the property purchased with the fund to which they were entitled, after the death of their mother, in lieu of the fund. This they had a clear right to do, and the bill is drawn alone with this view, except as to the excess above mentioned; and notwithstanding the slaves, to recover which this suit was brought, have been emancipated and have ceased to be property, under the pleadings in this cause, the complainants are not entitled to abandon their election, and ask a decree for the fund with which the slaves were purchased. Paty and wife, Wood and wife, Botts and wife, Williams and wife, and Caroline Sneed, are bound by the compromise, and are, therefore, not entitled to any decree.\nAs Thos. J. Sneed, Sr., is only before the Court as a defendant, and not actively seeking the aid of the Court, and inasmuch as it does not clearly appear *544whether he was a party to the compromise or not, or whether he is entitled to recover anything, no decree will be pronounced for him in this case; but the decree in this cause will not be held as an adjudication of his rights in any other suit he may hereafter bring.\nWe are of the opinion, upon the case as presented by this record, that the grand-children of Mrs. Sneed are not entitled to recover, and that the interest of their ancestors, as “children” of Mrs. Sneed, in the fund, passed to the personal representatives of the children who had died; but, as they are defendants, no decree will be pronounced in this cause to their prejudice in any other suit.\nA decree will be entered in conformity with this opinion, and the cause remanded, for the purpose of taking the accounts as directed.\n", "ocr": true, "opinion_id": 7652120 } ]

[ "45 Tenn. 447" ]

[ { "author_str": "Henrysmith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nHeNRY G-. Smith, J.,\ndelivered the opinion of the Court.\nThe controlling question in this case grows out of the following facts:\nTaylor, Wood & Co., employed Massey to serve them as a clerk in their store, for the term of a year, upon wages at rate of $40 per month. During the term, Taylor, Wood & Co., discovered that Massey was embezzling the money of the house, and forthwith discharged him from their service, and caused him to be indicted for the crime. Massey was tried and acquitted upon the indictment; and thereupon, brought this action against Taylor, Wood & Co., to recover the amount alleged to be owing him, for his services as clerk, before his discharge from the employment.\nThe action is, what,, at common law pleading, would be general assumpsit, and the declaration contains a count in the quantum meruit, to recover what the services of the plaintiff Massey, were reasonably toorth, for the time he was in the employment of the defendants.\nUpon the pleading, the defense of the defendants was, the embezzlement of their moneys by the plaintiff.\nUpon this issue, the Circuit Judge instructed the jury, that the embezzlement, if proved, was good cause for defendants to discharge plaintiff from their employment, and was a bar against the recovery of any compensation by the plaintiff, for his services during the part of the term of his employment, -prior to his discharge.\n*449It must be taken to be the settled law of Tennessee, that, when the employment is for a stipulated term, at stipulated wages, and the employer- discharges the employe during the term, for good cause, the latter cannot recover the stipulated wages, upon the express contract, but may sue for, and recover compensation for the service actually rendered during the term, and prior to the discharge, to the extent . such service was reasonably worth to the employer ; not, however, exceeding the rate of compensation stipulated by the express contract.\nSuch is the rule declared in the case of Jones vs. Jones, 2 Swan, 605; and again in the case of the Congregation of the Children of Israel vs. Peres, 2 Cold., 620. In the first of these cases, the rule was so declared, where the cause of discharge was the overseer’s cruelty to the slaves of the employer. In the second case, the ruling was made, where the cause of discharge was the violation of the laws of the Jewish religion, by the preacher, who was employed to preach and teach the Israelitish docrine and practice to the members of the congregation. In both cases, the causes of discharge were gross violation of duty, by the employe to the employers, and were good cause for discharge.\nIt may be that the sounder doctrine, is, that declared by the case in 1 Watts and Sergeant’s Rep., and by the English cases to which our attention has been directed, which seems to declare, that when the hiring is for a term, and the servant is guilty of gross violation of duty, the master may discharge him, and set up such *450gross violation of duty, as an absolute bar to tbe recovery of any compensation for the service rendered, prior to the discharge. However this may be, the rule otherwise is heretofore settled in the jurisprudence of Tennessee, and must so stand.\nLess reluctance is felt to the application of the rule of our Courts to the cause of embezzlement, for the reason that the value of the service of the embezzling clerk, has to be submitted to the jury, under the porper direction of the Court. It can scarcely be supposed, that the Court will advise, or the jury find, the service of a clerk who embezzled the money of the merchant employing him, to be reasonably worth to the employer much, if anything. The service of an embezzling clerk, cannot ordinarily be worth any compensation. Few merchants will be found willing to stipulate to pay wages to any extent, to clerks who will embezzle the moneys of the house. However, the value of the service of such clerk, what it has been reasonably worth to the employer, is a question of fact within the exclusive province of a jury to decide, under such proper instructions as the Court may give, without trenching upon such prerogative. of the jury.\nUpon this view of the law, it is obvious that the plea found in the record, which sets up the embezzlement as a bar to the action, is bad.\nAnd so, too, is bad, the replication to such plea, that the plaintiff was indicted and acquitted upon the charge of the embezzlement.\nThe acquittal upon the indictment, is not entitled to any effect as evidence in the civil action, as an answer *451to the defense of embezzlement, or as tending to show that in fact the plaintiff did not commit the embezzlement.\nThe judgment must be reversed, and the cause sent back for new trial.\n", "ocr": true, "opinion_id": 7652440 } ]

[ "45 Tenn. 616" ]

[ { "author_str": "ándrews", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGeorge ÁNDREWS, J.,\ndelivered the opinion • of the Court.\nThis was a bill in equity filed by Dobson, as ven-dee, to enforce the specific performance of a contract for the conveyance by Litton, of a tract of land. The complainant in the amended bill, avers as follows: “That, on, etc., he purchased of the defendant, through his authorised agents, Messrs. Callender & Garrett, a certain tract of land, situated near the City of Nashville, and near the junction of Broad Street with the Hillsboro’ Turnpike, in said county of Davidson, for the sum of,” etc., specifying the terms of payment, and containing the usual averments as to the complainant’s offering to perform the contract, and the. refusal of the defendant to do so. An amendment was made to the bill averring, “that the tract of -land therein described, is the only tract of land owned ^by the defendant in that vicinity, wherein it is described to be.” The agreement is made an exhibit to the bill and is as follows:\n“I have this day sold to W. K. Dobson, a certain tract of land, containing nine acres and sixty-six poles, near the junction of Broad Street, Nashville, and the Hillsboro’ Turnpike, Davidson County, Tennessee, for the sum of four, thousand dollars,” etc.; specifying the terms of payment; as to which no question arises.\nA question made as to the sufficiency of the execution of the agreement by' the defendant’s agents, we do not notice, as it becomes immaterial in the view here taken of the case.\n*618The defendant demurred to the bill, assigning as demurrer, that the contract or agreement set forth in the bill, is void, “for uncertainty as to the land sought to be recovered.” The Chancellor upon argument of- the demurrer, dismissed the bill, and the complainant appealed to this Court.\nThe defendant claims that the written agreement, being uncertain as to the precise tract of land intended by the parties, is void, and that the uncertainty cannot be helped by averment or by parol proof; while the complainant insists that he has the right, upon proving that the defendant has but one tract of land in the vicinity of the streets mentioned in the instrument, to have the agreement applied to, and enforced upon that tract.\nThe .bill was properly dismissed even in the view of the contract taken by complainant’s counsel; for the reason that the bill, even as amended, is, itself, equally as ambiguous as the contract. To entitle the complainant to introduce parol proof, to do away with the* ambiguity in the contract, and to show where the land intended by the parties lay, he should have shown by his bill, what particular tract the agreement was to be applied to. The allegation introduced by way of amendment, that the tract mentioned in the bill, was the only tract of land which the defendant owned in that vicinity, even if proper to be proved to make out the complainant’s case, still left the bill uncertain as to what that tract was.\nBut waiving this question, the instrument exhibited is not one which will sustain a bill for specific perform-*619anee. Without the aid of parol proof it does not point out and identify the premises and is too vague and uncertain to be enforced. And the defect in this instance, is such that parol proof cannot aid the .instrument.\nIf the agreement itself shows that some particular tract was intended, then parol proof is admissible to show the location and boundaries of the tract mentioned, and to enable the Court to find it. Thus, if the agreement had described the premises as “my tract of nine acres and sixty-six poles, near the junction,” etc., there could be no uncertainty that a particular tract of land was meant, and even if the grantor had two tracts answering to that description, that would create no uncertainty upon the face of the deed, but only after the introduction of proof to that effect.\nBut an instrument describing the, premises as “a tract,” etc.., as in this instance, does not specify any tract of land. Every tract of nine acres and sixty-six poles, that could be surveyed in the vicinity indicated, would fulfill the conditions of this description with equal accuracy; and the object of the parol proof proffered in this case, would be, not to point out the tract which the instrument mentions, but to furnish grounds of inference from the fact that defendant had but one tract in that vicinity, that the parties must have intended the instrument to describe that tract and no other.\nParol evidence for the first purpose above mentioned is admissible, because it does. not alter or contradict the effect or terms of the instrument, but only particularizes the description which the instrument gives of the *620premises. But parol evidence in tlie second case, is inadmissible, because its effect is to supply by parol, a material part of tbe agreement, which the statute of frauds requires to be wholly in writing.\nWhere an instrument is so drawn that, upon its face, it refers necessarily to some existing tract of land, and its terms can be applied to that one tract only, parol evidence may be employed to show where the tract so mentioned is located. But where the description employed, is one that must necessarily apply with equal exactness to any one of an indefinite number of tracts, parol evidence is not admissible to show that the parties intended to designate a particular tract by the description.\nThe question as to the degree of certainty requisite in the description of the premises in instruments relating to land, has been frequently before this Court.\nIt'is not necessary .now to proceed to a detailed-discussion of these various cases, but, we think they, fully sustain the views above expressed: See Sheid vs. Stamps, 2 Sneed, 172; Helms vs. Alexander, 10 Hum., 44; Huddleston vs. Garrott, 3 Hum., 629; Brigance vs. Erwin, 1 Swan, 375; Lafferty vs. Conn, 3 Sneed, 221; Brown vs. Dickson, 2 Hum, 396.\nThe decisions in Richards vs. Edick, 17 Barb., 260; and perhaps, also in Fisk vs. Hubbard, 21 Wend., 651, seem to be opposed to these views, but we think our own cases founded on the better reasons, and more binding as authority.\nIn Capps vs. Holt, 5 Jones Eq. R., the written agreement described the premises as “a tract of land *621lying on tbe north side of tbe Watery Branch, in the county of Johnson and State of North Carolina, containing one hundred and fifty acres,” and the Court in that case says: “the writing, of itself, clearly is too vague and uncertain in the description of the land bargained for to warrant us in declaring where it is, 'by what termini included; and decreeing a conveyance of it.” See also Hilliard on Vendors, 440, and cases cited; Sharpe vs. Rogers, 10 Minn., 307.\nIn Ring vs. Ashworth, 3 Clarke, (Iowa,) 452, the vendee, under an agreement to convey fifty-nine acres of a certain larger tract, but the agreement not specifying where the fifty-nine* acres was to be laid off, was permitted to take a decree for a deed in the words of his bond, leaving both parties to settle the location of the premises afterwards, if they could. But we are not disposed to apply that precedent to this case.\nEquity will not decree a specific performance of a written contract unless its terms can be clearly made out in all its essential particulars, from the writing itself, or by a reference contained in it to some other writing: 1 Sto. Eq. Jur., sec. 767; Lead. Cas. in Eq., vol. 2 pt. 1, page 559.\nTbe decree of the Chancellor must be affirmed.\n", "ocr": true, "opinion_id": 7652493 } ]

[ "47 Tenn. 571" ]

[ { "author_str": "McClain", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nA. McClain, J.,\ndelivered the opinion of the Court.\nThe complainant charges, in his bill, that he, as administrator of A. J. Henry, deceased, recovered a judgment at law against the defendant, Cannovan, for $4,-345.65; that executions were issued, and returned nulla *572bona. The bill is filed to subject certain rents and leasehold interests of Cannovan to the satisfaction of his judgment.\nCannovan filed his answer, and charges that the judgment was recovered upon notes executed by him and Henry to complainant’s intestate, for real estate sold them; that said intestate had no title to said land, and conveyed no title, and that there was, therefore, a failure of consideration. It is further charged in the answer, that he (Cannovan) and Hallam had paid five hundred dollars, for which they were entitled to a credit, but got none, upon the rendition of the judgment; and he prays to be allowed to file this answer as a cross bill, and be allowed to make this defense; and that the judgment be declared void.\nTo this cross bill the complainant demurred, and, assigned, as a cause of demurrer, that this defense was open to defendant to use at law, but that he having failed to avail himself of it at law, this Court has no jurisdiction of the matter. This demurrer was overruled by the Chancellor; and from this decree, overruling this demurrer, the complainant has appealed to this Court.\nWe think the decree of the Chancellor is erroneous. The defense relied on is both legal and equitable; and the rule is well settled in cases of this sort, that when the defendant neglects to make the defense at law, he can not be heard to make it in a court of chancery; provided, the adverse party makes objection at the proper stage of the cause, by demurrer for the want of jurisdiction of the Court. But if he answer without first demurring for want of jurisdiction, this objection is waived, *573and a court of chancery can give relief: Galbraith vs. Martin, 5 Hum., 50; 2 Head, 493; 4 Cold., 60.\nIn the present case, the defendant to the cross bill having demurred for want of jurisdiction, he was entitled to the benefit of his objection thus made, and the demurrer should have been sustained.\nLet the decree of the Chancellor be reversed, and the cause remanded.\n", "ocr": true, "opinion_id": 7652844 } ]

[ "47 Tenn. 573" ]

[ { "author_str": "Hawkins", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAlvin Hawkins, J.,\ndelivered the opinion of the Court.\nOn the 24th of February, 1866, the complainant filed a bill in the Chancery Court at Kipley, against David P. Steele, alleging that about the 5th of December, 1859, the intestate Palmer, sold to defendant three town lots in Kipley, at the price of $1,261, for the payment of which defendant executed his three notes — one for $450, due January 1st, 1859; one for $420, due January 1st, 1862, and the other for $421, due January 1st, 1863— that said notes, with the exception of $180, remain due and unpaid; that the intestate executed to the purchaser a bond for title; that defendant has no personal property sufficient to pay the same. Complainant prays that said lots, or so much thereof as may be necessary, be sold, and the proceeds applied to the payment of said notes, and for general relief.\nTo this bill the defendants filed a demurrer. Thereupon complainant asked and obtained leave to file an amended bill, making the widow and heirs of the intestate parties. A portion of the defendants answered.\nDefendant, Steele, admits the allegations in the bill, but says: “In case complainant asks any decree over against this defendant, for any balance that may be due oyer and above the proceeds of the sale of said lots of *575land, then the defendant insists that he be compelled to deraign titles to said lots of land, which defendant does not know whether he can do or not.”\nAt the August Term, 1867, the cause was heard, when a reference was made to the Master, to ascertain the amount due upon the notes. The Master reported the balance due at $1,437.69, which report being confirmed, the Master was directed to sell said lots at public auction, on a credit of eight months; to make report, etc. From this decree the defendant prayed an appeal to this Court, which was granted, upon condition that he give bond, with surety, according to law, within sixty days from the date of the decree. The bond is conditioned for the payment of costs-and damages, and is in the sum of $250. The decree ordering the sale was affirmed by this Court. The lots were sold. The purchase money has been paid, leaving a balance due complainant.\nComplainant now moves the Court for a decree against the defendant, Steele, and his surety for the appeal, for the balance of the original purchase money remaining due. JSTo such relief was sought by the bill. The only relief sought, was, that the land be sold, and the proceeds applied to the payment of the purchase money. That has been done, and the object of the bill has been accomplished. A final decree between the parties has been pronounced at a former term of this Court, and title vested in the purchaser' at the Master’s sale. In this state of the case, this Court has no power to grant the relief now asked for, and the motion must be refused.\n", "ocr": true, "opinion_id": 7652847 } ]

[ "38 Tenn. 438" ]

[ { "author_str": "Wright", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWRIGHT, J.,\ndelivered the opinion of tbe Court.\nThe Circuit Court dismissed the petition for writs of certiorari and supersedeas in this cause, and rendered judgment against the petitioner, Wood, and his security-in the certiorari bond for costs; but refused to give a' judgment for the plaintiff’s debt, and awarded a proce-dendo to the justice of the peace to issue execution upon the judgment before him in favor of the plaintiff.\nThis was error. It is obvious here, from the statement in the petition, that this is not a case where the judgment before the justice of the peace is not complained of, and the relief is sought alone from an unjust and illegal execution of it, as was the cases of Kincaid v. Morris, 10 Yer., 252, and Edde v. Cowan, 1 Sneed, 290. Here the judgment before the justice of the peace is complained of, and the writs of certiorari and supersedeas are substituted for an appeal. The petition not only asks that the execution issued by the justice may be removed into the Circuit Court and quashed, but also that the entire proceedings had before him may be removed, and a new trial had, and justice done the petitioner.\nNo other meaning can be given the petition than that the object of the removal of the cause to the Circuit Court was to correct the errors in the judgment and proceedings of the justice by a trial upon the merits.\nIt is true it is alleged in the petition by the defendant that he appealed from the justice’s judgment within the two days, and gave bond according to law, as he is advised; yet we simply understand this as a reason why he has a right to substitute the writ of cer-tiorari for the appeal.\n*440The plaintiff, therefore, was, Tinder the 3187th section of the Code of Tennessee, entitled to a judgment in the Circuit Court against the defendant and his surety to the prosecution bond for the amount of the justice’s judgment, with interest at the rate of 12-J per cent, per annum from its date, and costs. Kincaid v. Morris, 10 Yer., 252; Rogers v. Ferrell, 10 Yer., 254; Burt v. Davidson, 5 Hum., 426; Jones v. Williams, 2 Swan, 105.\nThe judgment of the Circuit Court will be reversed, and the proper judgment given here for the plaintiff.\n", "ocr": true, "opinion_id": 7653111 } ]

[ "39 Tenn. 1" ]

[ { "author_str": "Oarutsers", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOaRUTSERS, J.,\ndelivered the opinion of the Court.\nThis bill is filed as administrator with the will an-. nexed of Rebecca Baggerly, ■ deceased, for the construction of her will, upon the interpleading of the parties, whose interests conflict. The difficulty arises upon the exercise of a power by the widow, given to her, in re*4lation to the disposition of certain slaves in the will of her husband.\nDavid Baggerly, a citizen of North Carolina, made his will in 1816, and the same was admitted to probate by the County Court of Iredell, in 1819. It contains these two clauses, upon which the difficulty arises.\n“ To my beloved wife Rebecca, I give and bequeath all the lands owned by me, lying on the south side of the Yadkin river, in Iredell county, during her lifetime, and also all my household goods and effects of every description, and also my negro- women, Fanny and Rina, and a negro boy named James.”\nIn a subsequent clause, he says: “It is further my will and desire, that my negroes, Fanny, Rina, and James, be disposed of by my wife Rebecca, with their increase, to the whole, or any one, or more of .my children she may think proper, at her decease.”\nIn March, 1856, she made her will, and died in JLincoln county, Tennessee, to which she had removed :many years ago. These slaves, or their increase were (disposed of in her will, unequally, among such of her .children as were then living, and to some of the grandchildren. Some were to be sold, and the proceeds to go, partly, to grandchildren.\nShe had a power of appointment under restrictions; it was to be, to any one or more of her children. Her power was coupled with an interest, as well as a trust.\nA power of appointment to children does not embrace grandchildren, and the exercise of it in their favor is without authority, and void. Jarnagin v. Conway, 2 Hump., 50, and authorities there cited. This is not disputable. But the more difficult question here is, *5whether that avoids the appointments of her will to children, so as to leave the whole property undisposed of by her, or, is it good pro tanto; and if so, how shall the balance go ? This does not fall under the head of illusory appointments. That only applies to a case where one invested with a power to apportion property amongst a class, with full discretion as' to the amount to be given to eaeh, gives to one a merely nominal share. That will be set aside as illusory, as a fraud upon the donor of the power, as he certainly intended by making all the objects of his bounty, or of the power, that each should have a substantial share. 1 Hare & Wallace, L. 0. Eq., 332. But in this case she had full and express power to give all to one, or two, or- more, with an unrestricted discretion. It was not to his children as a class, without distinction, but she might exclude one or more if she chose, entirely. Not so in cases to which illusory appointment applies; though in these cases discriminations may he made, yet nor to the entire exclusion of any one, or a nominal share to one.\nIn this case the widow’s estate is for life only, by implication with power to control the remainder to a limited extent, and in a certain mode. The limitation was to his children. They, as a class, had a vested joint remainder under the will; but power was given to her to defeat this interest of any one or more, by the exereise of the power given, hut in case she failed to appoint, or made an invalid appointment, then the property would go to all, equally, under his will, at her death.\nThere is no doubt hut that a person having a power, *6must execute it in good faith for the end and purposes designed, or it will he void. In the leading case of Aleyn v. Belcher, 1 White and Tudor, 290, this principle is illustrated, and in the notes, the cases are collected. In that case, the power of appointing was given, hut it was exercised in favor of the wife, upon an agreement on her part that she should receive only a part as an annuity, and that the residue should he applied to the payment of the husband’s debts. This was held to be a fraud upon the power, and set aside, except so far as related to the annuity. A Court of Equity will guard the exercise of these powers, so as to prevent any fraud upon the donor of the power. In all cases where a discretion is given in the selection of the objects amongst a class, good faith must be observed, and if discrimina-tions are made to secure advantage to the trustee himself, or a stranger, his act will be held vicious and corrupt. If there be a secret understanding that the appointee shall assign a part of the fund to a stranger, or pay the debts of the appointor, or loan him the fund, the appointment would, thereby, be vitiated and declared void. Notes to the same case, ¿95, citing 8 Iredell’s Eq. R.., 55, 59; 1 Sim. 343, and other authorities ; also, Bostick v. Winton, 1 Sneed, 538. Any exercise of such a power in fraud -of the original intention with which the power was created, would, in equity, render the appointment void.\nA question sometimes arises, as to the extent the Courts will go in setting aside fraudulent appointments; whether to the extent of the fraud, or entirely. But that question does not come up in this case, as there is no pretence that any advantage was. received, in this *7case, by tbe appointor to herself or any one else, to induce the appointment. The objection is, that she undertook by mistake, or misconstruction of her authority, to give a part of the property to grandchildren. There was no fraud contemplated by her, nor can it be so considered. The rules in relation to fraudulent appointments do not, then, apply to the case, but it is, simply, a question of the validity of its exercise, so far as it is in favor of grandchildren.\nThe result is, that her appointment, so far as it is exercised in favor of her children, is valid, and the appointment to her grandchildren is void.\nThe slave Tillman, given at valuation in the third clause, to her daughter, Mrs. McKee, is not properly disposed of, as the amount of the value is distributed' in a manner not authorized by her power. The dispositions in clauses 4, 5 and 7, being to children of the donor, are good; so are the bequests of the eighth clause, as that relates to property not embraced in the trust, that being limited to the slaves.\nA valid appointment, though in the same deed or will with others not valid, will be maintained. 2 S.ug. on Bow. .87.\nThe other slaves, not disposed of by tbe widow under the trust, must he distributed, equally, among all the objects of the power, under the will of David Baggerly. We have felt strongly inclined to produce equality, by compelling those to account who have received slaves by the valid exercise of the discretionary power confided to the widow, hut have been unable to find any principles to authorize it. She had the express power to give the-whole to “.any one or more,” and exclude tbe others. *8She could have given all to one. All. ’would have been equal on failure to exert the power, or in case of an invalid or void exercise of it. The unrestricted power of selection and discrimination entrusted to her, enabled her, legally, to produce any inequality she desired. So far then as she has appointed, that must stand, with its advantages to the objects selected. As to that portion of the property she has left untouched by her power, it must pass under the will of the testator, as a vested remainder, exempt from the contingent power of appointment given to her over it, to all his children, and their representatives, where any are dead. It is not a case for collation of advancements, as in oases of intestacy ^ but the right is derived from the will. All the children then are embraced, without regard to what any may have received under the exercise of the power, that is, from a different source. Sug. on How., 5&8.\nWhere a discretionary power is not exercised, the whole of the objects wh'o are within it, will take in equal shares. Hill on Trustees, 70-4&2. So it must be, where .it is not exercised as to part, in the disposition of that.\nThe decree of the Chancellor will be reversed, and decree here in accordance with this opinion.\n", "ocr": true, "opinion_id": 7653203 } ]

[ "39 Tenn. 65" ]

[ { "author_str": "Caruthers", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCarutheRS, J.,\ndelivered the opinion of the Court.\nFaulkner sued the plaintiff in error, in tresspass on the case, and recovered $200 damages. The injury charged is for entering upon the grounds of which he ivas renter for the year, for the construction of the road, and destroying his vegetables, houses, fences, &c.\n*66Faulkner was the tenant of General Anderson, and had rented the land for the whole of the year 1858. During that year Anderson sold to the corporation, and executed his bond for title, which was accepted. In that it is expressly stipulated that Faulkner is to retain the possession until the 1st of January, 1854. But he was ousted by the company in October before, and forcible possession taken of the premises, and his property destroyed as before stated, in the construction of the road. Now, can he recover in this or any other mode of proceeding for this supposed injury ?\nThe owner of the freehold can only proceed under the charter, and not by any other mode. But a termer is not embraced by the charter, and perhaps has no redress against a corporation of this description, for any injury he may sustain by the rightful entry upon his possessions, and necessary occupation of the same for the purposes of the charter.\nThe right of the State to appropriate private property to public use, is communicated to these corporations, and they may, in its rightful exercise, enter upon the lands of others in the construction of their roads, lawfully, and without liability as trespassers. So it could have entered upon Faulkner with impunity, unless by contract that right was lost. It was certainly competent for this artificial person to bind itself, by contract, as well as any other person. Its acknowledged right to enter upon this land, could be waived or postponed by contract. And in the present case this was done. The corporation bought of Anderson, and as a stipulation in that written contract, Faulkner was to retain the pos*67session unmolested for a fixed period. This was a postponement of an admitted right by contract. Surely both parties were bound to observe it. Though Faulkner was not a party to it, yet his landlord provided for his protection as a term in his sale. Here, then, is a case of entering upon another’s possessions without authority, and against an express contract, and great damage is done. Can there be any doubt about the liability in such a case ? It is not an injury embraced by the charter; the entry was in violation of a - contract, and therefore, illegal; damage has resulted, and there is no other remedy given.\nIt was no defence to show that the title was out of Anderson, and in Maxey, or any one else. It was enough to show that Anderson had the possession, rightfully, by his tenant, and that the defendant acknowledged his right and contracted with him for it making the reservation stated, in favor of the plaintiff.\nThere is no error, and the judgment is affirmed.\n", "ocr": true, "opinion_id": 7653236 } ]

[ "40 Tenn. 100" ]

[ { "author_str": "McKinney", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcKinney, J.,\ndelivered tbe opinion of tbe Court.\nThe original bill seeks a specific execution of a contract entered into between Aiden Humbard and bis son, Samuel Humbard — both of whom are dead — for the conveyance of a tract of land, of about 170 acres, situate in Greene county; and tbe cross-bill seeks a rescission of said contract.\nThe contract is evidenced by an instrument under seal, bearing date 13th of January, 1846. The object of this arrangement was to secure to the father, and his wife, and an unmarried daughter, the means of support and maintenance during the lives of the old folks — both of whom were of an advanced age. By the terms of the covenant, Samuel Hum-bard was to be let into the immediate possession of the place ; and was bound to give to the old people one-third of all that should be raised on the place; and if this were not sufficient, he was to furnish them a “ decent support.” And the father was bound, on his son’s compliance with the stipulations of the covenant on his part, to make to him a good and sufficient conveyance, in fee simple, for said tract of land. The covenant contains various minor-stipulations, not necessary to be noticed in our view of the case.\nAiden Humbard died in 1849, and his wife died previously. Samuel Humbard died in November, 1853. The latter took possession of said place at the date of the contract, in January, 1846, and remained in possession till his death; and the complainants — who are his widow and children — have retained the possession ever since. On the-day of October, 1855, the original bill was filed by the children and widow of Samu-' el Humbard, to obtain a legal title to said tract of land, in pursuance of said covenant. This was resisted by the defendants, who are the other heirs at law of Aiden Humbard, on the ground of failure on the part of said Samuel Humbard to perform the stipulations of the contract. And on the 5th of May, 1856, said defendants filed a cross-bill, to have said *102contract rescinded, and the covenant cancelled, as forming a cloud on their legal title to said tract of land.\nMuch testimony was adduced, to establish, on the one side, a compliance with his contract by Samuel Humbard ; and, on the other, his failure to perform the same. We deem it unnecessary to notice the proof, further than to remark, that it does not make out such a ease as clearly entitles the complainants in the original bill to a specific execution of the contract. Such was the view of the Chancellor, and he dismissed the original bill. But the cross-bill was entertained, and a decree made rescinding the contract, cancelling the covenant, and decreeing a sale of the land, for the purpose of partition ; and likewise charging the estate of Samuel Humbard with rent from the death of his father.\nThe decree in the original cause is correct, and will be affirmed ; but the decree upon the cross-bill is erroneous, and must be reversed.\nIt must be remembered that applications to a Court of Equity, either for the specific performance, or rescission of contracts, is not a matter of absolute right in either party; but a matter of sound discretion in the Court, to be exercised according to what, under all the circumstances of the case, may appear to be reasonable and proper. Hence, it not un-frequently occurs, that the .Court will refuse to decree a specific performance of an agreement, at the instance of one party ; and yet will decline to order it to be cancelled, or rescinded, on the application of the other party; but will leave the parties to their legal remedies. 2 Story’s Eq., sec. 693, 742.\nSuch, we think, was the proper course to have been pursued in the present case.\nWhile the complainants in the original cause have not made out a clear case for a specific performance of the contract, it will be found, perhaps, on a careful examination of the proof, that the parties in the cross-bill have not made a better case for a rescission and cancellation of the covenant.\nWe see from the record, that Samuel Humbard and his fam-*103By have been in possession of the land for upwards of ten years preceding the filing of the cross-bill, under said covenant. Whether or not any legal right to the land was thereby acquired, is a question upon which, at present, it would not be proper to intimate an opinion. This question is peculiarly appropriate to the legal forum, and the parties should ■have been left to litigate it there; but by the decree on the -cross-bill, they are precluded from doing so. The delay of the complainants in the cross-bill to assert any right to the land, or to ask a rescission of the contract, for so long a period after the death of Aiden Iiumbard, and until after an application was made, by the other parties, for a specific execution of the contract, cannot escape observation, as a further reason for refusing to entertain the cross-bill-\nIt is obvious that, inasmuch as the right to a specific performance has been denied, the existence of the covenant interposes no obstacle, in a Court of Law, to the investigation and determination of' the legal rights of the .parties; and, consequently, there was no necessity for filing the eross-bill in this ease.\nIt was error to charge the estate of Samuel Humbard with rent, under the circumstances of this ease. But in the view we have taken of the case, it is not necessary to discuss this question.\nThe decree in the cross-cause will be reversed, and the cross-bill dismissed.\n", "ocr": true, "opinion_id": 7653678 } ]

[ "40 Tenn. 389" ]

[ { "author_str": "Wright", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWRight, J.,\ndelivered tbe opinion of the Court.\nSmith sued Drennon, by warrant before a Justice of the Peace, upon a note under seal, for thirty-five dollars, executed by him, on the 17th of December, 1855, payable to W. M. Carpenter, one day after date, and by him endorsed to the plaintiff, Smith. The case was taken to the Circuit Court by appeal, and upon the trial the defendant proved by one Nelson, that at the date of the note he was a Justice of the Peace of Wilson county, that Carpenter, to whom the note was payable, was a constable — that Carpenter came to his house and got some executions against Drennon, in favor of Witty— that at the time he procured the executions, he asked the witness if it would he any harm for him to make an arrangement with Drennon, by which Drennon should pay him for holding up the executions until he returned from a trip down the river with some timber. He told Carpenter he thought not. The defendant then offered to prove by this witness, that a day or two afterwards, Carpenter told him that he had taken Dren-non’s note for $30, or $35, and he had agreed to wait until he returned. This was objected to, and the objection sustained by the Coui't.\nThe defendant then proved by W. G. Robertson that he made a settlement between Drennon and Carpenter after Drennon’s return from his trip down the river, and that the executions in favor of Witty were settled and paid in that settlement, and that the note in controversy had not then been transferred. And he then offered to prove by this witness, that at the time of the settlement the note was spoken of, and it was agreed between Drennon and Carpenter, that it had been given in consideration that Carpenter would indulge Drennon on the executions in favor of Witty; but this was also objected to, and the objection sustained by the Court.\nIn these rulings of the Circuit Judge there is error. It is not contended that the proof offered, if believed, would not constitute a valid defence to the note, as between the maker and payee. And it cannot be maintained here, that the plain*391tiff occupies any higher ground than does Carpenter, from whom he acquired the note — he having taken the same after it was past due and dishonored, and the declarations of the endorser having been made- while the interest was in him. In such a ease they are admissible evidence for the defendant, and derive their value and legal force from the relation of the party making them to the property in question, and are taken as parts of the res gestee, and may be proved by any competent witness who heard them, without calling the party by whom they were made, and whether he be competent or not. The question is, whether he made the statement, and not merely whether the fact is as he admitted it to be. Its truth, where the admission is not conclusive, (and it seldom is so,) may be controverted by other testimony; even by calling the party himself, when competent; but it is not necessary to produce him, his declarations, when admissible at all, being admissible as original evidence, and not as hearsay. Thus, the admissions, or declarations, made by the assignor of a personal contract, or chattel, previous to the assignment, while he remains the sole proprietor, and where the assignee must recover through the title of the assignor, and succeeds only to that title as it stood at the time of the transfer, are admissible evidence against the assignee. In such a case, he is bound by the previous admissions of the assignor, in disparagement of his own apparent title. But this is true only where there is an identity of interest between the assignor and assignee; and such identity is deemed to exist, not only where the latter is expressly the mere agent and representative of the former, but also where the assignee has acquired a title with actual notice of the true state of that of the assignor, as qualified by the admissions in question, or where he has purchased a demand already stale, or otherwise infected with circumstances of suspicion. Thus, also, the declarations of a former holder of a promissory note, negotiated before it was over-due, showing that it was given without consideration, though made while he held the note, are not admissible against the endorsee; for the right of a person, holding by a good title, is not to be cut *392down by the acknowledgment of a former holder, that he had no title. But in an action by the endorsee of a bill, or note, dishonored before it was negotiated, the declarations of the endorser, made while the interest was in him, are admissible in-evidence for the defendant. 1 Greenl. Ev., secs. 171, 189, 190 and 191.\nBut it is argued that it is a rule of law, founded on public policy, that no party who has signed or endorsed a negotiable paper, shall ever be permitted, by his testimony, to invalidate it, and'that, a fortiori, it must be so as to his declarations. It is sufficient for us to say, the established rule is otherwise in our State. Stump v. Napier, 2 Yer., 35, 50.\nReverse the judgment, and remand the case for another trial.\n", "ocr": true, "opinion_id": 7653902 } ]

[ "40 Tenn. 493" ]

[ { "author_str": "Caruthers", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCarutheRS, J.,\ndelivered the opinion of the Court.\nThis case involves the construction of the will of James Walch, made in 1835.\n“ I give to my sister, Nancy, all my land estate, and negro man, named Abe, and a negro boy, named Stephen, during her natural life, then to be sold and equally divided amongst my sisters and brother.” The testator had no parents living, nor any wife or children, and only two sisters, besides the said Nancy, and one brother. Nancy died July, 1858. Margaret Walch, one of the sisters, after selling her interest to her nephew, the defendant, died before the said Nancy. It seems to be doubted whether William Walch, the only *494brother of the testator, is dead or not, but he also sold his interest to the defendant, Norman Walch, long before the death of the tenant for life. The other sister, the complainant, Mary, sold her interest under the -will to her co-complainants, reserving a life estate. The defendant is the surviving executor of the ■will, and, under it, had advertised the land and slaves for sale, when he was enjoined hy this bill.\nThe complainant, Mary, claims the whole estate, upon the ground, that, at the termination of the life estate, she was the only legatee, and therefore, as the property was given to the brother and sisters, as a class, she is entitled to the whole, as she alone answered the description at that time. That doctrine can have no application to a case like this. There was no uncertainty or contingency as to the legatees. He had only one brother and two sisters, and to them the remainder is given. The gift is as perfect and explicit as to the persons who are to take, as if they were named; the remainder vested in his brother William, and sisters, Margaret and Mary, under the description of brother and sisters, upon the death of the testator, in the same manner as if their names had been inserted. We are unable to see how the fact about which there seems to have been some controversy, that is, whether, in the original will the word used in the disposition of the remainder was “ brother, or brothers,” can have any effect in the construction. It is certain he had but the one brother, and we have no doubt but that the word was in the singular, and not plural number. But that could not afford the least aid in the construction, that we can perceive. Whether a fund is an aggregate one, passing to the legatees, as a class, in which case only those who constitute the class, or answer the description, at the time the estate falls, can take, or devolves upon and vests in the individuals of the class described, so as to descend to their heirs, or pass by alienation, is often a question of very great difficulty in its application. But there has been enough written in our *495cases, upon that doctrine, and it is only necessary to apply the principles settled upon it, to new cases, as they may arise.\nWe have no hesitation in holding that, in the case under consideration, the complainant is only entitled to one-third of the property.\nSuch was the decree of the Chancellor, and it is affirmed.\n", "ocr": true, "opinion_id": 7653983 } ]

[ "40 Tenn. 695" ]

[ { "author_str": "Caruthers", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCaruthers, J.,\ndelivered the opinion of the Court.\nThis was an agreed ease between Greer, as collector of the taxes in Davidson county, and Mrs. Brown, a tax payer. The facts agreed are, that Mrs. Brown is “ a resident citizen of Davidson, having her domicil at Nashville that she is the owner of a plantation in Maury county, near Springhill, upon which she has a large number of slaves, permanently employed, which are subject to taxation by the revenue laws of the State. She has upon the place a family residence, furnished, at which she frequently spends a few days or weeks at a time, with her family. The assessor for Davidson required that she should give in these slaves for taxation in Davidson county, which she did under protest. She is also required to pay taxes upon the sajne slaves in the county of Maury. And the question is, under these facts, whether the taxes should be paid in Maury or Davidson.\nThere is nothing in, sections 28 and 29 of the 2d art. of the Constitution, that affects the question, as is insisted in argument. Those sections place no limitations or restrictions upon the power of the Legislature, except that all property shall be taxed according to its value, and “ that the same shall be equal and uniform throughout the State.” The authority given to the Legislature to delegate the taxing power to counties and towns, in the 29th section, for county and town purposes, is general, and unconfined, except that they shall tax according to value.\nIt may not be amiss to make a single remark here, as to the duty of assessors, in view of this provision in the Constitution, and the acts of Assembly under it. The Constitution and statutes, to which the assesssors are sworn to conform, (Code 559,) require that “ property should be taxed according to its value.” '(Code 564, 565.) In this case, from the description of slaves, it is clear that they are not assessed *697at much more than half their cash value. This is a great abuse, and ought to be reformed. All property ought to be assessed at its fair value, and that can only be determined by the ordinary selling and buying prices for cash, at the time. To place it any lower than this standard is a palpable dereliction of duty on the part of those whose duty it is made by law to value it, and it is difficult to see how the district or town assessors can reconcile their practice in this respect to their duty, enforced by a solemn oath. Code, 559. The fault is not that of the tax payer, but of the tax assessor ; as it is not the duty of the former, but the latter, to fix the value of property.\nBut the question in this case, and it is one of general interest, is as to the county in which slaves shall be given in for taxes. This is of no consequence as to the State revenue, but is important as to county taxes. We have seen that it is entirely a legislative question. It must then depend upon the statute on that subject. It is to be found in the Code, sec. 568, sub-division 3; “ Slaves shall be assessed to the owner in the county where he resides, whether in his possession or not, and tohether in the same county or not. If hired out in another, they shall be assessed to the hirer for the amount of the hire, and if the owner lives in another State, then they shall be assessed to the hirer at their value.”\nThe argument against the propriety and policy of this provision, as to slaves employed by the owner in another county permanently, is conclusive. The owner certainly ought to pay taxes for them in the county where they are located and protected. But such is not the statute. We cannot make legislation conform to our views of what it should be, where there is no ambiguity. It ought to be changed, and unquestionably would be, if brought to the notice of the Legislature. The clause in relation to slaves hired out of the county of the owner, is entirely unintelligible to us, and ought also to be explained by the Legislature. But we need not now perplex ourselves with an attempt to construe it, as this is not a case of hiring.\n*698Our conclusion is, with the court below, upon the agreed case, that Mrs. Brown is bound to pay the taxes upon the. value of her slaves employed on her farm in Maury county, to the collector of taxes in the county of Davidson. It follows, of course, that she cannot, also, be required to pay for them in the county of Maury.\nSo the judgment will be affirmed.\n", "ocr": true, "opinion_id": 7654161 } ]

[ "48 Tenn. 20" ]

[ { "author_str": "Freeman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFreeman, J.,\ndelivered the opinion of the Court.\nThis case was commenced before a Justice of the Peace for Hawkins County, by original attachment. The attachment was levied on the land of plaintiff in error; judgment rendered against him by the Justice for the sum of one hundred dollars and costs; the papers were transmitted to the Circuit Court, and there an order of condemnation was made, and the land directed to be sold.\nFrom this judgment of condemnation and order of sale the defendant below prosecutes his writ of error to this Court.\nThe affidavit on which the attachment was issued is as follows: “Jehiel Fugate makes oath that William *22Sullivan is indebted to him to the amount of one hundred dollars, and that the said Sullivan so absconds and conceals himself, that the ordinary process of law cannot be served upon him.”\nThis affidavit is essentially defective, and the proceedings under it are simply void.\nSection 3469 of the Code provides that: “In order to obtain an attachment, the plaintiff, his agent or attorney, shall make oath in writing, stating the nature and amount of his debt or demand, and that his is a just claim;” and also, that one or more of the causes enumerated in section 3455 exist.\nThere is no statement of the nature of the debt claimed. It is true it is called a debt, but the words of the Code are “the nature of the debt or demand must be stated, as that it is due by note, account, for breach of contract, or the like;” nor is it stated that the debt is just.\nThese facts are required to be stated and sworn to, before the party can rightfully obtain a writ of attachment; the issuance of it, without this, makes it a process issued without any authority of law, and void.\nIt is insisted that this is an effort to attack the judgment of the Justice of the Peace collaterally, which cannot be done under case of Turner v. Ireland, 11 Hum., 447. We admit the correctness of the decision above quoted, but that was a very different case from this.' In that case the judgment was sought to be attacked by extraneous evidence, and the motion to condemn the land, resisted on grounds sought to be shown by such evidence. In this case, the judgment under *23which the condemnation and order of sale of the land is sought, appears on the face of the proceedings, which are required to be made part of the record of the Circuit Court, to be absolutely void. No condemnation or order of sale could properly be made under these proceedings.\nThe judgment of the Circuit Court is reversed, the ease dismissed, and the defendants in error will pay the costs of this Court and the Court below.\n", "ocr": true, "opinion_id": 7654211 } ]

[ "48 Tenn. 199" ]

[ { "author_str": "Turney", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTurney, J.,\ndelivered the opinion of the Court.\nThe judgment of the Circuit Court must be reversed, for error in the admission of incompetent testimony, *200and for the improper submission of the charge of the Court to the jury. An action of trespass was prosecuted in the Circuit Court of Cocke County, by the defendant in error, against the plaintiffs in error, and others, not before this Court, for the arrest and imprisonment of the defendant in error. Verdict and judgment for defendant in error, and an appeal to this Court.\nOn the trial, the defendant in error was permitted to prove, (plaintiffs in error objecting,) that “ John Mur-rell” (one of the defendants below) “ bore the name of a rebel.” Allowing for the purposes of this opinion, that it was strictly legitimate to have proven the political status, opinions or sympathies of the defendant, the mode adopted and insisted upon in the Circuit Court, was not the correct one. By it is shown no act, or fact from which a jury may or can legitimately infer any thing. Its submission to the jury, is nothing more nor less, than giving to them the conclusions, or it may be, the mere speculations, of a party or parties, without reference to the question whether they are based upon the conduct of the defendant, or the imagination of the witness. If it is relied upon as proof of character, supposing such testimony to be competent, it has no one constituent of the rule governing the introduction of testimony upon that subject. But in no case can such fact be shown by character, it must be proven as a fact, or such acts of the party as make up the fact, must be submitted to the jury. In other words, it must appear, from positive or circumstantial testimony, and not from speculation or rumor.\n*201The defendant in error was also permitted to prove that McSween, one of the defendants below, “was influential with the rebels.” This error is met by the same objection as the first.\nThe defendant in error was permitted to prove the declaration of the plaintiff in error, made at the time of, and during the trial of the defendant in error, before one Mims, a' Confederate Lieutenant. The plaintiff in error proposed to prove the declaration of Mims, made at the same time, assigning reasons why he would not, or did not release the defendant in error. Such declarations, if made, were part of the res gestee, and competent, or if not parts of. the res gestee, and therefore incompetent, they were competent as rebutting the effect of the declarations of the plaintiffs in error, made at the same time, and introduced by the defendant in error.\nHis Honor, the Circuit Judge, in his charge, said to the jury, “The mere omission on the part of the defendants, Smith and McSween, to use their influence to effect the-release of the plaintiffs, is a circumstance, if shown in proof, which may be looked to in connection with the other proof in the cause, in order to determine- whether they are guilty, or not guilty, of the trespass complained of. This was clearly error. We know of no rule requiring one to use his influence to release from arrest, a person in custody of those acting under color of authority. Mims was an officer in the Confederate army, and as such, held in arrest the plaintiff in error, whether rightfully or wrongfully, it is unnecessary for us here to en-quire. He was acting in a military capacity, and was the representative of a government de facto. Besides, it *202would be a strange and unnatural rule, to require third persons to interfere, at the risk of arrest and imprisonment to themselves, for the release of another. Such rule has no warrant in law, and is contrary to the paramount principle of self-protection.\nAfter his Honor had charged the jury, they retired to consider of their verdict, and in a short time returned into Court, and said they could not agree, and were asked by the Court “if they disagreed as to any portion of the charge, or the testimony of the witnesses.” “They replied that they did not know that they did.” Thereupon, the Court repeated a portion of the charge; the jury returned a second time, and said they could not agree, and the Court, without being called upon, again repeated portions of his charge. It is well enough, when a jury asks for a particular part of a charge upon an indicated 'Subject, for the Court to repeat that part substantially as given. But when a jury merely disagrees as to the result, after weighing the testimony and considering the charge, it is error in the Court to repeat or re-charge disjointed portions of his charge; in such instance, a jury very well may, and we think always will conclude, that the Court means to have them understand that the matter or question, thus disjointedly charged upon, is controlling in the case, and will find accordingly.\nJudgment reversed, and cause remanded.\n", "ocr": true, "opinion_id": 7654290 } ]

[ "48 Tenn. 574" ]

[ { "author_str": "Nicholso", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNicholso'N, C. J.,\ndelivered tbe opinion of tbe Court.\nThe bill in this case is filed to enforce the vendor’s lien, by the sale of the land for tbe satisfaction of an unpaid balance of the purchase money. Tbe defendant answers and admits tbe purchase, and that a portion of tbe purchase money remains due and unpaid. But be resists a decree of sale, because, as be alleges, be purchased under an agreement and witb the understanding that be was to have a conveyance in fee simple, witb covenants of general warranty, that the conveyance made to him does contain such covenants; but he insists that the title to a large portion of the land is defective, and that complainant is a non-resident, and is insolvent; and, therefore, that the land ought not to be sold to satisfy the unpaid purchase money. He prays that his answer may be taken as a cross bill, but fails to execute the bond required in such case; and for that, the Chancellor *576properly treated it only as an answer. This Court, in like manner, can regard it only as an answer. Harrell v. Harrell, 4 Cold., 377.\nNo proof was made to sustain the allegations in the answer; nor could such proof have availed him, inasmuch as he failed to put himself in an attitude to obtain relief under a cross bill. The case of Hurley v. Coleman, 3 Head, 265, is conclusive of the present case. It is there held, that “no question can be made by the defendant, as to the title, in resistance of the application simply to sell the property. If any grounds exist for a controversy on that subject, they must be presented by a cross bill, or in some other mode, by the vendees.” There is, therefore, no error in the decree adjudging a sale of the land for the satisfaction of the residue of the purchase money.\nBut we are of opinion that the Chancellor erred in disallowing the first exception of complainant to the report of the Clerk and Master, as to the amount of the unpaid purchase money. The interest should have been calculated on the basis of partial payments. To this extent we reverse the decree, and in all other respects the same is affirmed. The cause will be remanded to the court below, for the execution of the decree, as herein indicated.\n", "ocr": true, "opinion_id": 7654509 } ]

[ "50 Tenn. 48" ]

[ { "author_str": "Deaderick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDeaderick, J.,\ndelivered the opinion of the Court.\nAt the September Term, 1870, of the Circuit Court of Loudon county, an indictment was found against the defendant in error, for carnal knowledge of a female under the age of ten years.\nThe indictment charged that the offense was committed in the county of Loudon, on the 10th day of March, 1868, a time anterior to the passage of any law authorizing the establishment of said county, and of course before the- organization or existence of said county.\nOn motion of the defendant, by his counsel, the indictment was quashed by the Circuit Judge, and thereupon the District Attorney excepted to the action of the court, and appealed, on behalf of the State, in error, to this court.\nThe time when the offense was committed being alleged in the indictment to be the 10th of March, 1868, two questions are presented for our determination:\n1. Upon the motion to quash, are we to presume the time laid in the indictment as the time when the offense was committed, to be the true time?\n2. If we are to take the time alleged in the indictment as the time when the offense was committed, had the Circuit Court of Loudon county, jurisdiction to try the offender?\nThe county of Loudon is constituted of parts of the counties of Blount, Roane and Monroe; and at the time when the offense is alleged to have been committed, these counties had and exercised jurisdiction over the parts of their territories since taken from them, respectively, to form the new county of Loudon.\n*50At common law it is necessary, witb some exceptions, to aver in the indictment the day of the month, and year, when the offense was committed. If the time stated is repugnant, uncertain, or impossible, or if no time at all is stated, so that it does not appear whether the offense is barred by limitation, the indictment will be bad, and judgment upon it will be arrested.1 If a time is limited by law within which the offense charged must be prosecuted, the indictment must show upon its face that it was found within such time: Whart. Am. Cr. L., 111, 114; Arch. Cr. Pl. and Ev., 275; 1 Ch. Cr. L., 179. Such we understand to be the rule of the common law.\nBut these well-established rules of criminal pleading of the common law, seem to have been materially changed by section 5124 of the Code, which provides, “that the time at which the offense was committed need not be stated in the indictment; but the offense may be alleged to have been committed on any day before the finding thereof, or generally before the finding of the indictment, unless the time is a material ingredient of the offense.”\nIn this case, the offense might have been committed on one day as well as another, and the time or day of its commission is not of the essence of the offense; and according to the above quoted section of the Code, it was not necessary to allege any day certain, as the day upon which the offense was committed. By the rules of the common law, the indictment should also allege the place of the commission of the offense charged. But this re*51quirement of tbe common law has been dispensed with by section 5125 of the Code, which provides that “It is not necessary for the indictment to allege where the offense was committed; but the proof shall show a state of facts bringing the offense within the jurisdiction of the county in which the indictment was preferred.”1\nThe indictment was preferred in the county of Lou-don, and the proof must show, upon the trial of the cause, that the offense was committed in that county; and the offender can be tried under article 1, section 9, of our Constitution, only in the county “in which the crime shall have been committed,” unless he shall waive this •right secured to him, by consenting to a change of venue: 1 Cold., 350. A grand jury can not inquire concerning any offenses except those committed within their county; and if a county is divided, and a portion of its territory goes into the formation of a new county, a criminal act done before the division of the old county, within the ceded territory, for which the offender had not been convicted and punished, can be prosecuted only in the new county. The offense committed is against the State. It is the State that makes the accusation, and prosecutes the offender; and a new county being formed, including the place of the commission of an offense, and a court having criminal jurisdiction being established therein, such court acquires jurisdiction of all violations of law within the limits of such new county. After its establishment, the Circuit Court in the old county from which the territory was taken, upon which the offense *52was committed, has no jurisdiction to institute an indictment against the offender. But such proceedings must be begun in the county where the offense was committed: 4 Bl. Com., 303; Arch. Cr. P. & E., 280, 281; Bishop on Cr. Pro., 65, 66 and notes; Bishop Cr. L., 552.\nIn 1842, part of the county of Burke, and part of Butherford county, North Carolina, were constituted a new county, and jurisdiction given to the Superior Court of Burke county of all criminal offenses committed in • the part of McDowell which was taken from Burke. It was held that an indictment for an offense alleged in the indictment to have been committed in Burke, could not be supported by evidence of acts done in McDowell, after the establishment of the latter county: 4 Ire., 219.\nIn Arkansas, it has been held that, “if a new county is formed of territory formerly included in an old county, an indictment for an offense antecedently committed. within the territory embraced in the new county, may be maintained in the new, under the usual allegation .setting out the offense as committed in the new: 13 Ark., 708.\nThe same doctrine was declared in a New Jersey case, except that while it was held that the trial should be in the new county, it was also- held .that the indictment should not allege that the offense was committed in the new county, fpr the reason stated, that “it is seen that at the .time mentioned there was'no such place as that at which.the offense is alleged to have been committed:” 3 Halst., 307..\nIn Georgia, also, it has been held that the offender should be tried in the new county, and that the offense *53might be, or should be, charged as having been perpetrated in the old county: 22 Ga., 545, 555.\nThus it will be seen that the trial of the offender should be had in the county in which the place where the offense was committed, is included at the time of the trial. This being so, we further hold that it is sufficient to charge the offense in the indictment as having been committed in the new county including the territory upon which it was committed. It follows, therefore, that his Honor, the Circuit Judge, erred in quashing the indictment in this case; and the judgment will be reversed, and the cause will be remanded to the Circuit Court of Loudon county for further proceedings; and the defendant will be recognized to appear at the next term of the Circuit Court of Loudon county, to answer to the indictment.\n\n See State v. Bowling, 10 Hum., 72.\n\n\n See Williams v. The State, ante 37; State v. Quartemus, post 65.\n\n", "ocr": true, "opinion_id": 7654947 } ]

[ "50 Tenn. 141" ]

[ { "author_str": "Nelson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNelsoN, J.,\ndelivered the opinion of the Court.\nThe plaintiff in error was indicted and convicted in the Circuit. Court of Hardin county, for unlawfully selling spirituous liquors on the Sabbath day. It was adjudged that he should pay a fine of twenty-five dollars and the costs of the prosecution; and from this judgment he prosecutes this appeal in error to this Court. The proof shows, clearly, that, on a Sunday in April, 1868, the plaintiff in error sold and received payment for “three drinks of whisky, at Pittsburg Landing; that the sale was made some forty or fifty yards outside of the cemetery inclosure at that place, and outside the corner post designating the line of the Government fence, but within the lines occupied by the officers, soldiers and employes; that he was closer to the cemetery inclosure than the soldiers’ tents, and between them and the inclosure; that the houses occupied by the employes were “scattered around his establishment; that there were United States soldiers, officers and employes there at the time, at work on the_cemetery grounds, and the house occupied by him was put up after they were stationed there. The plaintiff in error proved that a paper, purporting to be an extract from Special Order, No. 34, which was signed “By command of Maj. Gen’l Geo. H. Thomas, A. W. Wills, Brevet Lt. Col., and A. Q,. M., in charge of Cemeteries at Corinth and Pittsburg Landing,” was in the handwriting of said Wills. This order states that “H. Harbert & Co., (composed of H. Harbert and C. W. Wills,) are hereby appointed sutlers for the employes in government service engaged in the construction of the *143National Cemetery at Pittsburg Landing, Tennessee, and are authorized to sell merchandize, or other articles the said employes may from time to time, need/’\nThe reading of this order was objected to on the part of the State, but the objection was overruled. Among other things, the Circuit Court instructed the jury, “if the proof showed that the selling of the liquor was within the boundary of the ten acres ceded by the State of Tennessee to the United States for a National Cemetery, that the courts would have no jurisdiction of the cause; but on the contrary, if from the evidence, the jury believed that the sale was outside of the ten acres so ceded, that the court would have jurisdiction; that the distance was immaterial, nor did it matter if the officers, soldiers and employes of the Government had their quarters around and beyond the house where the liquor was sold, and were occupying the same.” The Court further charged that “a preponderance of proof was sufficient to warrant a verdict of guilty; and that, in prosecutions of this character, the law did not require such quantum of proof as would exclude reasonable doubt.”\nThe solution of the main question depends upon the construction to be given to the Act of 9th of March, 1867, c. 44, entitled, “An Act to cede to the United States the jurisdiction over the National Cemeteries in this State, and to protect the same.” The Act is framed in a very loose and inartificial manner, but its meaning can probably be ascertained with reasonable certainty. The first section provides that “the exclusive jurisdiction over the several tracts of land and parcels of ground, with the appurtenances thereto, obtained, purchased, used or occu*144pied for burial purposes, by or for the United States, hereinafter described by their names and location, with the premises thereto attached, for officers’ and soldiers’ quarters, and for guards, is hereby ceded to the United States; Provided, however, that jurisdiction thereof shall be retained by the State of Tennessee, so far as to punish offenders against this law, by presentment or indictment, and fine and imprisonment, as hereinafter provided.”\nIn the description of cemeteries, no mention is made of Pittsburg Landing, eo nomine, but that place is described as “Shiloh National Cemetery, containing about ten acres,” and we know, historically, that the two places are treated as the same. Section 2 provides, “that the exclusive jurisdiction over all tracts and parcels of land, with the buildings and appurtenances belonging to the same, including the quarters for officers, keepers, guards, or soldiers, in charge of ■ the same, and the premises connected therewith, now, or at any time hereafter, purchased, used, or occupied by the United States, their officers, or agents, for cemeteries or burial places, within the limits of the State, is hereby ceded to the United States; and whenever such premises shall be no longer required, used or occupied by the United States, the jurisdiction of such abandoned property’may revert to the State of Tennessee.\nThe third section exonerates the property from State and municipal taxation, until the jurisdiction shall have reverted; and provides that, “'the title and possession to the said cemeteries, grounds, buildings and appurtenances shall be protected to the United States, and no process of any courts shall be permitted against the *145same, or to dispossess tbe officers, or agents of the United States thereof, without restricting any just claim for damages or value in the form or mode provided by the United States for prosecuting the same.” The fourth section provides for the punishment of any offender guilty of a voluntary injury to, or mutilation of, the graves, monuments, &c. See Pamphlet Acts, 1866 7, pp. 64, 65.\nIn construing this legislative grant, we are of opinion that the words, in the first section, “with the premises thereto attached, for officers’ and soldiers’ quarters;” and the words in the third section, “with the buildings and appurtenances belonging to the same, including the quarters for officers, keepers, guards or soldiers, in charge of the same, and the premises connected therewith,” are fugitive and temporary in their nature; and in view of the nature of the thing granted, and the purposes for which the grant was made, are to be regarded as ceding to the United States, not only the jurisdiction over the ten acres of land, but jurisdiction over such of the land immediately adjoining, as was used or occupied for officers’ and soldiers’ quarters, and for guards or soldiers in charge of the cemetery and the buildings immediately adjacent thereto. That the grant relates only to the temporary occupation of the adjacent lands, while the cemetery and the buildings, if any, thereon and tire fencing around the land, are in process of construction or repair, is manifest from the provision in the third section, that whenever such premises, (referring to the premises adjacent,) are no longer required, used or occupied by the United States, the jurisdiction of such abandoned property may revert to the State of Tennessee. There was an *146obvious propriety in' conferring this limited and exclusive jurisdiction, as the officers, keepers, guards or soldiers, would, most probably, be under the control of the United States, and any offense committed within the lines of their occupation, would be governed by the laws of Congress, or the army regulations. But the words “exclusive jurisdiction,” must, upon any known or reasonable construction, be limited to the object and purposes of the grant; and it is not to be presumed that the State of Tennessee would yield, or that the United States would accept, the exclusive jurisdiction of all the crimes or misdemeanors committed within the limits of the cemetery, or the premises adjacent, when there is no actual occupation, on the part of the United States, by officers, keepers, guards or soldiers, for purposes connected with the cemetery. Although the State agrees, in section four, that the title of the United States shall be protected, it was not the intention so to divest the State of her .soverignty as to give absolute impunity to all offenses against the State within the cemeteries and grounds adjacent, when not in the actual occupation of the United States.,,\nTo give this construction to the grant, would be to hold, that the eemetery is a “City of Refuge” for all offenders against the laws of the State. It was not the intention of the grant, that the land should be used for any other purpose than that of a cemetery for the repose ■of the dead; and the exclusive jurisdiction conferred, relates, alone, to the measures necessary to be adopted by the United States, from time to time, in order to effectuate this cardinal purpose.’ It was held, in United States v. Coryell, 2 Mason, 60, that, “the purchase of lands by *147the United States, for public purposes, within, the territorial limits of a State, does not, of itself, oust the jurisdiction, or sovereignty, of such State over the lands so purchased.”\nThe Constitution prescribes the only mode by which they can hold land as a sovereign power, and therefore, they hold only as an individual when they obtain it in any other manner. In cases cited in Paschal’s Annotated Constitution, 137, whether the power conferred upon Congress in the National Constitution, Arlicle 1, Section 8, to purchase a district for the seat of Government and “to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock yards and other needful buildings,” was intended to include such a purchase as that under consideration, it is needless to discuss; and it may be assumed, that the acquisition, for the purposes intended, is within the spirit of that instrument. Mr. Justice Story says, that “a great variety of cessions have been made under this power, and generally, there has been a reservation of the rights to serve all State process, civil and criminal, upon persons found therein:” Story on Const., § 1225. See, also, Act of 1795, ss. 1, 2; 1828, sec. 2; Brightley’s Dig., 489, sections 181, 182, 184.\nFrom the peculiar nature of the legislative grant under consideration, and the special and only purpose for which it was made, it may be fairly implied, that the exclusive jurisdiction granted, is limited to the purposes and circumstances we have indicated. We, there*148fore, bo]cl, that, as the proof shows that when the misdemeanor alleged in this case is supposed to have been committed, the United States had actual possession of the premises, by reason of the guard of soldiers, His Honor erred in his instructions to the jury, and should have charged that the Circuit Court had no jurisdiction of the offense.\nHis Honor also erred in his charge, as to the preponderance of proof and reasonable doubts. The benevolent and long cherished maxims of the law on these subjects, are applicable to criminal prosecutions of every grade, as we held in a case at the last Term in Knoxville.\nLet the judgment be reversed and arrested, and the defendant discharged.\n", "ocr": true, "opinion_id": 7654998 } ]

[ "51 Tenn. 250" ]

[ { "author_str": "Nelson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNelsoN, J.,\ndelivered the opinion of the Court.\nOn the 5th February, 1859, complainant recovered a judgment before a Justice against Meriday Hin-son for $76.50 and costs, upon which execution was regularly issued on the 13th, and levied 23rd July, 1859, by a constable, on a tract of land, as the property of Hinson, containing by estimation one hundred and thirty-seven and three-quarters of acres, and fully described in ■ his returns. The original papers were filed in the Circuit Court of Henderson county, where the land is situate, and judgment there, irregularly, rendered in favor of the plaintiff at July Term, 1859, for $78.60, and the land condemned and ordered to be sold; and an order of sale having issued to the sheriff, the same was sold at public sale, to the complainant, on the 28th November, 1859, for $88.32. He raised his *252bid in consequence of certain executions in favor of G-. ~W. Smith to |171.85, and on the 28th. October, 1863, the successor of the former sheriff executed to him a deed for the land, in which the above facts are fully recited. On the 20th March, 1869, the complainant filed this bill in the Chancery Court at Lexington, in which he states that the original papers were consumed when the Courthouse at 'Lexington was burned by the Federal soldiers. He charges that Meriday Hinson, being in embarrassed circumstances, purchased the land on the 9th February, 1863, from one Martin Stewart, since deceased, for the consideration of |750, and fraudulently procured the execution of a deed therefor from Stewart to John M. Flinson and George ~W. Hinson, two infant children of the said Meriday Hinson, with the view to hinder and delay complainant in the collection of his judgment; that Jno. M. Hinson has since departed this life intestate, unmarried, and without issue; that no part of the purchase money was paid by either of said children; that the deed, to them, is fraudulent and void, and forms a cloud over complainant’s title, and he prays that the same may ■ be removed; that the deed from Stewart be declared fraudulent and void; that the title of complainant may be declared; that Meriday Hinson be compelled to account for the rents and profits; that complainant may be put into possession of the land; and that general relief may be granted.\nThe deed from Stewart to John M. and George *253W. Hinson, is exhibited, and purports to have been executed 9th. February, 1859, in consideration of $750, and was registered 16tli February, 1859.\nIn the progress of the cause, leave was granted complainant to amend his bill, by asking that the satisfaction of the judgment be set aside: that a lien be declared in his favor by virtue of the levy; that the land be sold, and the deed from Stewart annulled, and that if mistaken in the relief prayed for, such other and further relief may be granted as the nature of his case may demand.\nIt is stated in the transcript that this amendment was accordingly made of record, and the cause continued.\nThe cause was heard 9th April, 1870, upon the answers, proofs, and exhibits, and the Chancellor being of opinion that complainant is not entitled to relief, dismissed his bill, and complainant appealed to this Court.\nIt appears from the evidence that Meriday Hin-son was the owner of a tract of land on Cane Creek, which he exchanged with Stewart for the tract of land in controversy, of which he took possession in 1854 or 1855, according to the statement of one witness, or in 1858, as stated by another; that he has resided upon it ever since, having erected buildings, and made other valuable improvements thereon, to the value of about one thousand dollars; that when the deed from Stewart was executed, one of the sons was about seven, and the other about twelve or fifteen years of age; *254tbat they resided with their father, and were utterly unable to pay for the land; that their father owned but little personal property at the time of the levy, although he had enough to pay complainant’s debt, and then declared to the constable that he had no property subject to execution; that after the execution of the deed from Stewart, Meriday Hinson was not only in the full possession and enjoyment of the land, but actually leased a part of it to one of the witnesses, and afterwards verbally contracted to sell it to one Swafford, in the fall of 1863, having it in contemplation at that time to remove to the State of Illinois, though he did not accomplish his purpose; that he then declared that he had - caused the deed to be made “to his two boys,” to prevent complainant from collecting his debt; that at times he spoke of paying the debt, and appeared to be making arrangements for that purpose, but at other times insisted that it was unjust, and that when another creditor applied to him for payment in 1859, he “laughed him to scorn,” and declared that he had nothing that could be levied on, as he had caused the deed to be made to his sons. To another witness he said that “the Michigan soldiers had told him that the 'Secesh would not be allowed to hold any land in this country.”\nMeriday Hinson admits that judgment was rendered against him, but denies in his answer that he had any notice of the sheriff’s sale. The latter statement is fully disproved. He states that he is not claiming the wrongful and forcible possession of *255tbe land, and that be is tbe tenant of G-eo. ~W. Hinson. He denies that be purchased tbe land, or caused it to be conveyed to Ms sons, to . binder and delay complainant; states that, be was not insolvent, or embarrassed in bis circumstances, and was not called upon by tbe constable for personal property.\nHe says that “be is not advised, and does not know of tbe said John M. & George ~W. Hinson ever having paid any part of said consideration money to said Stewart, and that be never paid any part of tbe consideration money, as mentioned in tbe bill of complainant, and as charged.” He does not even pretend tbat the land was an advancement to bis children. He states that valuable improvements were made upon tbe land, but does not disclose by whom or at whose cost, although the proof abundantly shows that he made them.\nIn these and other particulars, tbe answer is exceedingly vague, evasive and unsatisfactory, and is fully disproved; and there is not tbe slightest doubt that Meriday Hinson, in tbe view of a court of equity, is tbe true owner of the land, and caused and procured the conveyance to be made to his sons, for tbe fraudulent purpose of hindering and delaying tbe complainant and other creditors in tbe collection of their just demands.\nThe complainant is not entitled to the relief prayed for in Ms original bill. Tbe legal title to the land was in John M. & George \"W. Hinson, at the time of tbe levy and sale, and no title was communicated to the complainant by the sheriff’s deed. *256But under Ms amended bill, be bas tbe right to bave tbe satisfaction of his judgment set aside, according to Henry v. Keys, 5 Sneed, 489, which was founded upon the act of 1847, c. 191—Acts 1847-8, 823. That act is substantially re-enacted in the Code, 2990, 2996.\nIt is not necessary to discuss all tbe positions assumed for defendants, but it is adjudged that upon familiar and well established principles, the complainant is entitled to a decree, declaring tbe conveyance to John M. and George W. Hinson fraudulent and void, and directing the land to be sold for tbe satisfaction of his debt, unless tbe debt and costs are fully satisfied and discharged within sixty days from tbe da'te of the decree.1 In ascertaining tbe amount due complainant, tbe Master will only calculate tbe amount of bis judgment before the Justice, with interest, and will not allow the amount of tbe two executions in favor of G-. \"W. Smith, mentioned in tbe sheriff’s deed, as there is no proof in the record that those debts were due to, or paid by complainant. But if tbe complainant so desires, the cause may be remanded to tbe Chancery Court at Lexington, where proof may be beard on that subject, and if it is established that complainant was tbe owner of said debts at tbe time of filing bis bill, a decree will be pronounced in his favor for tbe three debts and costs, and the land will be sold for its satisfaction.\nReverse tbe Chancellor’s decree, and let tbe costs of this cause, in this Court and tbe Court below, be paid out of tbe proceeds of sale.\n\n See cases cited ante 250 in note.\n\n", "ocr": true, "opinion_id": 7655320 } ]

[ "51 Tenn. 529" ]

[ { "author_str": "Freeman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFreeman, J.,\ndelivered the opinion of the Court.\nAtkins sold a tract of land in Henry county to Cooper and Williams, containing two hundred and sixteen acres, and took their notes, due one, two and three years from date, for payment of purchase money — the last note due January 1, 1862.\nIn 1862, Atkins sold the last note to the complainant in the original bill, J. M. Young, and *530transferred it to liim, or agreed to do so in writing, and also agreed not to make a deed to tbe vendees of tbe land, till said note was paid, reciting tbe fact, tbat tbe note ■ was a lien on tbe land.\nAtkins, after tbe war, rescinded bis contract witb Williams and Cooper, took tbe land back, and afterwards sold to defendants, Porter and Melton, gave eacb of tbem bond for title, and bas received from tbem most of tbe purchase money, but bas made tbem no' deed.\nYoung files bis original and amended bill, to enforce bis lien on tbe land for payment of tbe purchase money. Atkins and Melton and Porter filed a cross bill, in which they allege tbe purchase of tbe land, by Porter and Melton, and tbat tbe sale of tbe note by Atkins to Young for Confederate money, was for an illegal consideration, and void, and is not a lien on tbe land, and insist tbat said note ought to be surrendered to Atkins as tbe rightful owner thereof.\nTbe Chancellor dismissed both tbe original and amended bills of complainant, and also tbe cross-bill, as we suppose, upon tbe ground tbat tbe consideration of tbe transfer of tbe note was Confederate money, and all parties were in pari delicto, and therefore could not actively invoke tbe aid of a court of equity.\nIn this be erred. Tbe Confederate notes were a good consideration for this contract for purchase of tbe note, and might as well support this contract as any other contract.\n*531Young clearly had a lien for the payment of this note, standing by the transfer of the note, in tbe shoes of Atkins, and entitled to all his rights.\nMelton and Porter, who purchased the land from Atkins, evidently with a knowledge of the existence of this note, are in no condition to defend themselves against the enforcement of the lien on the part of Young.\nThey have only an equitable title, holding only bond for title from Atkins, and do not claim to be innocent purchasers, and could not have sustained such plea, had it been made in the pleadings.\nThere is no rule in equity better settled than this, that a purchaser of an equitable title must always abide by the case of the person from whom he buys: Williams v. Love, Ex’r, et als., 2 Head, 86; Craig v. Leiper, 2 Yer., 193.\nThe decree of the chancellor must be reversed, and a decree be rendered here in accordance with this opinion.\nThe land will be ordered to be sold in ninety days, unless the note of Young shall be paid to the clerk of this court before that time. The amount due on said note will be ascertained by calculation from the face of the note.\nDefendant Atkins will pay the costs of this court and court below.\n", "ocr": true, "opinion_id": 7655451 } ]

[ "51 Tenn. 560" ]

[ { "author_str": "Deaderick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDeaderick, J.,\ndelivered tbe opinion of tbe Court.\nTbe' plaintiff brought bis action in tbe circuit court of G-ibson county against tbe defendants, upon two notes, eacb for $502.51, due one day after date, and dated January 4, 1861, bearing- interest at tbe rate of ten per cent, per annum.\nVerdict and judgment were rendered in favor of defendants, and tbe plaintiff appeals in error to tbis court.\n*561It appears from the record that Green Williams and defendant, Thomas J., were indebted by note under seal to Howard & Brothers in the sum of thirteen Hundred and thirty-eight dollars and ninety-two cents, due December 25, 1856, and that this note was assigned to plaintiff, July 25, 1856.\nAfter this note became due, Howard & Brothers notified plaintiff to collect the same. The plaintiff, who is blind, sent his son with the note to Green Williams, one of the payors, to demand payment. Williams asked young Donaldson if his father would not let him keep the money, by giving his note with security, and paying ten per cent, interest. The son replied that he did not know. It was then agreed that Williams should meet the father at Trenton on the day agreed upon. Williams then took a memorandum of the Howard note, and upon the day agreed upon, the plaintiff, his son, and Williams met at Trenton. The proposition of Williams to give notes with security at ten per cent, was renewed to plaintiff, and accepted by him, the plaintiff saying, as stated by his son, that he, Williams, might keep the money and take up the note, and thereupon Williams produced three notes which he had brought with him, signed by himself, defendant Thos. J. Williams, and Cole, the intestate of Walker, as surety. These notes were accepted by plaintiff, and the note executed by G. & T. J. Williams to Howard & Brothers was delivered to Williams.\nThis transaction took place in March, 1857.\n*562\"When these last named notes had been some time due, plaintiff and his son took the two larger notes to Williams, and again requested their payment. Williams being desirous of further indulgence, proposed to renew them, still paying ten per cent, interest, and plaintiff agreed to accept the notes of Gr. & T. J. Williams with Cole as surety, and the notes in controversy were then, January 4, 1861, executed and the old notes were lifted.\nPlaintiff and his son, who were examined as witnesses on the trial below, say that the transaction was treated as a loan of money, and was so understood by all the parties; while the defendants, T. -J. Williams and Green Williams, who were also examined, testify that the only consideration of the first notes, was the Howard note, and ■ the sole consideration of the notes sued on, was notes given in renewal of the Howard note.\nExceptions ' have been taken to the charge of the court, by plaintiff, but we are of opinion that there is no error in the charge.\nAt the time of the execution of the notes sued on, the act passed February 21, 1860, entitled “an act to amend the usury laws of the State, and to establish a conventional rate of interest,” was, in force.\nThe 1st section provides that whenever any person contracts for the loan of money, it shall be lawful for the lender or his assignee, etc., to receive a rate of interest not to exceed ten' per cent., pro-*563videcl such, agreement is expressed in .the face of the contract.\nSec. 2d, provides that any contract made for more than six per cent, for any other article than borrowed money, shall be usurious. Debts originally contracted for .loaned money, may be renewed at ten per cent, interest, but no other debt or liability not originating for money actually loaned, shall be thus renewed. And all efforts by direct or indirect means to take and receive a greater rate of interest than six per cent, per annum, for any debt, demand or liability, the origin of which is not for money actually loaned, shall be deemed unlawful, and operate as a release of the debtor from the entire amount of the debt: Acts of 1859-60, p. 81-2.\nBefore the passage of this act, a contract to pay more than six per cent, interest, upon a note, no matter what the consideration might be, was usurious, and if the usury appeared upon the face of the note, the party seeking to enforce it, either at law or in equity, would have been repelled from the court. And it is immaterial what the understanding of the parties to the transaction may have been, or to what devices they may have resorted to evade the penalties of the law against usury, if the contract is of a character forbidden by law, and its illegality is apparent from the facts presented in the record, it is the imperative duty of the courts so to declare.\nIt is argued by plaintiff’s counsel, that the con*564tract in tbis case was treated and considered by tbe parties as a loan of money: yet it is manifest from tbe proof tbat it cannot be said to have been a loan of money.\nIn tbe most favorable aspect of tbe case as presented by plaintiff’s testimony and tbat of bis son, wben Green \"Williams met plaintiff and bis son in Trenton “to fix tbe matter,” “Williams insisted upon being allowed to keep tbe money, and proposed to pay ten per cent., and plaintiff agreed to tbis proppsition,” and tbe new notes were delivered to plaintiff, and tbe Howard note surrendered to Williams.\nPlaintiff did not loan any money to defendants; it was clearly tbe payment of a pre-existing debt by tbe execution of new notes, and these in turn paid by tbe execution of those now in suit. It can in no just sense be said tbat tbe notes sued on were executed for money “actually loaned.”\nIt follows tbat tbe contract is within tbe prohibition of tbe statute of 1859-60.\nWe are therefore constrained to affirm tbe judgment of tbe Circuit Court.\n", "ocr": true, "opinion_id": 7655467 } ]

[ "52 Tenn. 175" ]

[ { "author_str": "Sneed", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSneed, J.,\ndelivered the opinion of the Court.\nThis was an action of debt upon a note under seal, executed by the testator of the plaintiff in error to W. W. Woodfolk, on the 31st December, 1841, and due one day after date, for $1,629.28, and by the said payee assigned to the defendant in error, on the 15th of March, 1867, who commenced this action on the 18th of April, 1867. Upon the note were endorsed three payments, each in the handwriting of the payee, Wood-folk; the first for $1000, dated July 12th, 1849; the second, dated April 12th, 1850, for $500; and the third for $100, dated the 15th February, 1858. The verdict and judgment were for the plaintiff below for the balance of debt, $29.28, and damages, in the way of interest, $1,859.27. The defendant appealed in error, and rests her defence mainly upon the presumption of payment from the lapse of time. Upon this subject the Circuit Judge, among other things, charged the jury, that “evidence of the relationship • and other dealings of the parties, and political disturbances, such as a war between the country of the maker and that of the payee, or civil war overruling the civil law, will bar the legal presumption arising from the lapse of time.” It having been shown in the proof that the maker and the payee of the note were brothers-in-law, and upon terms of most friendly intimacy; and it being a circumstance judicially known that in the *181State of Tennessee, where both parties resided, “a civil war, which overruled the civil law/’ was flagrant during several years of the period of time relied upon to create the presumption of payment, it is to be presumed that this portion of the charge was not without its material effect upon the minds of the jury in arriving at the verdict in the cause.\nIt has long been a rule of evidence in this State, applicable to obligations under seal, for the payment of money, which were executed prior to the statute which abrogated the special common law sanctity of a sealed instrument, that the lapse of a period of sixteen years from the maturity of such an instrument, without some explanatory circumstance, would raise a presumption that such obligation had been paid and satisfied. This presumption is the creature of the common law, and reposes upon the same sound policy which first suggested to the British Parliament, in the reign of James I., the propriety of enacting the celebrated statute of 21 Jac. 1 c., 16, entitled “an act for limitation of actions and for avoiding suits at law,” from which all our statutes of limitations have been derived. Before the English statute referred to, by the theory and early practice of the common law, a party having any legal demand against another, might call him to answer in the Courts at any time that suited his convenience. It was found, however, that such a practice often resulted in great injustice, as evil-disposed persons would fabricate claims and abide a convenient time to exact their unjust demands, when, from long lapse of years, evidences were lost, witnesses or parties had died,, and *182the memories of living witnesses had failed. Though not a statute of limitations, yet this presumption is a defence no less reliable, and no less favored in the law, and in its analogies to the statute of limitations, is, in practice, regulated by like rules. Thus, it is said, it derives from the law a certain technical force and effect which Courts and - juries cannot disregard. Until rebutted or displaced by evidence, it has all the force and effect of plenary proof of the fact. of payment, and the jury are bound so to regard it: Thompson v. Thompson, 2 Head, 405.\nThere are presumptions which are conclusive and such as are disputable. They are classified in the law so that they may not be misunderstood or confounded. They are conclusive when the law makes an inference so peremtorily that it will not allow it to be overturned by any contrary proof, however strong: Best on Pres., 20. And they are disputable when the law makes an inference which will stand until invalidated by proof: 4 Johns. Ch. B.., 287; 2 Bouv. L. D., 368. The presumption of the payment of a debt from lapse of time, is of the latter class. It may be repelled and rebutted- by the proof of a variety of circumstances — as recognition, a new promise, a partial payment, a discharge of interest, or any other circumstance strong enough to repel the presumption that from long delay and lapse of time the debt has been paid. These are substantive facts, which, if shown in proof, will destroy and break down this arbitrary presumption. But there are inferences from other circumstances which may be called counter presumptions, *183all of which are proper to be considered by a jury in arriving at a conclusion, whether a debt has or has not been paid — when the only evidence of payment is the long lapse of time, and among these the relationship-of the parties is one — as from the simple fact of relationship the inference might be drawn that a longer indulgence would be extended than in other cases. And so the intimate business connections and dealings of the-creditor and debtor, from which a like 'inference might be deduced. Or a state of civil war in the country where the parties reside, as the opportunities for payment would in such ease be supposed to be cut off and prevented. These counter presumptions are proper to to be considered by the jury in connection with all the other facts pf the case. But it is for jury and not the Court to judge of their conclusiveness. There is a distinction in such cases to be observed as to the character of this presumption. It is said that in regard to presumptions of law, a certain inference must be made whenever the facts appear which furnish the basis of the inference; while in case of other presumptions, a discretion more or less extensive is vested in the tribunal as to drawing the inference. As to presumptions of law the Court may draw the inference whenever the requisite facts are developed in the pleadings: Steph. PL, 382; while all other presumptions can be made only by the intervention of a jury. Presumptions of law, it is said, are reduced to fixed rules, and form a part of the jurisprudence to which they belong; presumptions of fact are derived wholly and directly from the circum*184stances of the particular case by means of the common experience of mankind; 2 Stark. Ev., 684; 6 Am. Law Mag., 370; 35 Penn. Et. B.., 440. The fact that the parties are nearly related, or that a civil war was flagrant in the country of their residence might generate a presumption of non-payment that might or might not be suificient to countervail the opposite presumption. This is matter for the jury, and it may gather strength or weakness from other circumstances in the cause, all of which must be considered together.\nThe charge of the Court tested by these principles is clearly erroneous. It undertakes to pronounce upon the conclusiveness of the presumption arising from the relationship of the parties, and of the inference also deducible from - a state of civil war. The Court assumes that these circumstances will repel absolutely the legal presumption of payment arising from the lapse of time, instead of submitting that question to the judgment of the jury who were the triers of the fact. The defendant in this portion of the charge, so far from having a correct exposition of the law, was by these few words summarily deprived of the whole benefit of his defence; for nothing is left to the discretion of the jury, and they could do nothing less than pronounce this verdict against him.\nFor this error the judgment is revérsed and a new trial awarded.\n", "ocr": true, "opinion_id": 7655585 } ]

[ "52 Tenn. 443" ]

[ { "author_str": "Nicholson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNicholson, C. J.,\ndelivered the opinion of the Court.\nIn May, 1862, Charles Jones sold to Paul Gregg a tract of land of seventeen acres, near Memphis, for $5,000, of which $2,000 was paid in cash, and three notes, for $1,000 each, payable on time, were executed by Paul Gregg and George E. Powell for the balance. An absolute deed was executed by Jones to Gregg and Powell, with covenants of warranty, reserving no lien for purchase-money, and reciting that the purchase-money was paid. On the same day, Gregg and Powell executed a deed of trust of the land to Ayres in trust to secure the payment of the three notes given for the balance of the purchase-money, with power to sell for the satisfaction thereof in the event of default in the payment. Powell really paid nothing toward the land, and claims no interest in it.\nGregg died without having paid the three notes aforesaid, leaving his widow, Anna Gregg, and two minor children * surviving. The three notes were assigned to Millington by Jones.\nAnna Gregg files her bill, stating the foregoing facts, and making Millington, Jones, Powell, and her minor children defendants. She prays that the land *454be sold to pay the balance of the purchase-money, and, alleging that there would be an excess, she prays for dower therein, and the excess be vested in' other lands for a home for her and her children.\nMillington answered and admitted the main allegations of the bill, and joined in the prayer for a sale of the land. The minors answer formally by guardian ad litem. The other defendants failed to answer, and the bill was taken for confessed as to them.\nThe Chancellor decreed a sale of the land, and at the sale the same brought only about $3,100, which was less than the balance due on the land.\nUpon the confirmation of the report of sale, Anna Gregg moved the Court to refer the question to the Clerk and Master to ascertain and report what amount of the sum for which the land sold would be equal to her dower therein. The order of reference was made, and, upon the report of the Clerk and Master that her dower would amount to about $600, the Chancellor refused to allot dower, holding that the purchase-money constituted a prior lien.\nFrom this decree Anna Gregg prosecuted her writ of error to this Court.\nIt is first insisted that complainant is estopped from claiming dower by the admissions in her bill, in which she claimed dower out of the surplus, after satisfying the balance of the purchase - money. <• It is evident that her bill was filed under the belief that the land would sell for an amount sufficient to pay the balance of the purchase-money, and leave a sufficient surplus to purchase a home for herself and minor children. *455It is farther evident that her bill was filed under a-' misapprehension as to her rights, if the law be as now maintained by her counsel, that her right to dower is superior to that of the holder of the notes for the balance of the purchase-money. The admissions and allegations having been made under a mistake as to the facts and as to her rights, she is not thereby estopped from asserting her rights in accordance with the facts, as they are shown in the pleadings: Singleton v. Ake, 3 Hum., 626.\nBut the main question in the case is, whether the lien of Millington, by virtue of the trust deed, overreaches the widow’s right of dower? As Jones secured an express lien on the land for the satisfaction of the three notes, of $1000 each, therein provided for, the transfer of the notes to Millington invested him with the right to enforce the security as fully as Jones could do.\nWhen Jones sold the land to Gregg he had his election to secure the payment of the balance of the purchase, either by executing title bond to Gregg and retaining the legal title, or by executing a deed and reserving a lien on its face to secure the payment of the unpaid purchase-money, or to execute a deed without reserving any express lien, but relying on the lien which would then be implied by law. He chose not to adopt either of these modes of securing and enforcing his vendor’s lien. If he had adopted either of the two first-named modes, it is well settled that his lien would have been superior to the widow’s dower; and by some authorities it is held that the *456implied' lien secured by the third mode would, in like manner, have been superior to the widow’s dower, but on that point we give no opinion, as it is not necessary.\nJones elected to adopt neither of these modes of security, but entered into a contract with Gregg, by which he conveyed to him the absolute title to the land, acknowledging the payment of the consideration of $5000, and reserving no lien, upon Gregg immediately conveying the land to Ayres, as trustee, to secure the payment of the three notes of $1000 each, the balance of the purchase-money thereof, with power to sell upon default of payment of either \"note. By the execution of these deeds, Jones waived all his rights or liens as vendor merely, and relied upon his contract to secure the payment of the notes by a more speedy process than he could have availed himself of by relying simply on. his vendor’s lien in either of the three modes specified. Although the three notes were given for the land, they ceased to have attached-to them the vendor’s lien whenever Jones elected to rely upon his contract to secure payment by means of the enforcement of his trust deed.\nIt is not material whether the two deeds were executed simultaneously or not, and therefore we deem it unnecessary to consider the question as to the effect of a simultaneous conveyance upon the seizin or ownership' of Gregg. It is clear, that by his deed Jones divested himself of his légal title and vested it in Gregg, and that by the immediate conveyance of the legal title to Ayres in trust, Jones had only the equitable *457title as security for his three notes. The trust deed was made by Gregg, in whom Jones had vested the legal title, and as Gregg died before the land was sold under the trust deed, the case falls directly under the ’section 2399 of the Code, which enacts that the widow “shall be entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage, or sale under the deed.”\nThe deed from Gregg to Ayres was made in trust to pay a ■ debt from Gregg to Jones. The statute makes no distinction as to the kinds of debts to be secured. Upon whát rule of construction can we hold, that the Legislature intended to exclude from the operation of 'the language used, debts created for land, any more than debts founded on any other consideration? We have before us a deed of trust, made to secure the payment of a debt created for land; we have before us the fact that the maker of the trust deed died before the trust was executed by the sale of the land, and that he left surviving him a widow. Because the debt secured by the deed was created for the land, we are called upon to make it an exception to the statute, and to hold that it shall overreach the right of dower in the teeth of the statute. The vendor once had the right to assert the superiority of his lien to the widow’s right of dower, but he elected to make a contract by which he ceased to rely on his vendor’s lien, and chose to rely on his trust deed. By so doing he brought his debt under the operation of the express provision of the statute, and it is not *458in our power to restore him to his rights as a vendor.\nThe decree of the Chancellor is reversed and a decree will be rendered allotting dower to .the complainant. The defendants will pay the costs of this Court and \"of the Court below. ' “\n", "ocr": true, "opinion_id": 7655681 }, { "author_str": "Nicholson", "per_curiam": false, "type": "070rehearing", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNicholson, C. J.,\nIn refhsing a rehearing, said:\nThe petition for rehearing states two reasons for asking a reconsideration of. the opinion in the case:\n1. Because the case of Huffaker v. Bowman, 4 Sneed, 94, was not brought to the attention of the Court in the argument.\n2. Because complainant does not allege in her bill and prove that she was married to Paul Gregg at‘the time the deed of trust was executed by him.\nIt is true the case referred to was not brought to the attention of the Court. It is also true that that case was determined in 1856, and after the passage of the act of 1855-6, embodied in the Code as see. 2399. But it is no less true that the question as to the widow’s right to dower was not involved in the case of Huffaker v. Bowman. The question in that case was, whether the judgment lien oí a creditor would attach to the instantaneous seizin of his debtor in land which was conveyed by the purchaser at execution sale to the debtor to be by him conveyed to another redeeming creditor, in pursuance of a contract to that effect — the whole being one continuous transaction. By way of illustrating the position, that the vendor in such a transaction had only an instantaneous title, which was not reached by the judgment lien, Judge McKin*459ney referred to and quoted the common law rule as to the widow’s dower. He quotes from Blackstone, book 2, p. 130, that “the seizin of the husband for a transitory instant only, where the same act which gives him the estate conveys it also out of him again, as where by a fine, land is granted to a man, and he immediately renders it back by the same fine, such a seizin will not entitle the widow to dower; for the land was merely in transitu, and never vested in the husband, the grant and the render being one continued act.” No controversy could arise as to the correctness of this rule, but Mr. Blackstone proceeds to qualify it by adding: “But if the land abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.”\nIt is not denied that this is the well-settled rule, wherever the right of the widow is governed by the common law. Mr. Scribner closes his review of the doctrine as to instantaneous seizin, with this remark: “ The common law rule that instantaneous seizin, accompanied by a beneficial interest in the husband, is sufficient to confer dower, is very generally recognized in the United States.”\nBut the common law as to dower has been so changed by statute in Tennessee, that the widow is only entitled to dower in such real estate, legal or equitable, as the husband was seized and possessed of at the time of his death. The cases, therefore, in which the rule as to instantaneous seizin can arise, if indeed any such can arise, are necessarily very rare in our State. The husband having the right, by our *460laws, to defeat the inchoate right of bis widow to dower by divesting himself of title by conveyance, the question as to her rights, by reason of an instantaneous seizin, was necessarily confined to the seizin at the time of his death.\nIt followed, that as the husband, by a conveyance either by mortgage or deed of trust, could divest himself of his seizin, he could thereby give his creditors secured by mortgage or deed of trust, priority over his widow’s dower right, and postpone her to her dower right in the surplus, by virtue of the statute giving her dower in equitable estates. It was because the law was so held in '5 Hum., 26, 'and 8 Hum., 710, that the Legislature in 1855-6 interposed and enacted that the widow should “be entitled to dower in lands mortgaged or conveyed in trust to pay debts, when the husband dies before foreclosure of the mortgage, or sale under the deed.” This act was carried into the Code at section 2399. The necessary legal effects of this enactment are, first, to abolish the common law rule which made the right of dower dependent on the fact of seizin as to lands conveyed by mortgage or deed of trust;' and second, to give the widow priority over the creditors so secured, if the husband dies before the mortgage is foreclosed or the land sold under the deed. It follows, that when a widow claims dower under this statute the question of the seizin of the husband at his death does not arise, and therefore the rule of the common law as to seizin has no application. Such a case must be determined alone by the construction of the statute. In the case at bar *461we beld that the widow was entitled to dower by the ■necessary force and meaning of the statute, and we see no reason to doubt the correctness of our conclusion.\nThe other ground for rehearing is, that the pleadings and proof fail to show that complainant was the wife of Paul Gregg at the date of the deed of trust, on the 29th of May, 1862, and hence that she is not entitled to the benefit of sec. 2399 of the Code. This is a new point, not made in the answer nor in the former argument of the cause. It is now made under a misapprehension of the facts as presented by the pleadings. The bill alleges that Paul Gregg died in February, 1864, leaving two minor children; that he executed the deed of trust on the 29th of May, 1862, and that as widow she is entitled to dower. Jones, for whose benefit the deed of trust was executed, fails to answer, and there is a pro oonfesso as to him. Millington, the assignee of the notes secured in the trust deed, answers and admits that complainant is the widow of Paul Gregg as charged, but insists that his rights are superior to those of the widow.\nThe facts charged in the bill are not denied, but admitted, so far as they are alleged. If it be true that in February, 1864, when her husband died, complainant had two minor children by him, the inference is altogether probable that their marriage took place prior to May 29th, 1862. The case has been so treated until now, and we have no doubt as to the fact.\nThe petition for rehearing is dismissed.\n", "ocr": true, "opinion_id": 7655682 } ]

[ "53 Tenn. 131" ]

[ { "author_str": "Nelson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNelsoN, J.,\ndelivered the opinion of the court.\nThis action of debt was brought on the 8th of August, 1866, upon a note under seal, executed by the defendants to Smith Brady, on the 18th of Sep*132tember, 1859, for $210, and payable one day after date. Issues were joined upon pleas of payment and nil debit, upon wbiob, and a notice of certain special defenses, the case was submitted to a jury of Meigs county, at the December Term, 1869, who returned a verdict that they found the issues in favor of the defendants, and assessed their damages to the sum of $218.30. Judgment was rendered accordingly, but the defendants, by their counsel, entered a remittitur for the full amount of the judgment except the costs. Plaintiff entered a rule for a new trial, which was discharged, and from the judgment of the Circuit Court he prosecutes this appeal.\nExceptions were taken to the reading of certain depositions and the admission of other evidence, as well as to his Honor’s charge to the jury; but the controlling question in the cause arises upon the matters alleged in the notice of special defenses, and the proofs and instructions relating to them.\nThe notice which was duly signed by defendant’s attorney, is as follows: ‘‘And, on the trial of this cause, the plaintiff and his attorney are hereby notified that defendants will rely on the following defenses: 1. That the plaintiff, Smith Brady, the original payee, while said note was in his possession and was due and over due, confederating with others, did become liable to defendant, A. S. \"Wasson, who is principal in said note or bill single, and Sally Wasson only being surety thereto, by conveying and taking away, and assisting others in taking and carrying away, and assenting to and assisting in driving away, from and out of *133the possession of defendant A. S. Wasson, as aforesaid principal in said note sued on, five fat hogs worth $75 each, two fat beef cattle worth $50 each, and one horse of the value of $200, making in all $610, which property satisfied and overpaid plaintiff’s demand, and he claims judgment for the residue.”\nWithout, at present, considering the objections to evidence, or stating the evidence itself in detail, it Avill suffice to observe that it was. proved upon the trial that Sally Wasson was a security merely to the note, and that in the fall of 1863, and during the absence of A. S. .Wasson, Smith Brady, the original payee of the note, represented to Capt. Blythe that Wasson was indebted to him; that he wished to pay himself out of his property; that, upon his representations, a squad of men were detailed, and that he and the soldiers entered upon the premises of Was-son and seized, drove away and converted to their own use, cattle and hogs, the property of Wasson, of much greater value than the amount due upon the note, the values being stated in detail by the witnesses.\nUpon this state of the pleadings and testimony, his Honor the Circuit Judge, among other things, instructed the jury as follows: “If the proof in the cause satisfies your' minds that the defendant, Sally, was only surety, and the plaintiff, Brady, took the property of defendant, A. S. Wasson, in satisfaction of his debt, it would be satisfaction to the amount of the property thus taken by Brady in satisfaction of his debt. * * * So, if you find that the property was taken by. the plaintiff, or by him and oth*134ers, in discharge of his debt, then the, plea of payment is well taken, and you will allow the same to the extent of the value at the time taken, with interest from the time of the taking till the present, if you should find the plea of payment for the defendant, A. S. Wasson, and you will then strike the balance, and return the same as your verdict.”\nThese novel proceedings do not demand any elaborate investigation.\n1. The special defenses relied upon do not amount either to a notice or plea of set-off, but assume to treat a trespass upon personal property as a payment of a debt, and are so erroneously considered in his Honor’s charge. It is well settled that contracts and trespasses can not be liquidated by set-off; and had the defense been made either by notice or plea, it would not have been available, because a set-off is excluded in all actions ex delicto, and can not be admitted, even in actions ex contractu, if the claim of either party be for uncertain or unliquidated damages: see 1 Chit. Pl., 571, 572, m; Wat. on Set-off, 154; 14 Petersdorff’s Ab., 418, m.; Ragsdale v. Buford, ex’r, 3 Cooper’s Hayw. Tenn. B., 135, foot p.; Allen v. McNew, 8 Hum., 57.\nThe demand did not exist against Eogers, the plaintiff, at the time of action brought; nor did it arise out of his demand, or grow out of the original consideration; nor is it an equity or a mutual debt within the meaning of the Code, ss. 2918, 2919: see Turbeville v. Broach, 5 Col., 272; 2 Pars, on Notes & Bills, 607.\n*135Payment, in a legal sense, is the discharge of a oontract or obligation in money, or its equivalent, and it is usually made witb the assent of both parties to the contract. The word is not used in statutes or by text writers, in the bad sense of revenge or punishment. No creditor is permitted, by the laws, to seize his debtor’s property and to declare, at his own pleasure, that he will take it in satisfaction of his demand. If he so takes it, he is a trespasser, and liable in damages. To hold that he may take it when prompted by his own will, and in defiance of law, would be to hold that, when sued for the trespass, he may plead as a justification that a debt was due him in bar of the action. The right of distraint for rent never existed in this State, much less the right to commit a trespass in order to obtain satisfaction of a debt. If such a right exists as to personal property, there is no good reason why it may not be applied to the debtor’s person, and why the creditor may not, in common parlance, “take it out of him,” by beating him to his entire satisfaction. Such a holding would give unlimited encouragement to lawlessness and violence. Accord and satisfaction can be established alone by the mutual agreement and consent of the parties, and the charge of his Honor to the effect that the unlawful taking of property was a payment or discharge of the note sued upon, was erroneous.\n2. The notice of the real defenses given under the pleas of payment and nil debit does not meet the requirement of the Code, s. 2915. It is double and *136insufficient in this, that it presents an unauthorized inquiry in a court of law . and in this action, as to whether Sarah Wasson, who appears upon the face of the note to be a principal, was only a surety; and a further inquiry as to a trespass, which is a separate and independent cause of action. Although erroneously styled a notice of set-off, it should have been stricken out, on plaintiffs motion, under the last clause of said s. 2915.\n3. All the evidence in the case touching the defenses embraced in the notice was inadmissable in this action, and the plaintiff’s objection to its admissability should have been sustained.\nFor these, and other errors existing in the record, let the judgment be reversed and the cause remanded for a new trial.\n", "ocr": true, "opinion_id": 7655842 } ]

[ "54 Tenn. 200" ]

[ { "author_str": "Nicholson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNicholson, C. J.,\ndelivered the opinion of the Court.\nThis is a suit by B. O. Keesee against the Planters’ Bank, brought in the Circuit Court of Montgomery county, on a check for $1,000, drawn on the 15th of February, 1862, by the cashier of the Planters’ Bank at Clarksville, on the Union Bank of Louisiana, at New Orleans, payable to J. M. Bice, and by him endorsed to B. O. Keesee.\nThe only difference in the facts, between this case and that of the Planters’ Bank v. H. C. Merritt, administrator, just determined, is that in this case the check was never presented for payment to the drawee. The reason given is, that the check was lost, and upon application to the cashier of the Planters’ Bank *201for a duplicate, it was not given, because neither Keesee nor the cashier knew the number of the check, and as several other checks were given at the same time, and for the same amount, and to the samé party, the cashier could not give a duplicate without the risk of having the original as well as the duplicate to pay. It is not contended for Keesee that these facts fur,nish any legal answer for failing to make presentment, and this case therefore presents the question whether the facts proven bring the case within any of the reasons for which the holder of a check is excused for failing to present it for payment? The nature of the rule requiring diligence in the presentment of a check, is shown by the cases that excuse a presentment. If the drawer have no funds in the bank, or if the bank itself be restrained by an order of court from paying out money or transacting business, presentment is excused; because the law does not require the performance of acts that are merely ceremonial and nugatory, and because the drawer is not injured by the omission: Edwards on B. & N., 397; Lovett v. Cornwell, 6 Wend., 367; 21 Pick., 327; 14 Mass., 449.\nWe have already seen in the case of the Planters’ Bank v. Merritt, that if the holder of a cheek fail to present it within the time prescribed by law, the presumption of injury arises to the drawer, but it does not result in an absolute release of the drawer, unless the holder fail to show that the drawer was solvent when the check was presented, or unless the drawer show that he has sustained actual damage in consequence of the omission of the holder to present the *202cheek in due time. We .now see by the authorities cited, that the drawer is not released for an entire failure to make presentment, if the holder can show by proof such facts and circumstances as would have made the act of presentment a mere useless ceremonial and nugatory, and can also show that the drawer has sustained no injury in consequence of the failure to make presentment. The giving of the • check was an appropriation of $1,000 by the Planters’ Bank out of its deposit in the Union Bank for the payment of a debt due to the holder of the check; but until the check should be presented, and either paid or accepted or marked “ good,” the debt of the drawer is not paid and satisfied. The appropriation, therefore, is not absolute, even as between the drawer and the holder. If the drawee, being solvent, refuse to pay the check, the holder, according to the weight of the authorities, cannot sue the drawee, but must then look to the drawer for satisfaction. So, also, if the holder fail to present the check, for the reason that it would be a nugatory act, if the drawer has sustained no injury by the failure to make presentment, the debt is not satisfied nor the drawer released, but he is still liable to the holder of the check.\nApplying these principles to the facts: it is clear that after the 10th of September, 1863, any presentment of the check would have been nugatory, and would have resulted in a refusal to pay by the Union Bank. After that time the Union Bank insisted that it had none of the funds of the drawer of the check on hand;- that all thereof had been seized and appro*203priated by the military authorities. For this reason the Union Bank, in October, 1863, refused to honor the checks of the Planters’ Bank, -whether presented by the bank itself or by holders of its checks. It is therefore certain that the holder of the check in suit would have performed a useless and nugatory act, if he had presented, it after the time when .the Union Bank denied that it had any deposit out of which to pay.\nBut the proof shows that at any time prior to the 10th of September, 1863, if the check had been presented, it would have been paid. The proof also shows that the holder of the check was not excused from making presentment by any of these unavoidable causes which are recognized in law as valid excuses for failing to make presentment in due time. It follows that the holder of the check was guilty of laches in not presenting the check before the 10th day of September, 1863, and the presumption of injury to the drawer arises. But we have seen that this presumption is not absolute, but subject to be rebutted by proof of the continued solvency of the' Union Bank, and .that the drawer suffered no damage in consequence of' the laches of the holder. For the reasons stated in the case of the Planters’ Bank v. Merritt, we are satisfied that the drawer suffered no injury in consequence of the delay, and therefore that the Planters’ Bank was not released from liability on the check. But it is argued for the Planters’ Bank, that the holder of the cheek can have no right of action against the drawer without having first made demand of the drawee. As a *204general proposition this is true. The drawer of the check does not undertake to pay it, but he undertakes that the drawee will pay it on presentment, and upon his refusal that the drawer will then pay. Hence the general proposition is undeniable, that until the holder has made presentment of the check he has no right of action against the drawer. But this general rule is subject to exceptions which are as well settled by the authorities as the general rule itself. Hence Mr. Edwards at p. 59 of his work on Bills & Notes, after laying down the general proposition, adds: “But as between the drawer and the holder there are many circumstances that will excuse a delay or a failure to demand payment,” and as examples he says: “As if he have no funds on which he drew, or having funds there, withdrawing them to his own use;” and at page 377, he adds another example: “If the bank itself be restrained by an order of court from paying out money or transacting business, presentment is excused;” and he then gives the reasons for the exception: “because the law does not require the performance of acts that are merely ceremonial and nugatory, and because the drawer is not injured by the omission.” He cites for these positions, 6 Cow., 484; 6 Wend., 367; 21 Pick., 327; and 14 Mass., 449. We have already determined that, under the proof, the Planters’ Bank sustained no injury by the omission of the holder of the check to present it prior to the 10th of September, 1863, and that after that time a presentment would have been a nugatory act.\nIt follows that the general rule requiring demand *205before suit does not control tbe case, and that the holder had the right to sue the drawer. But it appears in the proof that after Keesee commenced his suit against the Planters’ Bank, the declaration in the case of the Planters’ Bank against the Union Bank, pending at New Orleans, was so amended by the plaintiff in that suit as to include as a part of its claim against the Union Bank the amount of Keesee’s check, and that that suit is still pending, and being prosecuted for the benefit of the check-holders. This was an express recognition of the subsisting claim of the holder of the check as against the funds, and a waiver of any right to insist on the consequences of a failure to present the check in due time. It was an assertion that the Union Bank still' holds the amount of the check, and that • the drawer has not been injured by the omission to present it, and an admission that the holder has a right of action against the drawer, at least after the Planters’ Bank shall have recovered from the Union Bank. In 1 Parsons on Notes and Bills, p. 595, it. is said the general principle seems now to be settled, that when no demand has been made, or notice given, a promise to pay, after maturity, made with full knowledge of laches, is binding on the party promising, and removes entirely the effect of any negligence in making the demand or giving the notice. The proof shows that the Planters’ Bank had express knowledge of all the facts connected with the failure of the holder of the check to present it for payment, and after the holder of the check had commenced suit to make the Planters’ Bank re*206sponsible as drawer, the declaration was amended as before stated, and the amount of the outstanding checks embraced. Under such circumstances, we hold that the Planters’ Bank has waived any right it may have had to claim a reléase on account of the laches of the check-holder in presenting it for payment.\nThe judgment below was correct, and is affirmed.\n", "ocr": true, "opinion_id": 7656129 } ]

[ "56 Tenn. 382" ]

[ { "author_str": "Deaderick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDeaderick, J.,\ndelivered the opinion of the Court.\nThese two causes were consolidated and heard together, in the Chancery Court of Memphis. The defendants are the widow and heir-at-law, of John D. Martin, deceased. One of the_ bills was filed to enforce the vendor’s lien for the unpaid purchase money, for a house and lot in the city of Memphis. The other is an attachment bill, for the collection of certain debts, against the said John D. Martin, and in which case an attachment was levied upon the interest of said John D. in the said house and lot and in other property.\nThe Chancellor directed a sale of the house and *384lot for the satisfaction of the vendor’s lien, and the sale producing more than the balance of the unpaid purchase money, he decreed that after the satisfaction of the costs and the purchase money due upon the house and lot, and the taxes upon the property, that the defendant Rosa, widow of the said John D. Martin, deceased, was entitled to the whole of the surplus for and during her natural life, as dower — that surplus not being equal to or in excess of the value of one-third of the whole property.\nThe Chancellor further decreed that as to debts due to said complainant Boyd, other than that due for purchase money, he could only be let in upon said surplus, after the termination of the widow’s life estate therein.\nThe property, after the filing of the bills, had upon the application of the complainant, been placed in the hands of a receiver, and a small amount of rents had been received. These rents the Chancellor refused to apply towards the liquidation of complainant’s debts, and directed that they should be paid, one-third to the widow, and the other two-thirds to the heir-at-law, or his guardian, he being a minor. From this decree the complainant appealed to this Court.\nThe first question presented is, Did the Chancellor err in decreeing the whole amount of the surplus proceeds of the sale of the house and lot to the widow ? The deed to Martin, for the house and lot, reserved upon its face a lien for the purchase money. In such a case the vendee takes the legal title, subject to an express lien for the purchase money due the vendor.\n*385The relation of the parties has been assimilated to-that of mortgagor and mortgagee: 2 Heis., 402; yet it does not fall within the provisions of sec. 2399 of the Code, which gives the widow dower in lands mortgaged or conveyed in. trust by the husband to pay-debts, if he dies before foreclosure, this being a mere mortgage or* conveyance in trust to secure debts, but a retaining of the legal title as a security. The vend- or’s lien thus retained for unpaid purchase money is superior to the widow’s right of dower. She can not have dower out of so much of such estate as is required to pay the purchase money. Of what, then, may she be endowed? Clearly of so much as belonged' to her husband’s estate legally or equitably. If the house and lot sold for $1,500 more than was sufficient to pay the vendor’s lien, that sum belonged to the estate of Martin, and the widow’s dower of one-third is to be taken out of that sum.\nTo hold that she should take all the surplus of $1,500, would be to disregard the well-settled principle or rule of law, that the widow shall have as dower one-third part of all the lands of which the husband was the legal or equitable owner at the time of his death. The husband was neither the legal or equitable owner of the property until it was paid for; so as that the widow upon his death was entitled to dower out of the whole; but her right to dower is restricted to one-third for life of the surplus, after satisfying the vendor’s lien: 1 Hum., 408; 7 Hum., 72; 1 Col., 14; 31 Maryland R., 324. The attachment obtained and levied on the house and lot was *386issued upon the allegation contained in the bill, that the said John D. Martin was indebted to complainant, that he resided without the limits of the State, and died leaving property within the State: Sub-sec. 7 of sec. 3455 of the Code.\nThe widow and heir-at-law of said Martin were .made defendants to this bill.\nThe widow answered, denying in her answer that her late husband was a non-resident of the State; but admitting the justice of complainant’s claim.\nThe minor also answered by his guardian ad litem, briefly submitting his rights to the protection of the court. No plea in abatement to the jurisdiction of the court, or denying the existence of the cause stated in the bill, as the ground upon which the attachment issued, was filed. By the express terms of the section of the Code referred to, it is clear that if the facts alleged existed, it was a proper case for the issuance of an attachment against the property of the debtor. If the facts alleged were not true, the plea in abatement denying their truth was the appropriate mode of making this defense.\nIt has been repeatedly held by this Court, that objection to the jurisdiction must be taken by plea in abatement, demurrer or motion to dismiss: 7 Hum., 467; 4 Hum., 348; 1 Heis., 335; 3 Col., 357; and such are the plain provisions of our statutes: Code, secs. 4309, 4318-21.\nIt is insisted, however, that the debtor being dead, his minor heir is not required by the letter, or reason of the law, to file such plea. There is no reason why *387he may not do so. He has an interest in the property attached, and is a defendant to the suit, and may avail himself of all defenses against the suit. But if he seeks to resist the jurisdiction, the-statute says this can only be done by plea in abatement, demurrer, or motion to dismiss: Sec. 4309. It cannot be done by answer.\nThe courts are careful to protect the rights of infants, and will not allow them to be prejudiced by acts in their infancy, nor by admissions inadvertently made by their guardians;' but there are no exceptions to the statutory requirements in favor of infants, that objection to the jurisdiction of the court must be taken in the mode, and at the time prescribed.\nThe result is, that the complainant having proved his debts, is entitled to have the surplus of the proceeds of the sale of the house and lot, after paying the vendor’s lien and costs and charges, and taxes and the one-third which the widow is entitled to for life, applied towards the payment of his debts.\nThe rents of the property which accrued after the death of said Martin, up to the time of sale, were properly disposed of by the decree of the Chancellor.\nAfter the death of the ancestor, the estate descends to the heir, and the accruing rents go to the heir, discharged of any liability for the debts of the ancestor : 4 Yerg., 218.\nThe Chancellor’s decree will be modified as indicated in this opinion, and the costs of the court below will be paid as adjudged by the Chancellor; and the costs of this Court by complainant.\n", "ocr": true, "opinion_id": 7656477 } ]

[ "56 Tenn. 860" ]

[ { "author_str": "Nicholson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNicholson, C. J.,\ndelivered the opinion of the Court.\nGuy Smith sued the Memphis & Charleston Railroad Company, in the Circuit Court of Hardeman county, to recover damages for a mule run over and killed by one of the defendant’s trains. The killing of the mule is not denied; but the question is, Whether, under the facts in proof, the defendant was guilty of such negligence as to make the Company responsible? The solution of the question must be controlled by the proper meaning of the Statutory Provisions on the subject, as applicable to the proof.\nSection 1169 of the Code provides that “when a Railroad Company is sued for killing or injuring stock the burden of proof, that the accident was unavoidable, shall be upon the Company.”\n*862\"What the Legislature meant by an “unavoidable ■accident” is ascertained by referring to those Sections •of the Code which prescribe the precautionary duties required of Railroads, and upon the observance of which they are exempt from liability for accidents.\nBy Section 1166, on approaching a City or Town, the bell or whistle is to be sounded at the distance of one mile, &c. Every. Railroad Company shall keep an Engineer, fireman, or some other person upon the locomotive, always upon the look-out ahead, and when any person, animal or other obstruction appears upon the Road, the alarm-whistle shall be sounded and the brakes put down, and every possible means employed to stop the train and prevent the accident..\nSection 1167. Every Railroad Company, that fails to observe these precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to persons or property, occasioned by or resulting from any accident or collision that may occur.\nSection 1168. No Railroad Company that observes •or causes to be observed these precautions, shall be •responsible for any damages done to person or property on its road. The proof that it has observed said precautions shall be upon the Company.\nIt follows that when the Legislature declares, that “where the Railroad Company is sued for killing or injuring stock, the burden of proof, that the accident was unavoidable, shall be upon the Company.”\nIt is meant that if the Company prove that, at the time of the accident, it was in the observance of *863the several Statutory precautions, then the accident would he unavoidable and the Company would not be responsible. But, if this proof be not made, the law makes the Company responsible for all the damages resulting from the accident. The Company, to exonerate itself, must show that, not only, the specified precautions were observed; but, in addition, that “every possible means was employed to stop the train and prevent the accident.” In resorting to the additional means, it was not intended that, the Company should use means which would, probably, endanger the lives or property of those on the train; but that, unless each and all of the Statutory precautions were observed, it is no excuse, that an attempt to reverse the engine might have ditched the train.\nIt is manifest that, under the .Provisions of the Code, the question of liability on the part of the Company is made to depend upon the fact, Whether all the precautions prescribed have been observed by the Company or its agents; and, if they have not, the Company is guilty of Statutory negligence, and is responsible for all damages, whether resulting from their negligence or not. The language of the Statute is susceptible of no other fair interpretation. It is, “Every Railroad Company, that fails to observe these precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to person or property occasioned by or resulting from any accident or collision that may. occur”; and not all damages that may be occasioned by or result from the failure to observe tha-*864precautions. As the law is plainly written, the responsibility for the damages occasioned by or resulting from the accident, attaches to the Company upon its failure to prove that all the Statutory precautions have been observed.\nWhen 'a Company is sued, therefore, the Statute gives them notice, that they can make successful defense, only, by proving that, at the time the accident occurred, they observed each and all of the Statutory precautions. In the present case we see from the Bill of Exceptions that the Company proved; that the whistle was sounded at the distance of a mile from Saulsbury, to which Town the train was approaching; that the Engineer was, at the time, on the look-out ahead; that he saw the mule when it dashed into the road; that he immediately sounded the alarm-whistle, and that one of the brakes was put down; but as to whether or not the other two brakes were put down, no proof was made. It was incumbent on the Company to show that all three of the brakes were put down; because the law required that proof to be made to exempt the Company from damages resulting from the accident. Instead of making that proof, the Company relied on making it appear that the Engineer and other officers did all that was possible to be done to avoid the accident; and that, under the circumstances, if the other two brakes had been put down, the accident would not have been avoided.\nIf our Statute had been like that in Mississippi, to the decisions on which we have been referred, the proof made by the Company might well have been *865relied on to show that the accident and its consequent damages were not the result of the negligence of the Company. But our Statute must govern, as to the character of the proof to be made by the Company;, and, until the Legislature adopts a different policy, the Courts and juries are bound to administer the Law as it is written.\nIt is manifest that, under the Provisions of the Code, the question, as to contributory negligence, could not arise under the facts of the case. Our Statutes,, in various ways, recognize the running out of stock on the commons or range as lawful; and, the fact, that the owner of the mule permitted him to be out of his enclosure, can not be relied on by the Company,, either to defeat the action or in mitigation of damages.\nIn this case we find that the Circuit Judge instructed the jury, in conformity' with the Provisions of the Law, and the jury found this verdict upon the proof in pursuance of these instructions.\nUnder the Law, it can not be justly alleged that the verdict was not supported by the proof. Nor-was there any error in the refusal of the Judge to grant a new trial on the affidavit on file. They fail to show that proper diligence had been used in trying to procure the evidence of one of the absent brakes-men, and no reason is given for not having the third brakesman — only one of them having been examined. Upon the .whole case, there is no error and the judgment is affirmed.\n", "ocr": true, "opinion_id": 7656663 } ]

[ "57 Tenn. 127" ]

[ { "author_str": "Deaderick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDeaderick, J.,\ndelivered the opinion of the court.\nThe complainants, who are the representatives of the original proprietors of the 5,000 acre tract of land upon which, in part, the oity of Memphis is located, filed their bill on the 5th day of November, 1866, against the defendants, in the Chancery Court of Memphis.\nThe bill alleges that the part of said 5,000 acre tract of land “ lying. North of Auction street, extended, and West of Promenade ' street, if extended, in a direct line to the South bank of Bayou Gayoso and down its South bank to Wolfe river and along the East bank of Wolfe river to where the line of *129Auction street, if extended, would strike Wolfe river,” was never disposed of by the ancestors . of complainants, nor by any of their heirs or representatives, nor has it ever been partitioned nor apportioned in any manner between complainants, who claim to be the owners thereof as tenants in common.\nThe bill alleges that about the year 1820, the proprietors laid off the town of Memphis, and they exhibit with their bill, a plan or map of a portion thereof, including the 7 or 8 acres, which is alone described as being a part undisposed of.\nThe bill also states that Judges Turley, Greene and Reese, of the Surpreme Court of Tennessee, in a matter of arbitration involving the rights of the city of Memphis to the alluvial lands on the margin of the Mississippi, made an award, which is referred to, and, by agreement was made evidence in the cause.\nThe bill further alleges, that there are three large saw mills located upon said tract of 7 or 8 acres of land so claimed by them, and other erections for the private use of the owners of said mills; and, that these owners of these mills are paying the Mayor and Aldermen of the city of Memphis for the privilege of so using said lands; and, that there are other tenements, occupied upon said land; and, that said Mayor and Aldermen have leased other portions of said land to tenants; all of said owners of said mills, occupants of said tenements and lessees, are together with said Mayor and Aldermen made defendants to the bill. It is charged that all the parties occupying said land are trespassers, and the city of *130Memphis has no right thereto, and that if the said land was ever used as a “landing,” or dedicated to the public for such use, it was a mere easement in that part of the soil which was the margin of the river, and has ceased to be so used for over 20 years, and having ceased to' be used and being unfit for such use, the right to so use it has ceased.\nComplainants admit that the bank along Wolfe river has been, and is still used to fasten flatboats, and rafts, and lumber barges to, and do not seek to disturb such use of the banks, as such use will not disturb their beneficial use and enjoyment of the soil.\nComplainants pray for a discovery from the defendants of the nature of their claim to the privileges they are using upon said land; how they hold or acquired the same, and for a cancellation of their several claims, as a cloud upon their title, and that the right to and easement in the public, if any, may, by decree of the court, be declared and confirmed; and, that complainants’ rights as co-tenants may be declared and established, and partition of said land may be made between them according to their respective rights; that defendants account for rent received, and be ejected .from the land as trespassers, and for general relief.\nNone of the parties in possession of the land answer, and judgments pro confesso are entered against them.\nThe Mayor and Aldermen of the city of Memphis answer, and admit that the property in controversy *131is correctly described in the bill, and that they are in possession by themselves and tenants holding the premises for the benefit of the city of Memphis, and stating that the said land had been occupied and used by their predecessors in office, as public property ever since the town of Memphis was incorporated, and their claim thereto has never been abandoned; and plead and rely upon their adverse possession of 7 years and 20 years; that said use and occupation have been evidenced by buildings, erections and improvements thereon, and as a “public landing.” That the lands described, were dedicated to the public as shown by exhibit “A” to the bill, and were deeded in fee to the public by the proprietors, who were the ancestors of complainants. That by the map exhibited with complainants’ bill, the landing in controversy was bounded and marked “public landing,” and that no claim has been made to it by complainants or their ancestors. That for many years after the dedication of said land, boats of all kinds landed there, and that in later times specific places have been assigned as landings for particular kinds of boats, and that flatboats, barges, etc., are required to make their fastenings on the premises in controversy, and for this purpose it is in constant use, and thus affords an income to the city; that the ground in the rear has been kept sufficiently open and free from obstructions to subserve the purposes of the dedication. Respondents admit the leases of parts of the land, which are not at present needed for public use, and which do not obstruct the enjoyment of the uses to *132which the land was dedicated; that the city authorities have claimed the absolute and exclusive ownership and control of the whole premises, from the time of the dedication until the present, as a public landing and open thorougfare for the use and benefit of the purchasers of lots from the proprietors, and for the public generally, and the property has always been held and used in subordination to the primary purpose of the dedication and they deny any misappropriation or abandonment of the same, nor have the public rights been injured or obstructed by the leases made.\nRespondents refer to, and rely upon, and exhibit with their answer a compromise deed submitting the matters in dispute between the proprietors and the city, to the arbitrament of the Judges of the Supreme Court of Tennessee, and their opinion and award thereon.\nTestimony was taken by both sides, and upon the hearing complainants’ bill was dismissed, and they have appealed to this court.\nComplainants insist that they are entitled to relief upon the ground that no dedication of the ground, or any easement thereon, was ever made to the city of Memphis; and, if, in fact, any dedication or easement was made, that the same has been abandoned by the city, and reverts to them by reason of non-user, and unfitness of the premises for the purposes for which they were dedicated.\nBy the deed of the “proprietors” of the date of 18th of September, 1828, which was proved, and registered March 4, 1829, it is declared that the “proprietors of the land upon which the town of Memphis *133has been laid off, having been informed that doubts have arisen in relation to their original intention concerning the same, for the purpose of removing such doubts, do hereby make known and declare the following as their original and unequivocal designs and intentions in relation thereto.” They then proceed to declare, amongst other things, that “ in relation to the ground lying between the Western line of lots No. 1 to 24, inclusive, and the same line continued in a direct course to the South bank of the Bayou Gayoso, and the eastern margin of Wolfe and Mississippi rivers, and between Jackson street extended to the river, and said South bank of the bayou, it was the original intention of the proprietors that there should, on said ground, . forever be a landing or landings for public purposes of navigation or trade, and that the same should be forever enjoyed for these purposes, obligatory on ourselves, heirs, and assignees, but all other rights not inconsistent with the above public rights, incident to the soil, it never was the intention of the proprietors to part with; such as keeping a ferry or ferries on any of the public grounds, an exclusive right to which they always held sacred and never intended to part with, in whole or in part.”\nThis deed shows that there had been a previous dedication by the proprietors, about the extent or character of which, some misunderstanding existed and which it was the object of the deed to remove. The ground thus described, as to which it is declared in the deed to have been the original intention of the *134proprietors “ that there should be on said ground, forever, a landing or landings for public purposes of navigation or trade, to be forever enjoyed for these purposes,” includes the ground which is in controversy in this cause.\nIf there had been no dedication of the land, previous to the execution of the deed, it makes a clear and explicit dedication of the land within the prescribed boundaries for a public landing or landings, and does not restrict the right to any one or Atore points upon the ground to be presently used and appropriated to such use, but is a grant or dedication of the whole for the purposes designated, forever, to be used as the exigencies and demands of trade, or, the future necessities of the city, may require.\nBut this question of dedication has heretofore been substantially determined by the award of Judges Green, Beese and Turley, of the Supreme Court of Tennesse, who were selected under an agreement entered into by the complainants and those they represent, and the Mayor and Aldermen of the city of Memphis to arbitrate the question of the right of wharfage along the front of certain “ alluvial lands,” including the streets, alleys and public landings, according to rights and titles of the said parties, existing at the time of the submission.\nPart, though a small part, of this alluvial formation was upon the land which is the subject of controversy in this cause.\nThe submission bond, or compromise deed, as it is styled in the record, was entered into in July, 1844, *135and the award of the arbitrators was published the 8th of January, 1847, in which it is recited that the ownership of the alluvial land on the Western boundary of the 5,000 acres granted to Jno. Rice, and the right to build wharves, and the right to receive wharfage along the entire river limit of Memphis, was in controversy and submitted to them. They then decide and award unanimously, that the Mayor and Aider-men of the town of Memphis are entitled, in law and equity, to receive the wharfage on the alluvial land along the entire river limit of the town of Memphis, being the Western boundary of said grant to John Rice, No. 283. This Western boundary is the boundary of the land in controversy in this cause.\nFrom the opinion of the arbitrators, which accompanies the award, it appears that the proprietors laid off the town of Memphis in 1820, and had an engraved plan or map of the town, representing ' the streets, alleys, squares, landings, etc., and upon this map, the space between the bluff and river, from Jackson street to Bayou Gayoso, was marked “Public Landing;’ and so this space is marked on the map of 1829, made an exhibit to complainants’ bill.\nThe arbitrators make no reference in their award or opinion, to the deed of 1828, or map of 1829, but base their award in favor of the right of the Mayor and Aldermen of the city of Memphis upon the acts and declarations of the proprietors, and this exhibition of the engraved map or plan of the town, in making sales of lots and their knowledge of and acquiescence in the claim of the authorities of Memphis that the *136whole of the ground West of Mississippi Row was dedicated to the public.\nThe dedication North of Auction street, was as unequivocal as that South. The same marked line included both.\nThe dedication of a right to use the land for a public landing being established, the question of abandonment or forfeiture of that right, as insisted in the bill remains to be considered.\nIt is true, “the owner of an easement, may destroy the same by actually abandoning the right, as well as the enjoyment, especially if a third party become interested in the. servient estate after such abandonment.” Wash, on Eas. and Serv., 542-3. “But nothing short of an intention so to abandon the right would operate ihat effect, unless other persons have been led, by such acts, to treat the servient estate as if free from the servitude.” Ib.\nIn some cases, an abandonment of an easement may be presumed or inferred from non-user, but rarely, if ever, unless there has been such a use, by the owner of of the premises, in or over which the easement has been enjoyed, as to indicate a claim of right which is adverse to the enjoyment of the easement. Wash. 551.\nThere has been no abandonment of the right, but a continued assertion of it; and no such non-user as would constitute evidence of an intention of abandonment, nor any use by complainants indicating, an adverse claim to the enjoyment of the easement.\nAthough the chief landing places for boats, are, *137and have been for many years, below the line of the premises claimed by complainants, yet the proof shows that flatboats do, from time to time, land upon said premises and that they have been claimed by the city and held and controlled by it, and that no claim adverse to the right of possession and use of the city has been made by complainants since the adjudication of the questions submitted to arbitration, until the filing of the bill.\nThe terms of the dedication and the circumstances under which it was made, did not impose upon the Mayor and Aldermen the obligation of an immediate appropriation of the premises to the intended purposes.\nIt was well known to the grantors that there would not be, for years to come, a necessity for the use of the whole front dedicated to the purposes of a landing or landings. At the time of the dedication, Memphis was a small place of inconsiderable trade, but it was believed that it would become in after years a great city, and an important commmercial point, and the object of the founders of it was to provide facilities for its trade and commerce adequate to its probable future requirements. They therefore gave the public landing, forever, without any condition that the right should revert, if not improved or appropriated to its intended uses, within any given period; and have sold lots bounded upon this open space, whereby purchasers from them, have acquired the rights to their lots upon the understanding that this open space was permanently dedicated to the public. “And in such a case the proprietors will have lost all power *138over the subject, and the only power of the court is to ascertain and establish the fact of dedication. It can neither be limited in its extent, nor revoked on the ground of a supposed excess of the dedication beyond the requirements of the public.” 8 B. Monroe 247.\nThe case in 24 Pickering, 80, is not analogous to this case.\nThere the town sought to establish the dedication of an easement, by user of the premises and the court held that the occasional, trifling and irregular use made of lands or flats is altogether too imperfect an occupation to prove a dedication.\nThe case cited, does not hold that occasional use only, or irregular use, where a dedication is established, will defeat the dedication and revest the title in the grantor.\nNor will the fact, that the city authorities have leased the ground, or temporarily appropriated it to different purposes than those contemplated in the dedication of it, give the grantors the right to reclaim it, or cause it to revert to the original owners.\nIn such a case, upon a bill filed for such a purpose, a Court of Chancery would compel the specific execution of the trust by causing the removal of obstructions to its proper use. The use and easement would still remain in the public. 6 Peters, 507.\nThe bill in this case seeks to have the rights of complainants declared and established in and to the land, and to have the same partitioned amongst them as tenants in common. To the relief sought, we are of *139opinion, that the complainants are not entitled, and affirm the decree of the Chancellor dismissing the bill, with costs\n", "ocr": true, "opinion_id": 7656736 } ]

[ "57 Tenn. 425" ]

[ { "author_str": "Sneed", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSneed, J.,\ndelivered the opinion of the court.\nThe action is on a guaranty by defendant of the payment of a judgment assigned by him to the plaintiff, and the defence is that the plaintiff by his laches has lost his right of action against the guarantee, by pretermitting his remedy against the defendants to the judgment, who have now become insolvent. The facts are, that N. N. Irvine the defendant in this action, had judgment by confession, on the 20th day of November, 1860, before a justice of the peace, for $490 against one P. B. Winston, which was stayed *426by one Samuel Irvine. On the 15th day of January, 1861, he sold and transferred this judgment to the plaintiff Brasfield and wrote and subscribed his name to an assignment of said judgment opposite the same on the justices docket, in the words following:\nFor value received I assign the within judgment to C. J. A. Brasfield, and guarantee the payment for the same. N. N. InviNE.\nIt was proven on the trial, that at the date of the guaranty Winston, the judgment debtor, lived in Kentucky, where he continued to reside, until his death, and that he had a good property in that State, and that Samuel Irvine, the stayor, resided at that time and continued to reside until his death, in the county of Weakley, where these transactions occurred and where this action was brought. It was also shown that after the month of June, 3861, in consequence of the civil war then flagrant, the courts were closed in said county of Weakley and that debts could not be collected by process of law, and that this state of things continued until the State government was reorganized in 1865.\nOn the 13th day of November,. 1865, an execution was taken out upon this judgment and was handed by N. N. Irvine the defendant, to an officer, who levied the same on a lot of cotton as the property of the defendant Winston, sufficient to satisfy the judgment. The officer making the levy states that after the levy, one A. M. Boyd, a brother-in-law of defendant Winston, claimed the cotton and admonished him not to sell it, whereupon he demanded *427a bond of indemnity from both the plaintiff and defendant in this action, the guarantor and guarantee, which both declined to give, and he thereupon abandoned the levy. The court charged the jury in the words following: “ If you find from the evidence that the defendant N. N. Irvine executed the guaranty sued on, and that the defendants in the judgment transferred, failed to pay the same at the expiration of the stay, then the plaintiff's right of action accrued and he would be entitled to recover, unless it appears from the evidence that the judgment has been paid or satisfied.”\nThe defendant asked instructions as follows: “That if at the time of said guaranty it should appear that Winston was a citizen of Kentucky, before he would be entitled to recover upon the guaranty, the plaintiff must show that he used due diligence to collect the judgment from Winston. That it was the duty of the plaintiff at the expiration of the stay to have taken out execution on said judgment against Winston the principal, and Samuel Irvine the stayor, and endeavor to collect the same, and if he failed so tp do and the money could have been collected out of said defendants, then the jury should find for the defendant.” The defendant asked the further instruction that if an execution issued on said judgment in November, 1865, and was levied on the property of Winston sufficient to pay the same, and if the property then levied upon was never replevied or taken from the officer and no legal disposition thereof made, they should find for the defendant.\n*428The court declined to give these instructions and the verdict and judgment were for the plaintiff, from which the defendant appealed in error. We see no error in the charge or in the ruling of the court upon the instruction demanded by the defendant. The charge proceeds upon the idea that the guaranty is absolute, and of this opinion is the court. A guaranty is to be distinguished from a suretyship; the one being a secondary the other a primary obligation. The guarantor undertakes that the debtor shall pay, the surety that the debt shall be paid. So that the same strictness is not required to charge an absolute guarantor as to charge a surety or endorser.\nThis being therefore an absolute guaranty — a positive and unconditional undertaking that the debtor should pay the judgment to the assignee — it devolved upon the guarantor to see to it that the obligation thus assumed by him should be discharged, and the rule of diligence applicable to a guaranty of the collection of the note, or solvency of the parties to negotiable paper, do not apply so long as the original contract between the parties, and their relation to each other remain unchanged. Certainly an absolute guarantor might be discharged by a novation of the debt, or by any substantive arrangement between the guarantor and the original party, injurious in its results to the guarantor. But mere inaction on the part of the guarantee will not have this effect. He reposes upon his absolute guaranty : nd the l uarantor must see to it that the judgment is paid.\nThese principles apply alike to the absolute guar*429anty of judgments as of other instruments, and they apply to the case now in judgment. The defendant having without condition guaranteed that the judgment would be paid, the substantive right of action against him accrued to the plaintiff at the moment the stay of execution expired.\nIt was not incumbent on the plaintiff to enforce it out of the original defendants as in a case of guaranty of solvency or collectibility, but he could revert at once to his right of action on the covenant of the absolute guarantor. In accordance with this view it was not the plaintiff's business to indemnify the officer in the sale of the property levied on. The officer certainly had the right under the statutes to demand bond before selling disputed property, and whatever may be the effect of his abandonment of the levy, as between the original parties to the judgment, the plaintiff could not be affected by it, as his remedy is upon the guaranty and not upon the original demand.\nAffirm the judgment.\n", "ocr": true, "opinion_id": 7656846 } ]

[ "57 Tenn. 430" ]

[ { "author_str": "Deaderick", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nDeaderick, J.,\ndelivered the opinion of the court.\nThe action was begun by plaintiff before a justice of thé peace of Weakley county, where judgment was rendered in favor of defendant, and plaintiff appealed to the Circuit Court, taking the pauper oath instead of executing an appeal bond. Defendant moved to dismiss the appeal in Circuit Court, which motion was overruled, and, upon trial, verdict and judgment were rendered against defendant, and he brings the case to this court by writ of error.\nIt has been held by this court in 3 Sneed, 131, that a next friend cannot prosecute a suit on behalf of an infant without giving bond and security for costs.\n*431The affidavit in this ease is defective in form, and although signed by the infant and his next friend, it purports on its face to be made by the next friend alone. It follows that the court below, in refusing to dismiss the appeal, erred.\n. The judgment of the Circuit Court must therefore be reversed, and the cause dismissed at the costs of S. L. Brooks, next friend, etc.\n", "ocr": true, "opinion_id": 7656851 } ]

[ "57 Tenn. 564" ]

[ { "author_str": "Tuestey", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTuestey, J.,\ndelivered the opinion of the court.\nThe deed in trust is not made by nor to the clerk of the County Court, and is not such as is contemplated by sec. 2069 of the Code, and the Act of February 19, 1869, ch. 32.\nThe reasoning of Judge Turley in Beaumont & Irwin v. Yeatman, 8 Hum., 542, and which we adopt as the law of this case, is conclusive upon the question presented.\nReverse the judgment.\n", "ocr": true, "opinion_id": 7656954 } ]

[ "57 Tenn. 575" ]

[ { "author_str": "Sneed", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSneed, J.,\ndelivered the opinion of the court.\nThe action is upon a note under seal executed by Matlys, Pate and Everett to Robert Cannon, on July 4, 1852, and payable on December 25, next thereafter. The suit was instituted January 15, 1870, before a *576justice, who rendered judgment for the plaintiffs, and the defendants brought the case by appeal into the Circuit Court, where the verdict and judgment were for the plaintiff.. The defendants appealed in error.\nThe original suit by warrant was in, the name of the present plaintiffs, as executors of T. A. Hawkins, deceased, who were the holders of the note. An assignment of the note is endorsed thereon, of date July 16, 1852, by Robert Cannon the payee, to \\V. T. Barnes; and of the same date another assignment by said W. T. Barnes to Thomas A. Hawkins, the testator of the plaintiff.\nDuring the progress of the cause in the Circuit Court, the plaintiffs moved to amend the warrant so that the action should be in the name of Robert Cannon for the use of the plaintiffs, and also to strike out the assignments by Cannon to Barnes, and by Barnes to the testator of the plaintiffs, all of which was- done by leave of the court. These amendments were made at September Term, 1871, and the final trial was had at September Term, 1872.\nA plea of the statute of limitations of six years was filed by the defendants, which defence, we presume, was abandoned in the progress of the cause, and it is not insisted upon here. It will be observed that the note sued on is under seal, and that it was executed prior to the legislation which abolished the sanctity which pertained to sealed instruments under the ancient law.\nThe defendants offered the deposition of W. T. Barnes in evidence, taken in 1872, to the effect that *577he had never held or assigned said note to the testator of the plaintiffs. This was objected to and the objection was sustained by the court, and this is assigned as error. The deposition was taken more than twenty years after the assignment referred to was made, and the witness states distinctly that he has no recollection of ever holding such a note, and that -he never assigned the same to the testator of the plaintiffs. In the state of the case at the time this deposition was offered, the testimony was certainly irrelevant and incompetent, there being no issue before the court to which such testimony would apply.\nThe assignments had all by leave of the court been stricken out, and the action then pending was in the name of the original payee, for the use of these plaintiffs. We, therefore, see no error in the ruling upon this point.\nThe defendants relied upon the presumption of payment from the lapse of time. ’ They proposed to read the several assignments on the note, which had already been stricken out; which, upon objection, was as we think, properly excluded by the court. They also, in support of the alleged presumption of payment, offered to prove when the payee Robert Cannon left the county of Carroll where the action was brought, and that the defendants Pate and Everett had continued to reside in the county, and that they were wealthy and punctual men. This testimony was also objected to for irrelevancy, and was by the court excluded.\nIt appears in the proof that the testator of the *578plaintiffs died in 1852, and it is admitted that the plaintiffs are the executors of his will, but the date of their qualification as such is not shown.\nThe note falling due December 25, 1852, and the action having been brought in July, 1870, a period of more than seventeen years elapsed from the maturity of the note to the bringing of the action.\nAfter the lapse of sixteen years, a note under seal, executed before seals were abolished, was presumed to be paid. But that was a disputable presumption which the plaintiff might rebut by any evidence tending to show that the note had not in fact been paid. On the other hand, the presumption might be strengthened by any evidence on the part of defendants showing circumstances that would give it strength. Thus it is said, “ the presumption is not absolute, so as to form a complete bar to the action, but may be repelled by any evidence of the situation of the parties, or other circumstances tending to satisfy the jury that the debt is still due.” 1 Heis., 700.\nIt was strongly insinuated in the case cited that if the full period of sixteen years had not elapsed before the beginning of the late civil war, the time excluded from computation as to the statute of limitations, should by analogy be excluded in ascertaining the presumption of payment. Ib. 701. This would depend materially upon the fact whether or not the courts were open in the county where the action is to be brought, so that the plaintiff could have enforced his remedy by course of law.\nThe presumption of payment from lapse of time, *579is not a statute of limitations, but it might be materially weakened or strengthened by the circumstances in a case like this where the necessary period did not elapse until after the war, that the courts were opened or closed during the period of the civil war.\nIn this case there is no evidence upon the subject, and indeed no evidence at all to rebut the presumption. We hold that in such cases it is legitimate, as well for the plaintiff to adduce evidence to rebut the presumption, as for the defendant to give it strength by evidence to the contrary. The testimony offered by defendants as to the situation of the parties, their, wealth and punctuality, had some tendency, however small, to strengthen the presumption, and all such circumstances were proper matters for the consideration of the jury.\nWe think the court erred in excluding the testimony. Reverse the judgment, arid'* award a new trial.\n", "ocr": true, "opinion_id": 7656963 } ]

[ "57 Tenn. 590" ]

[ { "author_str": "Sneed", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSneed, J.,\ndelivered the opinion of the Court.\nThis bill was filed by David Coleman against John Norman to compel a contribution as an alleged có-security with complainant for Robt. L. Coleman, the complainant having paid the whole debt. The joint suretyship is denied by the defendant, who insists that he became surety on the note in question not for Robt. L. Coleman alone, but for the complainant and the said Robt. L. Coleman together; that they were both principals in the note, and defendant the surety for both. The case turns upon this question of faet. *591.The -Chancellor was of opinion that the defendant was the security of both, and the bill was dismissed. The complainant appealed.\nWhile the jurisdiction of a court of equity in like cases is unquestioned, resting as it does, not upon any notion of mutual contract' of indemnity, express or implied, but upon principles of equity and morality, or as otherwise expressed, upon the principle of equality applicable to a common risk, yet the complainant must make out his case as one falling clearly within the principle, or he will be defeated. In this case both the complainant and Robt. L. Coleman had signed the note joint and several in its terms before it was presented to the defendant, who signed it as surety. Upon the face of the note it does not appear for whom the defendant became security. In the case of Thompson v. Sanders, 4 Dev. and Bat., 404, it was held that “when a party signs a note as surety of another, and a third person also affixes his name as a maker, adding to his signature the words ‘surety of the above/ the first surety cannot, upon payment of the note, compel contribution against the.second surety unless it be made satisfactorily to appear that the second surety intended to place himself in the relation of a co-security with the first.” In such a case the burthen of establishing the joint suretyship is thrown upon the party asserting it and demanding the contribution, and the principle is apposite to the case in judgment. The defendant having signed as surety just underneath the names of Robt. and David Coleman, both' of whom had signed as principals, the ques*592tion is, for whom did the defendant become security? and this question must be satisfactorily solved by the complainant himself. We are of opinion that the complainant has failed to make out his case upon the proof. While we may concede that the testimony is in equilibrio as to the understanding of the parties, yet the conduct of the complainant and Robt. Coleman as to their mutual relations in respect to the business on account of which the note was executed, the repeated disclaimer of ownership by Robt., the son, and assertion by David, the father, that Robert had no interest in the goods, are circumstances which must be thrown into the balance, and when considered cannot but be held to give great strength to the equities of the defendant. The complainant and Robt. Coleman by their conduct in regard to the goods, resorted to confessedly with the intention to defeat the creditors of the said Robt. in the collection of their debts, had given defendant reason to believe, independent of all other proof, that the note was that of both as prin--cipals, and under such circumstances, whatever be the fact, the complainant must be repelled from a court of equity.\nAffirm the decree.\n", "ocr": true, "opinion_id": 7656972 } ]

[ "58 Tenn. 605" ]

[ { "author_str": "Nicholson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nNicholson, C. J.,\ndelivered the opinion of the court.\nThis is a bill to settle and wind up partnership-dealings and transactions. The partnership is admitted,, and both parties ask for an account. \"While the suit was pending, the parties agreed to submit the matters in controversy to arbitrators, and that their award be made the decree of the court. The arbitrators returned an award by which defendant was entitled to-a decree against complainant for about $2,700. Defendant moved to make the award the judgment of the court; the complainant moved to set aside the award.. Upon proof, the Chancellor allowed the motion of complainant, and ordered the clerk and master to take and state an account between the parties. Erom this order defendant, with leave of the court, appealed.\n*606Complainant now moves to dismiss the appeal because the decree appealed from' is not final, etc. It is not a final decree, such as might be brought up by writ of error; but it is insisted for defendant that the decree determines the principles involved, and -orders an account so as to allow an appeal within the meaning of sec. 3157 of the Code.\nIt is obvious that the arbitrators determined the principles involved in the case in making up their award, and if the court had confirmed it, the decree would have been final. But in setting aside the award, the Chancellor determined none of the principles involved in the cause. The effect of his ruling was to place the case in statu quo before the arbitration was agreed on.\nIt is true, that if we now entertain the appeal and hold that the Chancellor erred in setting aside the award, the result would be a saving of time and expense; but if we sustain the action of the Chancellor, the result would be a loss of time and an increase of expense. So that, the appeal, granted in this case was not authorized by the language of the Code, nor is it justified by the reason for allowing appeal from interlocutory decrees.\nThe motion to dismiss the appeal is allowed.\n", "ocr": true, "opinion_id": 7657295 } ]

[ "59 Tenn. 526" ]

[ { "author_str": "Freeman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFreeman, J.,\ndelivered the opinion of the court.\nThis is an action brought by the administrator *527of Jones, to recover for injuries inflicted causing his death.\nThe amended declaration, which is all that is before us, contains three counts.\nThe first states, as the cause of action, that the defendant is an incorporated company in the State of Tennessee, engaged in the transportation of freight and passengers by rail to and from the city of Memphis; that Jones was employed as a baggage master on a train running to and from Memphis; that the defendant so negligently and carelessly ran and conducted its trains upon said road, to and from the city of Memphis, that a collision occurred, in which the cars were set on fire and burned, by means of which said Jones was crushed, injured, and burned; from which injuries, after great suffering and pain, he afterward died.\nDamages are claimed to the amount of $15,000.\nThe second count is for the gross negligence of the defendant.\nIt alleges, in substance, that the defendant is a company duly incorporated by an act of the Legislature of Tennessee, and engaged in the transportation of persons and property by rail, to, from, and between, the city of Memphis and the town of Chattanooga, in the said State; and that plaintiff’s intestate being bag- < gage master on the train, by the carelessness and negligence of the defendant, a collision occurred producing the injury complained of, causing the death of said intestate, after languishing from the time of the injury to the date of his death.\n*528This count then avers that he was, after the injury down to the time of his death, of unsound mind, and incapable of suing, and then concludes with an averment that a cause of action had accrued to the plaintiff, for the use of the two children of the said deceased.\nThe third count commences with the averment,, that the defendant, heretofore, to wit, on the day and year aforesaid, at, to-wit, in the State aforesaid, was engaged in transporting persons and property to and from the city of Memphis, — and then states, substantially, the same facts • as in the previous counts, and that said deceased was instantly killed; wherefore it claims that an action accrued to the plaintiff, to recover damages for the use .of the next of kin of the said deceased, on account of the deprivation of the society, instruction, and counsel, of their father, and-the loss of his earnings for their support, etc.\nNumerous pleas, and demurrers thereto, and replications, and demurrers thereto, are contained in the record, enough indeed to delight the soul of an admirer of the old common law pleading, — that technical system by which the rights of parties in courts of law were determined in many cases rather by the pleader’s skill in the use of formal verbiage, than by the establishment of legal rights by proof.\nWe need not go into the several very nice questions thus presented.\nSuffice it to say, that the court below, on the argument of these demurrers, filed by the plaintiff and defendant, passed by the special objections pointed *529out in the demurrers to the various pleadings, and went back to the declaration, and held it defective in substance for its failure to allege that the injuries complained of' were committed in the State of Tennessee.\nThe court being of the opinion that the demurrers extended back to the declaration, adjudged that to be defective, but gave the plaintiff leave to amend the defect, or to amend generally, which being declined, thereupon, judgment final was rendered, and the case was brought to this court.\nThe first question to be presented is, — Did the court err in thus holding, as to the effect of a demurrer under our system of pleading?\nThe rule is too familiar for the citation of authorities, that, according to the ancient system, the court was right;- — -that- upon a demurrer, — sometimes spoken of as a general fault-finder, — the court considered the whole record, and gave judgment for the party who, on the whole, appeared to be entitled to it.\nIt may be well to remember, however, to arrive at a proper conclusion upon this question, that, under the common law system of pleading in England, the judgment that was rendered on a demurrer, final or interlocutory, according to the nature of the action, in either case, settled the rights of the parties; whereas, under our system, the party may always amend his defective pleading, or plead over if his demurrer be overruled.\nBut to the point.\nBy the Code, sec. 2934, demurrers for formal defects *530(that is the special demurrers of the common law) are abolished, and only those for substantial defects are allowed; — and it is required that “all demurrers shall state the objection relied on;” — that is, all demurrers for substance, i. e. such as proceed upon the assumption, that, “on a fair and natural construction of the pleading,\" no cause of action, or of defence, is shown, — shall point out the defect relied on.\nIt is evident that this abolishes demurrers as known to our ancient system of pleading; for by that, the special demurrer was for defects in the form of the statement, and the general demurrer, which was for substance, averred only that the declaration or plea was not sufficient in law.\nIf we have not the former species of demurrer, to which the rule held by his Honor applied, the question is, whether, under the provisions of the Code, this rule still remains, or whether it is not excluded by a fair construction of the language used.\nThe language is, — “all demurrers shall state the objection relied on.”\nWhy state it? Surely, because it, and not another, is the objection “relied on.”\nIs the plain meaning of this language met, by holding that yon must state the objection to the particular pleading, but. may rely on something else?\nThe plain meaning of the provision is, that the objection must be stated in order to give distinct notice to the other party of the defect in his pleading; and this meaning can be carried out only by requiring that the party making this objection shall *531rely on it, and not on one not stated,- of which the other party has had no notice.\nIn other words, that the party should not be allowed, after all, to have the benefit of what is equivalent to a general demurrer, not pointing out the objection relied on, under the pretence of one which is special, and required to point out the objection. '\nIt would be idle to abolish general demurrers, and to require the objection relied on to be stated, if it is to be stated only to mislead, — the statement amounting to nothing, and the party having all the benefit of a general demurrer, under cover of the special objections (not really relied on) made in his statement.\nNo inconvenience can result from this view, as it is just as easy to demur at once, and directly, to the defective pleading, and thus save costs and delay, as it is first to encumber the record with voluminous pleadings, as in this case, and then, under some remote pleading, and the demurrer to it, to go back and reach the defect by indirection: and such clearly was the view of the Legislature, as we think, in the radical change made by them in the provision we have cited from the Code.\nBut if the demurrer reached back to the declaration, then the question would arise, — Did his Honor correctly hold that the declaration did not sufficiently state a cause of action, because of its failure to allege that the injuries complained of were committed in the State of Tennessee?\nThe rule of the common law, that every pleading must be taken .most strongly against the pleader, can*532not be held applicable under the Code, which provides that any pleading shall be sufficient, where, by a fair and natural construction it shows a substantial cause of action.\nApplying this enactment to the declaration, we think that by a fair and natural construction it can be held only that this is an action brought under our statute, and not under the law of another State.\nThe declaration states a substantial cause of action under the statute of Tennessee, in a suit brought in our courts, against a corporation chartered by our own Legislature, for an injury that may well have-been committed in this State, as we know judicially that a considerable portion of the Memphis & Charleston Railroad lies in this State.\nWe think it a fair intendment from the language of the declaration that the injury was committed in this State.\nIf it occurred in another State, it can easily be shown at the trial,, as a matter of defense.\nThere can be no doubt that in order to recover in this latter case, the party would have to show a. cause of action according to the law of the ' State where the injury was committed; — that is, in order to entitle himself to sustain an action in this State under the provisions of the statute law of another State creating the right in the particular case to sue.\nIt is equally clear on principle and authority that if the party sue in this State, to recover on a cause of action that arose in another State, the action being given by a statute of that .State, he must allege the *533right to have occurred in that State: in other words, ■he must state a cause of action arising in that State, which under the statute of that State entitles him to recover in its courts; and when he has so stated his cause of action, he must be prepared to show the law of that State under which he claims the right, — it not 'being a common law right, but one under a particular statute.\nSee the question discussed, and the authorities cited, in the case of Whitford v. Panama R. R. Co., 23 N. Y., 466, — an able opinion by Judge Denio.\nThis declaration certainly does not aver a cause of action arising in another State, under the above rule; and it is but a fair construction of it, as it does •aver one under our statute, that it was so intended.\nWhile under the rule of the common law, the law of another State must be averred and proved, as any other fact, in Tennessee only the averment in such case would be necessary, which would be supported in our courts by a copy of the statutes, purporting ■or proved to have been published by the authority of the State from whence it came. Code, sec. 3800.\nThis seems to be the rule for the inferior courts; but by sec. 3801, this court may take judicial notice of the laws and statutes of our sister States, and decide upon them accordingly.\nThe result as to this question is, that we hold that the court below erred in its view of the declaration ; and that it does allege a cause of action under the statute of Tennessee, which provides neces*534sarily for injuries done in this State, and not in another State.\nThe judgment must, therefore, be reversed, and the case remanded, to be further proceeded in.\nAs a matter of course, we express no opinion as to the validity of the objections to the various pleadings pointed out in the demurrers; as the court below has rendered no judgment on these questions, and the case will stand for hearing in the court below as it stood before the judgment hereby reversed.\n", "ocr": true, "opinion_id": 7657643 } ]

[ "59 Tenn. 546" ]

[ { "author_str": "McFarland", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcFarland, J.,\ndelivered the opinion of the court.\nThese two causes were in the court below consolidated, and heard, with the cause above disposed of, and they have been heard together in this court.\nThe question arising in these two last named cases is, as to the charge by Lofland that there was usury in the note for $10,000 executed by him to \"William Coward and secured by the deed of trust to Samuel H. Howard, referred to in the foregoing opinion.\nThe Chancellor directed a reference as to the amount of this usury, -and from this decree Coward appealed.\nThe note was given for, $10,000 of scrip of the City of Memphis, which the record shows was not of par value at that time.\nThe answer of Coward denies that there was any usury in the transaction, and alleges that it was a sale of the scrip for $10,000, as the note shows, which is due January 1, 1867, without interest until maturity.\nIt is not argued that this answer admits the. usury, or admits a state of facts showing usury.\nThere is no proof upon the question, in the record of these eases; but it is argued that the deposition of Coward, taken in the case against Culver, shows the usury, — that the transaction was a loan, and not a sale of the city scrip.\nIt is insisted that the effect of consolidating the cases was to make the testimony in each case apply as well to the other.\n*548This question was before this court at a former term; and, upon full consideration, it was held that this was not the effect of a consolidation.\nThe deposition relied upon to prove the usury is not in the transcript of the present cases; nor is there in the decree, or in the record, anything to show that it was read upon the trial of these eases, unless it be the circumstance that a joint decree was entered.\nWe are asked to look to the transcript in the other case for the proof on this question.\nThis, we have held we cannot do. We are therefore constrained to reverse the decree of the Chancellor upon this matter, and to dismiss the bill of Lof-land with costs.\n", "ocr": true, "opinion_id": 7657655 } ]

[ "20 Tenn. 156" ]

[ { "author_str": "Green", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGreen, J.\ndelivered the opinion of the court.\nThis is an action of debt to recover from the plaintiff' in error two hundred and fifty dollars, the penalty imposed by *161said corporation for a breach of its by-laws. The by-law question was passed the 19th day ox August, 1833, and as follows:\n“Be it enacted by the Mayor and Aldermen of the town of Franklin, That it shall be the duty of the owner of each tavern, grocery, confectionary or other house, or any persoh or persons whatever intending to retail spirituous liquors within the limits of said corporation, before he, she or they proceed to retail spirituous liquors within the limitsp of said corporation as aforesaid, to apply to the recorder and obtain license from the said corporation for the term of one year, and pay to said recorder, for the use of said corporation, a tax of one hundred dollars, and the further sum of fifty cents for granting such license, which sum of one hundred dollars is hereby declared to be the tax on each retailer of spirituous liquors within the limits of said corporation for each and every year; and if any person or persons shall proceed to ■retail spirituous liquors without first having obtained a license therefor, as aforesaid, such person or persons so offending shall forfeit and pay the sum of two hundred and fifty dollars, tobe recovered before any jurisdiction having cognizance thereof, in the name of the Mayor and Aldermen of said corporation, for the use of said corporation.”\nThere was a verdict and judgment for the plaintiffs in the circuit court of Williamson county, and a motion in arrest of judgment, which was overruled. The defendant appealed in error to this court. The question for consideration now is as to the validity of the' by-law of the corporation. Á corporation can pass no by-law inconsistent with the constitution and laws of the State. Ang. and Ames on Corp. 182, 188: 2 Bac. Ab. 9.\nAt the time this ordinance passed, and up to the period of its violation by the plaintiff in error, the laws of the State permitted persons who might obtain license as prescribed by those laws to retail spirituous liquors; Consequently individuals who had obtained a license to retail spirituous liquors under the State law could not, by an act of the corporate authorities of Franklin, be prohibited from retailing those liquors within the limits of that town. But this by-law ex*162pressly prohibits a party from retailing spirituous liquors within the corporation under a heavy penalty, unless a license be first obtained from the corporation. It comes, therefore, in direct conflict with the law of the State, and hence is void. It makes no difference that Robinson had no license under the State laws. In that case the corporate license could not have conferred upon him the right to sell, in violation of the State law; and they had no power to impose a penalty upon a man for not obtaining a license to do that which it would have been illegal for him to do if he had obtained said license. This is not an ordinance imposing a fine for retailing without a license. Such a by-law would have been valid; it would not have contradicted, but would have been in accordance with the State law. This law imposes a penalty for selling without a corporation license; a thing they had no right to grant. If he had a license under the State law their license would confer no additional privilege, and if he had not, theirs would confer no privilege at all.\nThese views do not at all interfere with the right to tax, or to regulate and restrain tippling houses. Although a party may have a license under the State laws to sell, and therefore the act of selling is not a nuisance, yet he may be restrained and regulated in the exercise of this privilege so as to mitigate the evils of his trade.\nWe think there is error in the judgment, and therefore order that it be reversed and the judgment be arrested.\n", "ocr": true, "opinion_id": 7657874 } ]

[ "21 Tenn. 425" ]

[ { "author_str": "Gkeeií", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGkeeií, J.\ndelivered the opinion of the court.\nThis is an an action of trespass, for breaking and entering the plaintiff’s close. In its nature, it is a local action, the court of the county in which the land is situated, alone having jurisdiction. In such action, it is necessary that the venue be proved. A verdict will not cure a deficiency of proof. If, as argued, we were to presume that there was proof of this fact, because the jury have found a verdict affirming its existence, why might we not in every case, presume there was evidence sufficient to justify the verdict? If that were so, no new trial could be obtained on account of a deficiency of proof.\nThe record asserts, that it embodies all the evidence that was given in the case. There is in it, no evidence that the trespass was committed in Knox county. On that account, the judgment must be reversed, and a new trial awarded. There was no error in the charge of the court to the jury.\nThe fact, that one man has personal property within the enclosure of another, does not authorise the owner of such property, to enter the enclosure, for the purpose of taking such property in his possession. He should demand it of the owner of the land, and if he refuse him permission to take it, such refusal would be evidence of a conversion, for which an action would lie.\nLet the judgment be reversed.\nNote. — A circuit court of the United States cannot take cognizance of an action of trespass quare clausum fregit committed on lands within the United States, but out of the district in which the court is held. Livingston vs. Jefferson, 4 Hall’s Am. L. Jour. 68.\nOn the second point — See 7 Bac. Ab. Dodd’s Edition, Title, Trespass, p. 676: 2 Leigh’sN. P. 1440: Parker vs. Staniland, 11 East, 336: 1 Leigh’s N. P. 581: Heermance vs. Vernoy, 6 John. Rep. 5.\n", "ocr": true, "opinion_id": 7658323 } ]

[ "21 Tenn. 516" ]

[ { "author_str": "Giíeev", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGiíeev, J.\ndelivered the opinion of the court.\n1. It is contended in this case, that the order of reference was a discontinuance of the cause, and that the court had no power after the submission to proceed in the cause; and the case of Jewell vs. Blankenship, 10 Yerg. 437, is relied on.\nIn that case, the submission of the cause to arbitration was made out of court, by agreement of the parties. In such case the court held it was a discontinuance of the cause in court. See, also, 1 Jh. Rep. 315: 18 Jh. 22. But here the submission was by a rule of court. The cause was still in court, to await the award, which, by the terms of the submission, was to be made the judgment of the court. The arbitrators made no award, and the court proceeded with the cause. This it clearly had the power to do. White vs. Puryear, 10 Yerg. 441: Watson on Arb. and Aw. 25.\n2. It is objected, that the court did not charge the jury that the assent of Vick in leaving the employment of Hays might be inferred from his conduct, in seeking other employment. The facts of the case did not call for sucha charge from the judge. The employment in which Vick engaged, was that of a day laborer, and did not at all interfere with his readiness to attend Hays in his surveying at any moment his services might be required. Besides, the judge was not requested to give the charge suggested, and we cannot regard as error, the failure of the court below to charge every proposition that may possibly have some remote application to the *518case; such a course would rather tend to bewilder than to enlighten the jury. In declaring the law to the jury, it is highly proper for the judge to confine himself to a clear and explicit statement of those principles, which, in his judgment, have an immediate application to the facts of the case before him.\n3. Upon the facts of the case, there is no ground for a new trial. There is no evidence what amount Vick earned chopping wood and driving a waggon in Arkansas, and therefore we cannot see that the jury has not made a sufficient allowance for the profit of such work, and for the axes and blanket retained by Vick. There is, therefore, no error in the judgment.\nLet the judgment be affirmed.\n", "ocr": true, "opinion_id": 7658398 } ]

[ "22 Tenn. 614" ]

[ { "author_str": "Turley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTuRLey, J.\ndelivered the opinion of the court.\nThis is an action of ejectment brought to recover two lots, No. 9 and 10, in McMinnville.\nIt is obvious from an examination of the record, that neither the plaintiff or defendant has any legal title to the premises, properly derived, and upon which a recovery could be effected.\nIn this state of a case, in general, the position of the defendant is better than that of the plaintiff, as it is a principle, that one trespasser shall not be turned out to make room for another; but it is argued to be different here, because the defendant came into possession under such circumstances, as estops him from disputing the plaintiff’s right to recover. It appears that the plaintiff claimed the lots by an irregular title, and there is proof tending to show, that one Jewel in 1831, took possession of the premises under the plaintiff recognizing his title, and upon a verbal contract for purchase, which appears never to have been completed. Jewel improved the lots and remained in possession till 1837, when he left the country, previously thereto, in 1836, having sold and conveyed them to James Dick and H. R. W. Hill, who took possession, first by one Young, and then by the present defendant. The court charged the jury that if the proof satisfied them, that Jewel originally rented the place *615from the plaintiff, and after, having occupied it as a tenant, had made a verbal contract of purchase, and continued the possession under such contract, he would yet be his tenant at will, and as such, would be estopped from disputing plaintiff’s title, unless he had set up to hold adversely for seven years with the knowledge of the plaintiff, and intimated an'opinion, that Hill & Dick, purchasers from Jewel, would be in no better position.\nIn this, the, circuit judge was surely right, and there being no pretence, that there was any such continued adverse possession, as would change the relation as is proved to exist between the parties, the only question left is, whether this relation did exist, and to what extent.\nWe have seen that there is proof in the record, showing that Jewel took possession under the title of the plaintiff.\nThe circuit judge decided the law upon the proposition correctly, and the jury have found a verdict in accordance therewith; this, according to well settled principles in this court will not now be disturbed.\nFor an exposition of the law, upon the relation here shown to exist, see 12 Peter’s 295, 9 Yerg. 86, 10 Yerg. 476, Meigs R., the case of Meadows vs. Hopkins.\nBut it has been contended, that the plaintiff, being a free negro, has no right to hold land, and of course, no power, to bring an action for its recovery. We do not deem it necessary, to enquire how high an estate in lands a free negro may hold, as that can only-be done in a controversy between the State and himself, but we hold that he may have a right to the possession of real estate, and the right to a possessory action, when he has been deprived of it. But if there was any doubt upon this question, it may well be observed, that in as much as Robbins in 1831, received a deed of conveyance, purporting to be from the heirs of Matthews for the premises in dispute, and having-held possession by his tenants, Jewel and others, for more than seven years, he has acquired a legal title by operation of the statute of limitations.\nUpon the whole then, we think there is no error in the proceedings of the court below and affirm- the judgment.\n", "ocr": true, "opinion_id": 7658895 } ]

[ "23 Tenn. 27" ]

[ { "author_str": "Turkey", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTURKEY, J.\ndelivered the opinion of the court.\nThe prisoner, James N. Stone, was indicted, tried and con-*31vic-led for ibe murder of John B. Mitchell, at the June term of the Obion circuit court, 1842; and upon the recommendation of the jury, sentenced by the court to confinement in the jail and penitentiary of the state during his natural life. The testimony as to the guilt of the prisoner is voluminous; and in the investigation of it, all the court can do will be so to examine it as to show that the jury have not acted with any degree of rashness in finding their verdict; but were warranted by the circumstances proven in coming to the conclusion they did.* There is much of it immaterial to the result, and a minute examination of which would, swell this opinion to an unnecessary extent. . It appears from the testimony of John E. Prinn, that the deceased was hilled in his own house, in Obion county, on the night of.the 3d of October, 1841, a little after dark, being shot with two bullets, through a small crack in the house. It further appears with sufficient certainty, that as early as three or four years before the trial, Stone and Mitchell had quarrelled, and that Stone had threatened to kill him; that this difficulty had been settled between them in Dec. 1839, of Jan. 1840, and that they had been friendly from that time until about'the month of June, 1841; that about that time one Artimesia Owens, of whom prisoner had been guardian, married one Graham, who sold to the deceased a tract of land upon which the prisoner as guardian had settled, called the Ferry place; and that when prisoner heard of it, he became angry with deceased, and said he hoped the place might never do him any good; and that if he could help it, it never should; that deceased sued prisoner for the premises, but that upon the trial they again made up their quarrel and continued apparently friendly until the house of the deceased was fired, which event took place on the fifth day of Sept. 1841, and that the prisoner was accused of having been the perpetrator of that offence; that the prisoner lived unhappily with his wife, and occasionally treated her so badly as to force her to the house of the deceased for protection; that she had done so on the night his house was fired, and that she was living then with him;' that *32the prisoner left the neighborhood on the 8th of September, 1841, and on the 11th passed down the river Mississippi in a steamboat by the house of the deceased; that one week before the murder of the deceased, the steañíboat Pensacola stopped, on her passage up the river, about two miles above the house of the deceased, and sent her yawl ashore; that no person lived at the point. ' These facts appear from the testimony of Frederick Brown, a stepson of the .prisoner, aged about sixteen years. This testimony is indirectly attacked, but we think not sufficiently so. to impeach it. It further appears, from the testimony of Franklin Longley, the brother-in-law of the prisoner, that Mitchell had threatened Stone; that witness was at Mitchell’s house the morning of the murder; that he was acquainted with prisoner’s foot tracks; that he wore a pair of boots that were broader across the ball of the foot than is usual; that he examined the foot prints through the field of the deceased; that the tracks led from the house and seemed to be made by a person running; that he believed the tracks were those of the deceased, but does not know whether they were made by a shoe or a boot.\nJohn M. Kimberly proves, that he saw the steamboat Pensacola put out a man in a yawl about two miles from the residence of the deceased; that he was a man of ordinary size, but could not tell who it was, not being near enough to distinguish him.\nJames Good proves, that the steamboat Pensacola stopped about two miles from the residence of the deceased and sent her yawl ashore, but does not know that any person was landed.\nR. E. Graham proves, that he is brother-in-law, by marriage, to the prisoner; that he saw the steamboat Pensacola stop and put out á man about two and a half miles from the house of the deceased; that the next day he saw a track which he supposed to be the passenger’s; believes it to have been the prisoner’s; that he saw the tracks leading from the house of the deceased the morning after the murder, and believed them to be the tracks of the prisoner, the same he had seen on the river, and that deceased was killed on the first night after he moved into the house about which he and prisoner had had the difficulty.\n*33Daniel Moses proves, that about a week before the murder, he saw in the neighborhood of the deceased an individual that he took to be a negro woman with a gun on her shoulder; that ihe person turned out of the road about one hundred yards from him; that he was alarmed and could not tell whether it was a while man or negro.\nEarle S. Thayer proves, that on the Sunday before that on' which the deceased was murdered he saw the steamboat Pensacola stop and put out a man about two and a half miles from his house; that early on next morning he went out to hunt and saw the prisoner in the road three fourths of a mile from the house of the deceased; that he had a gun, and seemed not inclined to stop and talk; that he knows prisoner well, and is certain it was him.\nArchibald Crocket proves, that he captured the prisoner at Memphis, and whilst he was in custody he conversed with him about the murder, and that the prisoner informed him that he had not been in the county of Obion since the 8th of September, 1841; that when he left the county he went to Mills’s Point and took passage on a steamboat for New-Orleans; that he returned on the steamboat Pensacola to one Fletcher’s, about fifty miles below the residence of the deceased, and from thence went back to Memphis.\nA. M. Pool proves, that on the 7th of September he saw prisoner, and told him that the deceased suspected him of having fired his house; advised him to leave the country; that prisoner observed he had been badly treated; that he did not like to go away; that if he could kill one or two of the leaders of them, he would be willing to go away or die; that they were then speaking of prisoner’s difficulty with his wife and the deceased.\nJames R. Parmenter proves, that he saw the tracks at the house of the deceased about two days after the murder; is satisfied they were the tracks of the prisoner.\nListeni'S. Cashon proves, that he saw the tracks at the house of the deceased and believes them to have been the prisoner’s.\nThe testimony of James L. Clasher, that he heard the report of the gun; that he knew it to be that of the prisoner, and *34observed that he had killed the deceased — is of too doubtful character to have any weight in this examination.\nJ. Newton proves, that after the house of the deceased had been fired he advised prisoner to leave'the country; told him that deceased would kill him; to which prisoner replied, he could shoot as well as him, and he would not go away unless he had satisfaction, and that if he did go he would leave a “big stink” behind him; saw the tracks at the house of the deceased the morning after the murder, and believes them to be prisoner’s.\nThis is the material part of the proof upon the corpus delicti, as extracted from the rude and confused mass of proof in the bill of exceptions. What does it prove? That the deceased was killed on the night of the 3d of October, 1841; that the prisoner and he had had angry difficulties from a period long anterior up to the time of the commission of the offence; that they resulted from mutual wrongs done and charged; the prisoner accusing the deceased of having harbored his wife, to his great personal injury, and the deceased accusing him of having fired his house; that on the 11th day of September, 1841, not many days before the murder, the prisoner left the country in a steamboat, with threats in his mouth of vengeance for his injuries, which he declared he would have before he left; that one week before the murder he returned in the steamboat Pensacola, and kept .himself so concealed that but one person saw him certainly; others saw what they took to be his tracks; and one, a person in disguise which he supposes might have been him: that on the night the deceased took possession of the building which had formed the subject of the controversy between them, he was killed, cowardly and treacherously; that the prisoner immediately fled the country again, and being captured at Memphis, denied that he had been in the county of Obion since his first departure on the 11th of September, but admitted that he had returned up the river in the steamboat Pensacola to within fifty miles of the residence of the deceased. Who upon this can doubt of his guilt? It is proven satisfactorily, that the steamboat Pensacola landed a man within some *35two miles of the residence of the deceased: prisoner admits he retured in the boat, and one person at least saw him within three fourths of a mile of the residence of the deceased a few days before the murder. If the prisoner were innocent, why the necessity of his false statement about his return? and if his statement were not false, why did he not take proof of the person at the place where he alledges he stopped, some fifty miles below, to prove this fact! It is not so. And so far from considering that the jury acted with any degree of rashness, we are satisfied ourselves of the prisoner’s guilt. But this is not all we have to examine in this case. There are several other propositions which have to be discussed before we can affirm this judgment. And first, there is much proof in the record tending to show that the prisoner was guilty of the offence of firing the house of the deceased; and it is now objected, that this being a substantive felony, the proof going to establish it was illegal. And of this there can be no doubt, upon well settled principles. But it is to be observed, in answer to the objection: 1st, that it is difficult to ascertain from the proof as reported, whether it was not brought out as much by the counsel for the defence as for the prosecution: and, 2d, that the proof was not objected to on its introduction or on the argument of the case; and that proof, that the deceased had accused the prisoner of the offence, was legitimate, for the purpose of showing cause of malicious feeling. And the extension of proof so far as to establish guilt, not being objected to, cannot, upon any principle of legal administration of justice, be regarded as error. If it had been objected to, it might not have been pressed; and if pressed, might have been excluded by the court. It will never do to permit a prisoner to hear illegal testimony, and then assign it as error, after having heard it admitted without objection; for advantage will always be taken of an indiscreet prosecution by such permission. And so, this court, held at Jackson in 1834, in the case of Murrell v. the State. The case of Peek v. the State, 2 Humphreys, 78, cited for the contrary position, is not in point, but upon a different subject altogether, as is obvious upon its inspection. 2d. There is proof, that the prisoner maltreated his wife, and forced her to abandon his *36house and seek refuge under the protection of the deceased; which was objected to, and, it is argued, ought to have been excluded for the reason assigned' in the question of arson, contained -in the -'first objection. We do not think so. The protection afforded by the deceased (to say the least of it, under questionable circumstances,) was a most aggravating offence to the prisoner, and therefore exceedingly proper proof of malice prepense on his part; and the incidental abuse accompanying, and perhaps inducing the flight of the wife, is not such proof upon a separate criminal charge as vitiates the verdict; but whatever of misdemeanor may have existed in the abuse of the wife is entirely merged in the offence of the criminal protection on the part of the deceased, and could not in any event be considered as proof upon an offence not charged. 3d. There are several objections arising out of misconduct on. the part of the jury, and of improper guardianship over them during their deliberations upon the case. These two questions arise out of affidavits filed for a new trial, which will have to be examined and their merits tested upon legal principles. The first affidavit relied on, is that of John A. Gardner, J. G. Harris, R. P. Rains and J. Leigh, who swore that the following irregularities were committed’by the jury during the trial, as they are informed and believe: They saw a juror named Mills whispering with John C. Outlaw, and that they are informed'and believe that the substance of that conversation has not been correctly stated to the court; that they are informed and believe that one night since the commencement of the trial the jury was left alone in their room, whilst the officer sworn to attend them visited a distant portion of the town; that they are informed and believe, that ardent spirits in considerable quantities were used by some of the jury during the trial; that they are informed and believe that the whole jury were seen in a public bar room, surrounded by a crowd, a night or two; -and while they were charged with the case; that one juror actually slept in open court during the examination of the testimony; that upon the information of one of the jurors, (Elisha Parker,-) they believe a part of the jury separated from the remainder several times at night during the trial of the cause; that said Parker promised to fur*37nish an affidavit of the fact, but that he and the rest of the jury, upon consultation, refused to communicate any thing in regard thereto; that they heard another juror, name not known, in conversation with a third person after their discharge, and the juror asked, in a suppressed tone, if any advantage could betaken of a separation of the jury for a short time, when such separation was rendered necessary by nature. Upon this affidavit the court was asked that the jurymen might be compelled to come into court and testify as to the facts complained of. The least that can be observed of this affidavit is, that it deals in generalities; is supported by information and belief, and not by facts sustained by oath, with the exception of the charges that one of the jury slept during a portion of the trial and that another was seen to whisper to a stranger, and therefore this affidavit cannot be received as establishing any facts save these two. What the juror said, not being on oath, must rest in hearsay and may be untrue. A new trial never has been, and it may safely be predicted never will be granted upon the reported observations of jurors as to their conduct during the trial. This question is settled by repeated adjudications of this state, and has always been upon the question of how far they might impeach their verdict by their own oaths. If hearsay evidence of misconduct in jurors might be received to set aside a verdict, verdicts would indeed be worth but little. The only questions then left upon this affidavit, as affecting the motion for a new trial, are, 1st, whether one juror being seen whispering to a third person, and another being seen asleep for an unascertained period of time, are good causes for a new trial. Upon the first it is to be observed, that the bill of exceptions in the case shows that the whispering complained of took place in open court; and that it was impossible, from the facts stated, that the juror could have been tampered with, as the subject of conversation is satisfactorily shown to have been relative to the health of the juror’s family. This bill of exceptions also shows two other causes which are assigned for a new trial: 1st, that the jury drank ardent spirits at their meals during the progress of the trial; and, 2d, that the sheriff, who was not the sworn officer of the jury, had charge of them at a period *38of time when the constable was absent, but that he said nothing to them about the trial. A great deal, first and last, has been said about the beauty and purity of trials by jury, and with truth; and our ancestors were so jealous of its preservation, that many absurd practices relative thereto were introduced into the courts, which, like many other abuses, retained possession of them for a long time: among the rest, the practice of not allowing jurors meat and drink until their verdict was returned. But these restrictive principles have been broken down in most of the states of this Union, and even in England; and the purity of jury trials made to depend not upon form, but substance. That they have still been preserved in this state and New-York to the extent shown in the case of Brant v. Fowler, 7 Cowan’s Rep. 562, is more a matter of amusement than serious reflection. To show how the law has been held in this state upon questions of this character, we will refer to the opinion delivered in the case of McLean v. the State, 10 Yerger, 241, where it is held “that the person accused may have the full benefit of a judgment of his peers, it is absolutely necessary that the minds of the jurors should not have prejudged his case, that no impression should be made, except what is drawn from the testimony given in court, to operate on them; and that to secure this, they must not be permitted to separate and mingle with the balance of the community without explanation, showing that they had not been tampered with, and that it was not necessary for the prisoner to prove tbat they had not been.” The same principle will apply to eating and drinking. A fair and unbiassed expression of opinion is what is required; and any little misconduct, which is shown could not have been attended by bad consequences, will not vitiate a verdict. In this case, the trial was conducted under the inspection of a judge; if eating and drinking or sleeping had disqualified the jury, or a portion of them, from considering the case properly, it would have been his duty to have awarded a venire facias de novo. That he did not do so, we must, in the absence of proof, .come to the contrary conclusion, and hold that these slight irregularities complained of were entirely innoxious to the prisoner. As to the separation of the jury, complained of, and the introduction *39of the sheriff into their room, all that is necessary to observe', in view of the principles just laid down, is, that it is shown satisfactorily to our minds, that whatever little separation took place, was casual, and of no importance, and that there was no tampering, or opportunity of tampering, furnished by it, and that the sheriff expressly swears that he did not speak to the jury about the case. There are several other affidavits, which do not vary these principles in any material point; and to examine them' minutely, would swell this already long opinion to a very unreasonable extent.\nUpon the whole, we are fully satisfied with the judgment of the court below, and affirm it.\n\n Danes v. the State, 2 Humphreys; Kirbey v. the State, 3 Humphreys.\n\n", "ocr": true, "opinion_id": 7658961 } ]

[ "23 Tenn. 53" ]

[ { "author_str": "Grben", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGRben, J.\ndelivered the opinion of the court.\nIn this case notice of non-payment was sent to an endorser, directed to a place where there was no post office at the time. The court told the jury, that if notice was directed to a place *55where there had been no post office for six, twelve or eighteen months before the date of the notice, this would not be due diligence. We think this charge correct; although a notice directed to the wrong post office may be good, if due diligence have been used to ascertain the right one, and the party is informed that the one to which he directs it is the nearest to the endorser; yet if a post office have been discontinued as long as six or twelve months, that fact is evidence that due diligence was not used.\nWe are not prepared to say, that if upon diligent enquiry a party is informed that there is a post office at a particular place, and directs a notice there, and it afterwards turns out that it had been but recently discontinued, such notice would not be sufficient. But the length of time the post office had been discontinued in this case, furnishes evidence of the want of diligence. Affirm the judgment.\n", "ocr": true, "opinion_id": 7658978 } ]

[ "23 Tenn. 413" ]

[ { "author_str": "Green", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGreen, J.\ndelivered the opinion of the court.\nThis is an action brought by the Union Bank, as the holder of a note for $4224 42, drawn by Yerger, Shall & Co. payable to Chaffin, Kirk & Co. and by them endorsed, and also endorsed by Thomas Gregory and'the defendant Osborne. On the *414trial there was evidence conducing to prove that Osborne endorsed the note for the accommodation of Chaffin, Kirk & Co. It was also proved, that John Kirk had endorsed the note in the name of Chaffin, Kirk & Co. he being one of the partners of that firm. There was evidence that, before the Bank discounted the note, a publication had been made in several gazettes announcing the dissolution of the partnership of Chaffin, Kirk & Co. and that the Bank was a subscriber for one of these gazettes, and that the cashier of the Bank had knowledge of the dissolution.\nThe court charged the jury, among other things, that “If the jury should believe that the firm of Chaffin, Kirk & Co. was dissolved before the defendant endorsed the note, and that the plaintiff had a knowledge or notice of that fact; and if the jury should farther believe that the defendant was an accommodation endorser on the paper and the plaintiff knew that he was an accommodation endorser, and that the defendant did not know of the dissolution of the firm of Chaffin, Kirk & Co. at the time he endorsed the note, that in that case the plaintiff took the same in fraud of the rights of the defendant, and could not therefore recover against the defendant upon said endorsement:” that “if the plaintiff knew of the dissolution of Chaf-fin, Kirk & Co. at the time they discounted the note, and that the defendant was an accommodation endorser on it, they were bound to communicate that knowledge to the defendant before they took the paper, unless the jury should believe, from the proof in the cause, that the defendant had notice of that dissolution at the time the plaintiff discounted it.”\nSeveral questions have been elaborately debated at the bar in this case, but we do not deem it necessary to enter into an examination of all the points which have been made by counsel. As to whether the mere concealment of facts extrinsic of .a contract, which may affect the interest of the other party, will constitute fraud, in a legal sense, so as to vitiate the contract, jurists are not agreed. Unquestionably, 'a high morality requires that we should disclose to a person, with whom we are about to make a contract, every fact touching the article which is the subject of the contract — which affects its value, and *415which we have reason to believe the other party does not know. A corn merchant, who arrives with a cargo at port in a time of scarcity, ought, perhaps, before he sells his corn for the highest price he can obtain, to disclose the fact' that there were many other vessels loaded with corn on the way; because he ought not to prefer his interest to the interest of his neighbor, so as to make an advantage to himself by the losses of others. But no writer has ever supposed that such a system of morality as this can be enforced in a civil forum. Chief Justice Marshall said, in the case of Laidlaw vs. Organ, (2 Wheat. 178,) that a party was not bound to communicate extrinsic circumstances which would influence the price of a commodity, though the facts were exclusively within his knowledge: “But at the same time each party must take care not to say or do any thing calculated to impose on the other. It would be very difficult to circumscribe the contrary doctrine within proper limits, where the means of intelligence are accessible to both parties.” The interests of commerce require that parties shall not be permitted to set aside their contracts with too much facility.\nIt would be difficult, therefore, to maintain the doctrine of the charge of his honor the Circuit Judge, if the decision of this case depended upon our judgment upon this question. But from the evidence in the case, there was no ground for assuming the probable ignorance of the defendant, of the dissolution of the firm of Chaffin, Kirk & Co. at the time he endorsed the note in question. The fact of the dissolution had been published in several gazettes. There is no evidence that the defendant had been a previous dealer with the firm; and if he had not, publication of the dissolution in a gazette, as a matter of law, was constructive notice to him. If the Bank had obtained knowledge of the dissolution, by means of the publication in the gazettes, what right had they to suppose that the defendant, to whom the same sources of information were accessible, had remained in ignorance of the fact? And how can the plaintiff be chargeable with fraud, for failing to communicate that which the gazettes had announced, and which there was every reason to suppose the defendant already knew? But the defendant is reduced to this dilemma. He either knew *416the fact of dissolution, or he did not know it. If he knew it, the failure of the Bank to communicate the knowledge could not affect him, and consequently could be no fraud upon him. If he did not know it, then the existence of the fact could not prevent a recovery by him against all the partners; and consequently, as he could experience no loss in consequence of his ignorance of the fact, the failure to communicate it could be no fraud upon him.\nIt will not do for the defendant Osborne to assume, in behalf, of the partners of Kirk, that they may be made liable thus by circuity, when. they could have resisted a recovery against them by the Bank. Osborne has nothing to do with the consequences to other parties. If he has all the remedies which he supposed he had, when he endorsed the paper, he had no right to complain. He is in the predicament in which he chose to place himself, and in which he expected to stand. The consequences upon others can be no fraud upon Mm. The statement of the proposition, presents the question in a light too clear to admit of an argument. The case of Livingston vs. Hastil, (2 Caines’ R. 249,) is opposed to this view of the case. But the part of the case applicable to this point received but little attention in the opinion of the court; and is so manifestly opposed to principle, that we feel no embarrassment in disregarding it.\nThe question is one of fraud, as between the plaintiff and defendant, and yet the court made the effect which is to be produced on a remote party, exonerate the defendant, although' they admit his. remedies would be as complete as though all the parties had been liable to the holder.\nSurely this can have nothing to do with the question whether the defendant has been defrauded.\nThe' other cases cited from the New-York reports, so far as they effect this question, refer to the case of Livingston vs. Hostel, and rest wholly upon its authority.\nFor these reasons we think there is error in the judgment of the Circuit Court, and that it must be reversed and the case remanded for another trial.\n", "ocr": true, "opinion_id": 7659309 } ]

[ "23 Tenn. 475" ]

[ { "author_str": "Reese", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nReese, J.\ndelivered the opinion of the court.\nThere were two executions in the hands of the Sheriff of Perry county, at the suit of the President and Directors of the Bank of Tennessee, issued from the Circuit Court of that county, which he failed to return according to law. Upon each of these executions there was due to the State the sum of two dollars and seventy-five cents, as State tax; and the Attorney General moved the court for a judgment against the Sheriff and his sureties on behalf of the State, for the amount of the State *476lax. ’ The court, however, on such motion rendered judgment against the Sheriff and his sureties, on behalf of and in the name of the State, not for the tax alone, due to the State, as received upon said executions, but in addition thereto, for the entire .amount of the two executions. The judgment to this extent, it is argued, is authorized and maintained by the provisions of the act of 1833, ch. 43, sec. 1. Without feeling called upon in the present case to make the attempt by judicial construction to clear up the obscurities which exist in the details of the first section of that statute as to the legislative meaning; we are satisfied that it was not the purpose of the statute to authorize the State, on the motion of the Attorney General, to recover in its own name against the defaulting officer and his sureties, not only the taxes and fines that might be due to the State, the county or common schools, but the debt and costs also, which might be due to the plaintiff and others upon the execution, the non-return of which might; constitute the grounds of a motion. If to the latter class of claimants a remedy be given by the statute against the sheriff, on the motion of the Attorney General, in terms sufficiently distinct and intelligible to make that remedy effective, still such proceeding must be conducted in the name, at the instance and for the benefit of the claimant, and not in the name, or at the instance of the State.\nThe official motion of the Attorney General is limited by the intention of the act to the taxes and fines due. to the State, to the county and to the common schools. These it is believed can be recovered in the name of the State, and upon motion of the Attorney General. But it was not the purpose of the statute, it seems to us, to lend either the name of the State or the services of its officers to the objects or obtrude itself amidst thé affairs of private individual claimants. So to hold, would make the State recover in its name, and by its Attorney General, and retain as a trustee for citizens, all that might be due, to all persons throughout the State, upon non-returned executions; for a State tax must be due upon each one of such executions. From such a construction the good sense of every man recoils at once. It would plunge the community into difficulties, which -it is not possible fo foresee or estimate lire consequence of.\n*477The judgment will be. reversed, and a judgment given ibr Ibo State tax only.\n", "ocr": true, "opinion_id": 7659370 } ]

[ "24 Tenn. 363" ]

[ { "author_str": "Reese", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nReese, J.\ndelivered the opinion of the court.\n‘There is in the lower part of the city of Nashville, a small creek or brook, with high banks, constituting a narrow ravine, which at the distance of a few hundred yards, opens into a wide plain. When the waters of the Cumberland river are high, -this ravine and the plain above are filled with eddy-water, and form a very convenient and safe inlet from the river for rafts of timber and lumber, and it has for the last forty years been 'used, whenever occasion offered, for that purpose by the public.\n• Over this ravine a bridge passes; and below this bridge the plaintiffs have built a fish trap, which constituted an obstruction to the use and navigation of this inlet by the public. The *365defendant in taking his raft up this inlet removed so much of the plaintiffs’ fish trap, as to permit the unobstructed passage of his raft. For this the plaintiffs brought this action. The Corporation of Nashville had given to plaintiffs a license to construct their fish trap.\nThe Circuit Court charged the jury, that the continued and undisturbed use, by the public, for twenty years or more, of this inlet, would operate as a dedication of it to the public use, and constitute it a public thoroughfare for purposes of navigation, and the obstruction of its use for that purpose, would make the obstruction a public nuisance, which any one might abate. This charge, upon reason and authority, is perfectly correct,- and the verdict which was responsive to it, altogether proper.\nWe affirm the judgment.\n", "ocr": true, "opinion_id": 7659639 } ]

[ "25 Tenn. 241" ]

[ { "author_str": "Tokley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTokley, J.\ndelivered the opinion of the court.\nIn December, 1837, the legislature of the State passed an Act to incorporate a Company to be called the Lebanon and *244Sparta Turnpike Company, to make a Turnpike Road from Sparta to Lebanon.\nBy the 2nd section of the act, commissioners were appointed to open books, for the purpose of receiving subscriptions to the amount of one hundred and fifty thousand dollars, to be applied to the purpose of making the road, to be divided into shares of fifty dollars each, and it provides that as soon as twenty-five thousand dollars shall be subscribed, a meeting of the stockholders shall be held; after which the subscribers shall be cpnstituted a body politic and corpoi-ate by the name of the Lebanon and Sparta Turnpike Company, with power to own, sell and buy property; sue and be sued in their corporate name and character, and have, enjoy and possess all the rights, privileges and powers appertaining to bodies politic and corporate by law, and shall have succession for ninety-nine years; that the subscribers, or a majority of them, being present at their first meeting shall elect seven Directors who shall be stockholders, who shall elect one of their number President of the board of directors, and the President and Directors thus chosen may from time to time require such advances on the shares subscribed, as the wants of the Company may require. — And for the purpose of enforcing the payment of these calls, it is provided by the 3d section of the act that “if any subscriber shall fail to pay any calls that are made in pursuance of the provisions of the 2d section of the act, his stock shall be sold for the amount of said call and the purchaser shall have all the rights and be subject to all the liabilities of the original owner,” and “if the stock does not bring the amount, the owner shall be liable to be sued for the balance before any jurisdiction having cognizance thereof, and if it brings more than the call and cost, the overplus shall be paid over to the original owner.”\nUnder the provisions of this statute, books were opened by the commissioners for the subscription of stock, the requisite amount was taken; a meeting of the subscribers was held, and a President and Directors appointed, who proceeded to the discharge of the duties imposed on them.\nAmong the subscribers was the defendant, who took twenty shares, which at fifty dollars a share, amounts to one *245thousand dollars. The President and Directory in pursuance of the powers vested in them, made contracts for making the road, and for the purpose of paying such contracts, they from time to time made calls, according to the provisions of the statute, upon the stockholders, none of which were met by the defendant. No advantage was taken of this his default; no steps taken against him therefor, but the company under the direction of the President and Directors, proceeded to make the road which has been completed, without the aid of any advancement from the defendant upon the stock by him subscribed. After the road was completed, the Company filed a bill in the Chancery Court at Carthage, asking an account against the defendant for the amount of his stock. This suit was so prosecuted that at the February term, 1843, of said court, it was ordered, adjudged and decreed, that the clerk and master of the court should sell defendant’s twenty shares of stock, so subscribed as aforesaid, at public auction for cash, twenty days previous notice thereof being given, and report to the next term. At the next term the clerk and master reported, that he had, in pursuance of the ' decree, sold said stock to Jacob Fite for five dollars, which report of sale was confirmed by the Chancellor, and ' a final decree given against the defendant for nine hundred and ninety-five dollars, the balance of the subscription for the twenty shares of stock subscribed by him.\nAt the February term, 1844, the defendant filed a bill to review this decree, which' was dismissed by the Chancellor, and thereupon an appeal is prosecuted to this court.\nThe question- now presented for our consideration, is, whether there be error apparent upon the face of the original decree against the defendant? and we are of opinion that there is.\nThe whole difficulty in the solution^of this question, arises out of the construction of the 3d section of the act incorporating the Company. We have seen that by the provisions of the 3d section of the act, the President and Directors are authorized to make calls from time to time of five dollars on each share subscribed; that this was done until the full *246amount of the stock was exhausted; and that to every calí defendant failed to respond.\nNow the question is, what remedy has the company against him for this default? It is either at common law or under the statute, for no one will deny that an incorporated company has the power to compel a performance of the obligation undertaken by its stockholders. If there is no provision made in the statute of incorporation for enforcing this obligation, the common law gives an ample remedy by action of assumpsit, which action has been used again and again by corporations for this purpose; but if a remedy be given by the statute, it may be pursued, but it must be pursued in strict conformity with the statute, and will be held auxiliary to the remedy by action of assumpsit unless there be something in the proceeding which by necessary construction excludes that remedy.\nThe 3d section of the statute which has been quoted, gives a remedy for enforcing a speedy payment of the calls as made, and it becomes necessary for us to enquire — 1st; •whether this remedy supersedes that by action of assumpsit? 2d; whether it has not been lost by the failure of the Company to use it in proper time? and 3d; whether a court of chancery can now enforce it?\n■ 1st. The action of assumpsit being an appropriate remedy for a chartered company to recover its subscriptions from its stockholders, secured by law, it cannot be lost but by express prohibition to use it, or by the adoption of some other remedy inconsistent with its use. Does the 3d section of the act, incorporating this company, contain such prohibition or adoption? It certainly contains no such prohibition. Does it contain such an adoption? We think not. If the company had been left alone to its remedy by action, great delay would have been necessarily consequent thereon, and great hinderance in the execution of the purposes for which it was incorporated, to the detriment, both of the company and the public; and to remedy this inconvenience, the framer of the statute chose to give a more expeditious mode of proceeding, to wit, by a sale of the stock, upon a default of the payment of any call made by the President and Directors for the pur*247pose of meeting the call. But if the company think proper not to use this more expeditious remedy, because they may believe that the more dilatory one will answer the end, is there any principle of law to prohibit it from so doing? None that we can see.\nWe are therefore compelled to hold that, the remedy by action of assumpsit exists, notwithstanding the remedy provided by the statute.\n2d. Has not the remedy provided by the statute been lost by a failure on the part of the company to use it in proper time? We think it has. The argument of this proposition involves the construction of the 3d section of the act of incorporation. It provides, as we have seen, that “if any subscriber shall fail to pay any calls, his stock shall be sold for the amount of said call, and the purchaser shall have all the rights and be subject to all the liabilities of the original owner.” Now it is obvious that this paragraph of the section was intended to enforce the payment of the calls as made, and that the intention was, that if the stockholctesHsaStíu&SB*!!!1^ defaulter, the company should have the poT^s^^T&ssew&isS; the connexion between them, and to substitute&another in his stead; and that it was not intended for anySlMÜ'O'Oli against him for a defalcation in the payment of the whole amount of his stock. “His stock shall be sold\\foiltlfeB^<Aii&f5f♦ of said call,” (in the singular, not the plural)'^^ch that it was intended that this remedy should be usecrapon the first defalcation. “And the purchaser shall have' all the rights, and be subject to all the liabilities of the original owner.” This certainly can have reference alone to the liability of the original owner for the amount of calls to be made after that for which his stock was sold; for if there were no more calls to be made, there was no further liability on the part of the original owner. But this construction is rendered still plainpr by the last paragraph of the section:. “But if the stock does not bring the amount, the owner shall, be liable to be sued for the balance, before any jurisdiction having cognizance thereof; and if it brings more than the call and cost the surplus shall be paid over to the original owner.” If the stock shall not bring the amount; what *248amount? The amount of the call and cost; shewing that this remedy was only intended to enforce the payment of the calls as made and nothing more.\nThis construction of the remedy gives ample protection to the corporation. If the calls are not paid, it may use it to dissolve the connexion between it and the corporation, and substitute another in his stead, who will take his responsibilities, with the hope of his being more faithful in the performance of his obligation. If the company think proper not so to use it, but to continue the relation between itself and the original corporation, it has only to sue for its call and enforce a payment by ordinary means. A contrary construction, without benefiting the corporation, would, as this case shews, work intolerable mischief to the individual cor-porator. If the company may wait as in this case, until all the calls are made, and then sell the stock for cash, and hold the corporator responsible for the amount above what it brings, it must often be productive of what we here find, a sale of a thousand dollars of stock for five dollars'. \"What responsibility of the original stockholder has been placed upon him by such a purchase? None whatever. He has got all and paid nothing. If this construction of the statute be correct, as we think it is, it necessarily follows, that the corporation not having used the remedy at the proper time, has lost the right to use it, in as much as all the benefit intended by it has been lost, and great mischief must result from its use.\nWe therefore think that the remedy by a sale of the stock before judgment obtained, has been lost by the laches of the company.\n3d. Is it in the power of a court of chancery to enforce this remedy after it has been thus lost by the laches of the company? We know of no principle of equity jurisprudence by which this can be done. A remedy lost by the default of the party entitled to use it, has never been restored in a court of chancery, unless it has been so lost by the fraud of the opposite party. Yet it is this that the court of chancery has undertaken to do in this case. Therefore, upon the whole view of the case, we hold that the remedy given by the 3d section of this act of incorporation, is ancillary to that which *249exists at common law; that it has been lost by neglect to prosecute it in proper time; that a court of chancery has no jurisdiction of-the case; that there is,' therefore, manifest error in the face of the original decree for which it should hafe been reviewed and reversed; and that the Chancellor erred in dismissing the bill of review.\nWe therefore reverse his decrees and dismiss the original bill with cost.\nNote. — Where a statute gives to a corporation the power to sell the shares of a delinquent stockholder, it is held that the remedy is cumulative and does not impair the common law remedy by action, and although the corporation has attempted unsuccessfully to sell the shares of a member, their remedy by action is held still to remain. 2 Bibb. 577; 9 Johnson 217; 3 Hawks, 520; 4 Randolph, (Va.) 578.\n", "ocr": true, "opinion_id": 7660067 } ]

[ "25 Tenn. 279" ]

[ { "author_str": "Tukley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTukley, J.\ndelivered the opinion of the court.\nOn the 5th day of September, 1842, the complainant, Horatio Wood, purchased of Jesse Harrison a negro boy, Bill. Sometime in the year 1842, Galbreath, Cromwell & Co. recovered a judgment before a justice of the peace in the county of Montgomery, against one William Rogers; which was stayed by the said Jesse Harrison. Galbreath, Cromwell & Co. were duly declared bankrupt, and all their effects of every kind and description came into the hands of Cornelius Cruisman, one of the defendants, as assignee. He caused execution upon this judgment to be levied in the county of Davidson upon the negro claimed to have been purchased by the complainant from Jesse Harrison, and this bill is filed to enjoin the sale. This is resisted by the defendants, upon the ground that the complainant has ample relief at law, and has not, under all the circumstances of the case, any right to ask the aid of a court of chancery.\nIt has always been held in this State, that, though negro property may be protected by a court of chancery from a wrongful sale by execution at law, yet that it must be where *280the complainant’s title is clearly and satisfactorily established — that if there be any doubt as to this fact, the party asking the relief will be sent to law to try it; and that the relief will not be extended, if a court of law can give full and adequate remedy for the loss.\nIn this case, upon the first proposition, it is to be observed, that, from the proof in the cause, we think there is much reason for believing that the contract of sale between the complainant and Jesse Harrison was merely colorable, and made with the view to protect the negro from Harrison’s creditors. We do not deem it necessary to enter into an investigation of the proof, as we do not hold that it is conclusive of the fact, but only raises such a presumption of its existence as to repel the complainant, upon this point, from a court of chancery.\nUpon the 2d point, it is to be observed that this case really does not present such a relation between master and slave as requires the interposition of a court of chancery. The complainant, of his own showing, bought the slave to save a debt, and he had no desire to own him, himself; on the contrary he was left in the possession of Harrison, the vendor, until he could be satisfactorily disposed of, for that purpose. The debt due being all that the complainant desired, damages at law would be a full and adequate relief for the wrongful conversion by the defendants. Surely, no one would ever think of applying this high preventive power of a chancery court (which has been established alone to preserve the relation of master and slave) to a negro trader, who was buying slaves for the market, with a view to profit by their re-sale, and who never contemplated any other relation between himself and the objects of his purchase, than that arising from a temporary ownership, which was to be severed at the first moment a sufficient remuneration could be obtained by a sale.\nFor these reasons, we affirm the decree of the chancellor dismissing the bill.\n", "ocr": true, "opinion_id": 7660093 } ]

[ "25 Tenn. 403" ]

[ { "author_str": "Turley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTurley, J.\ndelivered the opinion of the court.\nJohnH. Rawlings and William E. Butler, on the 26th day of December, 1843, executed their bill single to Joseph L. Douglass, by which they promised to pay to him or his order four, hundred dollars, nine months after the date thereof; John H. Rawlings was the principal debtor, and William E. Butler his surety. This note was transferred by endorsement to Allen Daniel, after it fell due; and this suit is brought against the defendants to enforce the payment of the bill. Among other things, the defendants plead, in substance, that *404the bill single was assigned on the 17th day of March, 1845; that on the 11th day of March, 1845, John H. Rawlings was served with process of' garnishment by the sheriff of Madison county, at the instance and suit of the President, Directors & Co. of the Union Bank of Tennessee, who had before that time, and on the 23d day of December, 1839, recovered a judgment in the circuit court of Madison county for the sum of $1108 95 debt and damages, and #13 65 cost, against said Joseph S. Douglass; that in obedience to this process, said Rawlings had appeared in said court, and declared on oath that he, together with his co-defendant, William E. Butler, was indebted to Joseph S. Douglass, at the time of service of said process of garnishment, in the sum of money named in the above writing obligatory, which had become due and payable according to the tenor and effect thereof, to the said Douglass, before said service of garnishment, and before said assignment to the plaintiff.\nTo this plea the plaintiff demurs, and the demurrer was overruled by the court below, and judgment given for the defendants on the plea; and thereupon the plaintiff appeals to this court.\nThat a garnishee can only be charged upon his own answer is well settled; therefore, if his answer does not contain enough to charge him, he must be discharged, and, vice versa. Hence it has been necessarily held, that, if d garnishee answers that he has previously become indebted by the execution of negotiable paper to the individual for whose debt he is sought to be made liable, but does not know in whose hands the paper may be, he must be discharged, although at the date of the answer the paper may be over due; for it may have been assigned before it fell due. But, when, as is this case, the garnishee answers explicitly that he was indebted at the time of the service of the garnishment, and it appears that the negotiable instrument, the evidence of the debt, had not been assigned before it was dishonored by non-payment, the answer will charge the garnishee, and judgment must be rendered against him thereon. This would constitute a good defence against the payee of the bill, and must also, upon principle, against his endorsee, *405who stands in the same position as the payee and subject to all equities aginst him. Judgment affirmed.\n", "ocr": true, "opinion_id": 7660179 } ]

[ "25 Tenn. 443" ]

[ { "author_str": "Turley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTurley, J.\ndelivered the opinion of the court.\nThis is a struggle between the State of Tennessee and E. H. Childress for a fund in the hands of Mansfield Ware, under the following circumstances: Mansfield Ware was the sheriff of Haywood county, and, as such, became indebted to the State for taxes collected by him. William B. Miller was attorney general for the' solicitorial district of which the county of Haywood was a part. The claim in favor of the State against Ware was placed by the Comptroller in his hands for collection. Ware, instead of paying the money, executed his note, with endorsers, to Miller for the amount, with the intention of having it discounted at the Union Bank at Jackson; this not being done, Ware afterwards paid Miller the amount in money, but neglected to take up his note. Miller,- being indebted to defendant, Childress, transferred this note of Ware, after it fell due, to him, as collateral security for his debt. Ware, upon being sued, complaine d *444to Miller about this breach of faith,, who repaid to him the money he had received from him, having never paid it over to the State. The consequence of all this is, that the State has never collected, nor Ware paid, this debt. The note in controversy having been given to secure this debt, the State of Tennessee is entitled to it, unless there be something in Childress’ position which gives him a superior 'equity; and we think there is nothing. If the note had remained in the hands of Miller, no one doubts that the State would have been entitled to it; it having been assigned after it fell due, Childress occupies Miller’s position, and holds the paper subject to all equities. But, furthermore, the assignment is duly made as collateral security for a debt previously due, and, therefore, under the decisions of this State, the assignee did not acquire the note in due course of trade, and cannot, therefore hold it protected from equity, to which it would have been liable in the hands of Miller.\nThe judgment of the chancellor will, therefore, be reversed, and a decree for the amount due from-Ware given in favor of the State.\n", "ocr": true, "opinion_id": 7660224 } ]

[ "26 Tenn. 189" ]

[ { "author_str": "Turley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nTurley, J.\ndelivered the opinion of the court.\nWe think that the neglect of the officer in not returning the venditioni exponas, for which he is sought to be made liable, by *190motion, was produced by plaintiff himself, and that he ought not to be permitted to obtain an advantage by it.\nIt never has, and never ought to be held, that a sheriff, or other officer, should be made liable for the non-return of an execution, when his failure to do so, has been the result of the instruction, or intermedling of the plaintiff.\nLet the judgment be affirmed.\n", "ocr": true, "opinion_id": 7660474 } ]

[ "26 Tenn. 579" ]

[ { "author_str": "Green", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGreen, J.\ndelivered the opinion of the court,\nThis bill is brought to set aside a bill of sale for negroes.\nThe complainant charges that having become addicted to drunkenness, and considerably indebted, the defendant, who is his father-in-law, persuaded him that he was his best friend, and could manage his property for him better than he could, and taking advantage of his intoxicated situation, procured him to make a bill of sale for twenty-three negroes, dated the first of March, 1842, for the consideration expressed, of six thousand dollars, no part of which was-paid. The bill prays that *583said bill of sale be set aside, and that the complainant be restored to the possession of his negroes.\nThe answer admits the execution of the bill of sale, and admits the complainant was an habitual drunkard, but denies that bill of sale was made merely to enable defendant to manage the property for the complainant. The defendant insists that he fairly purchased the said slaves without fraud and without condition, that the complainant was not drunk when the bill of sale was made; no money paid at the time of the execution of the bill of sale, as it was agreed that the defendant was to pay the defendant’s debts, which he had done to the amount of four thousand five hundred dollars, and the balance of the purchase money he is ready to pay at any time.\nIt does not appear from the proof that bill of sale was made to defraud the creditors of Morris, nor does it appear that Nixon employed any artificial or fraudulent contrivance to induce Morris to make the bill of sale. At the time it was executed Morris was intoxicated, but not so drunk as to be incapable of understanding the transaction. The proof shows that Morris had married the daughter of Nixon a year or two before the bill of sale was made; that he owned the twenty-three negroes conveyed in the bill of sale and ten others that were not conveyed; that he was an habitual drunkard, so that many witnesses say he was not able to manage his affairs, which had become greatly deranged, and he was very much in debt; that after the bill of sale was made, Nixon took possession of the negroes, and when the ten that were not included in the bill of sale were levied on for the satisfaction of Morris’s debts, Nixon, Morris, and the Sheriff substituted several of those conveyed for some of those that were levied on, and had the former sold and the latter were conveyed by Morris to Nixon; that Nixon has sold several other negroes at private sale, and Morris, when sober, had approved these sales by Nixon, and certified that Nixon’s title was good; that Nixon has paid considerable sums in discharge of Monis’ debts, to enable him to do which,.he has collected monies due to Morris, and has received money from Morris, and that Nixon has repeatedly declared that he took the said bill of sale solely on account of Morris’ intemperate habits *584to pay his debts and save something for his wife, who is the daughter of Nixon.\nThe defendant stated to G. T. Fox that his object in taking the bill of sale was for the benefit of his daughter and Morris, because Morris was incapable of attending to the business. He told C. B. Polk that Coleman had cheated Morris, and that he did not intend to pay Coleman’s debt, and that he intended to save as much of Morris’ property as he could for the benefit of his daughter, Mrs. Morris. He told Sam Smith he would show Morris’ friends and his own friends that he did not get Morris’ property for his own benefit, but for Morris’ benefit after his debts were paid; that the reason was because he did not think Morris capable of attending to his business; that after the debts were paid he intended the balance of the property for Morris and his wife and children. He told A. H. Rose that he intended Morris should have all that was left after the debts of Morris were paid. He told P. H. Pruet that'the bill of sale was not taken to defraud any of Morris’ just creditors; that he intended to see that all just debts were paid, and that his wish was to save something for the benefit of Morris’ wife and.Morris. He told B. Williams that he thought he could pay off Morris’ debts and leave something for his (Nixon’s) daughter, that if he did not take care of her who would?\nFrom this proof we think it clear that the deed was freely and voluntarily made by Morris when he was sufficiently sober to know what he was doing, and without thp fraudulent procurement of Nixon. The complainant is not, therefore, entitled to the relief he prays. But we think it equally clear from the proof that Nixon took the conveyance upon a trust to manage the property for Morris to pay his debts, and to save w'hat he could of the property for Morris’ wife and family.\nUpon this ground we should have no hesitation in decreeing an account, and a settlement of the remainder on Mrs. Morris and children if they were before the court. But they are not parties, and the bill so far as it seeks to set aside the deed, must be dismissed. In other respects, the decree will be affirmed.\n", "ocr": true, "opinion_id": 7660734 } ]

[ "29 Tenn. 39" ]

[ { "author_str": "Crozibr", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJ. H. Crozibr,\nspecial judge, delivered the following opinion of the court.\nC. B. Hodges intermarried with Sarah D. Hodges who at the time of the marriage was in the possession and absolute owner of a tract of land in her own right. After the marriage in January, 1842, the husband leased' his wife’s land for one year, and entered into articles of agreement with his tenants, making the rent payable to himself. In March of the same year he departed this life, and his administrator, Calloway Hodges, believing that the rents of the land were assets belonging to the estate of his intestate, received them as such and sold them, the widow claiming them as her property. The widow having subsequently intermarried with George W. Arnold, this suit was brought by Arnold and wife against Calloway Hodges for the recovery of the value of the rents that he had received. Under the charge of the circuit judge the jury found a verdict for Arnold and wife, and judgment was rendered in their favor, from which there is an appeal to this court.\nWe think there is no doubt about the correctness of the verdict and judgment of the circuit court in this case. *40“ The husband alone may grant or charge the wife’s land during their joint lives, and if he be tenant by the cur-tesy, during his own life. He cannot alien or encumber it, if it be a freehold estate, so as to prevent the wife or her heirs after his death from enjoying it, discharged from his debts and engagements;” Kent’s Com. 2d vol. page 132.\nIn this case the husband had but a life estate in the lands of his wife, and the moment his death took place, his, interest ceased, and the coverture being at an end, the wife became sole and absolute owner of the real estate which belonged to her previous to the marriage. If the husband alone could lease the land of his wife for one year which would continue for the benefit of his representatives after his death, why not for two or mox-e years? The doctrine of emblements which seems to have been thought applicable to this case, by the court below, has no relation to it. The right to emble-ments is secured to the lessee, whose lease depends upon an uncertain contingency, and gives him the profits of his labor for planting or sowing the crop, though the contingency may take place and put an end to the lease before the crop is matured.\nThis is a controversy between the owner of the fee and the administrator of the tenant for life.\nSo well established, is the principle of law involved in this case, that no authority controverts or doubts the right of the wife, on the death of her husband, to annul any contract he alone may have made in his lifetime, in reference to her lands, which may be in existence at the time of his death. She may terminate leases and put an end to the payment of rent altogether, or, she may affirm and take the benefit of them. Cruise’s Digest, *414 vol. pages 66 and 67. Clancy’s Husband and wife 169, 170, 171, &c.\nThe judgment of the circuit court will be affirmed.\n", "ocr": true, "opinion_id": 7661537 } ]

[ "29 Tenn. 264" ]

[ { "author_str": "McKinney", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcKinney, J.\ndelivered the opinion of the court.\nThis was an action of slander, commenced in the circuit court of White county. The original summons issued on the 12th day of June, 1848, upon which the sheriff of said county made the following return, viz: “The defendant not found in my county. October the 3d, 1848. Jo. Heed, Sheriff.”\nAt the ensuing term of said court, which began on the 12th day of October, 1848, being the term to which said summons was returnable, on motion of the plaintiff in the action, Robinson, the court awarded a judicial attachment against the estate of the defendant, Welch, directed to the sheriff of said county of White; which was returned to the February term, 1849, of said court, levied upon certain real estate belonging to the defendant. On the return of said attachment, the plaintiff filed his declaration; and the defendant not appearing, judgment by default was entered up against him, at the *265same term; and a writ of inquiry awarded. At the June term following, the writ of inquiry was executed; and the jury assessed the plaintiff’s damages to five hundred dollars; for which, together with costs of suit, judgment was rendered; to reverse which the defendant has prosecuted ■ a writ of error to this court.\nThe only point which we regard as deserving of serious consideration in this case, is in respect to the sufficiency of the sheriff’s return to found a judicial attachment upon.\nThe statute of 1794, ch. 1, sec. 17, provides, that “where the sheriff shall return in any civil action, that the defendant is not to be found within his county, the plaintiff may, at his election, sue out an attachment against the estate of the defendant, or an alias, or pluries until he be arrested,” &c.\nIn proceedings by attachment, under the act of 1794, great strictness has always been required. These proceedings are in derogation of the common law; they are ex parte in their character, and liable to great abuse; and, therefore, the courts have not felt warranted, by any latitude of construction, or implication, to go beyond the plain words of the statute.\nThe attachment, whether judicial or original, given by the act of 1794, is an extraordinary process to enforce the defendant’s appearance, in cases, and only in cases, where “ the ordinary process of law cannot be served on him.” In suing out an original attachment, the plaintiff is required to show, by affidavit, among other things, that service of the ordinary process cannot be made upon the defendant; but an application for a judicial attachment, the return of the sheriff upon the original process, as to this fact, is substituted for the *266plaintiff’s affidavit. The statute has prescribed the precise form of return which shall be necessary to authorize the issuance of the attachment; that the defendant is not to be found. And this is in accordance with the spirit and policy of the law, which contemplated a resort to this extraordinary method of compelling appearance only in cases where the defendant, by his own act, had put it beyond the power of the ministerial officers of the law to serve him personally with process.\nThe issuance of such attachment, under the act of 1794, is a matter of jurisdiction, the exercise of which must depend upon the existence of a given state of facts, to be certified to the court by the sheriff in his return. What that return shall be, is prescribed in precise terms; the form as well as the substance; consequently, no resort can be had to legal construction, or intendment, in aid of a defective return.\nContrast the return in the present case; “ the defendant not found in my county,” with that required by the statute: “the defendant is not to be found within his county;” and it is apparent that every thing of substance made necessary by the statute, is wanting in the sheriff’s return.\nThe language of the statute clearly imports that, after diligent inquiry and search by the sheriff, at the usual residence of the defendant and elsewhere, he is not to be found; being either actually absent from the county, ,or having concealed himself so as to evade the service of process. The sheriff’s return upon the summons in .this ease imports no such state of facts. It may be .literally true, and yet the sheriff not have gone out of [h-is .-office to seek the defendant, notwithstanding he may .have been in the county, and subject to be served with *267process by the exercise of proper diligence. It follows that the attachment and subsequent proceedings in this case, were irregular and void; and the judgment will be reversed and arrested.\n", "ocr": true, "opinion_id": 7661704 } ]

[ "30 Tenn. 268" ]

[ { "author_str": "Gkeen", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGkeen, J.,\ndelivered the opinion of the court.\nThis is an action upon a covenant of warranty of the soundness of a negro man sold to White by Jones.\nUpon the trial several physicians were examined as to the health of the negro, and the character and duration of his disease; and the physicians and others were permitted to state the facts disclosed to them by the negro, in relation to the character of his affliction, and the length of time he had suffered from the disease.\nThe Judge told the jury, that to entitle the plaintiff to recover, it must appear to them, that the negro was unsound at the time of the sale and warranty; that the opinion of physicians who attended the negro, or who examined him at any time, as to the nature, symptoms, duration, and effects of the disease with which he was afflicted, as well as the statements of the sick slave as to the duration, symptoms, his pain, and *269the effects of the disease under which he was laboring, are evidence to be given to the jury ; but whether these opinions are correct, or the statements true, are questions for the jury to determine.\nThe statements of the slave to other persons than physicians while sick, about the symptoms, character and effects of his disease would be evidence also, but not entitled to as much weight as when made to his physician. The jury found for the plaintiff $362 50 damages.\nThe defendant moved for a new trial, and in support of his motion introduced several affidavits. The defendant’! vit states, that while the trial was in progress, be by the introduction of two physicians by the* many witnessed being unexamined, he sent hisj Jones, (who was a material witness,) for Dr. Dc ing he would be back before the evidence wouJ but the weather was rainy, the roads bad, and unwell, so that neither he nor said John. W. Jones arrived at court until the evidence was through, and the argument had opened; and so he was deprived of the evidence of both of said witnesses.\nNo affidavit of Dr. Debow was offered. The affidavit of John W. Jones states, that he had worked with the negro for a year previous to the sale to the plaintiff by his father, and that the negro had been healthy.\nThe court refused a new trial, and the defendant excepted, and appealed to this court.\nIt is contended by the counsel for the plaintiff in error, that an undue prominence is given to the evidence of physicians, by the charge of the court. We think the rule of evidence is correctly stated by the court. Persons are supposed to understand questions appertaining to. their own profession, and hence their opinion in reference thereto is evidence. It is not conclusive of the facts stated, and may be shown to be incor*270rect; but such opinion is competent evidence to be received, and considered of by the jury, in connection with the other proof.\n2. It is objected, that the court ruled the statements of the sick slave, detailed by the witnesses, to be competent evidence.\nIn this, we think, the court decided correctly.\nIt is not a question whether the slave could, himself, give evidence; but his statements to the witnesses are part of the res gesias. These statements were essential to enable the physicians, and others, to judge of the character of the disease. They become evidence by reason of the circumstances under which they were made. Drawn from the slave, by those who were investigating the character and symptoms of the disease, they become part of that investigation, and as such, may properly go to the jury.\n3. The affidavits form no ground for a new trial. The affidavit of Dr. Debow was offered; and the affidavit of John W. Jones shows that his testimony, though material to the issue, would be only cumulative. Several other witnesses were examined, and testified as to the same matter, and had made, substantially, the same statements. The rule is well settled, that a new trial will not be awarded, for the mere purpose of letting in cumulative proof. But it was the folly of the defendant, to send his witness away from the court. There was no necessity for it. It is not shown that Dr. Debow could have been a material witness; and if it were to appear, that there was a necessity to have sent for him, it would have been easy to have employed some messenger who was not a witness.\nUpon the whole, we think, there is no error in the judgment, and affirm the same.\n", "ocr": true, "opinion_id": 7662120 } ]

[ "8 Tenn. 600" ]

[ { "author_str": "Ckabb", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCkabb, J.\ndelivered the unanimous opinion of the Court. It is argued on the part of the plaintiff in error that the appointment of Lowry, at the December sessions, “ clerk pro tem.” to fill said vacancy until the next sessions of said' [290] court, made him clerk of the Court during good behavior; that the Court was merely empowered by the Constitution to nominate its clerk, who immediately held his office under the Constitution, by the tenure prescribed in it, and that they could not create a different tenure; that the office was full, and the appointment of \"Turk at a subsequent term was illegal and a nullity, and that consequently the latter had no warrant or title to the office.\nThe correctness or incorrectness of these propositions mainly depends *603upon the proper view to be taken of the Constitution of this State, art. 5, § 10, and the Act of Assembly of 1796 (fall session), ch. 3.\nThe Constitution says that “ each court shall appoint its own clerk, who may bold his office during good behavior.” The act passed a few months after the adoption of the Constitution provides “ that where any vacancy may happen by death, resignation, or otherwise, the right of which appointment is by the Constitution vested in the County Court, then, and in that case such, court shall hold an open and free election on the second day of the term in which such appointment is to be made, admitting all citizens to the privilege of offering as candidates, except such as are prohibited by the Constitution, or some of the existing laws of the State.\n“ That it shall be the duty of the chairman of any of the aforesaid courts, or any other justice acting in his place, to cause public notice in writing to be set upon the door of the court-house, upon the first day of the term in which said election is to be held, signifying and setting forth under his hand which of the offices is vacant, and the time prescribed by this Act for filling the same,” &c.\nIt is alleged the Constitution must speak for itself in relation to the appointment of a clerk, and that this legislative provision, so far as it seeks to prescribe the time and the mode of appointment, and the notice necessary to be given, conflicts with the Constitution, and is therefore void. ■ The fallacy of this argument will be apparent upon a moment’s ■ consideration. A constitution, or fundamental law, from its very nature, is brief in its provisions, and confined to the [291] annunciation of first principles. It tells us that an act is to be done, or a result produced, but often pretends not to particularize the time or manner. The latter power is necessarily left to the legislative department, under the high responsibilities which impel and restrain it in all its operations.\nIt is believed that the General Assembly have an unquestionable right to supply the mode of executing, a power, or a duty devolved- by the Constitution in general terms on any citizen or body of citizens in the community ; provided that mode do not come in collision with any of the injunctions of the Constitution, and is consistent with all its principles.\nThe convention, when framing the Constitution, could not anticipate with certainty what would be the character and composition of some of the courts that the Legislature, “ art. 5, § 1, should from time to time direct and establish.” Well might they, therefore, leave the mode of appointment to be prescribed by the same department of the government to whom they intrusted the more important power of establishing the Court itself. The General Assembly thus possessed of the power desire so to act in relation to the County Court, composed as it is of numerous members scattered over the whole county, as to afford every justice an opportunity of speaking, and to every citizen the “ privilege of offering as a candidate,” in *604the selection of all officers, the right of whose appointment is, by the Constitution, vested in the county courts.\nThe latter instrument had not ascertained the mode of appointment. It might (independent of legislative interposition), be made by whatever. court should happen to be on the bench when the vacancy should first occur, if the bare number competent to the transaction of ordinary business should be present. But as the appointment of these officers is a matter of importance, and one in which the whole county is interested, the General Assembly considered it advisable to impart to it the character of an “ election”; and conforming it to the Bill of Rights, § 5, it is required to be a free and open election. To promote this result, [292] notice in writing is to be given, and the election is to take place on a named day of the term.\nThe object of the Constitution is that a good selection shall be made, and to this end, that the Court shall make it. The act in unison with the Constitution, and with a view to the same object, seeks to have the benefit of thé whole court, or as many members as possible, in making the appoint'ment, and aims at certainly secui’ing the services of one that is qualified, by affording a general opportunity for application. Do the Legislature act unreasonably in all this, or do they violate the words or spirit of the Constitution ? It is believed they do neither. What, then, did the County Court of M’Minn ? The clerk died on the first day of the term, and on the second the Court were informed of the fact. They could not comply with the act of Assembly, and make an appointment at that term. They must either, then, disregard a law which it was their duty to obey, or they must defer filling the vacancy until the next term. In compliance with their consequent duty, they do defer it; and at the succeeding term they conform to the requisitions of the law, and elect Turk. And yet we are told he is not entitled to the office. He was unquestionably entitled unless in the mean time some other person had acquired a prior right; and we are of opinion that Lowry had not. He was appointed clerk pro.tem. to fill the vacancy until the next session. We are asked to say that the Court, contrary to their own and his understanding, made him clerk during good behavior, although they had determined already to defer the election until the succeeding sessions, in obedience to an act of Assembly made in pursuance of the Constitution, and although none of the requisites of the Act had been complied with in relation to Lowry’s appointment. The clerk dies on one day; the appointment is made the next. Ho notice is given, by means of which any citizen who may be considered qualified may have his pretensions presented, or that the justices may generally attend. Even those who happen to be present do not consider themselves as engaged in the election of a clerk. It cannot be that such an appointment [293] is effectual, as against the claims of a person regularly elected at the proper *605time. We go no further. We confine our opinion to the peculiar circumstances of the case before us. We need not remark upon the case of Stonestreet v. Harrison, decided by the Court of Appeals of Kentucky, because we do not consider it applicable to the case under consideration. Were it so, it would be regarded by us with much attention; for we entertain a high respect for the learning and independence of that tribunal.\nWe are also of opinion, after a careful consideration of the arguments, and the numerous authorities produced at the bar, that the mode of proceeding, sought to be used in this case, is not sanctioned by the laws of this State. The old writ of quo warranto had fallen into disuse in England, prior to the passage of the North Carolina Act of 1715, ch. 31, § 6, adopting the English common law. Neither that writ nor an information in the nature of it, is known by us to have ever been used in the colony of North Carolina, and was not, therefore, incorporated into our code by the Act of 1778, ch. 5, § 2, which did not adopt such parts of the common law as had not been in force and in use in the colony, or were inconsistent with, the new form of government, or which had been abrogated, repealed, expired, or become obsolete.\nIt is hot known to us that either the writ or the information has ever been used in the courts of North Carolina or this State since the Revolution. It is probable that the general provision in the Bill of Rights of North Carolina, § 8, and of Tennessee, § 14, much more general than are found in the Constitutions of New York and Massachusetts, have contributed to prevent the introduction of this proceeding into the courts of the two former States.\nThere was a well-founded aversion among the lovers of liberty, in England and America,' to the proceeding by information, on account of the oppressive purposes to which it was frequently applied; and although it is properly said at the bar that in substance it is principally a civil proceeding in such a case as this, yet, even in such a case, it is in form a criminal proceeding, and may be followed by [294] one of the usual consequences of such a proceeding, — a fine to the State, in addition to the judgment of ouster. Besides, the illegal usurpation of an office is probably a misdemeanor, the subject of a criminal charge, for which an indictment or presentment would lie. But upon this point no positive opinion is given. Let the judgment of the Circuit Court be affirmed.\nJudgment affirmed.\n", "ocr": true, "opinion_id": 7662704 } ]

[ "19 Tenn. 187" ]

[ { "author_str": "Reese", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nReese, J.\ndelivered the opinion of the court.\nThe declaration alledges that at the time of the execution of the deed of conveyance, the land which it purported to convey, was adversely held by a title paramount to that of the bargainor, — and the question is, whether the circuit court upon the argument of the demurrer in the case, should not, on account of that, have adjudged the declaration bad, and the action not maintainable, because of our statute of champerty of 1821, c 66?\nIt is said, on behalf of the action, that a deed of conveyance or contract of sale for land adversely possessed, although void, by the provisions of the act referred to, as against such adverse claimant, is yet good as between the parties to the deed or contract of sale. This proposition is at war alike with the letter, and the spirit and policy of the act. The act declares that “no person shall agree to buy, or to bargain or sell any pretended right or title in lands or tenements or any interest therein; and if any such agreement, bargain, sale, promise, covenant, or grant be made, where the seller has not himself or by bis agent or tenant, or his ancestor, been in actual possession,” &c. Such is the letter of the statute. Its object and policy were, that those in actual possession of land should not be molested by suits founded upon pretended or dormant claims, unless such suits were instituted and conducted, bona fide, by the proper owners, upon whom the law had cast the title, for their own proper benefit and at their own proper risk and costs.\nThe buyer, in view of such purpose, it was especially important to restrain, for it was his ever restless cupidity, stimulated by the low price of these dormant claims, and by the prospect of large profit, which attacked the quiet and repose of society, and made our courts of justice the theatre upon which to consummate speculations, not more respectable, and much more disastrous to society than those of the lottery office or the gaming table.\nTo give such a construction to the statute, therefore, as would permit the buyer of dormant claims, securely to take a deed or covenant from the claimant, and if he failed to recovev by a demise in the name of such claimant, to indemnifyhim-*190self by a suit against his vendor upon the deed or covenant, would be to encourage, and not to suppress the spirit and practice of champerty.\nWe are, therefore, clearly of opinion that the action is not maintainable, and that the judgment must be reversed.\n", "ocr": true, "opinion_id": 7662862 } ]