« EelmineJätka »
olution were unlawful, and the chancellor, the property of the defendant Queenie Johnwas correct in so holding. His decree is son; and, after being legally condemned, the therefore affirmed, with costs.
lot was sold by order of the court and purchased by the complainant. This lot was owned by Mrs. Johnson at the time of her marriage to her codefendant, W. R. John
son. HENDERSON GROCERY CO. V. JOHNSON After the time for redeeming said lot had et ux.
expired, the sheriff executed a deed to com
plainant to said lot, and, the defendants re(Supreme Court of Tennessee. Nov. 16, 1918.) fusing to surrender possession of same to 1. HUSBAND AND WIFE um 9 PROPERTY complainant, the original bill was filed in this
RIGHTS-MODIFICATION OF HUSBAND'S Es- cause for the purpose of ejecting the said W. TATE-STATUTES.
R. Johnson, Queenie Johnson, and their tenThe husband's common-law estate jure ux. ants from said property. oris has been so materially modified by legisla- The defendant Queenie Johnson filed her tive enactments that only a bare privilege is answer as a cross-bill, asking the court to deleft to the husband to rent out his wife's land cree that said condemnation proceeding and and to collect the rents for the benefit of the the sale made thereunder were null and void, family in the capacity of governor of the family and that the complainant acquired no title and not for himself individually.
to said lot by virtue of its purchase there2. HUSBAND AND WIFE 125—WIFE'S SEP-under. ARATE PROPERTY-RENTS.
The chancellor dismissed the cross-bill, and Under the Emancipation Act of 1913, a decreed in favor of complainant on its origwife has a right to rent out her lands and to inal bill, and the cross-complainant has apcollect the rents accruing therefrom.
pealed from the decree of the chancellor to 3. HUSBAND AND WIFE 147 WIFE's this court. Among the errors assigned are SEPARATE PROPERTY-EMANCIPATION ACT.
the following: Under the Emancipation Act of 1913, fully relieving married women from all disabilities on (1) "That defendant W. R. Johnson had a account of coverture and giving them the same freehold interest in the lot involved, by the comright to acquire, hold, and dispose of realty mon law, by statute, jure mariti, and jure and personalty as if unmarried, a married wo- uxoris, not subject to levy and sale for his debts, man can hold no separate property as such, and on execution at law or otherwise, specifically all her property to which she has title is sub- protected by the law from such levy and sale; ject to her debts.
and protected from dispossession under any
process running as arising out of the debts of 4. HUSBAND AND WIFE 115 MARRIED
the husband.” WOMEN-WIFE'S TITLE TO PROPERTY.
(2) “That the contingent remainder interest Under the Emancipation Act of 1913, a hus- of the wife was not an estate subject to levy at band had no interest in a lot owned by the law." wife at time of her marriage, and the entire ti- (3) "That, as against her creditors, proceedtle thereto remained in the wife and might be ing at law, the rights and interest and estate levied upon and sold by her creditor as her prop- of the husband was paramount and dominant, erty.
as an estate or right of use for life, in præsen
ti; and any sale, if otherwise valid, only passed Appeal from Chancery Court, Washington to the purchaser a servient and contingent County; Hal H. Haynes, Chancellor.
right, conditioned upon the husband predeceas
ing the wife, or the wife predeceasing the husBill by the Henderson Grocery Company band when childless; and not effective to disagainst W. R. Johnson and Queenie Johnson, turb in the least the tenure of the husband, as his wife, with cross-bill by the latter. De tenant by the curtesy initiate or consummate, cree for complainant, dismissing the cross
or his dominant estate as one of present enbill, and cross-complainant appeals. Af
(4) "That, upon marriage of W. R. Johnson firmed.
to Queenie Johnson, the realty she then owned Geo. C. Sells, of Johnson City, for Hender- | (that now involved) ipso facto became split up
into two estates as a matter of law, instead of son Grocery Co. Divine & Guinn, of Johnson City, for W. R. nant user or contingent freehold vesting in the
the one; the fee was divided, the present, domiJohnson and wife,
husband, the remainder, a contingent remainder,
vesting in the wife, or her original fee diminMCKINNEY, J. On January 20, 1915, the ishing to that estate, lesser than the fee.” complainant, Henderson Grocery Company, (5) "That, there being two estates, after marrecovered a judgment before justice of the riage, the levy upon both, and sale of both, as peace against the defendants, W. R. Johnson appearing from the levy, order, sale, deed, etc., and wife, Queenie Johnson, for $337.59, up- each debtor had a right to have his interest sold
together for a lump sum, was void, for that on which judgment execution was issued and separately, to the end that each could redeem levied upon the lot involved in this suit as separately."
For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
We will treat these five assignments of er- So that, by this act, the status of a marror together as they raise the question as to ried woman, with respect to her property, is whether the husband of cross-complainant the same as though she were a feme sole, had an interest in the lot of land in question and, as stated in Levy v. Davis, 125 Tenn. in this suit. The insistence of the cross- 349, 142 S. W. 1120: complainant is that, under the common law, "An unmarried woman, as a matter of course, the husband, by marriage, took a freehold es
can hold no separate estate as such. All her tate in his wife's lands held as a general es- property to which she has title is subject to her tate by inheritance during their joint lives, debts." and possibly, by curtesy, during his life; and that the Acts of 1835–36, 1849-50, and
 So that we are of the opinion that the 1879, Shannon's Code, $8 4225, 4234, and 4239, husband had no interest in this property, but respectively, did not take away or deprive that the entire title to same was vested in him of this common-law interest in his wife's the cross-complainant, and, same having been land, but only modified it. Treating this as levied on and sold as her property, the purtrue, it remains to be determined whether chaser acquired a good title. the Emancipation Act of 1913 (Pub. Acts 1913,
The question of curtesy does not arise in c. 26), annulled or took away this right of this cause, for the reason that the record the husband and left the wife holding the does not show that a child has been born of entire estate in her lands.
this marriage, but, even if there were issue, (1) Originally, under this common-law es
under the authority of Day v. Burgess, 139 tate in the wife's lands, the husband could Tenn. 559, 202 S. W. 911, the husband had dispose of his interest therein; such interest no vested interest in this property. might be sold by his creditors; he was en
The other assignments of error were distitled to rent out the land and to collect and
posed of orally.
We find no error in the decree of the Chan. appropriate the rents. But by various leg
cellor, and it is affirmed, with costs. islative enactments, as held in Ables v. Ables, 86 Tenn. 333, 9 S. W. 692, the common-law estate jure uxoris has been so materially mod. ified that only a bare privilege is left to the husband to rent out his wife's lands and to
SOUTHERN RY. CO. V. STATE. collect the rents for the benefit of the family in the capacity of governor of the family, (Supreme Court of Tennessee. Nov. 30, 1918.) but for the family and not for himself in- 1. INDICTMENT AND INFORMATION Cm32(1) dividually.
RAILROADS ww255(4) — CONCLUSION – OB. [2, 3] And in Parlow v. Turner, 132 Tenn. STRUCTING PUBLIC HIGHWAY AT CROSSING 339, 178 S. W. 766, it was held that, under -RAILROADS. and by virtue of the act of 1913, the wife Under the common law, a railroad can be had a right to rent out her lands and to col. indicted for obstructing a public crossing, but lect the rents accruing from same, thus de the indictment or presentment must conclude priving the husband of the last vestige of his
"to the common nuisance." common-law estate, jure uxoris.
2. INDICTMENT AND INFORMATION EW111(1)The act of 1913 is very broad and compre
PROVISO OBSTRUCTION OF PUBLIC CROSSING hensive, and provides that married women
BY A RAILROAD COMPANY. are fully emancipated from all disability on 1879, c. 183), applies only to highways within
As Shannon's Code, $ 6514 et seq. (Acts account of coverture, and that the common limits of incorporated towns or cities where inlaw as to the disability of married women corporating laws are repealed or charters forand its effect on the rights of the property feited, or the towns have failed to keep an organof the wife is totally abrogated, and that ized board of mayor and aldermen, a presentmarriage shall not impose any disability or ment thereunder, which fails to show that the incapacity on a woman as to the ownership, highway obstructed is within the act and not
excluded by proviso, is insufficient. acquisition, or disposition of property of any sort, or as to her capacity to make contracts Appeal from Circuit Court, Hamblen Coun. and do all acts in reference to property which ty; John B. Holloway, Judge. she could lawfully do if she were not married, and that every woman now married, or
The Southern Railway Company was conhereafter to be married, shall have the same
victed of obstructing a public highway, and capacity to acquire, hold, manage, control, it appeals. Judgment of conviction reversed, use, enjoy, and dispose of, all property, real
and presentment quashed. and personal, in possession, and to make any W. N. Hickey, of Morristown, and Susong contract in reference to it, and to bind her- & Biddle, of Greeneville, for Southern Ry. self personally, and to sue and be sued with Co. all the rights and incidents thereof as if she H. M. Rankin, of Dandridge, and Wm. H. were not married.
Swiggart, Jr., of Union City, for the State. em for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
MCKINNEY, J. At the May term, 1917, of shall, upon conviction, pay a fine in an amount the circuit court of Hamblen county, a pre not to exceed twenty-five dollars, and may be sentment was found against the plaintiff in imprisoned in the county jail at the discretion of error, the body of which presentment is as the court, for a period of time of not more than
twenty days. follows:
"Sec. 3. Be it further enacted, that this shall "That the Southern Railway Company on the apply to all public highways, private ways, rec9th day of March, 1917, in the state and county ognized as such, by law, streets, alleys, sideaforesaid, did unlawfully, willfully, maliciously walks, public grounds, commons, and ways to and wantonly let its train of cars stand upon burying places, situated within the limits of any and across the public road in Russellville, Ten- incorporated town or city where the laws incornessee, Hamblen county, said road leading from porating the same has or may hereafter be reMorristown, Tennessee, to Warrensburg, Ten-pealed, or has or may herafter forfeit their charnessee, and other points, so as to obstruct and ters, or may fail to keep an organized board of impede public travel, contrary to the statute mayor and aldermen; provided, however, it shall and against the peace and dignity of the state." not be so construed as to interfere with the
regulations and governments of any organized Motion was made and entered to quash corporation of any town or city. said presentment on the following grounds: "Sec. 4. Be it further enacted, that the board (1) "Because it alleged no offense against the shall be guilty of a nuisance under the present
of mayor and aldermen of any incorporated city laws of Tennessee."
existing laws of the state, if they permit any of (2) “Because the allegations of the present the foregoing offenses named in the first section ment were insufficient to constitute any offense, of this act, within the corporate limits. there being nothing in the presentment to show
“Sec. 5. Be it further enacted, that no person that said cars obstructed said crossing for an under this act shall be amenable to the first unreasonable length of time so as to amount to section of the same by reason of their obstructa nuisance."
ing any street, cross-street or alley in any town (3) "Because the presentment did not conclude with material for building or repairing buildings with the words to the common nuisance,' or
or grounds attached to the same; provided, that words of equivalent import."
the same is not obstructed an unreasonable Said motion to quash was overruled by the length of time; provided, not more than one
half of the passway shall be obstructed at any court, to which action the plaintiff in error
one time. duly excepted. The case was then heard, and
“Sec. 6. Be it further enacted, that the circuit the jury found the defendant guilty, and a and criminal judges of this state shall give this fine of $10 was entered against it, from act in charge to the grand juries, and that this which judgment it has appealed to this court act take effect from and after its passage, the and has assigned errors.
public welfare requiring it." We think the motion to quash should have been sustained.
It will be observed that the first section  Under the common law a railroad can does not say whether it applies to the state, be indicted for obstructing a public crossing. or to cities or municipalities within the state, State v. Railroad, 91 Tenn. 445, 19 S. W. and, without some qualifying clause,, or ex229; L. & N. Railroad Co. v. State, 3 Head, pressed limitation, it would undoubtedly re523, 75 Am. Dec. 778.
fer to the highways and streets within the In which case the indictment must con- entire state. But the third section does qualclude “to the common nuisance" Gaines vi ify and limit the first section, and says it State, 7 Lea, 410, 40 Am. Rep. 64; Wharton's shall apply to highways, streets, etc.: (1) Criminal Law (Last Ed.) § 1693.
Within the limits of any incorporated town  In the instant case the presentment was drawn and based upon section 6514 of or city where the law incorporating the same Shannon's Code, which is the first section of has or may hereafter be repealed, (2) or has chapter 183 of the Acts of 1879.
or may hereafter forfeit their charters, (3) Said act of 1879, in its entirety, is as fol. or may fail to keep an organized board of lows:
mayor and aldermen. This third section
then concludes with the proviso that it shall “An act to make it a misdemeanor to obstruct not be so construed as to interfere with the
public highways, private ways, streets, alleys, governments of any organized corporation of sidewalks, etc.
any town or city. "Section 1. Be it enacted by the General Assembly of the State of Tennessee, that it shall
You have to consider sections 1 and 3 in be a misdemeanor for any person to obstruct their relation to each other to determine the the public highways, private ways, streets, al- legislative intent. The proviso of the third leys, sidewalks, public grounds, commons and section and the terms of the fourth section ways to burying places, churches or schoolhouses, indicate that the Legislature realized that orand that it shall be an obstruction under this ganized municipal corporations had authoriact for any person to ride horseback, bitch ty and jurisdiction of their streets, sidehorses upon, or drive a wagon, buggy or any vehicle, upon said sidewalks.
walks, etc., and did not wish to interfere “Sec. 2. Be it further enacted, that if any with such right further than to provide that person shall be guilty of any one of the offenses the board of mayor and aldermen should be mentioned in the foregoing section of this act guilty of a nuisance when they, under such authority, permitted their streets, sidewalks, Suit or contest by H. K. Trammell against etc., to become obstructed.
A. W. Griffin and others, challenging the So far as obstructing the highways, roads, eligibility of defendant Griffin to hold the etc., of the state, outside of the incorporated office of Mayor of the city of Jellico. Judgcities and towns, they were aware that the ment for defendants, and contestant brings offender was subject to indictment under the error. Affirmed. common law, and so the act in question was intended to apply in the three instances set
E. H. Powers, of Jacksboro, and L. D. forth in the third section of the act not pro- Smith, of Knoxville, for H. K. Trammell. vided for by either of the remedies above set
John Jennings, Jr., of Jellico, and L. H. forth. Take for example the case of a street, Carlock, of Knoxville, for A. W. Griffin and in an incorporated town that has no organiz
others. ed board of mayor and aldermen, becoming obstructed: If the offender is indicted under GREEN, J. This suit challenges the eligithe common law, he would defend on the bility of defendant Griffin to hold the office ground that the street was within an incor- of mayor of Jellico, to which office he was porated town, over which the corporation had | elected in January, 1918. From a judgment exclusive authority and control; there is no in favor of the defendant contestant has apcorporate organization to punish the offen- pealed in error. der, and the result would be that he would The proposition of plaintiff in error is that go unpunished. To meet such a case and to Griffin was not a qualified voter of the city extend the law so as to provide a remedy of Jellico at the time of his election to the whereby all persons who obstruct highways office of mayor, and it is urged that Griffin can be called to account the act in question is accordingly incapable of holding said office was passed. This appears to us to be what by reason of certain provisions of the charter the Legislature had in mind.
of that city. Now, there is no allegation in the present- The election was held January 5, 1918, ment involved in this case that would bring Griffin did not register in August, 1917, or it within the third section of this act. It was at the supplemental registration held 20 days evidently drawn under the first section of the prior to the election. He did register in Auact upon the theory that the act applied to gust, 1915, and had paid his poll tax for all of the roads, highways, and streets with 1917. He has been a bona fide resident and in the state.
citizen of Jellico since 1914. It results that the judgment of the circuit  The present charter of the city of Jelcourt is reversed, and the presentment is lico is embodied in chapter 336 of the Acts quashed.
of 1903. Section 6 of that act is as follows:
"Be it further enacted, that the officers of the
city of Jellico to be chosen by the people shall TRAMMELL V. GRIFFIN et al.
be a mayor and six (6) aldermen, who shall con
stitute the city council, each of whom shall be (Supreme Court of Tennessee. Nov. 23, 1918.) a citizen of and voter in said city; said mayor 1. MUNICIPAL CORPORATIONS Om138—MAYOR voters of said city every two (2) years. No per.
and board of aldermen shall be chosen by the - ELIGIBILITY—“VOTER."
son shall be eligible to the office of mayor or alUnder charter of City of Jellico embodied in derman unless he has been for six months, and Acts 1903, c. 336, $$ 6, 9, 13, declaring no one then be a bona fide resident of the city. Any of eligible to office of mayor unless he shall be a said officers removing from the city sball thereby citizen of the state and city, and a voter in the vacate his said office." city, and shall have resided in the city for six months next preceding the election, the term
Section 13 of the act is in these words: "voter" means one having the qualifications en- "Be it further enacted, that the mayor shall titling him to vote, and not one who has regis- hold his office for two years, and until his suc. tered as a voter.
cessor shall be elected and qualified. No person [Ed. Note.- For other definitions, see Words shall be elected mayor who is not at the time and Phrases, First and Second Series, Voter.] of his election a citizen of the state of Tennes2. MUNICIPAL CORPORATIONS E138-MAYOR see, and has not been for six months, and is not -ELIGIBILITY-REGISTRATION AS VOTER.
thus a bona fide citizen of and voter in said
city.” Thomp. Shan. Code, 88 1012, 1014, relating to the registration of voters, as authorized by Does the word "voter," as used in said Const. art. 4, § 1, do not prescribe qualifications charter, mean a person having the qualificaof electors, but were enacted to regulate the tions entitling him to vote, or does it mean exercise of the elective franchise, and registra- such a person who has registered and thus tion is not necessary to make one a voter in a city so as to be eligible under its charter (Acts lawfully evidenced his right to vote—in oth1903, c. 336, $$ 6, 9, 13), to election as mayor.
er words, a registered voter? This is the
question for determination. Error to Criminal and Law Court, Camp- Section 9 of chapter 336 of the Acts of bell County; Xen Hicks, Judge.
1903 is in these words:
For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
"Be it further enacted, that the election for  This court has repeatedly held that our mayor and board of aldermen of said city of registration laws did not impose an additionJellico shall be held by the marshal of the corpo al qualification on the right of suffrage. ration, aided by two clerks only, and three judg
The court has quoted and approved a statees, all of whom shall be legal voters in said city, ment from Cooley on Constitutional Limitaon the first Saturday in January of every two years, after giving ten days notice. The voters tions, page 601, that: shall vote by ballot and under such rules and "The provision for a registry deprives no one regulations as the board of mayor and aldermen of his right, but is only a reasonable regulation shall prescribe as to the place, house, etc., of under which the right may be exercised.” Moore voting by ordinance. The officers of the city v. Sharp, 98 Tenn. 491, 499, 41 S. W. 587, 589. thus chosen shall go into office on the third Saturday in January, to hold office for two years, In a later case, the court said: or until their successors are elected and quali
"The registration laws of the state do not prefied. The following shall be the qualifications scribe qualifications of electors, but were enacted for voting in city elections: "1. He shall be qualified to vote for state and elective franchise, and are authorized by the
for the purpose of regulating the exercise of the county officers. “2. He shall have resided for six months next Constitution, ordaining that the General Assein
concluding clause of section 1, art. 4, of the preceding the election within the city limits, or bly shall have power to enact laws to secure the shall be a male and a bona fide owner of real freedom of elections and the purity of the ballot estate within the city limits.
box." State v. Weaver, 122 Tenn. 198, 122 S. "3. A voter's residence is hereby defined as the
W. 465. place at which he habitually sleeps."
In Ruling Case Law it is said that: From the foregoing it appears that a qualified voter in state and county elections be- "The theory upon which registration laws comes a qualified voter in Jellico city elec- may be supported is that they do not impair or tions if he reside in that municipality, or abridge the elector's privilege, but merely regu
late its exercise by requiring evidence of the own property therein. Residence or owner
right. * The requirement of registration ship of property in that city are the only does not add new qualification, unless such voter additional and peculiar qualifications of vot- is deprived of the right to prove himself to be ers in Jellico.
an elector, or, as it has been held, is denied the The contention of plaintiff in error is that right to register and vote at any time prior to registration is a condition precedent to vot- the closing of the polls on election day.” 9 R. ing in those parts of the state to which our C. L. p. 1036. registration laws apply, and that an elector cannot be described as a qualified voter un-ed, that we cannot properly speak of regis
So it is obvious, from the authorities quotless he is registered. This argument is plausible, but it leads and county elections. One qualified to vote
tration as a qualification for voting in state into grave constitutional difficulties.
in those elections is likewise a qualified votSection 1 of article 4 of the Constitution
er in Jellico, provided he resides there, or of Tennessee is in these words:
owns property there. It follows that regis“Every male person of the age of twenty-one tration is not necessary to make one a “voter years, being a citizen of the United States, and in said city.” a resident of this state for twelve months, and of the county wherein he may offer his vote for tion laws demonstrates that the word “vot
An inspection of our election and registrasix months, next preceding the day of election, shall be entitled to vote for members of the Gen- er" is used therein in the sense of one who eral Assembly and other civil officers for the is qualified to vote, and not in the sense of county or district in which he resides; and there a registered voter. shall be no qualification attached to the right of Thus, in section 1210 of Thompson's Shansuffrage, except that each voter shall give to the non's Code, it is made a misdemeanor for judges of election where he offers to vote, satis- any registrar of voters to willfully refuse factory evidence that he has paid the poll taxes "to register any qualified voter.” assessed against him, for such preceding period
In section 1214, Thompson's Shannon's as the Legislature shall prescribe, and at such time as may be prescribed by law; without Code, prescribing the oath for registrars of which his vote cannot be received. And all male election, it is provided that they shall swear citizens of the state shall be subject to the pay- that they will not “knowingly register, or ment of poll taxes and to the performance of allow to be registered, any person not a military duty, within such ages as may be pre- legally qualified voter," and that they will scribed by law. The General Assembly shall not prevent "any person from registering have power to enact laws requiring voters to who is a legally qualified voter.” vote in the election precincts in which they may
In these and other sections of the Code, reside, and laws to secure the freedom of elec- the word "voter" is used to describe a pertions and the purity of the ballot box."
son entitled to register, and not a person The Constitution forbids that any qualifi- actually registered. Indeed, it appears from cation be attached to the right of suffrage, the sections quoted persons are referred to except that the Legislature may prescribe as "qualified voters" before registration. poll tax regulations.
Such being the general meaning given to