Supreme Court
Cases Decided January 20, 1845
Wm. B. Young vs. Thomas T. Watson et al. - Affirmed
Nixon & Grimes vs. Simpson & Choat - Reversed
Job Mayberry vs. Thomas Neely et al. - Reversed
Pool, Tilman et al. vs. Reuben Searcy et al. - Reversed
The Weekly Nashville Union, (Nashville, TN) Wednesday, January 22, 1845; Issue 34; col F - transcribed by, Amanda Jowers

Supreme Court of Tennessee, December Term, 1844.
Jesse Hayne and others vs. Wm. C. Hall, Ex'r.
The statues of limitations are applicable to implied but not to express trusts.
A father is the natural guardian of his children for nurture, but not their express trustee.
The grand-father (Elijah Humphreys) of the complainants, devised to them at the death of their mother, Rhoda Hayne, certain negroes and other property. She died in 1815, the will of her father, the said Humphreys, having been made in 1791. The testator of defendant, who was the husband of said Rhoda and father of complainants, took and kept possession of the negroes in 1815, together with a small amount of money which he received from the executor of money which he received from the executor of the said Humphreys for his children the present complainants. The testator of defendant kept the negroes and money until his death in 1841. After his death this bill was filed, at which time the youngest of Rhoda's children was thirty-six years of age. The defendant relies upon the statute of limitations.
The Chancellor (T. H. Cahal) was of opinion that the complainants were barred as to the negroes, but not as to the money.
The Supreme Judges (Greene giving the opinion) determined that the complainants were barred both as to the negroes and money. The Chancellor regarded the testator of defendant as a trustee as to the money, and determined that as such trustee the statute of limitations would not run in his favor. But there is a distinction between implied and express trusts, which was overlooked by the Chancellor. The executor of Humphreys was an express trustee, and he could not have relied on the statute. But defendant's testator received the money from said executor, and by implication recieved it as trustee for his children and being such trustee by implication, the statute of limitation does run in his favor. 3 Yerg. Rep. is a case illustrating the difference between express and implied trustees. The defendant's testator, as father of complainants, was their natural guardian, but only such for nurture, and that only until his children arrived to twenty-one years. This will not make him an express trustee. The bill dismissed.
Jo C. Guild for Complainants.
J. J. White for Defendant.
The Weekly Nashville Union, (Nashville, TN) Wednesday, January 22, 1845; Issue 34; col F - transcribed by, Amanda Jowers

Supreme Court
Cases Decided February 6, 1845
Eli Lockhart vs. Wm. Crockett - Affirmed
R. & S. Graliant vs. Thomas H. Brantley - Affirmed
Thomas Norton vs. David Whitesides - Reversed
Stamp & Ewing vs. N. A. McNairy - Affirmed
Hinton & Marr vs. H. A. Cole - Affirmed
February 7, 1845
S. Caplinger vs. L. Vaden, Adm'r - Reversed
Sabra T. Lawrence vs. N. Potter and securities - Judgement
J. R. H. Puryear vs. Elijah Thompson - Reversed
Planters' Bank vs. J. Millens and securities - Judgement
The Weekly Nashville Union, (Nashville, TN) Wednesday, February 12, 1845; Issue 37; col G - transcribed by, Amanda Jowers

Supreme Court of Tennessee, December Term, 1844.
Isaac Sanders & Halloway Hodges vs. John ?. Harris et al.
A copy of a deed cannot be read when the original can be had.
A copy of a deed registered in Georgia in 1816 not admissable as evidence in this State.
Sanders and Hodges were sued in detitue for several negroes by Harris and others. A bill of sale for the negroes was in the possession of the plaintiff, but he read a copy from the Register's books of Georgia. The bill of sale was executed in Georgia, in 1816, and was there registered without acknowledgment or probate, neither being then required in Georgia. The reading of the copy was objected to below, but the Judge admitted it. The judgment is joint against Sanders and Hodges, although there was no proof against Hodges.
The Supreme Judges (Reese) reversed the judgement on two grounds: 1st. The copy of the bill of sale ought not to hae been read; because the original was in the possession of the plaintiffs, and because the registration took place in Georgia without acknowledgment or probate, and was only intended in that State to give notice of the existence os such instrument, and not to create and perpetuate record evidence of its execution and validity. The copy could not be read under our act of 1839, because the pervading principle of our whole registration system is to prove and perpetuate the valid execution of instuments as well as to give notice of their existence. 2d. The verdict is against Sanders and Hodges, which must set aside the verdict and judgment as to both.
Andrew Ewing and - Lowe for Sanders.
G. C. Boyd and - Pepper for Harris
The Weekly Nashville Union, (Nashville, TN) Wednesday, February 12, 1845; Issue 37; col G - transcribed by, Amanda Jowers

Supreme Court of Tennessee, December Term, 1844.
J. Hart Marable vs. John A. Jordan and others.
If a husband puts improvemtns on the land of his wife and she dies without having children, he cannot recover for the improvements.
The wife of Marable in her life time was the owner of a tract of land, upon which he made valuable improvements. She died without giving birth to a child. He now files his bill to make the heirs of his wife responsible for the improvements. The bill was demurred to, and the demurrer sustained below.
The Supreme Court (Reese) affirmed the decree. They say that the wife could make no contract, could give no consent, and could be affected by no acquiescence, and therefore, that the case cannot fall within the principle of those cases in which courts of equity have given compensation for improvements made by contract or with consent or acqulescence of the owner. This results from the elemental principle that the legal existence of the wife is merged in that of the husband. It follows from this that the complainant cannot recover. Decree affirmed.
H. S. Garland and R. J. Meigs for Marable.
G. C. Boyd and F. B. Fogg for Jordan.
The Weekly Nashville Union, (Nashville, TN) Wednesday, February 12, 1845; Issue 37; col G - transcribed by, Amanda Jowers

Supreme Court of Tennessee, December Term, 1844.
James Stockard's heirs vs. Nathaniel Robards.
If the case made in the bill is denied in the answer and not sustained by proof, the court will not decree relief upon the answer, except when the case is made by the answer and not by the proof.
The bill alledges that James Stockard died siezed of lands - that Abram Looney administered and sufered judgments without pleading fully administered, upon which judgments without sci. fa. to the heirs, exections issued, were levied on the land, and that said Looney, as administrator, bought and conveyed to defendant. The answers make the following case: The judgments were obtained against Stockard in his life time - the land sold in his life time, and purchased by Smith, from whom Looney, as administer, redeemed. Robards further answered that he was an innocent purchaser for valuable consideration, & c. The proof wholly fails to sustain the case made by the bill - Looney died, and being insolvent, no administrator was appointed and the bill was dismissed below as to him. The question then was, whether the court could go on and give relief on the case made in the answer: and the Chancellor (Bramlett) was of opinion that such relief ought to be given, and relied upon the failure of Robards to state in strict technical form his defence as an innocent purchaser for value.
The Supreme Judges (Reese giving the opinion) reversed the decree below, upon the ground that the allegations of the bill are denied by the answer and not proved, and that the answer does not present one of the cases in which relief will be given on the answer when the case stated in the bill is not made out. The case on which the relief below was based, was one made out in the proof, but not stated in the bill or answer, and the relief is given on the case made in the proof, because Robards failed to plead in precise and technical terms his character of innocent purchaser. The court say: "How could he be expected in his answer to defend himself against a case to be made on the proof, but not made in the bill. A case more strongly calling upon the court not to go beyond the doctrine of rose & Mynatt could not well be inagined." - The principle in that was, that if the defendant make out a case for relief in his answer the court will decree thereon - but to go further would be to abandon all precision in pleading. Bill dismissed.
W. H. Humphreys for Stockard heirs.
F. B. Fogg & E. H. Ewing for Robards.
The Weekly Nashville Union, (Nashville, TN) Wednesday, February 19, 1845; Issue 38; col F - transcribed by, Amanda Jowers

Supreme Court of Tennessee, December Term, 1844.
Patrick Maguire vs. Sam. Caruthers' Adm'r., &c.
An allegation in a bill as to one matter which would give equity jurisdiction, will not authorise relief on another allegation contradictory to the former.
In what cases an answer will be a waiver of objections liable to demurrer.
The bill charges that, in 1836, David Looney executed a note to John Caruthers for about $2,000, and signed thereto the name of D. Looney & Co. - that at the time Francis, and not Patrick Maguire was the member of the firm of D. Looney & Co., and that this fact was well known to said Caruthers - that there is a large amount of usury embraced in the note - and that defendant, as administrator of John Caruthers, has commenced suit at law on the note, and asks for injunction, &c.
The Chancellor (T H Cahal) was of opinion that the court had jurisdiction of the case, and that the proof sustained the charges in the bill, and decreed a perpetual injunction.
The Supreme Judges (Greene giving the opinion,) were of opinion that the allegations of the bill do not make a case for the jurisdiction of a Court of Chancery. The allegation as to usury will not authorise the court to take jurisdiction, when the relief given is based upon a ground wholly inconsistent witht he allegation of usury. "The mere statemen (says Judge Greene) in the bill of facts upon which the jurisdiction might be maintained, but which are not proved and upon which no relief is decreed, will not authorise a decree upon such parts of the bill as, if standing alone would not give the court jurisdiction. Much less will the statement of a ground of relief directly contradictory to the grounds of the decree justify such assumption of jurisdiction."
In answer to the position that defendant had waived any objections is the jurisdiction by answering and not demurring the court say: "A defendant may often, by answering a bill, waive objections of which he would avail himself by demurrer" - as in 3 Hump 656 , and similar cases. But where the subject matter is of exclusive cognizance in courts at law the answer of a defendant has no effect on the question of jurisdiction. 3 Hump, 646; 5 Bro Parl Cases, 575 - Bill dismissed without prejudice.
A. O. P. Nicholson for Complainant
W. H. Humphreys for Defendant
The Weekly Nashville Union, (Nashville, TN) Wednesday, February 19, 1845; Issue 38; col F - transcribed by, Amanda Jowers

Supreme Court of Tennessee, December Term, 1844.
James G. Booker et al vs. Mary A. Booker et al.
When the first taker under a will has the unlimited power of disposal no valid executionary devise can be made thereof.
Peter R. Booker died in 1839, having made his will, in which he gave to his several children specific portions of his property, but leaving a large residuary property to be divided when his youngest child should come of age. Amongst the specific devises was one to Henry L. Booker in the following words: "I give my son Henry L. Booker my land on Little Bigby, purchased of Macon & Long; also, the one half of my mill and cotton gin on the Degraffenreid place; $6,000 worth of slaves; one half the stock on the plantation on the north of the river; and also on the coming of age of my youngest child, one of the stores and counting rooms in Columbia."
Another devise was in these words: "I give my son Albert my tract of land on Big Bisby, purchased of Degraffenreid, with half of the mill and gotton gin; $6,000 worth o slaves, &c., to be given to him on arriving to the age of 25 years; and as a means of support and encouragement from the time he arrives to the age of 21 years till 25, he is to have one-third of the nett profits of the plantation, &c. I give him also, one of my storehouses in Columbia; the property thus given not to be disposed of till he is 25 years of age, except by the conseat of my executors."
After giving off to his other children specific portions, the testator says. - "Should any of my children die without coming to maturity, or die without issue, either before or after coming of age, or should leave issue, which issue should die before coming of age, on either of these events, such portion of my estate so bequeathed to such child or children, is to be equally divided between my surviving children."
Henry L. Booker took into his possession the property specified above, and intermarried with defendant Mary A., and afterwards died without any issue living, but making his will, by which he gave his property to his widow.
James G. Booker, as executor of Peter R. Booker, filed the bill to have the will construed and to get possession of the property, claiming it as part of the estate of Peter R.
The Chancellor (Cahal) was of opinion that it was the intention of the testator to give to Henry L., as well as Albert the power of disposing of his portion, and therefore, that the clause limiting the property to the surviving children of the testator was void as an executory devise. He therefore decreed that Henry L. took an absolute title to the property, subject to be disposed of by his will.
The Supreme Court (Greene) reversed the decree below. They declare that the clause of the will which limits the property bequeathed to the issue of his children, and in the event of failure of issue, then to his own surviving children, creates a good executory devise so far as the portion of Henry L., in concerned, and that as he died without issue his portion goes back to his brothers and sisters. They could not discover in the will the intention of the testator to give to Henry L. the power of disposal of his share, although such power is given to Albert, a minor, and for whom Henry L. is appointed by the testator, testamentary guardian. The court were of opinion that Albert took an absolute estate in his share upon arriving at 25 years, and so decreed; upon the ground that he has by the will the right to dispose of his share, which right is inconsistent with the limitation clause, and therefore makes void that clause as to Albert. - In reference to the other children no construction was given by the court, because none was asked for.
S. D. Frierson & R. Houston for Compl'ts.
E. H. Ewing, W. H. Humphreys & Nicholson for Defendants.
The Weekly Nashville Union, (Nashville, TN) Wednesday, March 05, 1845; Issue 40; col F - transcribed by, Amanda Jowers

Supreme Court of Tennessee, At Knoxville, September Term, 1844.
Hunter vs. Bryan et als.
To create an estate in fee simple the conveyance must be to the purchaser and his heirs.
On the 8th of January, 1813, John Hunter executed a deed to Thomas Hunter for a tract of land, in which he used this language. "I release all my right, title and claim in and to a tract of land to Thomas Hunter." &c. Thomas Hunter took possession and resided on it for about thrity years and died. His widow filed her bill for dower, and the question was, what estate did her husband take under the deed. The Chancellor was of opinion that her husband took only a life estate.
The Supreme Court (Turley) affirmed the decree made below. They say that they are constrained by long and well settled principles to hold it only an estate for life. To create an estate in fee simple, the land must be conveyed to the purchaser and his heirs.
Nelson for Complainant.
McKinny & Sneed for Defendants.
The Weekly Nashville Union, (Nashville, TN) Wednesday, March 26, 1845; Issue 43; col G - transcribed by, Amanda Jowers

Supreme Court of Tennessee, At Knoxville, September Term, 1844.
White vs. Campbell et als.
A note executed to a defunct corporation is null and void. When a corporation expires, its real estate reports to the frantor, its debts are extinguished and its personal estate goes to the people.
On the 19th of January, 1844, Campbell executed his note to the President, Directors & Co. of the Bank of the State of Tennessee, and at the same time gave a deed of trust to secure the debt. On the 19th of February, 1844, White obtained a judgment against Campbell, and thereupon filed his bill to have the deed of trust set aside as an illegal incumbance upon the property. The charter of the Bank had expired in November, 1841. The Chancellor below refused to declare the deed of trust null and void.
The Supreme Court (Turley) reversed the decree below. The bank was not in existence when the note and deed of trust were executed. From this it follows, that both the note and deed of trust are inoperative and void - the one for the want of a payee, and the other for the want of a cestui que trust. 2 Kent 307. Upon the civil death of a corporation, all its real estate reverts back to the grantor and his heirs; the debts due to and from the corporation are extinguished, and all the personal estate vests in the people. These principles would prevent a recovery of the debt intended to be secured by the deed, even if it had been executed before the expiration of the charter; a fortiori will it, it having been contracted after. The note and deed of trust are therefore void.
W. G. Swan for Complainant
J. Crozier for Defendants
The Weekly Nashville Union, (Nashville, TN) Wednesday, March 26, 1845; Issue 43; col G - transcribed by, Amanda Jowers