Allen v. McCullough

• Decision Date: 31 December 1870
• Citation: Allen v. McCullough, 49 Tenn. 174 (Tenn. 1870)
• Parties: Nathan J. C. Allen et als. v. James McCullough et als.
• Court: Tennessee Supreme Court

49 Tenn. 174

Nathan J. C. Allen et als.

v.James McCullough et als.

Supreme Court of Tennessee.

December Term, 1870.

FROM WILSON.

In Chancery at Lebanon, B. L. Ridley, Ch., presiding at April Term, 1861; John P. Steele, Ch., presiding at April Term, 1866, and allowing the bill of review to be filed; Henry Cooper, J., at October Term, 1866, and December, 1866.

Stokes & Son, for complainants, contended that a bill of review did not lie from a decree entered by consent: 10 Yer., 55, 7;3 Yer., 378, 9; Webb v. Webb, 3 Swanst, 658; nor would an apeal or re-hearing: Atkerson v. Monks, 1 Crow., 709; Kane v. Whitlick, 8 Wend., 219; French v. Shotwell, 5 Johns. Ch., 564; 2 Madd. Ch., 577; McRae v. David, 7 Rich. Eq., 376. Decree binds him so that he would be liable if she had died. The affidavit for the bill of review is insufficient, Colville v. Colville, 9 Hum., 524;Frazer v. Sypert, 5 Sneed, 100, 1. Divorce does not release husband, 2 Scribner on Dower, 508, 9; McQueen Husb. and Wife, 211; Bacon Ab., Baron & Feme, F.; Jones v. Walker, 5 Sneed, 135;Wait v. Wait, 4 N. Y., 100, 1, 109; Code, 2471, 2472, 3; Ames v. Norman, 4 Sneed, 683;Forrest v. Forrest, 6 Duer, 102;Burr v. Burr, 10 Paige, 25, 6;Mansfield v. McIntyre, 10 Ohio, 28;Gillespie v. Worford, 2 Cold., 632; Bishop, Mar. & Div., sec. 705. Mr. Bishop's views and cases do not apply, under our statute, Bishop, Mar. & Div., 3 ed., 661, 666. He is clearly liable for what came to his hands, 1 Hill, (S. C.,) 410; 3 Monroe, 354;7 Monroe, 339;2 J. J. Marshall, 190;4 Id., 215.

Williams & Martin, for defendant, insisted that the husband was discharged by divorce, 2 Lomax on Ex'rs, 501, 2; 2 Bright on Husb. and Wife, 22, 33. It is like a marriage dissolved by death, Chenault v. Chenault, 5 Sneed, 250. He should only be charged for his own breach of trust, 1 Sto. Eq. Jur., sec. 582; Adair v. Shaw, 1 Sch. & Lef., 273; 2 Bright on Husb. and Wife, 22, 36. In reply to a suggestion that a wife divorced was entitled to dower, they inquired what would be the result if the husband left more than three divorced wives living.

J. J. Turner, with them on release of husband by divorce, cited 2 W'ms on Ex'rs, 1562, m; 2 Lomax on Ex'rs, 2 ed., 305, 501 m; 1 Roper, 187; 2 Bright on Husb. and Wife, 22, 25, 27, 30; Reeve Dom. Rel., 1; Clancy on Husb. and Wife, 13, 14, 18; 5 J. J. Marshall, (Ky.,) 214; 9 B. Monroe, 412; 13 Ves., 3 B. Monroe, 354;2 Dana, 238; 28 Law Lib. --; 1 Sch. & Lef., 262, 5; 1 P. W'ms, 466; 3 Id., 409; Cord on Married Women, 880, 1, 2; Bishop, on Mar. & Div., 660, 668; 17 Mo., 87;10 Paige, 420, 421;8 Mass., 20, Mo., 363.

NELSON, J., delivered the opinion of the Court.

Complainants, Nathan J. C. and Robert F. Allen, are the children of the defendant, Susan F. McCullough, by her first husband, Robert C. Allen, who died intestate in March, 1842. After his death, she intermarried with William P. Harris; and complainant, Martha Ann, is the only issue of the second marriage. William P. Harris died intestate in the year 1849, and the defendant, Susan, intermarried with co-defendant, James McCullough, in the month of October, 1855. A separation occurred in the month of December, 1860; and McCullough, in the year 1864, filed a bill for divorce, against his wife, in the Circuit Court of Wilson, which was dismissed by said Court on the 23rd of September, 1865; and, at the same time, a decree was pronounced in her favor, on her answer and cross bill, and a divorce was granted, on the ground of the adultery of her husband. During the marriage, and on 19th April, 1860, this bill was filed for the purposes of having the right of complainants declared to the tract of 260 acres of land mentioned in the pleadings; of causing their interest in certain slaves to be ascertained and determined, and of compelling an account as to the guardianship of complainants.

It seems that defendant, Susan F., was qualified as their guardian, at the January Term, 1852, of the County Court of Wilson County, and continued to act as such until 1860, when the complainant, Nathan, having attained his majority, was duly qualified as guardian of complainants, Richard F., and Martha Ann. Complainants, Nathan and Richard F., c??iaim that their father, Robert C. Allen, was the owner of a tract of land of seventy-five acres, which descended to them as his sole heir at law; that the rents and profits thereof were received by their mother, Susan F., before her inter-marriage with the said James McCullough, and by her and her husband afterwards. They further claim an interest in certain slaves, under a deed of gift from their grand-father, bearing date 8th April, 1842; and all the complainants claim an interest in his estate under the will of their said grand-father, John Jarratt, bearing date 12th September, 1848.

McCullough and wife having filed separate answers, the case was regularly heard in the Chancery Court at Lebanon, and on 11th April, 1961, a decree was regularly pronounced, in which various facts were stated as appearing to the satisfaction of the Chancellor, and by which the Master was directed to take and state an account, and to charge the defendants with two-thirds of the rents and profits of the tract of land known in the pleadings as the Bend tract, and two-thirds of the reasonable hire annually of the slaves, and their increase, conveyed by said deed of gift of 8th April, 1842, beginning with the years that defendant, Susan F., obtained possession of said land and slaves, “and to the first of last year as to the land.” Minute directions were given in said decree as to the mode of taking and stating the account, and the parties were authorized to take additional proof, and to examine each other on interrogatories touching the matters of reference, and the Master was directed to make his report to the next term. So much of the complainant's bill as seeks to pursue their trust fund into the home tract of land, was dismissed, and the costs were equally divided between complainants and defendant, James McCullough. Complainants prayed an appeal as to so much of the decree as dismissed their bill in regard to their home tract, and taxed them with one-half of the costs, but the Chancellor declined to grant the appeal before the coming in of the Master's report. The settlements made by defendant, Susan F., as guardian, were set aside by said report, and, at the instance of her husband, she was directed to file with the Master all her books of account and vouchers as guardian.

The case appears to have slumbered during the war, and until 10th October, 1865, when the death of Richard F. Allen, one of the complainants, was declared by an interlocutory order; and it appearing that the account had not been taken, said order proceeds as follows: “On motion, with the consent of the solicitors of the parties, it is ordered that the decree of reference heretofore pronounced in the case be revived, and the Clerk and Master be required to take and report to the next term the account therein ordered; and that this cause stand and be revived in the name of such person or persons, as may be qualified as administrator on the estate of said Richard F., from and after the filing of letters of administration in the office of said Clerk and Master; but no steps, in taking the account, shall be taken until the filing of said letters.” It is stated, in the record, that F. A. Chandler filed his letters as administrator of Richard F. Allen, deceased, on 6th November, 1865, and the Master proceeded to hear proof and filed his report, 2d April, 1866. Exceptions were filed 13th April, 1866, in behalf of McCullough, the seventh and last of which is as follows, viz: “He also excepts upon the ground that James McCullough is not responsible for anything from 1842 to October, 1855, for the reason that he and his wife, Susan, were divorced in 1865, before the account was taken, and he is not responsible for any amount, save where he receiv??cd assets; and he is not responsible, since 1855, for the devastavits of Susan McCullough, which he did not participate in, now having no assets of his former wife, and having paid out more than he received.”

Apparently distrustful as to the propriety of presenting such new and important matter in the form of an exception to the Master's report, the defendant, James McCullough, made application to the Chancellor for leave to file a bill of review, and on 14th April, 1866, an interlocutory decree was made, in which it is stated that the conditions necessary for filing such a bill having been complied with, and the Court being of opinion that it was a proper case for filing such bill, leave was granted, and the complainants waived the issuance of a copy and subpoena, but without waiving any right of defense by plea, answer or otherwise. The complainants also excepted to the action of the Court in granting leave to file said bill. The bill of review was filed, however, on the same day, and among other things it is alleged that the complainants are seeking to hold the said James McCullogh liable for the sum of $8,500, with interest from 1st April, 1866, reported by the Master; that he married the defendant, Susan, in October, 1855, and they lived together until March, 1860, when they parted; that she was divorced from him 23rd September, 1865, by a decree of the Wilson Circuit Court, a copy of which he exhibits; that it is shown by the report that $3,137 of the amount reported had passed into said Susan's hands before the marriage, making, with compound interest, about $6,000 of the amount reported; that the said James ought not to be held to account for any part of the liability which accrued during the marriage, unless he participated therein or received the assets; that he did not then have any of the property of said Susan, except one or two articles of furniture not worth more than thirty dollars, and could not be made liable for the value of her property, or any pecuniary liability...