Beard v. Beard

• Decision Date: 16 March 1929
• Parties: BEARD v. BEARD.
• Court: Tennessee Supreme Court

14 S.W.2d 745

158 Tenn. 437

BEARD v. BEARD.

Supreme Court of Tennessee.

March 16, 1929

Certiorari to Court of Appeals on Appeal from Chancery Court, Shelby County; D. W. De Haven, Chancellor.

Divorce action by Allie E. Beard against Whitfield Beard. Decree for plaintiff was affirmed by the Court of Appeals, and defendant brings certiorari. Certiorari denied.

W. C Rodgers, of Memphis, for appellant Whitfield Beard.

B. F Booth, of Memphis, for appellee Allie Beard.

COOK J.

Certiorari to review the judgment of the Court of Appeals was denied. We have an application to rehear in which it is stated "that this is a court of last resort, unless there is some means of redress there must necessarily be, in many instances, not only a denial of justice but a right without a remedy." This statement is followed by others in which counsel says he is unable to point out the errors of this court in its action denying the writ of certiorari because no written opinion was filed.

By chapter 100, Acts of 1925, the Court of Appeals is constituted a court of final review and determination, except upon petition for certiorari presenting (1) errors of law, or (2) errors of fact, where there is nonconcurrence between the Court of Appeals and the trial court, or (3) concurrence without any evidence to support the conclusion.

When any of these questions are presented through petition for certiorari and assignments of error and brief, they are considered and determined by the Supreme Court after review and discussion in which all the members of the court participate, and action on such petitions is the action of the court and not one of its members.

Complainant sued her husband for divorce, and charged in the petition that, in an answer filed by him to her former divorce suit, in which she was unsuccessful, he falsely charged her with adultery and immorality. The chancellor and the Court of Appeals found that the charge was made by defendant Whitfield Beard, as alleged in the bill, and that the charge was false. There is material evidence to support the concurrent finding, and it is final, not open to review in this court. Bray v. Blue Ridge Lbr. Co., 154 Tenn. 342, 289 S.W. 504, Potts v. Coffman, 146 Tenn. 282, 240 S.W. 783.

The publication of a false accusation of adultery by a husband against the wife constitutes cause for divorce. Sharp v. Sharp, 2 Sneed, 496; Lyle v. Lyle, 86 Tenn. 372, 6 S.W. 878; McClanahan v. McClanahan, 104 Tenn. 217, 56 S.W. 858.

Concurring on the propositions of law and fact, both courts declared the wife entitled to a divorce and gave her the homestead.

In respect to the realty out of which the homestead was taken, it was charged in the bill that defendant Beard is a preacher, and that, while on one of his ministerial excursions, he induced his wife to go North with him, and while on that trip he deserted her; that before the desertion he endeavored to induce her to join in a conveyance of the real estate in Memphis; and, after her refusal, that he fraudulently connived with defendant Nash and had Nash sue him for $500, and permitted judgment by default before a justice of the peace.

It is further charged that, in promotion of the scheme, an execution was issued, levied on the real estate owned by defendant, Beard, and that said real estate, appraised at $2,800, was sold and bid off by Charles T. Everett for $550. No homestead was set apart. Notwithstanding the real estate consisted of a number of lots, all the lots were sold.

Upon these facts the complainant sought to have the sale set aside and to subject the property to a claim for alimony. In the alternative, she prayed that the homestead be vested in her as provided by statute. The sale was not set aside, and the decree for divorce did not include alimony within the meaning of sections 4221-4223, Shannon's Code. But in the decree granting a divorce to the complaining wife, the homestead was vested in her, as provided in section 3810, Shannon's Code, which reads:

"If the head of a family is married, and his wife obtain a divorce on account of his fault or misconduct, the title to the homestead shall be vested, by the decree of the court granting the divorce, in the wife, and, after her death, it shall pass to the children."

By force of this statute, when the wife obtains a divorce from her husband on account of his fault or misconduct, and all divorces must rest on the fault or misconduct of the opposite party, the homestead passes to the wife. Jackson v. Shelton, 89 Tenn. 82, 16 S.W. 142, 12 L. R. A. 514. The statute is not self-executory. The homestead does not pass to the divorced wife, unless she asserts the right under the statute in her petition authorizing action of the court which is necessary to clothe her with the right given by the statute. Moore v. Ward, 107 Tenn. 731, 64 S.W. 1087.

The statute, however, is imperative, and its mandate must be observed when the wife obtains a divorce under a bill praying that the homestead be vested in her. Under such circumstances, it becomes the duty of the court to vest the homestead in the wife who has successfully prosecuted her divorce suit. Belcher v. Belcher (Tenn. Ch. App.) 57 S.W. 382.

The chancellor and the Court of Appeals concurred in finding (1) that complainant went out of this state by invitation of her husband, and the corollary of that finding is that she did not abandon her homestead right by her act of leaving the state; (2) that she returned to Tennessee, where both resided, when the divorce suit was filed and right to the homestead asserted; (3) that the husband did not desert the wife as she alleged in her bill, but that she left him, and no divorce could be predicated upon the allegation by the wife that the husband was guilty of desertion, but both courts found that the husband made a charge of immorality and adultery against his wife in his pleading...