Childress v. Black

• Decision Date: 30 June 1836
• Citation: 17 Tenn. 317
• Court: Tennessee Supreme Court
• Parties: CHILDRESS & WYLEY v. BLACK AND WIFE.

17 Tenn. 317

CHILDRESS & WYLEY

v.BLACK AND WIFE.

Supreme Court of Tennessee.

June Term, 1836.

This was a proceeding by Black and wife against the plaintiffs in error. The cause was tried before three justices of the peace and a jury, in Rome county, on the 9th and 10th days of July, 1835, when a verdict was rendered for the plaintiffs, Black and wife. The cause was removed to the circuit court of that county by certiorari, returnable to its September term, 1835, at which term the defendants, Childress and Wiley, by their counsel, had a rule entered to quash the proceedings, and at the same term the plaintiffs below moved the court to dismiss the certiorari. The circuit court refused to quash the proceedings, but sustained the motion to dismiss the certiorari, which was accordingly done.

The petition for the certiorari stated the material facts, which are adverted to in the opinion of the court, and are there stated. In the argument of the case it was insisted that the proceedings before the magistrates were defective in several particulars, which were pointed out by the counsel, but, as the court was of opinion that, if such defects in fact existed, the plaintiffs in error could not take advantage of them, it is deemed unnecessary to particularly specify them.

Childress, J. Williams, and R. M. Anderson, for plaintiffs in error.

G. W. Churchwell, for defendants in error.

REESE, J., delivered the opinion of the court.

It seems from the record in this case that a certain Gideon Morgan, Sr., in 1821, was owner in fee and possessed of lot No. 39, in the town of Kingston, upon which is a brick dwelling-house, etc., which he conveyed to a person called Edmond T. Morgan, who occupied the same for some time, and departed this life; after which the said Gideon Morgan was in possession of the lot, rented it out and received the rents, and continued to exercise over it acts of ownership until his death. After his death his widow continued the possession by her tenants for many years, receiving the rents and exercising acts of ownership, until her marriage with defendant Black, in whom the possession continued until the 9th of June, 1835, when it was taken by Childress and Wiley. For some time before that period there had been no tenant occupying the premises, but the house was kept locked up, and Black retained the key. On the 5th of June, 1835, Childress and Wiley procured a deed from a certain Daniel and his wife, the latter of whom had been the widow of the person called Edmond T. Morgan, and had survived the only child of the said Edmond.

On the 9th of June, 1835, Childress and Wiley told Bird, a witness, that they had bought the lot aforesaid and were going to take possession of the house, and asked witness to accompany them, saying they had the original key.

He went with them, but does not know whether they used the key to open the door; but they opened the door and went in. Black shortly after came to the house; Childress stood in the porch with Black, and Wiley in the door with his pocket-knife in his hand. Black told them to go peaceably out of his house. They told him it was their property, and they would hold the possession unless taken from them by better title. Childress took witness into a back room; said Black was very hot or angry, and it was possible would use violence to take the possession, and asked if witness had arms. Witness gave his opinion that Black had none, and would not use violence. Bailey, a witness, proved that Wiley, speaking to him of the above-mentioned interview with Black at the door of the house, said that he had the possession, and was determined on keeping it; that he had no property within the house, and knew if Black had entered the house he would have had possession as much as he ha...