Denny v. Sumner County

• Decision Date: 11 March 1916
• Citation: 184 S.W. 14,134 Tenn. 468
• Parties: DENNY v. SUMNER COUNTY ET AL.
• Court: Tennessee Supreme Court

184 S.W. 14

134 Tenn. 468

DENNY v. SUMNER COUNTY ET AL.

Supreme Court of Tennessee.

March 11, 1916

Appeal from Chancery Court, Sumner County; J. W. Stout, Chancellor.

Bill for injunction by W. R. Denny against Sumner County and another. Decree for defendants, and complainant appeals. Reversed, with decree for complainant.

Ed T Seay, of Nashville, for appellant.

Geo. W Boddie, of Gallatin, for appellees.

WILLIAMS J.

The bill of complaint was filed by Denny to enjoin the county of Sumner and the board of equalization of that county from making an assessment of complainant's personal estate and to prevent collection of taxes based on any such assessment. The preliminary steps had been taken to assess complainant's holdings of personal property in that county at $40,000 for the year 1915, and the tax authorities of Trousdale county also made an assessment of the property for that year in the same amount, claiming that situs for taxation was in the latter county.

Denny was born in Smith county, Tenn., in 1867, and had his domicile there until 1902, when he removed to Trousdale county, in this state.

In 1913 he sold his farms in Trousdale and Smith counties, and also his personal property, with only a few exceptions. He was at that time, and has since remained, a widower; he and a son 15 years of age constituting his family.

Not finding the school advantages of Trousdale county adequate as he thought, he considered going to Lebanon, Wilson county, or to Gallatin, Sumner county, for the purpose of placing his son in school. He was persuaded by a close personal friend who lived in Gallatin to choose the latter place, and he went there early in 1914 and placed his son at once in a boys' training school. At first he rented a house and 21 acres of land that surrounded it. Later, finding that this place was on the market at $10,000, he purchased it at about $8,000, but as an investment. The acreage was located in the suburbs of Gallatin and he was pursuaded by his friend that it was or would become valuable for subdivision purposes.

Before going to Gallatin Denny had this friend to ascertain from a leading attorney of the Gallatin bar whether his going to that place for the purpose of educating his son would operate to change his domicile; his desire being to retain his legal residence in Trousdale county. He was assured that it would not. He took up his abode, along with his son, in Gallatin for the purpose indicated, and, as he testifies, with the intent not to make it his permanent home. The proof discloses his intention to be: To purchase a farm in some county of this state when one could be found that was satisfactory, and to make his permanent residence at the place where it was purchased; to place his son later on in Vanderbilt University, at Nashville, and to go there and abide (if a farm had not been purchased at the time) while his son was going through a college course; and, if a farm had not been found elsewhere, to go back to Trousdale county and purchase one there when his son was through school. He was a farmer, and purposed bringing up his son as a farmer after the education of the latter was completed.

Complainant made unsuccessful efforts to buy farms in Sumner, Williamson, and Maury counties; and, as stated, he testifies that he had no intention of residing permanently in Gallatin, or in Sumner county, unless he should succeed in making the purchase of a farm there. The other proofs as to his contemporaneous declarations are to the effect that his intention was to retain domicile in Trousdale county; that he had no purpose to remain in Gallatin permanently, but to use it as a base for educating his son and for finding a farm in some Tennessee county; no particular county being in mind.

Denny has continued all along to vote in Trousdale county and to pay taxes on personalty there.

In this state we seem to have no reported case dealing with the subject of domicile in respect of the place of taxation of personal effects. However, we have cases in which domicile has been defined when the same had relation to other subject-matters. Some of these cases are pertinent to the one in hand. Thus Allen v. Thomason, 11 Humph. (30 Tenn.) 536, 54 Am. Dec. 55, and Kellar v. Baird, 5 Heisk. (52 Tenn.) 39 (relating to succession); Layne v. Pardee, 2 Swan (32 Tenn.) 232 (marital rights); Pearce v. State, 1 Sneed (33 Tenn.) 66, 60 Am. Dec. 135 (elective franchise); White v. White, 3 Head (40 Tenn.) 405; Williams v. Saunders, 5 Cold. (45 Tenn.) 60 (forum for probate of will) and Keelin v. Graves, 129 Tenn. 103, 165 S.W. 232, L. R. A. 1915A, 421, and Hascall v. Hafford, 107 Tenn. 355, 65 S.W. 423, 89 Am. St. Rep. 952 (exemptions). See, also, other cases discussing domicile in relations that do not furnish so close an analogy. Foster v. Hall, 4 Humph. (23 Tenn.) 346, and Stratton v. Brigham, 2 Sneed (34 Tenn.) 420 (residence for attachment purposes); Sparks v. Sparks, 114 Tenn. 666, 88 S.W. 173 (residence for divorce); and Laue v. Grand Fraternity, 132 Tenn. 235, 177 S.W. 941, L. R. A. 1915F, 1056 (forfeiture of life insurance).

For purposes of taxation of personal property one must, of course, have a domicile fixed in some particular county and municipal corporation or civil district of the state.

"Domicile" and "residence" are not synonymous in the law relating to situs for taxation, "domicile" importing a legal relation existing between a person and a particular place based on actual residence, plus a concurrent intention there to remain, as at a fixed abiding place.

A man may have two or more residences, but only one domicile or legal residence. He must have a domicile somewhere; he can have only one; therefore, "in order to lose one, he must acquire another."

The law will, from facts and circumstances, fix a legal residence for him, unless he voluntarily fixes it himself, and, when his legal residence is once fixed, it requires both fact and intention to change it. As contradistinguished from his legal residence, he may have an actual residence in another state or county. He may abide in the latter without surrendering his legal residence in the former, provided he so intends. His legal residence, for the purpose indicated, may be merely ideal, but his actual residence must be substantive. He may not actually abide at his legal residence at all, but his actual residence must be his abiding place. Tipton v. Tipton, 87 Ky. 245, 8 S.W. 440; Long v. Ryan, 30 Grat. (Va.) 718.

To constitute a change from a domicile to another domicile of choice, as is claimed in the instant case, three things are essential: (a) Actual residence in the other or new place; (b) an intention to abandon the old domicile; and (c) an intention of acquiring a new one at the other place. Sparks v. Sparks, supra; Foster v. Hall, supra.

The definition of "domicile" approved by the Supreme Court of the United States in the recent cases of Williamson v. Osenton, 232 U.S. 619, 624, 34 S.Ct. 442, 58 L.Ed. 758, 761 (domicile for divorce), and Gilbert v. David, 235 U.S. 561, 35 S.Ct. 164, 59 L.Ed. 360 (domicile for federal jurisdiction), is that given by Dicey in his Conflict of Laws (2d Ed.) p. 111. This definition is in negative form, and a change of domicile is said to be effected where there is a change of abode and "the absence of any present intention to not reside permanently or indefinitely in the new abode." The same essential factors, as we conceive, appear in the definition when thus phrased:

"As some writers express it, there must be an animus non revertendi and an animus manendi or animus et factum. Berry v. Wilcox, 44 Neb. 82, 62 N.W. 249, 48 Am. St. Rep. 706; Hayes v. Hayes, 74 Ill. 312, 316; Jopp v. Wood, 34 L. J. Ch. N. S. 212; Moorhouse v. Lord, 10 H. L. Cas. 272. The factum is the transfer of the bodily presence, and the animus is the intention of residing permanently, or for an indefinite period. A change of domicile therefore involves a question of fact and intent. The fact is easily proved because it is shown by the mere transfer of the bodily presence from the old to the new place of abode, but the intent with which the change is made is to be determined from the character of the residence, its object and purpose, in connection with the other evidence in the case. Residence in a particular place is a fact obvious to the senses, and cannot be easily mistaken, but its value in fixing domicile is unimportant unless accompanied with an intent of remaining permanently or indefinitely, or, as it is sometimes said, with no present intent of removing therefrom. Residence alone, however long continued, will not effect a change of domicile. On this point the authorities speak with practically one voice." Pickering v. Winch, 48 Or. 500, 87 P. 763, 9 L. R. A. (N. S.) 1159, and note.

Reference may be made parenthetically to an exception recognized in this state to the rule that a domicile once fixed remains until another is actually acquired, arising in event of a change from a domicile of choice to that of origin. Then, if the removal be with the intention to resume his domicile of origin, the latter is reacquired before it is reached, or even while the person is in itinere, "for it reverts from the moment the other is given up." Allen v Thomason, supra, citing Story on Conflict of Laws. The doctrine touching this exception is confined, however, to changes from one country...