Downs v. Allen

• Decision Date: 31 December 1882
• Citation: 78 Tenn. 652
• Parties: Tempe Downs v. James C. Allen et al.
• Court: Tennessee Supreme Court

78 Tenn. 652

Tempe Downs

v.James C. Allen et al.

Supreme Court of Tennessee.

December Term, 1882.

FROM DAVIDSON.

Appeal from the Chancery Court at Nashville. E. H. EWING, Sp. Ch.

JORDAN STOKES and JOHN LAWRENCE for Complainant.

N. BAXTER, SR., EAST & FOGG, SMITH & ALLISON and J. P. HELM for Defendants.

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

The bill in this case was filed June 30, 1868, by the complainant, Tempe Downs, as a free woman of color, to recover, in whole or in part, from the defendants the estate, real and personal, of one W. B. Downs, a free man of color, who died in March, 1846, at Nashville, where he had long resided. The chancellor, upon final hearing, held that the complainant's right of action was barred by the statute of limitations, except her claim to dower, as widow of W. B. Downs, in the realty of which he died seized and possessed. He ordered an account of rents with a view to ascertain her one-third thereof, and appointed commissioners to allot dower. The accounts ordered were taken, exceptions thereto filed and heard, and a final decree rendered. The commissioners reported that the lands were so situated as not to admit of a specific allotment of dower and a sale was ordered. The complainant and the principal defendants appealed.

W. B. Downs was the slave of W. P. Downs, being the son of a black woman by a white man, and was regularly emancipated by order of the county court on September 13, 1830, having bought his freedom from his master. While a slave he had cohabited with a black woman named Dinah, whom he afterwards bought, taking from her owner a bill of sale to himself on June 28, 1831. He was employed as a servant in a hotel at Brownsville, Tennessee, and being thrifty purchased a lot in the town, built a cabin on it, and placed Dinah in possession. She was employed to do washing for the hotel. There can be no doubt that Downs and Dinah continued to cohabit together, but, so far as appears, without any formal marriage ceremony, and without any actual residence by Downs with her, his duties at the hotel requiring his presence there day and night. In the year 1840, Downs seems to have reconveyed Dinah by bill of sale to the original owner, which was, however, intended only as a protection to her under the then existing State laws touching free persons of color. She continued to act as a free person of color, living on the lot until her death, which occurred some years after the date of Downs' death.

In 1833, Downs moved to Nashville, and became steward in the Nashville Inn, the principal hotel of the city. The complainant, Tempe, was a chambermaid at the same hotel. She was the slave of one Thomas Crutcher. With the consent of a former owner, she had cohabited with another slave as man and wife, but the relation had been put an end to by the master because of the cruelty of the husband to her. The husband afterwards took up with or married another woman by whom he had children. Shortly after Downs came to Nashville, he and Tempe began to cohabit together. About the year 1835, Thomas Crutcher, the owner of Tempe, seems to have permitted her to act as a free person upon the understanding that she should pay for herself a certain sum of money. Having afterwards paid for herself, on December 2, 1840, as stated in the bill and conceded in argument, Thomas Crutcher, by bill of sale reciting the consideration, conveyed Tempe to John H. Eaton and James B. Ferguson, “on the express trust and condition that they, or either of them, shall hold and possess her upon the terms of setting her free so soon as the same can be done, and until this be effected she is to have and enjoy her own time and be subject to her own control without the interference or disturbance of any one.” This instrument as copied in the record has no date, but it is acknowledged by Crutcher for registration on the 24th of January, 1842, and was noted for registration on the same day, and actually registered two days thereafter.

In the meantime, with the consent of Thomas Crutcher, in the year 1837, Downs and Tempe were formally married by a minister of the gospel, a free man of color, a large company being invited for the occasion, and for an “infair” held in honor of the event. From that time Downs and Tempe lived together as man and wife, and were so considered and treated by the community, white and black. About the year 1840, Tempe seems to have become the chambermaid on one of the large steamers then plying between Nashville and New Orleans, and so continued until the death of Downs and for years thereafter. Downs was thrifty, and about 1842 or 1843, began to purchase lots in Nashville, and improve them. He used for these purposes, no doubt, the earnings of himself and Tempe, and money borrowed from others, and among others from his former owner, W. P. Downs, who had also removed to Nashville. W. B. Downs died in March, 1846, and at the April term thereafter of the county court, W. P. Downs and W. E. Cartwright were appointed and qualified as his personal representatives. The debts of the estate exceeded the personal assets. On March 1, 1847, John H. Eaton and James B. Ferguson, styling themselves trustees of Tempe, filed a bill in the chancery court against W. P. Downs and W. E. Cartwright, as administrators of W. B. Downs, deceased, the State of Tennessee and Caroline Sumner, to recover about $500 in money alleged to belong to Tempe, which had been received by W. B. Downs and deposited in bank as a special deposit, and taken possession of by his personal representatives as part of his estate, and to recover also the value of some household furniture.

This bill stated that the complainants had acquired by a conveyance from Thomas Crutcher the right to Tempe in trust to emancipate her whenever the tribunals of the State would permit it, and to receive, in the meantime, the proceeds of her labor for her benefit; and that Tempe was still their slave because the tribunals of the State would never permit her to be emancipated. The bill further stated that the deceased had Tempe for his wife, “but was not lawfully married to her and could not be, as she was the slave of the complainants.” It further stated that W. B. Downs left a brother who was a slave, whose master was willing to emancipate him if he were declared to be the heir; that otherwise the property would escheat to the State; that the administrators had taken possession of the realty as well as the personalty of the decedent and was using it for their own purposes; that the personal property was insufficient to pay the debts, and complainants had suggested the insolvency of the estate, etc. The State filed an answer by the district attorney-general, claiming the property of the estate as escheated. The other defendants permitted the bill to be taken for confessed. The court, upon a hearing, appointed W. P. Downs receiver of the real estate, and ordered proper accounts to be taken. The receiver made one or two reports, and some creditors filed claims, but no decree settling rights was ever rendered. On May 5, 1854, an?? order was made, reciting that it appeared that the Legislature had relinquished all claim to the estate of W. B. Downs, deceased, and that the defendant (meaning W. P. Downs), had possession of a portion of the estate, and was willing to pay costs and the fee of the State's counsel, upon being discharged as receiver. The case seems thereupon to have terminated, it otherwise appearing that Tempe proably received the fund she claimed and that the other creditors were paid off by the administrators.

In the meantime the Legislature passed, at different times, two acts which bear upon the rights of the parties in this case. On January 10, 1850, was passed the act of 1??, ch. 54. By the first section, it was enacted that when any person shall hereafter die intestate, leaving no heirs at law capable of inheriting real estate under the laws of Tennessee, by leaving a widow, the widow should be entitled in fee simple to all the real estate of which her husband died seized and possessed. The second section is: “That all the provisions of this act shal?? be extended to and embrace all cases in which persons may have heretofore died intestate, as mentioned in the first section of this act, as well as those who may hereafter die intestate, and for the recovery of such real estate suits have not been brought, or, if brought, have not yet been determined.” On March 3, 1854, the Legislature passed the act of 1854, ch. 155, by which “all claims on the part of the State” were relinquished “to any and all property left by William B. Downs.” This latter act was procured by W. P. Downs.

The doubt as to the ultimate disposition of the surplus of the estate of W. B. Downs, after payment of debts, grew out of the status of Downs and Tempe, at the time of Downs' death, under the laws of this State. This surplus consisted of realty. Downs, it is sufficiently shown, was the son of a negro woman slave by a white man. He was himself a slave until emancipated. His mother had another son by a black man, and this son was a slave at the death of Downs. Under the act of 1819, ch. 13, the act then in force regulating the descent of the property of an illegitimate person, Downs' property would have gone to his half brother. But that brother being then a slave with no right to freedom, present or prospective, was incapable by law of taking property by descent: Turner v. Fisher, 4 Sneed, 209. If Tempe was the widow of W. B. Downs, and was capable of taking property, she was only entitled to dower in the realty by the law existing at the date of her husband's death. In the absence of heirs capable of inheriting or taking the property, it escheated to the State for the use of common schools. It was for this reason the State was made a party to the bill of Eaton and Ferguson.

Such being the state of affairs, W. P. Downs, who as we have seen, was the...