Emmett v. Emmett

• Decision Date: 31 December 1884
• Parties: HANNAH EMMETT v. JOELLA EMMETT et al.
• Court: Tennessee Supreme Court

82 Tenn. 369

HANNAH EMMETT

v.JOELLA EMMETT et al.

Supreme Court of Tennessee.

December Term, 1884.

FROM DAVIDSON.

Appeal from the Chancery Court at Nashville. A. G. MERRITT, Ch

J. P. HELMS for complainant.

SMITH & ALLISON, JOHN M. GAUT and A. MCCLAIN for defendants.

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

Complainant claims dower and homestead in certain real property situated in Edgefield, Davidson county, Tennessee, under the following state of facts:

She is a citizen of Bradford, in the county of York, England, and intermarried with one Joseph Emmett, a citizen of England, in said county of York, where they resided for several years as husband and wife, when the said Joseph deserted his wife, without cause, came to Nashville, and about 1870, married defendant, Joella, by whom he had several children. He died in 1878 leaving his supposed wife and children. The real estate left has been assigned to defendant, Joella, as homestead and dower and this bill is brought to recover it by the first wife, are [on] the facts stated.

The assumed husband dying in 1878, the law then existent is to govern the rights of the parties. Possession in the head of the family was required in order to its existence. This was changed afterwards by the act of 1879.

We need only say, as to this claim, that by the clause of the Constitution giving or providing for the homestead right in our State, it is treated as an exemption from sale under legal process, and only to be aliened by the consent of the wife. It belongs to the class of laws known as exemption laws, and these have been uniformly held only to apply to, and be for the benefit of, our own citizens. See Article 11, section 11, Constitution.

Mr. Thompson, in his work on Homestead, section 91, says: “The general rule is, notwithstanding difficulties may attend its application that domicile in any State is necessary to entitle a person to a homestead right therein.” This would be the result under the holding of this court, that a removal from the State by the wife, is an abandonment or forfeiture of the right; and this is conclusive of the claim of complainant, for it could not be held that if she had been a citizen and had removed from the State to England, that the right would not [the context shows that this word “not” should not be here] exist and yet, she being a citizen and resident of a foreign government--not even naturalized in the United States, both at the death of the husband and now--shall have homestead in lands here.

The next question is, can she have dower? The case is, if an alien husband, who after desertion of wife abroad, settles in this State, leaving an alien wife who claims this right, can such a widow claim dower?

Section 3244 (new Code), substantially the act of Legislature of ancient date in our State, is: “If any person die intestate, leaving a widow, she shall be entitled to dower in one-third part of all lands of which her husband died seized and possessed, or of which he was equitable owner.”

The common law on the subject of the domestic relations, and especially that of husband and wife, is the law of this State, except as modified by our statutes: McCorry v. King's heirs, 3 Hum., 267. At common law, an alien could acquire a defeasible title to land by devise or purchase, but he could take no title by mere operation of law, as under the laws of descent, of dower, or of curtesy: Waite's Act. & Def. vol. 6, page 460; 2 Kent's Com., 54. See also numerous cases cited by Waite, page 460.

The question then, is, have our statutes changed or modified this rule? They will be found embodied in new Code from section 2804 to section 2807, and sub-sections. By first of these sections, “an alien resident may take and hold property, real and...