Hux v. Russell

• Citation: 197 S.W. 865
• Parties: HUX et al. v. RUSSELL et al.
• Decision Date: 13 October 1917
• Court: Supreme Court of Tennessee

Page 865

197 S.W. 865

HUX et al. v. RUSSELL et al.

Supreme Court of Tennessee.

October 13, 1917.

Appeal from Chancery Court, Campbell County; Hugh G. Kyle, Chancellor.

Bill by Charles C. Hux and others against J. N. Russell and others. From a decree of the court of civil appeals reversing a judgment of the chancellor, complainants appeal. Affirmed in part, and reversed in part.

Roy A. Johnston, of Knoxville, for Charles C. Hux et al. W. A. Owens and J. N. Russell, both of La Follette, for J. N. Russell et al.

WILLIAMS, J.

M. A. Fine and wife, Mattie, were the owners as tenants by entireties of realty in Jellico. A building thereon was injured in its rental value by an explosion of a large quantity of dynamite in a car that was standing on the tracks of the Southern Railway Company. The husband alone brought suit at law against the railway company to recover damages. While the suit was pending he died, and the action was revived in the name of his administrator, A. J. Carr. The demand in suit was compromised, $500 being paid to Russell, the attorney of plaintiff Fine, and the administrator. After retaining the fee of himself and associate counsel, Russell paid the remainder to or on account of Mattie Fine, the widow of M. A. Fine, he being under the impression that the fund was hers by right, as the surviving tenant by entireties.

The present bill was filed by the distributees of M. A. Fine seeking to recover the fund (1) of Russell as wrongfully withheld from them, and (2) of the administrator and the surety on his bond for failure to collect. It is alleged in the bill and proven that the administrator did not collect any part of the fund.

The main defense urged is that the payment to Mattie Fine was warranted by law. The case having been developed on this theory, the proof is meager, and the rights of the defendants growing out of the payments that were actually made are not made clearly to appear.

The chancellor gave the complainants judgments against the attorney and the administrator. On appeal the court of civil appeals held that the net recovery in the action at law was properly treated as realty of which it was the product, and that the widow was entitled to receive it, as survivor, and reversed the chancellor's decree as to all defendants. Complainant distributees, being dissatisfied, have filed a petition for review and assigned errors.

A general rule of the common law is that the husband has full control of and the right, to the exclusion of his wife during coverture, to the rents, profits, and usufruct of the property held by himself and wife as tenants by the entireties. Ames v. Norman, 4 Sneed (36 Tenn.) 683, 70 Am. Dec. 269; Cole Mfg. Co. v. Collier, 95 Tenn. 115, 31 S. W. 1000, 30 L. R. A. 315, 49 Am. St. Rep. 921.

The husband could maintain action of trespass or case without joining his wife, and take the benefit of the recovery, where the injury, such as that caused by a fire or an explosion, was to the rental value of the realty. West v. Aberdeen, etc., R. Co., 140 N. C. 620, 53 S. E. 477, 6 Ann. Cas. 360, and note; Sheridan Gas, etc., Co. v. Pearson, 19 Ind. App. 252, 49 N. E. 357, 65 Am. St. Rep. 402; 13 R. C. L. p. 1104.

We need not inquire or determine whether the rule that excludes the wife from participation in the recovery in such an action arises out of the nature of this anomalous...