Jones v. Walkup

• Court: Tennessee Supreme Court
• Writing for the Court: Caruthers
• Citation: Jones v. Walkup, 37 Tenn. 135 (Tenn. 1857)
• Decision Date: 31 December 1857
• Parties: JAMES B. JONES v. JOSEPH T. WALKUP et al.

37 Tenn. 135

JAMES B. JONES

v.JOSEPH T. WALKUP et al.

Supreme Court of Tennessee.

December Term, 1857.

FROM RUTHERFORD.

This case is from the chancery court at Murfreesboro. At the October term, 1857, Chancellor Ridley rendered a decree for the complainant. The defendants appealed.

E. A. Keeble, for the complainant; Palmer, for the defendants.

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

James Jones died in Rutherford county, and under a proceeding in the county court, the slaves and real estate were sold by commissioners, on the 7th December, 1855, and the report of said sale was confirmed at February term, 1856, of said court. The notes for the purchase-money of slaves or land were placed in the hands of the commisioners for collection and distribution. No titles were decreed to the respective purchasers of either the land or slaves. The land sold for $7,949, and the slaves for $6,434, making $14,383, of which the share of each heir would be $1,598. Louisa Jones, a daughter of the deceased, being then a widow, with one child, Letitia, purchased two of the slaves at the sale, for $2,074, for which she executed her note with complainant, Jones, and Henry Jamison her securities.

On the 10th of March, 1856, she married defendant Walkup, and died in December, 1856, the said note still and yet remaining unpaid. At the January term, 1857, the defendant administered on his wife's estate. The two slaves went into his possession upon his marriage and he now holds and claims them as his own property. This bill is filed to make them liable for the debt of $2,074, and requiring the defendant, Walkup, and the infant, Letitia, to interplead as to the proceeds of the land.

This being done, the first question is whether, under the state of facts presented, the land was so converted into personalty as to go to the husband by virtue of his marital right, or to the child, the heir of the mother, as realty.

We are not aware that there is any reported case in this state upon this question. But the point was presented and adjudicated in the unreported case of Elizabeth Henderson v. James B. Reid and others, at the December term, 1853, of this court.

In that case the real estate of the wife had been sold under a decree, and the sale reported to the court, and confirmed without a divestiture of title when the wife died, and it was held that the husband, as her administrator, was entitled to her share of the notes on hand for the purchase-money.

The principle settled in that case was that by the confirmation of the report the land was covered into personalty, to which the martial right of the husband would attach.

The same question came before the supreme court of Maryland, in the case of The State for the use, etc., v. Krebs, 6 Har. & J. 36, and the court says: “The mutation of her estate from real to personal may be determined to be complete when the commissioner's sale is ratified by the court, and the purchaser has complied with the terms of it by paying the money, if the sale is...