Lishey v. Lishey
| Decision Date | 31 December 1880 |
| Citation | 74 Tenn. 418 |
| Parties | MARY ANN LISHEY v. LOUIS C. LISHEY. |
| Court | Tennessee Supreme Court |
OPINION TEXT STARTS HERE
FROM DAVIDSON.
Appeal from the Chancery Court at Nashville. W. F. COOPER, Ch.
JAS. A. TRIMBLE and BAXTER SMITH for complainant.
E. H. EAST and DEMOSS & MALONE for defendant.
The first aspect of this cause to be disposed of is the prayer for divorce. This prayer is predicated upon the alleged adultery of the defendant. The allegation, however, is not distinctly and directly made, but it is only “that complainant has been compelled to believe that improper relations existed between the defendant and a colored woman formerly his slave, named Octavia or ‘Tobe,” and certain facts are stated upon which the suspicion or belief is predicated, which are, however, not of themselves of a criminating character. We will for the argument, however, concede that the charge of adultery is sufficiently made.
The question then is, whether it has been sustained by proof. The parties are advanced in life; they were married in the year 1840. They have lived since about 1847 on a farm owned by the defendant, near Nashville. They are both of good character, and as complainant herself says, they lived together reasonably happy until about the year 1866, when troubles grew up between them, and when she says her suspicions were first aroused as to the relations between the defendant and the woman Tobe, and the complainant finally left the defendant's residence and filed this bill in the year 1873. Tobe had, previous to the filing of the bill, four children, and the bill pretty strongly intimates, if it does not in terms charge, that the defendant is the father of these children.
Upon the question of adultery, the witnesses were examined in open court before the chancellor. The charge is sustained by one witness--a negro woman who had also been a slave belonging to the defendant. The details of the testimony of this witness are not such as to carry conviction--her story is unreasonable upon its face. She is contradicted by another witness and is not sustained by the general facts of the case, and she admits her bad feeling toward the defendant. The chancellor, before whom she was examined, has discredited her testimony, and we are satisfied to abide by his conclusion in this respect.
The other testimony relied upon to sustain the charge relates mainly to the treatment of Tobe and her children by the defendant. It is shown that the woman was treated with more consideration than the other servants, was better looking and dressed better, and that the defendant bestowed attention upon her children not usually bestowed by white persons upon negro children, and there was a rumor among some persons in the neighborhood that defendant was their father. On the other hand, complainant and defendant had no children of their own, and were both of kindly disposition. The complainant herself was also disposed to pet the children and treat them with unusual kindness. Two of them were in reality nearly white--their mother being a mulatto and they doubtless the children of white men. While there was a rumor among some persons that the defendant was the father of these children, perhaps a better defined rumor attributes the children to other white men; while the two younger children, being darker than their mother, were generally believed to be the children of negroes.
Without discussing the testimony at length, we agree with the chancellor that the charge is not sustained. Tobe was a house servant and lived in the house with complainant and defendant. Her oldest child was born as far back as about 1857, and the others at intervals of three or four years following. It is by no means probable that this adulterous relation should have existed for all this period between Tobe and the defendant, and the complainant, herself living under the same roof with them, should not have discovered more convincing proof. The divorce was properly refused.
The bill, however, presents another and different case. After the marriage of these parties, by decree of the chancery court at Nashville, the complainant recovered about $900 from her father, John T. Smith, which by the decree was settled upon her to her sole and separate use, and the money paid into court, and in the first instance ordered to be loaned at interest. Subsequently it was ordered by the court that the master pay said money to the defendant, Louis C. Lishey, upon his satisfying the master that he had a good title to the tract of land on which he resided, and on his executing to the master a deed or instrument of proper kind, charging said real estate with said sum of money to the sole and separate use of his wife. Subsequently, to-wit, on the 22d of November, 1848, the master reported that defendant had satisfied him as to the title, had executed a deed as security for the money, and that he had paid the money over to him, amounting to $914, and the defendant in his answer admitting that he received the money and executed the mortgage, but insists that he was not to pay interest.
The defendant in his answer also admits that about the year 1848 or 1850, he sold a slave, the separate property of his wife, for which he received $500, and this sum, with the $900, he has used for the general support of the family, but has not repaid either principal or interest.
No very serious resistance has been made to the complainant's right to recover these two sums of money, to-wit, $900 and $500, but the question is as to her right to recover interest. The chancellor allowed interest only from the filing of the bill, and the complainant has appealed, and this presents the real question in the cause.
In equity, the husband may become the debtor of the wife with respect to her separate estate, and her right to payment will be as favorably regarded as the right of any other creditor: 2 Bishop on Married Women, sec. 360; Wilkerson v. Wilkerson, 1 Head, 305; Story Eq. Jur., sec. 1373.
It would seem to follow, that if the relation of debtor and creditor exist between them, the contract of borrowing would carry with it its usual incident, and that the wife's right to interest would be as...
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Hiss v. Hiss.
...of the wife.’ Even should judgment ultimately be rendered against her, the husband would have no right to be reimbursed. See Lishey v. Lishey, 74 Tenn. 418, 426. Our conclusion is that the order for the payment of support pendente lite in this case was a final judgment within the appeal sta......