National Bank of Pulaski v. Shelton

• Decision Date: 23 February 1889
• Citation: 11 S.W. 95
• Parties: NATIONAL BANK OF PULASKI <I>v.</I> SHELTON <I>et al.</I>
• Court: Tennessee Supreme Court

11 S.W. 95

NATIONAL BANK OF PULASKI

v. SHELTON et al.

Supreme Court of Tennessee.

February 23, 1889.

Appeal from chancery court, Giles county; ANDREW J. ABERNATHY, Chancellor.

Bill by the National Bank of Pulaski against E. F. Shelton and others to quiet the title to land. Decree dismissing bill, and complainant appeals. Code Tenn. (Mill. & V.) § 2940, provides that when an execution or attachment is levied on real estate owned by the head of a family, the homestead shall be set apart by three disinterested freeholders summoned by the officer levying the writ, after which only the remainder shall be sold.

N. & W. B. Smithson, for appellant. T. Rivers, J. T. Allen, and Wilkes & Steele, for appellees.

CALDWELL, J.

There are two legal questions for decision in this cause. They are: First. Will a homestead, assigned under the statute (Mill. & V. Code, § 2940) to a debtor, whose family, at the time of the assignment, consisted of himself and his first wife, vest in his second wife and their minor child, upon his death? Second. Will the levy of an attachment on his "reversion expectant or remainder interest" in such homestead, at a time between the death of his first wife and his marriage to a second wife, and the sale of the land under the attachment subject to his homestead right therein, after his second marriage, deprive the second wife and their minor child of the homestead, and pass the land in fee to the purchaser, upon the death of the debtor?

We answer the first question in the affirmative, and the second in the negative. The right of homestead, having been acquired by the husband as the head of a family, was not divested or lost by the death of the first wife. Webb v. Cowley, 5 Lea, 722. Here the debtor had a homestead in the land when the attachment was levied. So he had at the time of the sale; and, inasmuch as the homestead was not liable to sale under attachment, the sale made must have been in law, as it was in fact, subject to his right of homestead in the land. This right he had at the time of his death, and, when he died it inured to the benefit of his "widow" and minor child, by the very terms of the constitution, and of the act of the legislature, passed in pursuance thereof. Const. art. 11, § 11; Code (Mill. & V.) § 2935. That the wife who was enjoying the homestead with the debtor at the time of the allotment is not the same who now claims the homestead, is entirely immaterial. The former was the wife, but never the widow; the...