Parlow v. Turner

• Decision Date: 23 July 1915
• Parties: PARLOW v. TURNER.
• Court: Tennessee Supreme Court

178 S.W. 766

132 Tenn. 339

PARLOW v. TURNER.

Supreme Court of Tennessee.

July 23, 1915

Appeal from Circuit Court, Madison County; S. J. Everett, Judge.

Suit by C. A. Parlow against J. W. Turner. From a decree for defendant, plaintiff appeals. Affirmed.

H. C Pearson, of Jackson, for appellant.

L. L Fonville, of Jackson, for appellee.

NEIL C.J.

The plaintiff and his wife intermarried during the year 1909. A short time prior to the marriage the wife had purchased and obtained a deed in fee to two small tracts of land lying in Madison county. After the marriage they lived together about two years, and then voluntarily separated, and have since lived apart. No children were born to the union. Subsequent to the separation the husband contributed nothing to the maintenance of his wife. Her only support has been the rent of the two small tracts, which she has been leasing to tenants at a monthly rental, in her own name. The husband made no objection to this course of action on her part until June, 1914. He then demanded of the tenant, J. W. Turner certain arrears of rent which had accrued subsequently to the passage and going into effect of an act of 1913, presently to be more particularly mentioned. The tenant refused to pay the husband, but instead made payment to the wife. Thereupon the present suit was brought by the husband against Turner before a justice of the peace, to recover the rent, and an appeal was prosecuted from that court to the circuit court of the county. The circuit judge gave a peremptory instruction in favor of Turner. The case, without going through the Court of Civil Appeals, was brought directly to this court, because its determination was supposed to involve the constitutionality of chapter 26 of the Acts of 1913.

That act reads as follows:

"A bill for an act to be entitled 'An act to remove disabilities of coverture from married women, and to repeal all acts and parts of acts in conflict with the provisions of this act.'

Section 1. Be it enacted by the General Assembly of the state of Tennessee, that married women be, and are, hereby fully emancipated from all disability on account of coverture, and the common law as to the disabilities of married women and its effect on the rights of the property of the wife, is totally abrogated, and marriage shall not impose any disability or incapacity on a woman as to the ownership, acquisition, or disposition of property of any sort, or as to her capacity to make contracts and to do all acts in reference to property which she could lawfully do if she were not married; but every woman now married, or hereafter to be married, shall have the same capacity to acquire, hold, manage, control, use, enjoy, and dispose of, all property, real and personal, in possession, and to make any contract in reference to it, and to bind herself personally, and to sue and be sued with all the rights and incidents thereof, as if she were not married."

The second section repeals all acts and parts of acts in conflict, and the third and last fixed January 1, 1914, as the date on which the act was to take effect.

1. It is said the act is unconstitutional because it violates so much of article 2, § 17, of the Constitution, as provides that no bill shall become a law which embraces more than one subject, that subject to be expressed in the title.

There is but a single subject, and that appears fully in the title, viz., the relief of married women from the disabilities of coverture. That subject fully covers every element that is written into the body of the act. The first clause, standing alone, "that married women be, and are, hereby fully emancipated from all disability on account of coverture," would have made thoroughly effective the purpose expressed in the title. All that followed merely amplified the thought, but each term of particularization lay implicitly within the clause quoted.

The act, therefore, does not offend against the section of the Constitution referred to.

2. If the act be given full operation according to its terms, does it, under the facts of the present case, destroy any vested right of the husband?

The rights acquired at common law, in the wife's land by the husband, through marriage, aside from tenancy by the curtesy, are thus described in Guion v. Anderson, 8 Humph. 325:

"By marriage, the husband gains an estate of freehold in the inheritance of his wife, in her right, which may continue during their joint lives. * * * He is not, however, solely seized, but jointly with his wife. The technical phraseology of the common-law pleaders, to express the interest of the husband in the estate of his wife, is 'that husband and wife are jointly seized in right of the wife.' "

In exercise of the right so acquired, he was entitled to take the rents and profits of the land and appropriate them to his own use. 3 Mod. Am. Law, 440; 5 Id. 261.

These common-law rights were materially modified in this state, by statute, long prior to the passage of the act of 1913. As early as the assembly of 1849-50 (chapter 36), an act was passed forbidding the husband to sell or incumber the wife's land, except by a joint deed executed by the two spouses, the wife joining in the manner prescribed by law for the conveyance of land by married women, also forbidding his interest to be sold under execution during the life of the wife, and forbidding the dispossession of the husband and wife. Shan. Code, § 4234.

It was held, however, that, notwithstanding this section of the Code, the rents of the wife's land could be seized and appropriated to the husband's debts. Lucas v Rickerich, 1 Lea (69 Tenn.) 726. The theory of the decision was that the common-law estate of freehold in his wife's general real estate was not by the statute and Code section referred to converted into a separate estate; therefore his right to the rents remained unimpaired. But in that case, as remarked of it in a later one, it appeared that the rents in controversy there had already accrued, and that the future productions of the land were not considered, or even...