Pilcher v. Smith

• Decision Date: 31 December 1858
• Parties: PILCHER AND CATAULIS, Administrators, v. RICHARD SMITH and WIFE.
• Court: Tennessee Supreme Court

39 Tenn. 208

PILCHER AND CATAULIS, Administrators,

v.RICHARD SMITH and WIFE.

Supreme Court of Tennessee.

December Term, 1858.

FROM DAVIDSON.

At the November term, 1858, Chancellor Frierson pronounced a decree in favor of the complainants. The defendants appealed.

John Reid, for the complainants; William Thompson, for the defendants, cited and commented upon Story on Confl. sec. 95; 1 Story's Eq. sec. 243; Jones v. Perry, 10 Yerg. 80; Bird v. Pollard, 4 Humph. 362; Alston v. Boyd, 6 Humph. 504; Code, secs. 2869, 3229, 3236, 2481.

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

On the 15th of July, 1846, the defendant, Hannah Smith, (being then a married woman), bargained and covenanted to convey to Hannah Higgins (a free woman of color), a lot of ground in Nashville, for the consideration of $350. The bond for title recites that $200 of the purchase-money was paid down, and a note executed for the residue, due on the 5th of September, 1847; upon payment of which, said Hannah Smith bound herself in the penalty of $700, to make the purchaser a good and sufficient title to said lot.

The lot in question was conveyed by Alfred Balch to Hannah Smith, on the 22d of September, 1845--she being, at the date of the conveyance, a feme covert. It is intimated in the record that the purchase-money was paid by the husband, and that the conveyance was to the wife, to protect the property from the husband's creditors.

It is admitted in the answer that the price of the lot was fully paid by the purchaser. And it is also shown, that, in pursuance to the title-bond, the defendant, Richard Smith, husband of said Hannah Smith, executed a conveyance to the purchaser for said lot, but the defendant, Hannah, utterly refused to join therein. She distinctly admits the payment in full of the purchase-money, but states that it was paid to her husband. The proof tends to establish that her husband received it as her agent, though the fact is not very clearly made out.

Hannah Higgins was put in possession of the lot at the time of the purchase, and continued in possession until her death, which took place in March, 1856. Complainant, Cataulis, is her sole heir-at-law, and the other complainant is the administrator of her estate.

In December, 1855, the defendant, Hannah Smith, caused an action of ejectment to be instituted to oust said Higgins of the possession of said lot; and, after her death, the suit was revived against the complainant, as her heir-at-law.

This bill was then brought to have a specific execution of the contract, or, if that be not allowable, to have the purchase-money refunded, and compensation for improvements, with a prayer for general relief, and, in the meantime, to have the action of ejectment enjoined.

The Chancellor refused a specific execution, but decreed that the purchase-money should be refunded, with interest, and declared it a lien upon the lot, and also decreed, that improvements which had enhanced the permanent value of the lot should be set off against the rents.

We think the decree refusing to execute the contract was proper. It is not pretended that Mrs. Smith was invested with any power to sell or convey the lot as a feme sole; and being a married woman, her covenant to convey was, simply, void.

But though...