Producers' Nat. Bank v. Cumberland Lumber Co.

• Decision Date: 05 March 1898
• Citation: 45 S.W. 981,100 Tenn. 389
• Parties: PRODUCERS' NAT. BANK v. CUMBERLAND LUMBER CO. et al.
• Court: Tennessee Supreme Court

45 S.W. 981

100 Tenn. 389

PRODUCERS' NAT. BANK v. CUMBERLAND LUMBER CO. et al.

Supreme Court of Tennessee.

March 5, 1898

Appeal from chancery court, Davidson county; H. H. Cook, Chancellor.

Bill by the Producers' National Bank against the Cumberland Lumber Company and others. Decree for complainant, and defendants appeal. Affirmed. Application by Henrietta C. Ewing for an assignment of homestead. Denied.

James S. Pilcher and Marshall Morgan, for appellants.

Stokes & Stokes, for appellee.

CALDWELL, J.

At a former day of the term the complainant in this cause obtained a decree against the Cumberland Lumber Company and other defendants upon a note for $800, and interest thereon. Mrs. Henrietta C. Ewing, one of the makers of the note, was relieved from personal liability, because a married woman; but her separate estate, which she had charged with the note by written stipulation, was adjudged to be sold after 90 days if the recovery should not sooner be paid. Mrs. Ewing, who with her husband resides on her separate estate, in West Nashville, as a home, now moves the court for an assignment of homestead therein, or that the sale be made subject to her right of homestead. The motion must be overruled. The exemption of a homestead, in this state, is allowed in the first instance to the head of the family alone, and is assignable only in real estate, or interests therein, owned by the person occupying that position. Const. art. 11, § 11; Thomp. & St. Code, §§ 2110a, 2113a, 2115a; Mill. & V. Code, §§ 2935-2938; Shannon's Code, §§ 3798, 3800-3802. The husband is the legal head of the family, where the marital relation exists; and for that reason the homestead, if assigned during his life, is assignable to him, and from his property. Neither the wife nor the husband is entitled to the exemption of a homestead in her land. Turner v. Argo, 89 Tenn. 443, 14 S.W. 930. She is not entitled to it, because not the head of the family; and he is not entitled to it, because he does not own the property. Let the motion be overruled.