Wallen v. Huff

• Citation: 35 Tenn. 82
• Parties: FANNY WALLEN v. DANIEL HUFF.
• Decision Date: 30 September 1855
• Court: Supreme Court of Tennessee

35 Tenn. 82

FANNY WALLEN

v.DANIEL HUFF.

Supreme Court of Tennessee.

September Term, 1855.

FROM CLAIBORNE.

This was a petition filed in the circuit court of Claiborne, for the purposes stated in the opinion. Judge Hynds disallowed the prayer of the petition, whereupon the petitioner appealed to this court.

Maynard and Turley, for the petitioner; Heiskell and Evans, for the respondent.

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

This is an application to the circuit court for restitution of the possession of a tract of land of which the petitioner had been dispossessed under a writ of possession issued in the case of Daniel Huff's Lessee v. Lake. The petition was denied, and appeal in error taken to this court.

The facts are that in 1837 an action of ejectment was instituted by Huff against Lake, the tenant in possession, and, after a protracted litigation, judgment by default was rendered against Lake in 1850, and a writ of possession awarded. The petitioner is the widow of James Wallen, deceased, and claims in that character, as well as for her children, the heirs. Lake was upon the land as tenant of James Wallen, who, as landlord, was permitted to defend by the court until he died, in 1848, and there was no revivor against his heirs, but the suit progressed against the original defendant, Lake, to its termination as aforesaid.

The case of Huff v. Lake was before this court in 1848, (9 Humph. 138), when it was decided that the death of Wallen, the landlord, after he had been permitted to defend, did not abate the suit, although the tenant, Lake, had never plead to the action, but that he still continued to be the real defendant, and that the plaintiff might revive or not, as he chose against the heirs of the landlord, and if not, the suit would abate as to them, if they made no application to become parties, and progress against Lake, the original defendant.

When this suit was brought, the proof shows that there was no one in the possession of any part of the land claimed in the declaration, holding adversely to the title of Huff, but the defendant, Lake, who claimed to hold the whole tract under Wallen. The title of James Wallen was derived from his father, John Wallen, by deed to himself and his brother John. James Wallen, before his death, but after the commencement of the suit, moved upon a part of the land, and there died, leaving his widow, the petitioner, and his children upon the land.

Under these circumstances, can she resist the operation of the writ of possession in favor of Huff? We think not. She must stand in the shoes of her husband, and can have no other rights. He became a defendant, and would of course be bound by the judgment if he had lived, and it is not presumed that the condition of his family would be any better after his death, so far as the execution of final process is concerned. But how this would be is not material, as she is liable to be dispossessed upon another ground. Before the commencement of the suit, the Collingsworth women were living on this land under Huff, and the house in which they lived was delivered by Wallen to Lake, and they went out into another house on the land, by permission of...