Whyte v. Mayor & Aldermen of Nashville

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 364
• Parties: WHYTE v. MAYOR AND ALDERMEN OF NASHVILLE.
• Court: Tennessee Supreme Court

32 Tenn. 364

WHYTE

v.MAYOR AND ALDERMEN OF NASHVILLE.

Supreme Court of Tennessee.

December Term, 1852.

This was an action instituted in the circuit court of Davidson county, upon the facts stated in the opinion. At the May term, 1852, Maney, judge, presiding, there was judgment for the plaintiff; and the defendant appealed in error.

Washington, for plaintiff in error, argued that Mrs. Whyte was not the owner of the property as tenant in the dower, and that the notice should have been given both to the tenant in dower and to the heirs; and if the notice was properly given to Mrs. Whyte, it should have been predicated upon some specific action of the Board of Mayor and Aldermen.

Ewing & Cooper, for defendant in error.

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

This action was brought to recover from Mrs. Whyte the amount expended by the corporation in the construction of a foot-pavement in front of the lot occupied by her as a residence.

It appears that, on the 27th of October, 1848, a notice was served on Mrs. Whyte, signed by S. V. D. Stout, “chairman of the street committee,” requiring her to make a pavement in front of said lot, on or before the 30th of November ensuing; and informing her that, on failure to do so, said pavement would be made pursuant to the laws of the corporation, and the amount paid therefor charged against the owner of said lot.

Mrs. Whyte disregarded this notice, and the corporation, in April, 1850, proceeded to have the pavement made, the cost of which amounted to $328.17.

The lot, in front of which the pavement in question was made, was part of the estate of the late Judge Whyte, who died in 1844, and was assigned to the plaintiff in error, who is widow, as part of her dower of said estate, by a decree of the chancery court at Franklin, in October, 1846, and has been occupied by her ever since.

The charter of incorporation confers upon the “Mayor and Aldermen of the town of Nashville” power to regulate foot-pavements and sidewalks in the streets of said town; and further provides that “if the owner or owners of lots shall fail to comply with the provisions of such by-laws, within such time as may be prescribed thereby,” the corporation may contract for the construction of such sidewalks or pavements, and the amount paid shall constitute a charge against the owner or owners of the lots, to be recovered against them by suit.

The by-law of the corporation, for carrying into effect the foregoing provision of the charter, provides for the appointment by the mayor, at the first meeting in each year, of a standing committee, to be known as the street committee, consisting of six aldermen; and it is made the duty of this committee, among others, to see that the foot-pavements and sidewalks are properly constructed.

The by-law requires that all owners of lots, within the limits of the corporation, shall cause good and substantial foot-pavements to be made, of brick or suitable stone, in front of their lots.

And the 3d section of said by-law provides “that if the owner or owners of lots, or their agents, or any of them, shall fail to comply with the provisions of this act, after thirty days' notice, it shall be the duty of the chairman of the street committee for the time being, and he is hereby authorized, to contract with some suitable person, for the construction of said sidewalks or pavements, and cause the same to be made, and paid for by the corporation; and the amount so paid shall constitute a charge against the owners of said lot or lots as aforesaid, to be recovered against them by suit.

Upon the foregoing statement arise the only questions which we think necessary to be considered in the case.

And, first, Is the plaintiff in error, as tenant in dower, subject to the charge sought to be enforced against her in this action, and for which a recovery was had against her in the circuit court?

The law, in terms, makes the charge and gives the action against the owner of the lot. And the position assumed is that as the life interest of the tenant in dower, and the reversion, constitute the different portions of one estate, and as the improvement enures equally to the benefit of the reversion, this charge cannot be thrown wholly upon the owner of the life estate; that if the latter can be made liable at all, it can only be conjointly with those in whom the reversion is vested.

This position we think untenable. The widow, it is true, has no estate in the lands of which her husband died seized, until assignment of her dower. On the death of her husband, the title descends to the heir, who has the undivided seizin until dower is assigned; but, upon this being done, the widow becomes seized of a freehold estate in the portion allotted to her. The fee-simple, it is true, remains in the heir, and although, in point of tenure, the dowress holds of the heir or reversioner, yet her claim is paramount to the heir. Her estate is a continuation of that of her husband. The assignment does not pass the estate, but ascertains the portion to be allotted as dower; and upon such assignment being duly made, in intendment of law the dowress is in by relation from her husband's death, and is in of the seizin, not of the heir, which by the assignment is defeated ab initio, but of the seizin of her husband. 4 Kent's Com. 61, 69. And,...