78 Tenn. 652 | Tenn. | 1882
delivered the opinion of the court.
The bill in this case was filed June 30, 1868, by the complainant, Tempe Downs, as a free woman of color, to recover, in whole or in part, from the defendants the estate, real and personal, of one W. B. Downs, a free man of color, who died in March, 1846,.
W. B. Downs was the slave of W. P. Downs, being the son of a black woman by a white man, and was regularly emancipated by order of the county court on September 13, 1830, having bought his free'dom from his master. While a slave he had cohabited with a black woman named Dinah, whom he after-wards bought, taking from her owner a bill of sale to himself on June 28, 1831. He was employed as a servant in a hotel at Brownsville, Tennessee, and being thrifty purchased a lot in the town, built a cabin on it, and placed Dinah in possession. She was employed to do washing for the hotel. There can be no doubt that Downs and Dinah continued to cohabit together, but, so far as appears, without any formal marriage ceremony, and without any actual residence by Downs with her, his duties at the hotel requiring his presence there day and night. In the year 1840, Downs 'seems to have reconveyed Dinah by bill of sale to the
In 1833, Downs moved to Nashville, and became steward in the Nashville Inn, the principal hotel of the city. The complainant, Tempe, was a chambermaid at the same hotel. She was the slave of one Thomas Crutcher. With the consent of a former owner, •she had cohabited with another slave as man- and wife, but the relation had been put an end to by the master because of the cruelty of the husband to her. The husband afterwards took up with or married another woman by whom he had children. Shortly after Downs came to Nashville, he and Tempe began to cohabit together. About the year 1835, Thomas Crutcher, the owner of Tempe, seems to have permitted her to act as a free person upon the understanding that she should pay for herself a certain sum of money. Having afterwards paid for herself, on December 2, 1840, as stated in the bill and conceded in argument, Thomas Crutcher, by bill of sale reciting the consideration, conveyed Tempe to John H. Eaton and James B. Ferguson, “on the express trust and condition that they, or either of them, shall hold and possess her upon the terms of setting her free so soon as the same can be done, and until this be effected she is to have and enjoy her own time and be subject to her own control without the interference or disturbance of any one.’*
In the meantime, with the consent of Thomas Crutcher, in the year 1837,' Downs and Tempe were formally married by a minister of the gospel, a free man of color, a large company being invited for the occasion, and for an “infair” held in honor of the event. From that time Downs and Tempe lived together as man and wife, and were so considered and treated by the community, white and black. About the year 1840, Tempe seems to have become the chambermaid on one of the large steamers then plying between Nashville and New Orleans, and so continued until the death of Downs and for years thereafter. Downs was thrifty, and about 1842 or 1843, began to purchase lots in Nashville, and improve them. He used for these purposes, no doubt, the earnings of himself and Tempe, and money borrowed from others, and among others from his former owner, W. P. Downs, who had also femoved to Nashville. W. B. Downs died in March, 1846, and at the April term thereafter of the county court, W. P. Downs and W. E. Cartwright were appointed and qualified as his personal representatives. The debts of the estate exceeded the personal assets. On March 1, 1847, John H. Eaton and James B. Ferguson, styling themselves trustees of Tempe, filed a bill ■ in the chancery court against W. P. Downs and W. E. Cartwright, as administrators of
This bill stated that the complainants had acquired by a conveyance from Thomas Crutcher the right to Tempe in trust to emancipate her whenever the tribunals of the State would permit it, and to receive, in the meantime, the proceeds of her labor for her benefit; and that Tempe was still their slave because the tribunals of the State would never permit her to be-emancipated. The bill further stated that the deceased had Tempe for his wife, “but was not lawfully married to her and could not be, as she was the slave of the complainants.” It further stated that W. B. Downs left a brother who was a slave, whose master was willing to emancipate him if he were' declared to be the heir; that otherwise the property would escheat to the State; that the administrators had taken possession of the realty as well as the personalty of the decedant and was using it for their own purposes; that the personal property was insufficient to pay the debts, and complainants had suggested the- insolvency of the estate, etc. The State filed an answer by the-district attorney-general, claiming the property of the estate as escheated. The other defendants permitted the bill to be taken for confessed. The court, upon a hearing, appointed W. P. Downs receiver of the real
In the meantime the- Legislature passed, at different times, two acts which bear upon the rights of the parties in this case. On January 10, 1850, was passed the act of 1850, ch. 54. By the first section, it was enacted that when any person shall hereafter die intestate, leaving no heirs at law capable of inheriting real estate under the laws of Tennessee, but leaving a widow, the widow should be entitled in fee simple to all the real estate of which her husband died- seized and possessed. The second section is: “That all the provisions of this act shall be extended to and embrace all cases in which persons may have heretofore died intestate, as mentioned in the first section of this act, as well as those who may hereafter die intestate, and for the recovery of such real estate suits have not been brought, or, if brought, have not yet been determined.” On March 3, 1854, the Legislature passed
The doubt as to the ultimate disposition of the surplus of the estate of W. B. Downs, after the payment of debts, grew out of the status of Downs and Tempe, at the time of Downs’ death, under the laws of this State. This surplus consisted of realty. Downs, it is sufficiently shown, was the son of a negro woman slave by a white man. He was himself a slave until emancipated. His mother had another son by a black man, and this son was a slave at the death of Downs. Under the act of 1819, ch. 13, the act then in force regulating the descent of the • property of an illegitimate person, Downs’ property would have gone to his half brother. But that brother being then a slave with no right to freedom, present or prospective, was incapable by law of taking property by descent: Turner v. Fisher, 4 Sneed, 209. If Tempe was the widow of W. B. Downs, and was capable of taking property, she was only entitled to dower in the realty by the law existing at the date of her husband’^ death. In. the absence of heirs capable of inheriting or taking the property, it escheated to the State for the use of common schools. It was for this reason the State was made a party to the bill of Eaton and Ferguson.
Such being the state of affairs, W. P. Downs, who! as we have seen, was the former owner of W. B. Downs, and who had loaned him money to assist him in purchasing and improving the property, seems to
The bill, upon the assumption 'that there was a valid marriage between the complainant and W. B. Downs, sets up claim to dower in the realty by the law as it existed at the date of Downs’ death, and to the whole of the realty under the second section of the act of 1850, ch. 54, above quoted. It further' seeks, in the event the court should hold that the
That statute vested with a good and indefeasible title in fee any person having had by himself or those through whom he claimed seven years adverse possession of land granted by the State, holding by an assurance of title purporting to convey an estate in fee, without any claim by action at law or in equity commenced within that time and effectually prosecuted. The statute further provided, e converso, that no person, or any one claiming under him, should have any action, either at law or in equity, for land but within • seven years after< the right of action accrued. There
In point of fact, however, the proof conclusively shows that the complainant was only nominally held, under an instrument executed by her last master, and duly registered, by Eaton and Ferguson upon the express terms of setting her free as soon as it could be done, and until then that she should enjoy her own time, and be subject to her own control without the interference or disturbance from any one. And the record demonstrates that the trust was fully executed in this behalf. She hired her own time, received her own wages, went where she pleased, and was to all intents and purposes, so far as Eaton and Ferguson were concerned, a free person. There is not the least evidence that they undertook to control her in any
The learned counsel of the complainant admits that the case made for his client cannot be said to be strictly analogous to the case of a person held as a slave, and therefore imprisoned within the saving of the statute. But he insists that it. is within the principle of the statute, because she could not sue for the recovery of her properly rights until her inchoate right to freedom was made absolute by the consent of the State. He further insists that upon her subsequent emancipation by the amended constitution of 1865, her freedom extended back by relation to the time when the right first accrued, and vested her with a right of action from that date.
The decisions of this court have been uniform that upon the perfect, emancipation of a slave by the consent of the State given in the mode prescribed by law, his freedom would be held to extend by relation
The argument in behalf of the complainant is based upon the assumption that the law afforded no mode of redress for the assertion of property rights by a person in the situation of the complainant at the date of the death of W. B. Downs. In this view, there would have been one class of the community, perfectly free to act, and yet without the pale of the law. It must be admitted that the situation of the class was curiously anomalous, but yet the courts found no difficulty in affording them redress whenever applied to upon well settled principles. The law, as between the State and the individual, recognized only two classes, the freeman and the slave. As between individuals, it took notice of the intermediate class, and enforced the right to freedom, and protected the rights of property. In the former view, whatever the slave earned, or received whether as agent of the master or not, belonged to the master: University v. Cambreling, 6 Yer., 79; Fletcher v. The State, 6 Hum., 256. And the
The real difficulty in her case, as is apparent on the face of the bill filed by Eaton and Ferguson on her behalf, was not in finding a remedy, but a right. They were manifestly of opinion that no valid marriage could be contracted at that time, under our statutes, between a free man of color, and a woman of color having only an inchoate right to freedom. Our system of marriage by license was manifestly intended for free persons, and the marriage of a slave was necessarily subject to' the control of the master. It is very doubtful whether the marriage of a free person with a servant, by consent of the master or mistress, upon the publication of the banns of matrimony, of the old act of North Carolina of 1741, was intended to apply to. slaves at all. And the fact that such marriages between a free man of color and a slave were sometimes permitted by the master is recognized by the act of 1845, ch. 184, sec. 2, only for the purpose of allowing the free person of color to remain within the State upon the owner of the slave giving bond with security before the county court for the good behavior of' the free man of color. But this court, upon full consideration, in view of the emancipation of the slaves, and the enabling act of the Legislature touching the marital relations of this class of the community, and their rights of inheritance, came to the conclusion that a marriage between slaves, with the assent of their
If a common law marriage was valid between slaves,, there can be no reason for adopting a different rule as to a common law marriage between a free man of color and a female slave, vested with an inchoate right to freedom, the nominal master consenting. The marriage between complainant and W. B. Downs was therefore valid, unless the previous marriage of both of the-contracting parties invalidated it. As to the complain
Treating the marriage as valid, the complainant was entitled, upon the death of the husband, to dower in the realty of which he died seized and possessed. The dower never ■ having been assigned, the right was not merged by the estate acquired under the second section of the act of 1850, if we treat that section as conferring upon her the ’title of the State by escheat, for the obvious reason that until assignment, a widow has neither seizin nor right of entry, but only a chose in action. It was for this reason, coupled with the fact that the possession of the heir was not adverse to the right, that our court held that the widow’s right of
Nor are the defendants in this case protected under the bar of the statute by reason of the fact that they,, or those under whom they claim were not in fact the heirs of Downs: Carmichael v. Carmichael, 5 Hum., 98. For the title deeds by which they hold show upon their face that they went into possession as the heirs of the deceased, and made the conveyances of the several parcels of land exclusively in that character. And they insist in their pleadings upon, although they have not established the heirship. The parties are estopped to deny the truth of the claim under which they went into possession and have since held. The chancellor’s decree on the merits was therefore correct, and will be affirmed.
The chancellor’s decrees upon the matters of account are also substantially correct. The only exception, of the complainant which deserves consideration) in view of the concurrent rulings of the chancellor and the commissioner who took the account, is the exception to the report upon the receiver’s account, that the receiver should have been charged with the rent of a portion of the realty during the period after his appointment in which he neglected to take possession of it. The original order appointed a receiver of the property in litigation. The appointment of the actual receiver was upon the condition of his giving bond with security “ for the collection of the rents that
It became the duty of the complainant, upon the appointment of a receiver at her instance, to see that he performed his functions, and that all necessary orders were made from time to time to compel him to act and account according to law. Any loss which may occur by the negligence of the complainant must, as between her and the other complainants of the property, fall upon her: Terrell v. Ingersoll, 10 Lea, 77. To the extent, therefore, of the recovery against the receiver’, the complainant will be required to look in the first instance for the satisfaction of her recovery against the defendants. In other words, on the amount of any money decree rendered in her favor against any one defendant, she will be required to enter a credit to the extent of the amount found in the hands of the receiver due 'to that defendant, and to look to the defendant only for the residue. And if the receiver is chargeable in favor of any defendant with more than the amount of the recovery of the com