72 Tenn. 212 | Tenn. | 1879
delivered the opinion of the Court.
Gray, in 1873, was owner of a tract of land of 100 acres. Kennedy got a judgment against Gray, before a Justice of the Peace of Marshall county, for $338.38, on which an execution was issued June, 1874, and levied on this tract of land, returned to October term of the Circuit Court, and the land condemned for sale, which was done, Kennedy becoming the purchaser, bidding his debt and costs. In the meantime, two judgments in favor of Hall had been rendered against Gray, in 1874, for $420.00 each, with ten per cent, interest. Marehbanks stayed these judgments for Gray, and when executions issued they were levied on Marehbanks’ lands —his home — and it was sold and the debt thus paid, amounting to near $1,000. He thereupon took judgment over by motion against Graj^, and redeemed the land from Kennedy, advancing the amount of his judgments on the land, besides paying Kennedy’s debt. Marehbanks being in possession, this bill is filed by Gray and wife to assert the right to homestead under our law.
The bill goes on the ground that possession was not voluntarily given of the land to Marehbanks, but was obtained by fraud and coercion. This is denied in the answer.
On this aspect of the case, the question is: What are the rights of the parties ? The homestead right did not pass to Kennedy under his purchase, for by the Constitution, Art. V., sec. 11, as well as the Code, sec. 2114a, Act of 1870, the homestead in possession of the head of a family, to the value of $1,000, is exempt from sale under legal process during the life of such head of the family, and goes to the widow and children during their minority occupying the same. “Nor shall said property,” says the Constitution, “be alienated without the joint, consent of the wife when that relation exists”
The using borrowed money to pay for land does not give the lender the right even to be subrogated to the vendor’s lien, much less does the note given for such money give such lien, as held by this Court, in Durant v. Davis, 10 Heis., 522. It was also held by this . Court that when a vendor conveyed the land, and then took a deed of trust to secure the purchase money notes, and the vendee died béfore' the enforcement of the trust, the widow was entitled to dower, giving, among
This being so, Marchbanks cannot claim to be subrogated to á vendor’s ' lien by having paid the judgments stayed by him. The notes themselves were not entitled to such lien, and as a matter of course paying them cannot give such a right.
The result is, the decree of the Chancellor ’ is affirmed, with costs.