92 Tenn. 147 | Tenn. | 1892
H. L. Lewis, testamentary guardian of the minor children- of Mrs. E.' A. Glass, and the children, by their next friend, Mrs. A. M. Lewis, their grandmother, filed the bill in this canse against E. A. Glass, alleging the death of the mother of the children, Mrs. E. A. Glass; that they were minors, and had been living with their uncle and grandmother for several years in' Texas, where their mother had died; that she made a will giving the custody and guardianship of the children to H. L. Lewis, their uncle, and by said will, which was duly probated in Texas, giving the children her interest in a house at Sewanee, built by her own means upon a lot leased by her from the University of the South; that the defendant, E. A. Glass, was threatening to forcibly take possession of said house, and to take said children from the custody and possession of their uncle and grandmother; and prayed for an injunction, which was issued, enjoining the defendant from taking possession of the house, or from assuming control and custody of the children.
The defendant answered the bill, admitting that the children were minors, and alleging that he, as father, was entitled to the possession and care of the children, and that he was entitled to the dwelling for his life, as tenant by curtesy, admitting
Much proof was taken as to the separation of E. A. G-lass and his wife, and as to the place of her domicile at the time of her death, and as to whether it was to the interest of the children to remain with their uncle and grandmother, or with their father.
Upon the hearing the Chancellor decreed that he • declined to make any order as to the children who were past the age of fourteen years, who had expressed a preference to remain with their grandmother and uncle, but gave the youngest to its grandmother as the most suitable custodian, and decreed that the defendant was entitled to a life estate in the house, as tenant by the curtesy, and gave him a recovery against H. L. Lewis and Mrs. A. M. Lewis for the amount of the rents of the house while in possession of complainants since the death of Mrs. Glass; also for the personal property of Mrs. Glass, rendering a decree for about $1,604.
From so much of the decree as adjudged defendant to be entitled to an estate in the house as tenant by curtesy, and from so much as’ adjuged the defendant was entitled to recover for the personal property of Mrs. Glass, and for the use and occupation of said house and personal property, the complainants, Mrs. Lewis and H. L. Lewis, have appealed, and assign, among other assignments of
Both of these assignments of error are well taken.. A husband derives his right to the tenancy by curtesy alone from the common law.-. It is admitted in argument that . at common law he had no curtesy -in leasehold property, for it was regarded as personal property, and, of course, no such right could inhere in it. There was no seizin of the wife. But the claim to curtesy by defendant is based solely on changes effected by statute in this State.
Section 51 of the Code is relied on as giving the holder of a lease the “seizin.” of the common law. That section provides that where, in the Code, the words “ real estate,” “ real property,” or “ lands ” are used, they shall include lands, tenements, and hereditaments, and all rights thereto and interest therein, equitable as .well as legal. That section has been construed to make all statutes relating to real estate or, lands apply to leaseholds. It has been construed to make an Act protecting the real estate -of • the wife and its profits from the creditors of .the husband cover her
But it is insisted that by § 3343 and § 3351 of the Code (M. & Y.), the husband’s rights are so enlarged as to give him curtesy in his wife’s leasehold. These sections are based upon Acts of the Legislature, passed .subsequent to . the adoption. of the Code of 1858; and by an examination of said Acts it will most clearly appear that the powers and rights of married, women pver their estates were greatly enlarged, and the rights and authority of the husband correspondingly decreased,..and therefore it was deemed -prudent to provide that these
In regard to the second assignment of error, that a decree was rendered in favor of defendant against Mrs. Lewis and II. L. Lewis for the personal property of Mrs. F. A. Glass, without a cross-bill or answer in thé nature of a cross-bill, it will appear from the statement of the case that the bill was filed, praying an injunction against the defendant from taking control and possession of the minor. children of Mrs. Glass, or of the house upon the leasehold. This was the only relief prayed for in the bill. There was no mention of any personal property therein. The bill was answered, and the only reference as to personal 'property in the answer is as follows: “ Respondent will insist that he will be entitled to all the personal property belonging with said house,” describing it. JBy the decree, he was given the property belonging to the house, damages for .the use thereof, and an amount for the value of a horse and carriage, and other personal property. This decree was erroneous.
If a defendant seeks affirmative relief against the complainant, he must do so by a cross-bill or answer filed as a cross-bill. Gibson’s Chancery Practice, Bees. 665, 666; Daniel’s Chancery Practice, 1650; Bussey v. Gant, 10 Hum., 238; Gross