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tate. The rents and profits belonged to him jure maritL They
were not only under his personal control, but they could be
reached by his creditors. To modify this rule, and to giye at leaat
partial protection to married women owning real estate against
the creditors of their husbands, as well as against husbands thooi-
selyes, the act of 1849-60, embodied in section 8338 of Milliken
and Yentrees' Code, was passed. That section is as follows: '^The
interest of the husband in the real estate of his wife acquired by
her . • • • shall not be sold or disposed of by yirtue of any judg-
ment; .... nor shall the husband and wife be ejected from, or
dL«ipo88es6ed of, such real estate by yirtue of any such judgment,'^
etc. That this section will protect the wife's realty when held in
seyeralty is clear. Does it not also protect her interest in an estate
held in entirety? What is this 'estate? As was said in Ames y.
Norman, 4 Sneed, 683, 70 Am. Dec. 269, the husband and wife,
in such an estate, ^ do not take in joint tenancy. Constituting
one legal person, they cannot be yested with separate or separable
interests. They are said, therefore, to take by entiretiea; tiiat
each is seised of the whole estate, and neither of a part"

^^^ The estate thus held is a unit of indiyiMble parts, differing
from a joint tenancy, in that the latter is a unit of diyisible parts.
In the case of the latter relation, when one joint tenant dies the
surrivor takes jus accrescendi, but in the case of the former estate,
upon the death of the husband or wife no new estate arises —
there is a mere change in the properties of the legal person hold-
ing the originally granted estate: Stuckey y. Keefe, 26 Pa.
St 397. Or, as was said in Thornton y. Thornton, 3 Hand. 179:
^^The husband and wife haye the whole from the moment of
conyeyance to them, and the death of either cannot giye the i

Digitized by


Jane* 1895.] Colb Manufacturing Co. v. Collibb. 925

vivor more.'' And during their joint lives the common law in
the case of this anomalous estate gave to the husband the full
and entire control and possession of the property and the right
to collect the rents and profits, resting this right, as in the case of
the wife's estate in severalty, in jure mariti: Hall v. Stephens,
€5 Mo. 670; 27 Am. Kep. 302. This estate, therefore, being a
^'unit of indivisible parts,** in which the wife, no less than the
husband, ^'is the owner of the whole from the moment of the
conveyance to them,*' and equally with him entitled to the whole
(McCurdy v. Canning, 64 Pa. St. 39); it being apparent, also,
that his right to collect the entire rent rests also in jure mariti,
and there being no way for the purchaser of the husband's inter-
est to dispossess him without at the same time dispossessing the
wife, we have no hesitation in holding *** that the act of 1849-50
(Mil liken and Yentrees* Code, sec. 3338) excludes such purchaser
from possession, as against the wife.

It is urged, however, that the case of Ames v. Norman, 4 Sneed,
683, 70 Am. Dec. 269, is against this conclusion. It is sufficient
to say in reply, that an examination of the briefs of the counsel
in that case will show that the application of the statute in ques-
tion was not the subject of suggestion or argument in that case.
Even had it been, as the right of possession, as has been already
stated, was not an issue in the case, the statement in the opinion,
that this act did not apply to a wife's interest in an estate by en-
tirety, was dictum.

It is proper to say that other courts of the highest respectability
have made a similar application of statutes veiy much like ours:
McCurdy v. Canning, 64 Pa. St 39; Corinth v. Emery, 63 Vt 606;
25 Am. St. Bep. 780; Davis v. CUrk, 26 Ind. 424; 89 Am. Dec.
471; Bruce v. Nicholson, 109 N. C. 202; 26 Am. St Bep. 662.
Other points raised in the assignment of errors have been disposed
of in our oral opinion.

A decree reversing the chancellor and embracing the conclu-
sions of this court announced in the oral and the written opinion
will be entered.

EKTIRETIES.-'A devise to a husband and wife fests in Ihem an es-
tate by the entireties, which the husband can nse duringthe coverture,
but cannot alienate: Phelps v. Simons, 150 Mass. 415; SB Am. St* Bep.
430, and note. Tenancy l^ the entirety is created by a conveyance of
land to a husband and irife which does not state the manner in which
they shall hold the land : Steli v. Shreck, 128 N. Y. 268 ; 26 Am. St. B^.
475, and note. See the note to Enyeart v. Kepler, 10 Am. St. Bep. 09,
and the extended note to Ben v. Harden berg, 18 Am. Deo. 377-889.

does not extend to his contingent interest in an estate held by bimsell

Digitized by


926 Bhbllt «. Statb. [T<

Mid his wife hy the entiretiee: Brace t. HicholaoOy 109 H. 0. SOS; M
Am. 8t. Bep. J62, and especially note. Where real estate ie eonvcTed
to bneband and wife jointly, they take aa one peraon, and the hnaband
haa no interest either in the fee or the uanf ract snbiect to esecotion in

Eyment of his sole debta: Corinth t. Emery, OS Yt. 605; K Am. BL
ip. 780, and note.

Shelly t^. State*

(96 TamiBflBB, in.]

term "sister," as used In the statutes defining incest. Includes half-
sister, and If SQch statutes make it incest for a man to hare sexaal
intercourse with the daughter of his sister, they will sustain bis con-
▼iction on a charge of such intercourse with a daughter of his half*

WHO CONSENTS to the crime of Incest knowingly, Toluntarily, and
with the same intent which actuated the man. Is his accomplice;
otherwise, If she was the rictlm of force, threats, ftaud, or undue in-

Incest cannot be sustained if based on the uncorroborated testimony
of the woman who, if such testimony be true, was an aocompUoe^
voluntarily yielding herself to the incestuous intercourse;

William J. Watson and Frank P. Smith, for Shelly.

Attorney General Pickle, for the state.

^^ McAUSTEH, J. The plaintiff in error was indicted,
tried, and convicted in the drcuit court of Hardin county on a
charge of incestuous intercourse with the daughter of his half-
sister, and upon the verdict of a jury, was sentenced by the court
to imprisonment in the state penitentiary for a term of five yean.
He has appealed in error to this court The indictment was
based upon section 5646, of Milliken and Yentrees' Code, vix:
'^No man shall marry or have carnal knowledge of his mother, hit
father's aster, his mother's sister, his sister, his daughter, the
daughter of his brother or sister,*' etc. Section 6647 further pro-
vides, viz: ^^0 woman shall marry or have sexual intercourse
with her father, her father's brother, her mother's brother," etc
The punishment prescribed for this offense is confinement in Uie
penitentiary for a period not less than five nor more than twenty-
one years. The first assignment of error is based upon the charge
of the circuit judge in the conajtxuction of this statute, to wit:
**The term 'sister,' as used in this connection, would apply as wcU
to tlie half blood as to the whole blood, so that if yon find, from
the proof, that the mother of this girl, with whom defendant ii

Digitized by


June, 1895.] Shbllt w. State. 027

charged to have had carnal knowledge, was only a half-sister of
defendant, still, the offense would be the same as if she had been
the daughter of a full sister.^ We think the charge a sound con-
struction of the statute, and in entire accord with the authorities.
This precise question was before the supreme court of Vermont
^" in the caae of State v. Wjman, 59 Vt 627, 69 Am. Eep. 753.
The court said, viz: '^t was objected that the indictment was not
sustained by proof that the respondent committed the offense
with a daughter of his half-brother, it being claimed that the
word brother' in the statute was not broad enough to cover a
brother of the half blood. In support of this claim, it is urged
that, at common law, a brother of the half blood is not a brother,
and cannot inherit as such. It is true that, by the common law,
a brother of the half blood could not inherit, but this was a rule
for the regulation of the descent of property, and had no broader
scope. It did not undertake to affect the relations of brethren
of the half blood any further than to prescribe, for certain reasons
having their origin in the ancient system of feudal teiiures, that
in the descent of the inheritance, a brother of the half blood
should be left out. The common-law rule, therefore, would have
no force in a case of this kind, but the generally understood sig-
nificance of the word brother,' as used in the common affairs of
life, and as defined by lexicographers of recognized authority,
should be adopted in the construction of the statute*': See, also.
Territory v. Corbett, 3 Mont. 60.

We find, upon an examination of the record, that this convic-
tion is based exclusively upon the testimony of the female. She
testified that the defendant began to have intercourse with her in
the spring or summer of 1893, and kept it up until about ^^'
Christmas. There was no testimony whatever to corroborate
these statements. The defendant was examined as a witness, and
positively denied any sexual intercourse. The question presented
is whether the conviction can be sustained upon such testimony.
In the case of Mercer v. State, 17 Tex. App. 452, it was held that
if a woman consents to the crime of incest she is an accomplice,
and a conviction cannot be had upon her unsupported testimony,
and that she must be deemed to have consented, where she testi-
fies that the crime was committed between her father and herself
weekly for a period of eight years. Again, in the case of Watson
v. State, 9 Tex. App. 237, the court said, viz: *T[t was entirely upon
the testimony of the defendant's daughter, with whom the incest-
uous intercourse is alleged to have occurred, that the conviction
was obtained. It is contended by defendant's counsel that she

Digitized by


928 Shelly v. Statb. (Ti

was an accomplice in the offense^ and that, her testimony being
uncorroborated in the manner required by law, the conTictioii
is not sustained by sufficient eyidence."

^^f the witness knowingly, voluntarily, and with the same in-
tent which actuated the defendant, united with him in the com-
mission of the crime charged against him, she was an accomplice,
and her uncorroborated t^timony cannot support the conyiction.
But if, in the commisdon of the incestuous act, she was the vic-
tim of force, threats, fraud, or undue* influence, so that she did not
act volimtarily, and **• did not join in the commission of the act
with the same intent that actuated the defendant, then she would
not be an accomplice, and a conviction would stand, even upon
her uncorroborated testimony**: Wharton's Criminal Evidence,
sec. 440; Freeman v. State, 11 Tex. App. 92; 40 Am. Hep. 787.
There is no evidence in this record of any force, threats, fraud, or
undue influence practiced by the defendant in accomplishing the
incestuous act. On the contrary, the evidence of the female was
that the sexual intercourse was commenced in the spring or sum-
mer of 1893, and kept up until the following Christmas, which
would imply that she consented to it.

The court holds that her uncorroborated testimony is insuffi-
cient to support the conviction, and,* for this reason, the judgment
is reversed and the cause remanded^


statute against incest, " brother" includes a brother o! Che half blood:
State V. Wyman, 59 Vt. 527; 59 Am. Rep. 753, and note.

INCEST— ACCOMPLICE.— If, in the commission of an incestuous
act, the female is the victim of force, fraud, or undue influence, so that
she did not willfully join therein with the same intent as the accused,
she ought not to be regarded as an accomplice: Porath v. State, 90 Wis,
527; 48 Am. St. Rep. 954.

is an accomplice, and, on the trial of a prosecution therefor, her testi-
mony is subject to the rule respecting accomplice testimony: Freeman
T. State, 11 Tex. Ct. App. 92 : 40 Am. Rep. 787, and note. To the aam«
effect see Stote ▼• Jarvis, 20 Or. 437; 88 Am. St. Bep. 141» and i

Digitized by


SepL 189S.] Wilson «. Boau. 929

Wilson v. Boolb.

(96 TiMNiaBn, 29a]

AND A DIYISION of the proceeds when it coiuUits of land prindpallx
Taluable for its timber and minerals, and they are almost exclnslTely
In one end of the tract and the minerals are undetermined in extent
and valne.

In kind the ralne of all the shares will be much less by reason of the
partition than the valne of the whole tract, partition otherwise than
by sale is manifestly inequitable and should be denied.

when the conditions prescribed by the statute to authorise a sale are
found to exist

OF THB MASTBR AND chancellor upon the facts is entiUed to the
same weight as the Terdict of a Jury. When such finding is that a
partition cannot be made advantageously to the parties, otherwise than
by a sale, it is error for the chancery court of appeals to remand the
cause for the appointment of commissioners to examine the premisea
and report upon the practicability of a partition in kind.

C. T. Gates, St., and Templeton ft Gates, for Wilaon.

Sam P. Bowan and McTeer ft Gamble^ for Bogle.

^^ McALISTER, J. The bill in this clause was filed in the
chancery court of Blount county for the purpose of procuring a
decree for the sale for partition of five thousand acres of moun-
tain lands, situated in that county. There was an order of refer-
ence to the master directing him to hear proof and report, inter
alia, ''whether the premises are so situated that partition thereof
cannot be made, or whether they are of such description that it
would be manif estiy to the advantage of the parties that the same
should be sold instead of partitioned.'' Proof was taken, and the
master reported as follows: '1 report that the land, being princi-
pally valuable for its minerals and timber, and the minends and
water being almost exclusively on one end of the tract, and the
minerals being undetermined in extent and value, no equitable
or advantageous partition thereof can be made, and that it would
be manifestly to the advantage of all the parties that the same
ehould be sold instead of partitioned/' Defendants excepted to
ibis report, but, on the hearing, the chancellor overruled the ex-
ceptions, confirmed the report, and ordered the land sold. The
defendants appealed, and, upon a hearing by the honorable court
of chancery appeals, the decree of the chancery court of Blount
■county was reversed. The cause is now before this court upon
the appeal *®* of complainants. The first assignment of error
is that the decree of the chancellor should have been affirmed,

AM. si; KMT., You XLUL-fiS

Digitized by VnOOQ IC

980 Wilson «. Bools. [Ti

became of the ooncturrent finding of the master and chanoellor
upon a controTerted question of iaet

The court of chanceiy appeala was of opinion that the ma§»
ter and chancellor had dniwn an erroneous conclusion of law from
the facts stated in the report In the opinion of that court, the
factSy as stated by the master, ''that the land is principally yalu-
able for its timber and mineraby and the minerals and water are
almost exclusively on one end of the tracts and the minerals are
undetermined in extent and Talue, furnish no sufficient reaaon
why the land should be sold instead of partitioned in Idnd.^

We differ with the court of chancery appeals^ and think that^
upon the postulate stated, the land would not be susceptible of an
equitable apportionment in kind, and would present a case wh»e
it would be manifestly to the interest of all parties that the di*
vision should be made by sale.

It is true that each tenant in common of land has a right to a
partition of the premises, except where such partition is imprac-
ticable, or where, from the situation of the premises, a sale would
be manifestly advantageous to all the parties interested: Beevea
T. Beeves, 11 Heisk. 673.

''Actual partition,'' says Mr. Freeman, in his work on Coten-
ancy and Partition, "was, by the common law, a matter of absolute
right, irrespective of the *^ fact whether the partition would
prove beneficial or ruinous. • • • • The object of the statutes au-
thorizing a sale was to obviate the manifest hardship, and even
destruction, which arose in some cases in making a division of
property'*: Freeman on Cotenancy and Partition, sees. 639-542.
However, as stated by Mr. Freeman: "A sale will not be ordered
without good cause being shown. It is not sufficient that some,,
or even a majority, of the cotenants prefer a sale to a partition.
The applicants for a sale must show the existence of such a state
of facts as, under the statute, will be sufficient to rebut the pre-
sumption of law that each of the parties is entitled to an actual
partition. The onus is always on him who seeks a sale. • • • .
The mere fact that the land may be divided into equal parts, and
thus partitioned equally among the cotenants, is not conclusive
that a sale should not be ordered.'*

"If, by a partition, the value of all the shares would be much
less by reason of the partition than the value of the whole tract,.
.... a partition would be manifestly inequitable, and a sale
would be decreed": Branscomb v. Gillian, 65 Iowa, 235.

"The true question," said Chancellor Walworth, "to be decided
by the master, under the statute, is whether the whole property^

Digitized by


Sept 1895.] Wilson v. Bools. 981

taken together, will be greatly injured or diminished in Tatne U
separated into parts in the hands of different persons, according
to their sereral rights and interests in the whole; '^ in other
words, whether the aggregate value of the several parts, when held
by different individuals in severalty, would be materially less than
the whole value of the property if owned by one person*': Cla-
son V. Clason, 6 Paige, 545.

A sale must be decreed when necessary to enable the court to
divide the property upon the principle that "equality is equity*':
Higginbottom v. Short, 25 Miss. 160; 67 Am. Dec. 198.

A mine must necesq^ly be partitioned through the instrumoi-
tality of a sale: Lenfers v. Henke, 73 IlL 405; 24 Am. Hep. 263.

So we think that in a case where it appears, as stated by the
master, that the land is principally valuable for its minerals and
timber, and the minerals and water are almost exclusively on one
end of the tract, and the minerals are undetermined in extent and
value, and that no equitable or advantageous partition thereof can
be made, it would be manifestly to the advantEige of all the parties
that the same should be sold. When the conditions prescribed
by the statute authorizing a sale instead of a partition are found
to exist or affirmatively appear, then a sale is a matter of absolute
right. This is evident from section 4024 of Milliken and Yen-
trees' Code, which provides that any person entitled to a partition
of premises is equally entitled to have such premises sold for di-
vision in the following cases: 1. If the premises are so situated
that partition thereof cannot be made; 2. Where the premises
are of such ^* description that it would be manifestly for the
advantage of the parties that the same should be sold instead of

We have in this case a concurrent finding of the master and
chancellor upon the facts, which, under the uniform and well-
established practice of this court, is entitled to the same weight aa
the verdict of a jury. The conclusion to be drawn from those
facts, and whether they authorize a sale, is, of course, a matter
of law. We are constrained to believe that, upon the facts found,
the conclusion of law drawn by the chancellor was fully warrant-
ed. It further appears that the court of chancery appeals ordered
that the cause be remanded to the chancery court of Blount county
for the appointment of commissioners, who should examine the
premises and report upon the practicability of a partition in kind.
This reference was ordered for the purpose of acquiring additional
light upon the subject, and because the court was not satisfied
with the concurrent finding of the master and the chancellor upon

Digitized by


982 Bybd v. Btbd. [Ti

the facti. We tliiiik this reference was manifestly erroneaiu^ be-
came in contraTention of the rule that the finding of the master
and chancdlor upon controverted qnestions of fact is entitled to
the weight of the rerdict of a juiy.

The decree of the court of chancery appeals is reversed, and the
decree of the chancery court of Blount county is affirmed.

PARTITION IB A RIQHT whieh a tenant in oommon may daim
from his ootenant at any time: Htgginbottom t. Short, 25 Miss-lOO; 67
Am. Bee. 198, and note.

PARTITION BT SALE. — Where division in partition cannot be
made without manifest injustice, the commissioners may reoommond a
sale and the court will Judge of the propriety of confirming euch return:
Bteedman t. Weeks, S Btrob. Eq. 145; 40 Am. Bee. 660. A sale of the
premises on partition is resorted to only to prevent a sacrifice of the
property by division: Striker t. Mott, 2 Paige, 887; 22 Am. Dee. 646w
Beet also, the note to Higgin bottom t. Bhort, 67 Am. Dee. 200.

Byrd f^. BTRa

ADULTBRY, professing to be loyal and true to her marriage tows,
made by her husband in consideration of love and affection, is pro-
cured by ftaud, and wUl be canceled in equity and the title rereated
In him.

Templeton ft Cates and J. C. Parker, for Joseph BjtL

Young Brothers^ for Emma Byrd.

*M WILKES, J. This bill was filed by the husband against
the wife to obtain a divorce and to cancel a deed made to her for
a consideration of lore and affection while the marital relation
existed. The chancellor granted the dirorce, but refused to can-
cel and set aside the deed to the wife, and the husband has ap-
pealed to this court

*^ The cause was assigned for hearing, under the act of 1895,
to the court of chancery appeals, and that court has reported the
facts and reversed the decree of the chancellor and directed the
deed to be canceled, and the wife has appealed to this court

It appears from the finding of the court of chancery appeals
that the deed was drawn up and dated August 28, 1890, and pur^
ported to convey a house and lot in Helenwood, Tennesaee, being
all the property of the husband.

The husband is an illiterate man,and can neither read nor write.

He procured one of his neighbors to write the deed, and it is

Digitized by


Sept. 1896.] Btbd v. Btbd. 98S

in the nsaal fonn, as follows: '^Know all men by these presents,
that I, Joseph Byrd, hath sold, and do hereby giye, grant, conrej,
and oonfinn to ikoma Byrd^ my wife/' etc. The deed was not
^gned until January, 1894, but was, soon after it was made, to
wit, September 1, 1890, acknowledged before the county court
clerk of Scott county in the usual manner, and admitted to regis-
tration without being signed.

In January, 1894, the husband and wife went to the deputy
clerk and requested him to sign complainant's name to the deed,
which he did, and, also at their request, inserted the husband's
name upon the register's books as though it had been there when'
originally registered.

A short time prior to this, complainant and his wife had separ-^
ated, and he had filed a bill for divorce, ^^^ on the ground of
the wife's adultery with one Phillips. This bill was dismissed
upon the wife's confession of her fault and agreement to mend
her life, and they were again united as man and wife, and were so
living when the signature was inserted in the deed and on the reg-
ister's books. The husband was an old man and somewhat de-j
crepit, and the defendant was a young woman and his second
wife. Shortly after her return to her husband and the dismissal
of the first bill for divorce, the wife prevailed upon the husband
to cure the defects in the deed in the manner stated, and the next

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 106 of 121)