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Tenn.)

BAKER Y. DEW

645

and therefore it is said the chancellor should BAKER v. DEW et al.

have sustained the demurrer and dismissed (Supreme Court of Tennessee. Nov. 9, 1915.) the bill upon the ground that the act abro1. DESCENT AND DISTRIBUTION 52-WIFE's gated the marital rights of the husband in PERSONALTY – HUSBAND'S RIGHTS — STAT- the personal property of the wife, and upon UTES.

Laws 1913, c. 26, entitled “To Remove Dis- her death the above sum passed to her next abilities of Coverture from Married Women," of kin and heirs at law. and providing that they are fully emancipated

The substance of the title of the act of from all such disabilities, and that the com- 1913 is "To Remove Disabilities of Coverture mon law with respect thereto and its effect on from Married Women,” and the substance of the rights of the wife is totally abrogated, that marriage shall not impose any disability on a the body of the act is: woman as to the ownership, acquisitior., or dis- That married women are fully emancipated position of property, and that she shall have from all disability on account of coverture, and the same capacity to acquire, hold, manage, con- the common law as to the disabilities of married trol, use, enjoy, and dispose of property as if women and its effect on the rights of property of unmarried, failing expressly, or by necessary the wife, is totally abrogated. Marriage shall not implication, to make any disposition of her impose any disability or incapacity on a woman property after her death, in the event of her as to the ownership, acquisition, or disposition failure to dispose of it, her personal property of property of any sort, or as to her capacity on her death, without such disposition, passes, to make contracts and do all acts in reference jure mariti, to her husband, as it would had to property which she could lawfully do if she they, prior to passage of the act, made an ante- were not married. Every woman now married, nuptial contract in the terms of the statute, or hereafter to be married, shall have the same under the law then existing.

capacity to acquire, hold, manage, control, use, [Ed. Note. For other cases, see Descent and enjoy, and dispose of, all property, real and Distribution, Cent. Dig. $8 83, 135-140, 144, personal, and to make any contract in reference 147-149, 151-158, 161-167, 169-171, 296-308; to it, and to bind herself personally, and to Dec. Dig. Om 52.)

sue and be sued with all the rights and incidents 2. STATUTES Om 239-CONSTRUCTION-ALTER

thereof, as if she were not married. ING COMMON LAW.

This act has been considered by us hereÀ statute intended to alter the common tofore in three cases. Parlow v. Turner, 178 law will not be construed to alter it further than it expressly declares or is necessarily im- S. W. 766; Sarah Lillienkamp v. W. T. plied from the fact of it covering the whole sub- Rippetoe, and J. G. Bennett et al. v. Jefferject-matter

son Hutchens et al. The opinions in the two [Ed. Note. For other cases, see Statutes, cases last named were delivered at the presCent. Dig. § 320; Dec. Dig. 239.]

ent term. In Parlow V. Turner, supra, the Appeal from Chancery Court, Knox Coun- wife was the owner of two tracts of land at ty; Will D. Wright, Chancellor.

the time of her marriage, which occurred Suit by J. T. Baker against Mrs. R. E. prior to the passage of the act of 1913. She Dew and others. Demurrer to bill was over- rented the land to a tenant by the month, ruled, and defendants appeal. Affirmed and the tenant paid the rent to her which acremanded.

crued after the passage of the act, and upon 0. L. White, S. R. Maples, Cornick, Frantz the suit of the husband, seeking to compel & McConnell, Jourolmon & Welcker, and the tenant to pay the same rent again, we Green, Webb & Tate, all of Knoxville, for held the tenant to be acquitted by the payappellants. Jesse L. Rogers, of Knoxville, ment to the wife, and the result reached was for appellee.

based on the act of 1913. In Lillienkamp v.

Rippetoe, supra, we held that the act did not BUCHANAN, J. Baker married Miss Clara enable a divorced woman to maintain against Dew, a daughter of Mrs. R. E. Dew. The her former husband an action for assault and marriage occurred on November 1, 1914, and battery committed by him upon her person was dissolved by the death of Clara, on after the act was passed, and while they susMarch 30, 1915. The bill in this case was tained towards each other the relationship filed by Baker on June 16, 1915, seeking a of husband and wife, and in Bennett v. decree against Mrs. Dew and other defend- Hutchens, supra, we held that the act did not ants for the sum of $1,515.40, averred to be abrogate an estate held by the entireties in the hands of Mrs. Dew, as guardian of created by deed to husband and wife anteher daughter Clara. The suit is based upon dating the passage of the statute. the ground that the above sum of money in Prior to the passage of the act of 1913 the the hands of Mrs. Dew was, at the time of law in this state upon the question of the the marriage, the property of Clara, and, husband's rights in the personal property of upon the death of Clara, became the property the wife was well settled. In Prewitt v. of Baker jure mariti. Defendants interpos- Bunch, 101 Tenn. (17 Pick.) 723, 50 S. W. ed a demurrer, which the chancellor overrul-1748, it was said: ed but allowed an appeal which defendants

“Personal property in possession, and the posperfected.

session of the wife in such cases is the posses[1] The question made by appellants is sion of the husband, is, in law, the property of that the bill shows the marriage and death the husband; nothing else appearing to show that the bill shows the marriage and death a separate property of the wife. Wade y: Can. of Clara Baker to have occurred after chap-trell, 1 Head, 346; Hollingsworth v. Mith (Milter 26 of the Acts of 1913 went into effect, / ler), 5 Sneed, 472; Cox v. Scott, 9 Baxt. 305. The general principle of the common law is that, erty, but held, nevertheless, that they were marriage amounts to an absolute gift to the used to express the quantity of the estate husband of all personal

goods of which the wife and the character of the dominion, which is actually or beneficially possessed at the time, or which comes to her during coverture. Wadé | the wife was empowered to exercise over v. Cantrell, 1 Head, 346; Allen v. Walt, 9 the property; the word “forever" was held Heisk. 242; Joiner v. Franklin, 12 Lea, 422; to be limited by the context to a control and Handwerker v. Diermeyer, 96 Tenn. 619, 627 [36 S. W. 869]. The common-law rule' that disposal of the property during the coverthe husband is entitled to receive and reduce to ture of the wife.

ture of the wife. She did not exercise the possession, during coverture, all choses in ac- right of disposal during her life, and it was tion, whether in the form of notes, debts, or legacies, belonging to the wife at the time of held that the husband's marital right which their marriage, or accruing afterwards, prevails had been abridged by the contract during covin Tennessee. Rice v. McReynolds, 8. Lea, erture attached to the property at her death. 36, 37. Where money of the wife is in the hands Brown's Adm’r v. Brown's Adm'r, 25 Tenn. of her guardian, the latter may settle with the husband and pay him the money due. Sanders

Sanders (6 Humph.) 126, 127. On the other hand, in v. Forgasson, 3 Baxt. 249; Lane v. Farmer, another case, the contracting husband had 11 Lea, 568-572. The fact that the wife is a bound himself, his heirs, etc., "to relinquish, minor at the time of marriage makes no difference, for, upon marriage of a female ward, and does relinquish, all claims he has, or guardianship ceases. Jones v. Ward, 10 Yerg. ever could have, to the property or money 168. From that time the husband becomes so purchased, either in law or equity, that clothed with the right to demand, receive, and he might acquire by marrying or becoming sue for the distributive share of his wife in her father's estate, or for any funds in the hands the husband of the said Sarah.”

In comof the guardian. The guardian might settle menting on the effect of this part of the conwith him and pay him the money due the wife. tract, the court said: Lane v. Farmer, 11 Lea, 568–572. It is also well settled that if, for any reason short of

"Language more strongly appropriate to exabandonment of these fixed and vested rights by clude him from all title whatever to the propthe husband, the wife dies before reduction to erty by virtue of his marital right to the proppossession, the choses in action go to the hus- erty not only during coverture, but absolutely band, and whether this be as next of kin or jure and forever, could not, we think, have been mariti is immaterial. Williamson Exec. 242; adopted, and we are unable to perceive anything 2 Kent Com. 137; Hamrico v. Laird, 10 Yerg: in the balance of the instrument to limit the 222; Tune v. Cooper, 4 Sneed, 296.”

language to the period of coverture.” See, also, on the same subject, D'Arcy V.

So here the marital right of the husband Mutual Life Ins. Co., 108 Tenn. (24 Pick.) was held to be extinguished by his contract. 567, 69 S. W. 768; Shugart v. Shugart, 111 Hamrico v. Laird, 18 Tenn. (10 Yerg.) 222. Tenn. (3 Cates) 179–183, 76 S. W. 821, 102 The principle established by these cases and Am. St. Rep. 777; Williford v. Phelan, 120 others was recognized and applied in MitchTenn. (12 Cates) 589-596, and authorities ell v. Bank, 126 Tenn. (18 Cates) 669, 672, cited; Mitchell v. Bank, 126 Tenn. (18 Cates) 150 S. W. 1141, and it was there pointed out 669, 150 S. W. 1141.

that the creation of a separate estate in In Prewitt v. Bunch, supra, the equity of personalty, unless words were used indicatthe wife to a settlement, who died without ing clearly an intention to cut off after covissue (as did the wife in the present case), erture the husband's rights jure mariti, was held to be no bar to the suit of the hus- would merely have the effect to suspend them band brought after the death of the wife, and during the period of coverture, and they the holding in that case was mainly put on

would attach again, at the death of the wife, the ground that if the husband had sued to the property in which her separate estate during the life of the wife, and a settlement had been created. had been decreed to her, it would only have

[2] In the light of the law, as we have rebeen for the life of the wife, with remainder viewed it above, we must determine what to the husband, she leaving no issue.

change was made by the act of 1913, so far In one of our cases, speaking of the mari- as the rights of the parties to this suit are tal right of the husband, it was said:

concerned. It is significant that neither ex"If there be a marriage contract whereby this pressly nor by necessary implication does right is abridged, it is taken away only to the that statute undertake to make any disposiextent stipulated in the settlement. When the tion of the property of the wife after her settlement makes no disposition of the property, death in the event of her failure to exercise in the event of the wife's death, and provides only for her dominion over it during coverture, any of the powers conferred on her by the the right of the husband as survivor is a fixed statute. What is the necessary result? We and stable right over which the court has, no think there can be but one, and it is the devcontrol, and of which he cannot be divested."

olution of such of her property as she had The language of the contract in that case

not disposed of during life, according to the was:

rule of the common law left unchanged by "That the negroes and their future increase are to be and remain the property of the said the act. In other words, the property passElizabeth, and subject to her control and dis- es jure mariti to her husband, exactly as it posal forever."

would have done had the husband made an The court admitted that the words of the antenuptial contract in the terms of the statcontract—especially in connection with the ute prior to the passage of the act under the word “forever"-were appropriate to the law as it then existed. We have seen that

Tenn.)

BAKER V. DEW

647

been to abridge the marital rights of the should arrive. Manifestly, the Legislature husband in the personal property of the wife knew of the existence of the marital rights during coverture, and that at her death his of the husband in the property of the wife marital rights would again attach, and the when it passed the act of 1913, and, if its property would pass to him thereunder; so purpose had been not only to abridge but to in the present case we think it must be un- totally abrogate those rights, we think that der the statute. It cannot be material that purpose would have been made to appear the wife in this case was under the age of either by the express terms of the act, or 21 years, at the time of marriage and during by necessary implication, considering it as an the period thereof. The law makes no ex- entire piece of legislation; and, as no such ception in such a case. In opposition to the purpose appears, we may well assume that the views we have expressed, the brief for appel- body which passed the act intended to conlants insists that the act totally abrogates fer on the wife the power to determine by the common law in respect of the marital her own acts during life and coverture rights of the husband. But there are no whether her property should, on her death, words of the statute which expressly so de- pass to her husband jure mariti, or to her clare, and considering it as a whole we do next of kin and heirs at law, or to some not think such result follows by necessary other beneficiary on whom she might see fit implication. We think that the words "total- to bestow it. Our rule for the construction ly abrogated,” in section 1 of the act, are of statutes intended to alter the common limited by the context in which they are law is that a statute will not be construed used, and their effect is to manifest a legis- to alter the common law further than the lative purpose so as to free the wife from the act expressly declares, or than is necessarily disabilities which the common law imposes implied from the fact that the act covers the on her as the result of marriage that she may whole subject-matter. State v. Cooper, 120 enjoy during coverture all rights "as to the Tenn. (12 Cates) 549, 113 S. W. 1048, 15 Ann. ownership, acquisition, or disposition of prop-Cas. 1116. This rule is well supported by erty of any sort, or as to her capacity to the weight of authority, as may be seen by make contracts and do all acts in reference reference to the cases cited in Sarah Lilliento property which she could lawfully do if kamp v. W. T. Rippetoe and J. C. Bennett she were not married.” Construed as we et al. v. Jefferson Hutchens et al. We think have held this act should be, its provisions the act of 1913 does not cover the subject clearly fall short of the effect of the mar- of the marital rights of the husband in the riage contract in Hamrico v. Laird, supra, personal property of the wife, after her and in Loftus v. Penn, 31 Tenn. (1 Swan) death, where she has failed to make provi445. Each of those contracts was held to sion as to how it shall go on the happening look to a period of time beyond the cover- of that event. ture, and death of the wife, and to bind the We find no error in the decree of the chanhusband and his representatives to refrain cellor, and the same is therefore affirmed, from setting up claim to the property of the at appellants' cost, and the cause is remandwife jure mariti, when that period of time ed for further proceedings.

for Kirtley & Gulley in the sum of $50, from ST. LOUIS, I. M. & S. R. CO. v. FREEMAN. which judgment the Railroad Company apKIRTLEY & GULLEY v. ST. LOUIS, I. M. peals. Judgment modified to reduce recovery & S. R. CO.

to $12.50, and affirmed. (No. 173.)

E. B. Kinsworthy and W. G. Riddick, both (Supreme Court of Arkansas. Oct. 18, 1915.)

of Little Rock, for appellant. Hal. L. Nor1. ATTORNEY AND CLIENT Om172-COMPROMISE wood, of Little Rock, for appellee.

OF ACTION BY LITIGANTS-RIGHT OF ATTOR-
NEY-STATUTE-REPEAL.

Where, by contract with their client, a law KIRBY, J. [1] This appeal involves the firm was to receive 50 per cent. of any amount construction of our statute relating to attorderived from recovery or compromise of an action against a railroad company, a settlement ney's fees of April 4, 1899 (section 4457, Kirfor $25 between the railroad and the client with by's Digest), and of Act 293 of the Acts of out the consent of the firm entitled the firm to General Assembly of 1909; it being insisted a judgment against the railroad of $12.50 under by appellee that the act of 1899 is repealed the act of May 31, 1909 (Laws 1909, p. 892), creating a lien in favor of the attorney upon his by the later one. Said section 4457 provides client's cause of action for the amount of his for the sale of a judgment, or any part therefee, and did not entitle them to a reasonable fee, of, of a court of record, or the sale of any since Kirby's Dig. 4457, giving a cause of ac- cause of action or interest therein after suit tion to the attorney representing the party who cause of action or interest therein after suit receives a consideration in a compromise be- has been filed thereon, which shall be evitween the litigants, a right of action against denced by a written transfer, which, when both litigants for a reasonable fee, was repealed acknowledged and filed and noted as providby the act of May 31, 1909, creating a lien in favor of an attorney upon his client's cause of ed, shall be full notice and valid, and binding action which attaches to a judgment in his cli- upon all persons subsequently dealing with ent's favor and the proceeds thereof.

reference to said cause of action or judgment, [Ed. Note. For other cases, see Attorney and and also: Client, Cent. Dig. § 384; Dec. Dig. Om 172.]

“In case the plaintiff and defendant compro2. STATUTES 226 - CONSTRUCTION - STAT- mise any suit for liquidated or unliquidated UTES ADOPTED FROM ANOTHER STATE.

damages or any other cause of action after same Where a statute is adopted from another is filed, where the fees or any part thereof to state after being construed by the courts there- be paid to the attorney for plaintiff or defendof, such construction will be adopted, if not in ant are contingent, the attorney for the party conflict with the settled policy of the state plaintiff or defendant receiving a consideration adopting the statute.

for said compromise, shall have a right of ac[Ed. Note. For other cases, see Statutes, tion against both plaintiff and defendant for a Cent. Dig. $ 307; Dec. Dig. Om 226.]

reasonable fee, to be fixed by the court or jury 3. ATTORNEY AND CLIENT Cm150-COMPRO- trying the case.”

MISE BY CLIENT CONTINGENT FEE Said act of May 31, 1909, provides:
AMOUNT RECOVERABLE.

"The compensation of an attorney or counselAn attorney, after compromise by his client lor at law for his services is governed by agreein good faith of a claim upon which suit has ment, express or implied, which is not restrained been brought, is bound by the terms of his con- by law. From the commencement of an action tract for the amount of his contingent fee, and or special proceeding, or the service of an anis entitled only to such per cent. of the amount swer containing a counterclaim, the attorney realized from the settlement as is fixed by his who appears for a party has a lien upon his contract.

client's cause of action, claim or counterclaim, [Ed. Note.-For other cases, see Attorney and which attaches to a verdict, report, decision, Client, Cent. Dig. $$ 354-357; Dec. Dig. Om judgment or final order in his client's favor and 150.]

the proceeds thereof in whosoever hands they 4. ATTORNEY AND CLIENT Omw189 ACTION may come; and the lien cannot be affected by PENDING - RIGHT OF CLIENT TO COMPRO- any settlement between the parties before or MISE.

after judgment or final order." Litigants have the right to settle contro- No question has heretofore been raised of vergies between them without the consent and the repeal of the first statute which has been over the objection of the attorneys representing construed and applied in Fordyce v. McPhetthem therein.

[Ed. Note. For other cases, see Attorney and rige, 71 Ark. 327, 73 S. W. 1096; K. C. Ft. Client, Cent. Dig. $8 407-411; Dec. Dig. Om Scott & Memphis Ry. Co. v. Joslin, 74 Ark. 189.]

552, 86 S. W. 435; Rachels v. Doniphan LumAppeal from Circuit Court, Pulaski Coun-ber Co., 98 Ark. 529, 136 S. W. 658; Adamty; Guy Fulk, Judge.

son v. Kay, 100 Ark. 248, 140 S. W. 13, and Action by Frank Freeman against the St. Hall v. Huff, 169 S. W. 792. Louis, Iron Mountain & Southern Railway [2] The latter statute is a borrowed one, Company in the Pulaski circuit court for coming from New York, after it had been personal injuries, wherein Kirtley & Gulley construed by the courts of that state, and filed a petition for a reasonable fee as attor- the rule is that the construction of a borrowneys for plaintiff, as against the Railroad ed statute is adopted with it, unless contraCompany for a wrongful settlement. With ry to the settled policy of the state adopting this was consolidated a suit by Kirtley & the statute. McNutt v. McNutt, 78 Ark. 346, Gulley against the Railroad Company in a 95 S. W. 778; Nebraska Nat. Bank v. Walsh, justice of the peace court, and appealed to 68 Ark. 433, 59 S. W. 952, 82 Am. St. Rep. the Pulaski Circuit Court by the Railroad. 301. There was a trial by the court, and judgment

In Fischer-Hansen v. Brooklyn Heights Ark.)

WESTERN UNION TELEGRAPH CO. V. BROOKS

649

Ry., 173 N. Y. 492, 60 N. E. 395, the court tion of an attorney, in the collection of his held that the statute gave an attorney a lien fee or compensation for services, from the upon his client's claim and cause of action beginning of the suit, in accordance with his upon the commencement of the action, which contract therefor, according to the construcextended to the proceeds realized, whether tion placed upon the statute in the state upon settlement or judgment, but that it gave from which it came. Witmark v. Perley, 43 the attorney no right to control the litigation Misc. Rep. 14, 86 N. Y. Supp. 756; Oishei and prevent a settlement thereof. It was v. Metropolitan St. R. Co., 110 App. Div. 709, there said:

97 N. Y. Supp. 447; Goldstein v. Nassau Ry. “A cause of action is not the property of the Co., 157 App. Div. 226, 141 N. Y. Supp. 805. attorney, but of the client. The attorney owns [3, 4] The attorney, after the compromise no part of it, for a lien does not give a right to property, but a charge upon it. As it is merely or settlement in good faith by his client of a incidental and for the purpose of security only, claim upon which suit has been brought, is it would not be reasonable to hold that the Leg- bound by the terms of his contract for the islature intended that it should be the means amount of his fee, and only entitled to that of blocking an honest and genuine adjustment of controversies. We think the lien is subject per cent. of the amount realized from the to the right of the client to settle in good faith, settlement or judgment fixed by his contract. without regard to the wish of the attorney. Fischer-Hansen v. Brooklyn Heights Ry. Co., * * * The right of the parties to thus settle is absolute, and the settlement determines the supra; Stephens v. Railway Co., 157 Mo. cause of action and liquidates the claim. This App. 656, 904. In this case the attorneys necessarily involves the reciprocal right of the agreed to perform the services in bringing attorney to follow the proceeds of the settlement, the suit in the collection of the claim for 50 and, if they have been paid over to the client, to insist that his share be ascertained and paid to per cent. of whatever might be realized therehim; for the defendant is estopped from saying from, by settlement or otherwise, and, their that with notice of the lien he parted with the client having settled the claim, as he had the entire fund.”

right to do, without their consent, or over In St. Louis, I. M. & S. R. Co. v. Blaylock, their objection for that matter, the railway 175 S. W. 1170, this court held likewise that company effecting such settlement was only the lien given by the statute did not give the bound to them for the discharge of their attorney an interest in the cause of action it claim in the sum of 50 per cent. of whatever self or control over it, saying:

amount they paid in settlement of the claim. "The parties to the litigation must necessarily It is undisputed that the claim was settled control the proceedings affecting their respective for $25, and therefore the attorneys were interests until the lawsuit is ended. The attorney, under the statutes, has a lien for his fee only entitled to judgment against the railwhich cannot be defeated by any settlement of road for 50 per cent. of that sum, or $12.50. the parties litigant before or after judgment or The judgment is reduced to that amount, final order. The attorney has no right to com- and, as modified, will be affirmed. pel his client to continue litigation. A client may dismiss his cause of action or may settle

It is so ordered. with the opposite party without consulting his attorney, but, where there are any proceeds resulting from the litigation, either through settlement or compromise, or as the final result of the prosecution of the lawsuit to the end, the WESTERN UNION TELEGRAPH CO. v. attorney has a lien on such proceeds of which

BROOKS. (No. 189.) he cannot be deprived by the parties to the lawsuit by any settlement they may make.”

(Supreme Court of Arkansas. Oct. 25, 1915.) This statute provides that the compensa- 1. TRIAL m260_REQUESTED INSTRUCTIONStion of an attorney for his services is govern

CHARGES ALREADY GIVEN. ed by agreement, express or implied, which instructions requested, if the matters contained

There is no error, where the court refuses is not restrained by law, and gives him a lien in the refused instructions were embraced in from the commencement of an action or special other instructions given. proceeding or the filing of an answer and [Ed. Note.-For other cases, see Trial, Cent. counterclaim upon the cause of action, which Dig. $8 651-659; Dec. Dig. 260.] attaches to any proceeds realized out of such 2. TELEGRAPHS AND TELEPHONES 54 claim or cause of action resulting from the

NEGLIGENCE-LIMITATION OF LIABILITY. litigation, either through a settlement, com

Where the contract between a telegraph promise, or judgment, and of which he can- liability of the company to $50, the sender su

company and the sender of a message limits the not be deprived by the parties to the action ing for negligent failure to deliver the telegram by any settlement they may make.

can recover nothing in excess of the $50. Under the former statute, the attorney was

[Ed. Note. For other cases, see Telegraphs remitted to his claim for a reasonable fee and Telephones, Cent. Dig. $8 39-47; Dec. Dig.

Comm54.] against both parties to the litigation in case of a settlement thereof without his consent; Appeal from Circuit Court, Lonoke County ; the amount of the fee to be determined upon Eugene Lankford, Judge. proof of the services performed. Rachels v. Action by A. B. Brooks against the Western Doniphan Lumber Co., supra.

Union Telegraph Company. From a judgThe later statute is in conflict with the ment for plaintiff, defendant appeals. Affirmother, and provides a remedy for the protec-) ed in part.

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