Foster v. Ingle.

deceased relative without his knowledge. The court said it would be manifestly unjust, especially since the statute deprived the husband of all interest in the wife's estate, to hold him liable as an executor in his own wrong for her acts in relation to all such property of persons deceased as she might, without his knowledge and consent, choose to interfere with, or claim as her own by reason of heirship or otherwise.

To the same effect is the rule announced in Boutell v. Shellaberger, 264 Mo., 70, 174 S. W., 384, L. R. A., 1915D, 847; Henley v. Wilson, 137 Cal., 273, 70 Pac., 21, 58 L. R. A., 941, 92 Am. St. Rep., 160; Harrington v. Jagmetty, 83 N. J. Law, 548, 83 Atl., 880; Roberts v. Lisenbee, 86 N. C., 136, 41 Am. Rep., 450; R. C. L., vol. 13, p. 1233, section 269.

Before the passage of the Married Women's Emancipation Act, the wife could not be sued alone for her torts, but her husband must be joined with her.

In Price v. Clapp, 119 Tenn., 434, 105 S. W., 866, 123 Am. St. Rep., 730, this court said:

"It is well settled that the husband is not joined as defendant in such cases on the ground that the wife's misconduct is imputable to him, but for conformity's sake. His being a defendant results, not from his participation in the wrong, but from the fact that the existence of the marriage relation makes it impossible for the injured party to sue the wife alone. To reach her, the husband must be joined in the action."

Our Married Women's Emancipation Act (chapter 126, Acts of 1919) does away with the necessity of joining the husband as defendant in an action against his wife for torts committed by her in connection with her property. It expressly provides that married women shall have the same

Foster v. Ingle.

capacity "to sue and be sued with all the rights and incidents thereof, as if she were not married." Therefore the reason no longer exists for suing the husband when the wife alone is answerable and can be sued.

We find no error in the judgment of the court of civil appeals, and it is affirmed, with costs.

Griffith v. Nashville, C. & St. L. Ry.

A. M. GRIFFITH et al. v. NASHVILLE, C. & ST. L. RY.

(Nashville. December Term, 1922.)

1. TRUSTS. Deed from trustee for incompetent not invalid because signed as guardian.

A deed by a trustee for an incompetent held not invalid because signed by him as guardian, he having power to sell the land in the capacity in which he held it, and his duties under the deed of trust not being inconsistent with those usually performed by a guardian. (Post, pp. 231, 232.)

2. TRUSTS. Trustee for incompetent held not authorized to convey right of way to railroad company.

Under a deed of land in trust for an incompetent with power to convey to him only when restored to mental soundness, the trustee had no power to convey a right of way to a railroad company, though he was the holder of the legal title, and the railroad had the power to take the property by condemnation proceedings. (Post, pp. 232-234.)

3. TRUSTS. No title acquired by trustee's deed subsequent to absolute conveyance by owner to cestui que trust.

Where, prior to the execution of a deed by a trustee for an incompetent, the owner of the land made an absolute conveyance to the cestui, thereby revoking the trust, grantee under the trustee's deed acquired no title. (Post, p. 234.)

4. LIMITATION OF ACTIONS. Railroad sued for value of land conveyed to it by incompetent's trustee held entitled to rely on statute relating to taking of private property for public improvements, where suit treated as one for damages.

In a suit by an incompetent's heirs for the value of property "unlawfully taken" by a railroad company, to which it was conveyed without authority by deceased's trustee, where the chancellor's

Griffith v. Nashville, C. & St. L. Ry.

decree, from which no appeal was taken by complainants, proceeded on the theory that the cause of action was that described by Shannon's Ann. Code, section 1866, authorizing the owner of private property taken for public improvements to sue for damages in the ordinary way, held, that section 1867, the statute of limitation relating to the taking of private property for public improvements, was applicable, and not the statutes of limitations applicable to real actions. (Post, pp. 234-236.)

Code cited and construed: Sec. 1866 (S.).

5. DESCENT AND DISTRIBUTION. Heirs of incompetent have no right of action for damages accruing to him by taking of railroad right of way.

Heirs of an incompetent have no right of action for damages accruing to him by the taking of land by a railroad for a right of way; such action being in his administrator. (Post, pp. 236-240.)

6. LIMITATION OF ACTIONS. Action by incompetent's heirs for damages for appropriation of land by railroad must be brought within year after his death.

Under Shannon's Ann. Code, section 4448, providing that one of unsound mind when a cause of action accrues, his representatives or privies, may commence the action after removal of such disability within the time of limitation for the particular cause of action, an action by heirs of an incompetent to recover damages, as authorized by section 1866, for appropriation of the latter's land by a railroad company, must be commenced within a year after his death, in view of section 1867. (Post, pp. 236-240.)

Case cited and approved: Southern Railway v. Jennings, 130 Tenn., 450.

Griffith v. Nashville, C. & St. L. Ry.

Appeal from the Chancery Court of Marion County.HON. T. L. STEWART, Chancellor.

SIZER, CHAMBLISS & CHAMBLISS, for appellants.

FITZGERALD HALL and J. T. RAULSTON, for appellec.

MR. L. D. SMITH, Special Justice, delivered the opinion of the Court.

The complainants in this case are the heirs at law of Amos Griffith and also of Joel Griffith, deceased. The bill avers that Joel Griffith was the son of Amos Griffith, and that Amos Griffith, who died prior to the death of Joel, executed a deed of trust to W. S. Griffith (who was a son of Amos and brother of Joel) conveying to him certain lands in Marion county in trust for the benefit of Joel, who was then, and ever since remained, non compos mentis. The bill then alleges that after this conveyance by Amos Griffith to W. S. Griffith the latter executed a conveyance to the Nashville, Chattanooga & St. Louis Railway Company for a right of way through this land, and that soon after the railway company entered and took possession and built its tracks thereon and remained in the use and possession thereof from that time on to the filing of the bill. It is alleged that this conveyance to the railway company was void because the said W. S. Griffith, trustee, had no title to convey and no authority to make any conveyance under the trust deed, and that the possession of the railway company was not good as against Joel Griffith or against the complainants. Upon these averments the complainants say in their bill that they are advised: