Jones vs. Jones, Adm'r.

since 1827 or 1828; at that time she was known as Delilah Harris. Elbert Jones, deceased, and Delilah Harris lived in my neighborhood until the fall of 1835, in company with Elbert Jones, deceased; but not as his wife. Elbert Jones, deceased, and his wife, Matilda Jones, separated about the year 1829, but they were never divorced. Matilda Jones died about twelve or fifteen years after the separation. Have lived in Bedford county, Tennessee, since 1830.

The above is all the evidence introduced to prove or disprove the lawful marriage of Elbert Jones with Delilah Jones. The evidence, on the part of the complainant, is but declarations and conduct of parties, and at most, but circumstantial evidence of marriage. The complainant does not endeavor to prove that her marriage was ever, in any manner, solemnized; or that there was any agreement between her and Elbert Jones to become man and wife. In a suit for dower, it is clear that an actual marriage, either under the forms and solemnities prescribed by the statute, or as prescribed by the common. law, is necessary. It is not one of those cases in which a man is estopped, on grounds of public policy, or private right from denying that he is married to a woman; as where a tradesman has trusted a woman on the faith of her being married to a man, who has held her out to the world as his wife. In such cases the law will not permit the truth to be proven, because it would do injustice and work a fraud. But here the person claiming to be the wife, assuredly has no higher equities than the relations of the deceased; for if, instead of being married, she lived with deceased as his concubine, it was her own fault, and she can blame herself alone.

The cohabitation and acts of Elbert Jones and Delilah Jones, although extending through many years, did not amount to marriage, but are facts from which a marriage might be inferred. They were circumstances on which to

Jones vs. Jones, Adm'r.

ground a presumption of marriage, and on the other hand, might be met with other circumstances which would entirely overturn that presumption.

Delilah Jones says she was married to Jones in 1831, but does not state how or by whom she was married, but only shows acts of cohabitation and holding out to the world that they are man and wife. On the contrary, J. M. Jones, a brother of Elbert, says he was well acquainted with these parties, and in 1831, and several years afterwards, Elbert had a lawful wife living, by the name of Matilda Jones, from whom he was never divorced. No effort on the part of the complainant was made to overturn or weaken this evidence. It is positive, direct, conclusive.

If this was true, Elbert Jones could not have made Delilah Harris, or any woman, his lawful wife in any manner whatever, either by the forms of solemnization required by the statutes, by acts of cohabitation or otherwise. The proof of marriage must relate to the time alleged in the bill, viz., 1831; and if, at that time, Matilda Jones was the lawful wife of Elbert Jones, Delilah Jones could not have been. No evidence has been introduced to show that any subsequent marriage has been had; we are clearly of the opinion that Delilah Jones was not the lawful wife of Elbert Jones at the time of his death, and not being such, she cannot maintain her action of dower in his estate, or institute proceedings to inquire into errors or frauds on the part of the administrator, as it is not shown that she has any other interest in the estate except as a wife of the deceased.

Judgment affirmed.

McGehee vs. Blackwell et al.

MCGEHEE VS. BLACKWELL et al.

PLEADING: When statute of limitation may be interposed on demurrer.
It is optionary, under the fifth clause of sec. 111, Code of Practice,
where the cause of action appears upon the face of the complaint
to be barred by limitation, to set up such defense, either by demur-
rer or answer; but if the complaint shows on its face that the
cause of action is not barred, when, in fact, it is barred, the defense
can only be made by way of answer.

LIMITATIONS: When vendor assigns note and lien.

Where the assignee of a note given for the payment of the purchase
money of land comes into the possession of the vendor's lien, by
virtue of the assignment, he stands in the same condition, as to his
remedies and the period of limitation applicable thereto, as the
vendor, except the legal title being in the vendor, he cannot bring
ejectment; and in an action upon the note, or in an action to en-
force his lien, the period of limitation applicable to the former
being five years, and to the latter seven years, though his action on
the former may be barred, he still has two years longer to bring his
action by virtue of the latter.

EQUITY PRACTICE: When tender of deed, etc., may be dispensed with.
While, in action at law for the purchase money due, where the consid
eration is the conveyance of the property sold upon payment of
the purchase money, and the covenants between the parties are
mutual and dependent, a deed should be tendered, and not merely
offered to be tendered, before suit brought, yet, in equitable pro-
ceedings, while the rule should ordinarily be observed, the chancel-
lor may, when deemed promotive of the ends of justice, relax or
altogether dispense with the rule.

APPEAL from Jefferson Circuit Court.
Hon. HENRY B. MORSE, Circuit Judge.
English, Gantt & English, for appellant.
Bell & Carllon, for appellees.

SEARLE, J. This was an action in equity, brought by the appellant against the appellee, to the November term, 1869, of

McGehee vs. Blackwell et al.

the Jefferson circuit court, to enforce a vendor's lien upon certain lands situate in said county, for the balance of the purchase money due thereon.

The material allegations and facts of the complaint, such of them as are necessary in the consideration and disposition of the questions raised in this case, are as follows: That on the 31st of January, 1859, Samuel M. McGehee sold to George L. Blackwell four hundred acres of land, in Jefferson county, and he and his wife executed a bond to Blackwell, covenanting to make him a deed on payment of the notes given for the purchase money; that the purchase money was all paid except one note for $1.398.16, dated on the day of sale, and due on the 1st of January, 1861; that on the 10th of May, 1860, Samuel M. McGehee assigned this note to Thomas F. McGehee, the appellant herein; that by an agreement between Samuel M. McGehee, who acted as agent for Thomas F. McGehee and Blackwell, the latter, on the 23d of April, 1863, paid $362.50, the same being indorsed as a credit on the note; that on the 16th of October, 1866, Blackwell assigned the title bond in blank (as to the name of the assignee), but the assignment was believed to be made to John C. Ward or William G. Hughes or Emily P. Hughes or all of them, and they are made defendants; that on the 24th of January, 1868, the defendants last named conveyed said land to Jesse R. Powell, and he is made defendant; that on the 16th day of April, 1868, the land was sold under execution against Blackwell, and purchased by Abraham Kahn, Isaac Wolf and Isaac McIntyre, and they are made defendants; Samuel M. McGehee and wife are made defendants, as also the two tenants; and all the defendants were duly summoned.

The defendants John C. Ward, William G. Hughes, Jesse R. Powell and George L. Blackwell filed a special demurrer to the complaint, in words and figures as follows, to wit:

McGehee vs. Blackwell et al.

1. "That it appears, upon the face of the complainant's bill, that the note upon which he sues is and was, at the time of instituting his said complaint, barred by the statute of limitations, and no facts are stated in the complaint sufficient to remove the bar of the statute.

2. "The plaintiff's complaint does not state facts sufficient to constitute a cause of action, and does not show that a deed has been tendered for the lands, nor the plaintiff's offer to have one made."

The court sustained the demurrer and dismissed the complaint for want of equity; to which the plaintiff excepted, and appealed to this court.

We have two special causes of demurrer set forth in this demurrer, and we will consider them in their order: First. As to the bar of the statute of limitations, and here in the outset, the question is suggested, can the defendants, on demurrer, interpose the statute of limitations? This action was brought after the first day of June, 1869, and all questions in relation to the proceedings thereof must be determined by the Code of Practice. See acts of the adjourned session, 1868, of the general assembly, p. 161. Sec. 111 of the Code, provides for what matters demurrers may be interposed. If the interposition, by demurrer, of the statute of limitations is proper under our code, it must be under the fifth clause of sec. 111, which reads as follows: "That the complaint does not state facts sufficient to constitute a cause of action." We see nothing in this clause otherwise than permission, at least, of the use of the demurrer in interposing such bar, where the cause of action appears upon the face of the complaint to be barred; for in such case, there is in law no cause of action alleged. And this, we believe, is in strict analogy with the old chancery practice. The defendant in such cases has option to demur or set up the bar by answer