[Thompson vs. Cochran et als.]

that may be found practicable; and he shall be at liberty to employ the services of a surveyor, if absolutely necessary, to lay off the boundaries of said lots or separate parcels." The complainant appealed from this decree.

Arnold, for the complainant.

R. J. McKinney, for the defendants.

REESE, J. delivered the opinion of the court.

The complainant files her bill to have dower assigned her in a tract of land upon which her late husband, James Thompson, resided at the time of his death, and upon which she still resides. The husband of complainant in his life time made a contract of purchase of the land in question from one Wheelock for the sum of five hundred and fifty dollars, four hundred and upwards of which he paid to Wheelock, and the balance he agreed to pay to one Allen, to whom Wheelock had given a mortgage or deed of trust upon the land, and Wheelock executed a covenant to Thompson to convey the land when the balance of the consideration should be paid. The balance was not paid, and Allen was about to sell the land to satisfy his demand. Upon this state of the case Thompson procured Cochran to advance to Allen the sum of $116 621, and the debt to Allen was paid, and the deed of trust or mortgage was assigned to Cochran by Allen; and further to secure Cochran for his advance of money to Allen, Thompson caused and procured Wheelock to convey by deed the land to Cochran, and Cochran executed the defeasance set forth in the bill. The legal title is, therefore, by virtue of this deed, to say nothing of the assignment of the mortgage, in Cochran, and the equitable title in the heirs of Thompson, subject to the charge upon the land for the $116 623 advanced by Cochran. It is obvious, therefore, that the widow of Thompson, the complainant, cannot have dower assigned to her without paying the money so secured to Cochran. But she is entitled to dower upon this being done, and if it be not done, she is entitled to have the land sold for

[Campbell vs. Hancock.]

the payment of the debt, and to be endowed of one-third of the money arising from such sale after the payment of the debt.

Such it seems to us are the clear rights of the parties. The record has been encumbered with voluminous and inconclusive testimony on the subject of the alledged insanity of Thompson at the time of these transactions. There was, as it seems, no fraud on the part of Cochran. All that he did was for the benefit of Thompson, and he obtained no advantage, but a security for his money, in doing which he violated no principle of justice or equity.

The Chancellor took this view of the subject, and we affirm his decree.

CAMPBELL vs. HANCOCK.

1. The suggestion of the insolvency of an estate to the County Court, and notice to creditors to file their claims, does not furnish matter in bar of a pending suit. The creditor may proceed to judgment, and if he does not file his claim he fails to do so at his peril.

2. Where the damages given by the jury exceeds those laid in the suit, it is error; but the excess may be remitted.

Swan and Lyon, for Campbell.

Rodgers, for Hancock.

GREEN, J. delivered the opinion of the court.

This is an action of debt against the plaintiff in error, as administrator of James Campbell, deceased.

By leave of the court, the defendant below filed a fourth plea, alledging that the estate of the defendant's intestate was found insolvent; that on the 1st of February, 1839, defendant suggested the insolvency to the Clerk of the County Court of Knox county, the proper authority; that by his order, a notice was given to all persons having claims against the said estate to file them with the Clerk, on or before the 2nd of May, 1839;

[Campbell vs. Hancock.]

on that day the commissioners duly appointed, distributed the estate among those whose claims had been filed; and that the plaintiff's claim was not filed, and is barred.

To this plea there was a replication; and to the replication a rejoinder; to the rejoinder the plaintiff demurred.

The question is, whether this plea is a defence to the action. And we think it is not.

The act of 1833, ch. 36, does not by its terms, nor by implication, arrest the progress of any suit that may be pending against the administrator when the insolvency may be suggested. By the the act of 1837-8, amendatory of this law, a bill may he filed enjoining the further prosecution of suits against the insolvent estate. And this provision shows that the legislature did not consider the mere operation of the act of 1833, when pleaded, as having that effect.

1st. The bar to any claim not filed by the time fixed by the Clerk for the distribution of the estate, provided by the 10th section of the act of 1833, does not relate to the prosecution of a suit against the administrator to judgment, but is applicable to the right of the party so neglecting, to share in the fund so distributed. If he fail to file his claim, as required, he does it at his peril, but he may get his judgment. The demurrer was properly sustained.

2d. But the summons in this case lays the damages at $2000. The verdict and judgment are for $2300 44 damages. This is error, and the judgment must be reversed, but the plaintiff may enter a remittitur for the excess of damages, and take judgment for the sum in the writ.

The plaintiff in error will recover costs.

GREER AND HARTSELL US. CHESTER'S Heirs and Rep.

Chester borrowed money and secured his endorsers by deed of trust on real estate. He again borrowed money with the same endorsers, and applied it in part satisfaction of the debt secured by deed and died. It is held, that the dower of the widow was chargeable with the unpaid balance in the deed of trust, and that the endorsers had no right to tack to the deed the sum for which they became subsequently responsible.

This bill was filed in the Chancery Court at Jonesborough, and came to a hearing on bill, answer, replication and proof, before Chancellor Williams, and decree rendered, from which complainant appealed.

T. A. R. Nelson, for Greer and Hartsell.

R. J. McKinney, for the heirs and others.

TURLEY, J. delivered the opinion of the court.

On the 19th day of June, 1839, Samuel G. Chester executed a deed of trust on a house and lot in Jonesborough, Washington county, East Tennessee, and on several negro slaves to secure Samuel Greer and Jacob Hartsell from loss which might arise from their responsibility as his endorsers on a note in the Branch Bank of the State of Tennessee, at Rogersville, for the sum of six thousand five hundred dollars. On the date of the 11th of March, 1841, the amount of this note was reduced by previous payments to the sum of three thousand eight hundred and fifty dollars, for which amount Chester then executed his note with the same endorsers, and having died before the same was paid, it was taken up by them. Subsequently to the execution of the deed of trust of June the 19th, 1830, Chester being pressed by calls upon his note of that date falling due in Bank, and by other creditors, negotiated a loan with the Branch of the Union Bank of the State of Tennessee, at Knoxville, for which he executed his note with the complainants, Greer and Hartsell, his endorsers, and also a loan with the Rail Road Bank at Knoxville, for which he executed his note with Greer, Embree and Bayless his endorsers. Chester having died with

[Greer and Hartsell vs. Chester's Heirs and Rep.]

out discharging these notes, judgments thereon were afterwards rendered against his endorsers, viz: against Greer and Hartsell in favor of the Union Bank, on the 28th day of June, 1842, for the sum of two thousand one hundred and twenty-five dollars, and against Greer, Embree and Bayless in favor of the Rail Road Bank, on the 25th of October, 1842, for the sum of one thousand seven hundred and one dollars seventy-three cents.

It appears from the proof, that at the times these loans were contracted with the Banks at Knoxville, Chester spoke of the fact of his note falling due in the Bank at Rogersville, and of the necessity he was under of borrowing money out of the Banks in Knoxville to enable him to meet the calls. It is also to be inferred that a portion of the money thus borrowed, was appropriated to the partial payment of the note at Rogersville, but what amount is vague and uncertain. There is no proof that the liability of the endorsers of the notes discounted by the Banks at Knoxville was incurred, upon faith in the security of the deed of trust previously executed by Chester, or with any agreement, or even expectation, that the property therein specified should be charged with these responsibilities. Indeed Embree and Bayless, two of the endorsers in the Rail Road Bank, are not parties to the deed of trust.

Chester having died, his widow claims dower in the house and lot in Jonesborough, conveyed in the deed of trust; contending that, as against her, the property conveyed in the deed is only chargeable with the sum of three thousand eight hundred and fifty dollars, the amount due at her husband's death, upon the note in Bank at Rogersville, and asking of the court that this charge be paid out of the personal property in the deed of trust, and that the house and lot be left, so far as her interest is concerned, unincumbered thereby. This is resisted, upon the ground, that the complainants being liable upon their endorsements in the Banks at Knoxville for sums, a portion of which went to the extinguishment of the debt at Rogersville, as far as it was extinguished are entitled to have at least thus much of those liabilities tacked to the deed of trust, and still hold all the property therein specified, both real and personal, liable to the full amount for which it was originally pledged, viz: $6,500.