tions at home. It therefore follows that he used these funds with her consent. This being so, what is the legal result?

When funds belonging to the wife's separate estate are used in this way, does she acquire a lien or interest in the property in which they are invested? The property itself theretofore having been property of the husband, and the money simply being used to pay the husband's debts with her knowledge and assent, does she acquire an interest in the property, or have any lien or claim which she can assert as against creditors? This point has been expressly decided in the negative in the case of Baldwin v. Baldwin, 2 Humph. 486, and in the case of Page v. Gillentine, 6 Lea, 240, in which it was said by Judge Cooper, delivering the opinion, that: "The title to the Miller land having been taken to W. L. Gillentine, under the purchase made in 1856, and the title to the Fentress land, for which it was exchanged in 1863, having also been taken to him, and he having sold that land and received the consideration in notes made payable to him, the land bought with that purchase money would be prima facie the land of the husband, and, his insolvency in other respects being conceded, the taking of the bonds for title in the name of the wife would be either a fraudulent device to delay his creditors, or a voluntary conveyance, equally void as to his then existing creditors. Even if the money invested in these several purchases had been the separate property of the wife, without any restriction upon her power of disposition, the money would prima facie have been so used and vested in the property in the husband's name, with the wife's knowledge and consent, that she could have no equity against the creditors of the husband in the land,"-citing Baldwin v. Baldwin, 2 Humph. 473. This statement of the law is directly applicable to this case, this case even being stronger than that; the land having been purchased by the husband, the title taken to himself, and the first payment made out of his own funds, while in the Gillentine Case the title bond was taken to the wife. We think, at the most, it could only be said that the wife's money used in this case was a loan to the husband. It was used to pay for his land, and there was no misappropriation and no mala fides shown nor inferable. We are therefore of opinion that no trust resulted to the wife on account of the use of this money by the husband, although it was the proceeds of property which had been her separate estate; there being no restriction on her disposition of it, and the money having been used with her assent.

This brings us to the consideration of the third and last proposition advanced for the complainants. It is said that even if the court should find, as we have done, against the contention of complainants as to the first and second theories and propositions ad

vanced for them, in any event W. J. Hornsby was indebted to his wife and children, because he had used and squandered their funds, both the wife's separate funds, and a part of the corpus of the estate of $11,000, which was paid over by the trustees of the Wiley estate in 1894,-and that the conveyance made to W. H. Hornsby, trustee, was intended for their benefit, and that they were the real beneficiaries. And it is insisted that it can be shown by parol proof what the trust really was, and that they were the beneficiaries.

As to the complainant Mrs. Hornsby, it is not entirely clear that, prior to the husband's insolvency, he recognized any indebtedness to her. There are no positive statements of declarations made at the time show. ing that such was the case. We can only infer that this was true from the fact that he had used some of the money coming from her separate estate, as above shown, with her consent. The conveyance, however, having been made previous to the attack, of course it might be held with some propriety that this was a recognition of the debt due his wife at this time, and the facts we have above shown would be sufficient to sustain the consideration. As to the children, it appears that Mr. Hornsby took charge of the fund, amounting to something between $11,000 and $12,000 paid over to them, it having been paid over by the trustees under the arrangement above set out, and at the request of these children themselves, and in which they agreed to surrender their rights, and that their remainder estate might be cut off and destroyed. But the father and mother at the same time had agreed to use the fund for the best interest of the children. At the time this arrangement was made the complainants Emma B. Hornsby and Ida Hornsby, children of Angelina M. Hornsby, were minors, and, of course, were not bound by the arrangement. As to exactly what amount the father owed to these children on account of the appropriation of this fund the record is not entirely clear. Mr. Hornsby in his deposition shows that he had made some investments for them. It would appear, however, that he has not fully accounted to these complainants for their share of the estate, and that at the time he made his conveyance to his son W. H. Hornsby he was indebted to these two children on account of having received and taken charge of the trust fund belonging to them. We deem it unnecessary to ascertain and state the exact amount, and, if we deemed it necessary that the exact amount should be ascertained, it would be necessary to remand the cause, and refer it to the master to ascertain the exact amount of indebtedness to these two complainants. But we are of opinion that he was indebted to them at the time of his conveyance to his son in some amount, and it is insisted, therefore, that the deed of

trust to W. H. Hornsby should be sustained for this indebtedness, whatever it may be. But this question was settled and disposed of in the previous suit, and we here readopt Judge Wilson's opinion in the other case upon this subject.

We take it to be the well-settled law of this state that a parol trust cannot be sustained as against the creditors of the vendor. We take it that this is conclusively settled in this state. In the case of Martin v. Lincoln, 4 Lea, 335, it was expressly decided that parol trusts will not be sustained against a creditor of the vendor. In that case a deed was made by the husband, appearing to be absolute on its face, to another person, without consideration, with an intention subsequently made known to the conveyee that he should hold the land for the benefit of the wife of the conveyor. The supreme court held the conveyance fraudulent. It was there held that, while numerous parol trusts between the conveyee and the beneficiaries had been sustained, no such conveyance had ever been sustained against the creditors of the conveyor. A number of cases involving the doctrine of parol trust were discussed, and it was held that there was no case in this state sustaining a parol trust against creditors of the vendor; that to so hold would be to override the registration laws. This court has so held in several cases. This doctrine is recognized in the case of Bond v. Bond, 16 Lea, 308. Parol trusts have been recognized as against creditors of the vendee, in such cases it being held that the creditor by execution or attachment takes only such interest as the vendee himself held. Such is the case of Colyar v. Bank, 103 Tenn. 723, 54 S. W. 977; Leech v. Hillsman, 8 Lea, 747. Cases of that character do not come within the operation of the registration laws, and the credItor only takes what the vendee had. But, by express enactment, parol trusts and conveyances of interest in land are void against the creditors of the vendor.

So, in our view of this case, the conveyance to W. H. Hornsby, trustee, was simply a conveyance to him voluntarily, and without consideration, and, whatever may have been the parol agreement or understanding between W. J. Hornsby and his wife and children, it is void as against attaching creditors. In fact, the most that can be said in regard to the intention of the conveyance, even if we could look to parol evidence, is that Hornsby found himself heavily involved, and expected trouble with his creditors, and thereupon, to protect this property, made this conveyance, not by reason of any special agreement to them, though he says it was to carry out his purposes as to them, and to protect their interest; but, whatever the purposes may have been, the conveyance

was void in law.

It is to be noted, though we have not found it necessary to pass upon this ques

tion, that the several positions taken by the complainants in this case are somewhat inconsistent and contradictory. It is quite difficult to reconcile the last position taken, which is that the father, W. J. Hornsby, conveyed the land to secure a debt he owed to his wife and his minor children, with the first position taken, that he bought the lands in the first instance with the money of his wife, and with an express agreement that the lands were hers. These are not alternative propositions, in which the complainants submit different theories of law, while asserting practically the same state of facts, and asking for such relief as the court may think them entitled to, but, in effect, they are divergent and contradictory positions in fact. We simply call attention to this phase of the case, and do not deem it necessary to pass upon the question as to whether such contradictory propositions may be maintained in the same case. Neither have we found it necessary to pass upon the defense of res adjudicata pleaded and set up in this case.

We have found the facts, which are that precisely the same issues of fact involved were made in the former case in the suits brought by the defendants in this case against W. H. Hornsby, trustee; that that defense was made by W. H. Hornsby as trustee on behalf of the complainants in this case; that it was finally adjudicated against W. H. Hornsby, and therefore against those he represented in that case; that the decree was final, and is unappealed from; but the complainants in this case, one of them a married woman and two of them minors, were not parties in that case. As

a rule, a suit prosecuted and defended in good faith by a trustee for the beneficiaries, with the knowledge and consent of the beneficiaries, is conclusive in its results on the beneficiaries. We simply call attention to these questions' presented, and our findings of fact thereon, but do not deem it necessary to further pass on them. The result is that the decree of the chancellor dismissing the complainants' bill, and ordering a reference to ascertain damages, was in all things correct, and will be affirmed, with costs, and the cause remanded to the chancery court, to be further proceeded with in taking the account ordered. A decree will be accordingly so entered. The costs will be paid by the complainants and their sureties on the bonds. All concur.

On Petition for Additional Finding of Facts.

(Oct. 2, 1900.)

We are requested to find that W. H. Hornsby, who was named as trustee in the trust deeds executed by defendant W. J. Hornsby, did not, after the execution of said trust, exercise any control or management whatever over the property described there

in. The testimony of W. J. Hornsby upon this point is that his son W. H. Hornsby, after the execution of the trust deeds by which the lands were conveyed to him in trust, did not exercise any control over that property. We find no testimony to the contrary, and we therefore find the fact as requested. As we have found, W. H. Hornsby did make a defense, and claimed under the deeds of trust, but, so far as the record show's, he had not taken any possession or control of the lands prior to the filing of the bill and after the execution of the trust deed. Our former opinion will be corrected by this additional fact. All concur.

Affirmed orally by supreme court, October 20, 1900.

ROBERTSON v. McCOLLUM. (Court of Chancery Appeals of Tennessee. April 28, 1900.)

EQUITY-BILL OF REVIEW PROOFS PLEADING ESTOPPEL.

1. It is not error, on the hearing of a demurrer to a bill of review for error apparent on the record, to refuse to consider depositions and documentary evidence on file in the case sought to be reviewed, although such proofs are set out in the bill, and to look alone to the decree and the pleadings.

2. A bill of review for errors apparent set out the pleadings, proofs, and decree in the suit sought to be reviewed, and the defendant demurred thereto, and also pleaded that the bill of review did not correctly set out the pleadings, proofs, and decree, and correct coples thereof were pleaded. On the hearing the demurrer was sustained, and the plea of defendant was stricken out on the motion of complainant. Held, that the fact that the defendant set out what he alleged to be the correct proofs in his plea did not make it error for the court to refuse to consider such proofs on the hearing of the demurrer.

Appeal from chancery court, Greene county; John P. Smith, Chancellor.

Bill of review by John McCollum against John Robertson for errors apparent on the record. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

Shoun & Susong, for appellant. R. M. McKee, for appellee.

NEIL, J. We have read the entire record with care, also the briefs of the respective counsel. We find in the brief of the complainant's counsel a proper statement of the case, and also proper findings of law, and adopt it as the opinion of the court. It is as follows:

"This is an appeal from a decree of the chancellor sustaining a demurrer to a bill of review filed to correct alleged errors apparent. The original bill was an ejectment bill brought by John Robertson against John McCollum to recover a body of land containing about 334 acres. The chain of title under which complainant claims is therein mention

ed, and traced back to the state, including the grants. The answer of McCollum sets out that he holds a certain tract under a deed of H. G. Robertson, which covers all or part of the boundary claimed by complainant, as a survey might show. As to any portion not included in the bounds of the deed of H. G. Robertson he disclaimed. As to any portion covered by the calls of the Robertson deed he relied on the statute of seven years protecting adverse possession, and alleged various recognitions of his title by complainant. He charges that he claims under the same grants as complainant. Such proof was introduced and surveys had as disclosed that the matter in controversy was about 1053/160 acres included in an interlap of complainant's and defendant's lines; that the only portion of the interlap which had been inclosed was a small strip which had been included in the inclosures of complainant, Robertson. This was shown by the testimony of defendant, McCollum, as a witness in his own behalf. The title papers produced were as follows: For complainant, a deed of Marshall to him, a deed of W. F. Reeser, special commissioner, and administrator de bonis non with the will annexed of Henry Yokely, and two grants of the state to said Yokely, for boundaries estimated to contain in one five, and in the other twenty-five, acres; for defendant, a deed of Harvey G. Robertson to him for 220 acres, and a deed of Jesse Ellis to said Robertson for the same boundary. No attempt was made to trace the title beyond Ellis for defendant, or in any way to connect it with the chain of title of complainant. depositions were taken on the question of adverse possession, and as to the effect of a procession survey, and a finding in favor of complainant by a procession jury.

Numerous

"At the January term, 1899, the cause was heard upon the whole record, and the chancellor decreed as follows: (1) That complainant's paper title was perfect, and superior to that of the defendant, and that defendant had had no such adverse possession as would enable him to defeat the superior title of complainant. (2) That for more than seven years before the bringing of the suit complainant had had possession by actual inclosure of a portion of the interlap, and because of this also he had superior title to defendant. A recovery was awarded complainant for the tract of land described in the bill, and defendant was taxed with the costs. prayed an appeal, which was granted. At the same term a petition to rehear and affidavits were filed by defendant, in which he set out that he was mistaken in the statement that a portion of the interlap was now in complainant's inclosure; that such had formerly been true, but the inclosure had now been removed. The prayer for appeal was withdrawn, and the chancellor passed on the petition to rehear, decreeing (1) that petitioner failed to show diligence in procuring the alleged new proof; (2) that the alleged

He

new proof was immaterial, and, if in the record, could not change the decree or alter the rights of the parties; (3) the petition was denied, and appeal was again prayed and granted.

"The appeal was not perfected, and at the July term, 1899, a petition for leave to file a bill of review for newly-discovered evidence was presented by defendant, embodying the same grounds appearing in the petition to rehear. This was determined by the chancellor in a written opinion, in which he discussed minutely the evidence in the cause and the affidavits offered. He decreed that the proposed new evidence was immaterial, and would not change the result; that negligence was imputable to petitioner; and leave to file the bill of review for newly-discovered evidence was denied. No appeal was taken from this action of the court. Thereafter, on the 10th of August, 1899, the bill now under consideration for alleged error apparent was filed by defendant. It consists substantially of a discussion of the testimony from defendant's standpoint, but undertakes to set out the substance of the pleadings and decrees in that cause. Complainant in the original bill demurred, insisting that there was no error in the record and decrees complained of. To so much of the bill of review as undertook to set forth the pleadings, proof, and decrees in the original cause, complainant in the original bill pleaded that the bill of review did not truly set them forth, and pleaded said pleadings, proof, and decrees. The chancellor on the hearing sustained the demurrer, and dismissed the bill of review. On motion of McCollum's solicitor, he struck out the plea of Robertson, holding that in such case the original record would be looked to in connection with the demurrer. Hurt v. Long, 90 Tenn. 447, 448, 16 S. W. 968; Gib. Suits Ch. § 1084, note 11. He declined to consider the proofs filed in the case. From this decree an appeal was prayed and granted, and bond given, and upon this appeal the cause now stands. The -defendant assigned errors as follows:

"(1) The chancellor erred by his refusal, upon the hearing of this bill of review on demurrer, to consider the depositions and documentary evidence on file in the cause sought to be reviewed by the bill in this cause, but looked alone to the decree itself and the pleadings therein; and this, notwithstanding the statute as made and provided by Act Gen. Assem. 1835, c. 20, § 15, carried into Mill. & V. Code, § 3834; and which refusal to consider led to the erroneous dismissal of appellant's bill of review. (2) The chancellor erred in this case in refusing to consider the depositions and documentary evidence aforesaid, because said Robertson, by his plea filed in conjunction with his said demurrer, makes said proof part of his said plea and of the record of the case under said bill of review. Therefore if the rule be, in cases of bills of review, that the proof in the case sought to

be so reviewed must be excluded from consideration on hearing the bill of review, yet it remains that said Robertson has estopped himself from application of such rule in his behalf in this case; and accordingly this case becomes exceptional from the rule in its general sway and authority in cases of such review. (3) The chancellor erred to dismiss said bill of review on any ground not pointed out by the demurrer itself of said Robertson; as this bill is not one that the chancellor could dismiss sua sponte; which, in effect, he must have done to rest his order of dismissal, as appears, upon the ground that said proof could not be looked to on the hearing of the bill of review. (4) The chancellor erred by his decree of dismissal aforesaid, inasmuch as it works an effectual affirmance of the errors alleged and pointed out by said bill of review. (5) Which said errors, as presented in said bill of review, are here alleged and reiterated as if herein specifically alleged.'

"The first and second assignments are, in substance, the same,-that it was error in the chancellor not to consider the depositions and documentary evidence on file in the cause in determining this bill of review for alleged error apparent. The holding of the chancellor is fully sustained by the authorities. The proof in such case cannot be looked to for any purpose. If a review of the evidence is desired, it must be sought by appeal from the decree complained of. Gib. Suits Ch. 88 1081-1085; Livingston v. Noe, 1 Lea, 55; Buffington v. Harvey, 95 U. S. 99-103, 24 L. Ed. 381. The plea of Robertson cannot alter this rule, because: (1) The bill undertakes to set out and discuss the evidence, as well as the pleadings and decrees. The effect of the plea is merely to say that the bill of review does not correctly set forth such pleadings, proof, and decrees, and to ask that for such consideration as should be given the matter contained therein the originals be used. (2) On motion of appellant, the plea was stricken out by the chancellor, and the bill of review determined on demurrer alone. If such plea could have had the effect to make the proofs part of the record for bill of review, yet it was stricken out on appellant's own motion, and thereafter the proofs made part of the record I could not have been looked to. (3) There is nothing in the third error. The demurrer is in the form prescribed by the authorities, and assigns as ground that there is no error in the record complained of."

In dealing with the fourth and fifth assignments of error, the complainant's counsel in his brief proceeded to discuss the various objections set forth in the bill of review, based on the testimony heard in the court below, out of abundant caution. It is clear, from the authorities cited above, that we cannot consider such objections. The question is so well settled in this state that it would be a useless consumption of time for

us to undertake a review of the testimony heard in the court below in order to decide whether the chancellor reached a correct conclusion. In this connection a spirited attack is made by defendant's counsel upon the authority of Eaton v. Dickinson, 3 Sneed, 397, which held, in substance, that Act 1835, c. 20, § 15 (Code, § 3121), did not make the depositions a part of the record in such sense as that they could be looked to under a bill of review for error apparent upon the face of the record. It is urged that, while it is probably true this court would be bound by the authority of the case referred to, yet it should not be ultimately followed. The principle of this case is so well fortified by the matter given in Judge Kinney's opinion, and the case itself has been so often affirmed and reaffirmed and acted on, that the question is now beyond controversy. Some of the cases last referred to are as follows: Burson v. Dosser, 1 Heisk. 754, 758; Fuller v. McFarland, 6 Heisk. 79, 82; Burts v. Beard, 11 Heisk. 472, 478; Brown v. Severson, 12 Heisk. 381, 383; Galloway v. Galloway, 2 Baxt. 328, 332; Finley v. Taylor, 8 Baxt. 237, 238; Livingston v. Noe, 1 Lea, 55, 60; Ward v. Kent, 6 Lea, 128, 129; Montgomery v. Olwell, 1 Tenn. Ch. 169-173; Berdanatti v. Sexton, 2 Tenn. Ch. 699, 705. It results that the decree of the chancellor must be affirmed, with the costs of this court and of the court below. All concur.

Affirmed orally by supreme court, November 17, 1900.

McCORKLE v. DRISKELL. (Court of Chancery Appeals of Tennessee. Aug. 25, 1900.)

BOUNDARIES-ERECTION OF FENCE-INJUNCTION-EVIDENCE-JUDICIAL NOTICE.

1. Plaintiff built a line fence between a lot occupied by him and an adjoining lot occupied by defendant, and afterwards attempted to enjoin defendant from erecting a board fence about 10 feet high near the line, on the ground that it was a nuisance, in shutting out the light and air. The fence was from 3 to 5 feet from complainant's house, and was about the height of the top of the sash of the lower windows in the front part of the house; but the ground was sloping, and the fence did not extend so high opposite the windows in the back part of the house. The house of defendant was near to that of complainant, and the fence would add to defendant's privacy; and the line fence had not been sufficient to prevent defendant's horses, cows, and chickens from trespassing on complainant's land, to his annoyance. Held not to authorize an injunction restraining the erection of such fence.

2. Judicial notice will not be taken, in a suit to restrain the erection of a high fence between adjoining city lots, as obstructing the breezes, that Chattanooga is a very hot place, and that such breezes are necessary.

3. Judicial notice will not be taken, in a suit to restrain the erection of a high fence between adjoining city lots, that there is a growing custom in the city of Chattanooga to discard fences between lots, or that there is a custom to erect high fences thereon.

BARTON, J. The bill in this case was filed by the complainant, who was a tenant or occupant of a lot which adjoined a lot located in the city of Chattanooga owned and occupied by the defendant, Catherine Driskell, and the purpose of the bill was to enjoin the defendant from erecting a fence on her own property near the line between the two lots; the ground of relief sought being that the erection of the fence proposed by her would shut out light and air and the balmy south breezes from the premises occupied by him. As some point was made upon the exact charges of the bill, it becomes necessary to as briefly as possible set them out. Complainant alleges that he is the occupant of a two-story frame house situated in Chattanooga, Tenn., on part of lot 6, block 9, Whiteside's addition, and known as "1071⁄2 Birch Street"; that Birch street runs north and south; that the property is owned by an aunt of his wife, and is occupied by him as a home, and has been for about 10 years; that the aunt of his wife who owns the lot is a member of his family; that this lot fronts 25 feet on Birch street, and runs back 100 feet; that back of his lot, or the lot occupied by him, is another lot, running back 100 feet, to Grove street, which belongs to his wife; that he had made valuable improvements on the lot occupied by him, and had equities therein; that recently he had built on the south line of the lot occupied by him a line fence, between that lot and lot 8 of Whiteside's addition, owned and occupied by the defendant; that 25 feet of this fence was an iron fence, immediately between the front yards of the two houses, and that the rear part of the fence was a substantial picket fence, which was built exactly on the line; that when he built this fence he asked the defendant to join him and contribute to the expense thereof, but that she declined on the ground that she was too poor, but she agreed that complainant might build a fence and put a stone foundation on her side of the line to prevent a flow of water under his (the complainant's) house. He alleges that the defendant owns and occupies this lot next south of complainant's, and threatens and proposes building near this line, and adjacent to and next to the complainant's fence, a very high, roughboard fence, and he alleges, on information, that the fence is to be 10 feet high. He says that the erection of this fence is entirely unnecessary, and would interfere materially