
    Plano Mfg. Co. v. Schell et al.
    
    
      (Nashville.
    
    December Term, 1904.)
    1. MARRIED WOMAN. Lands held as general estate subject to execution.
    An execution from a justice’s judgment against a married woman may be levied on lands held by her as a general estate.
    Cases cited and approved: Howell v. Hale, 5 Lea, 506; Yeatman v. Bellmain, 6 Lea, 491.
    Cited and distinguished: Woodfolk v. Lyon, 98 Tenn., 274.
    2. SAME. Lands of, subject to deed of trust can be reached only by bill in chancery.
    Where such lands have been conveyed in trust to secure debts, the judgment creditor, with return of nulla dona, may maintain a bill in chancery to have the trust deed foreclosed, the debts secured thereby paid off, and the surplus applied to the satis- . faction of his judgment, and such surplus can be reached in no other way.
    3. SAME. Plea of coverture cannot be interposed as defense to such bill.
    The chancery proceeding is not a new suit against which she has a right to interpose the defense of coverture, but is merely in aid of the execution at law, and its object and purpose is to execute the judgment of the justice.
    4. QUESTION RESERVED. Right to new judgment in chancery court.
    The question is reserved and not decided, because not raised by the demurrer in the court below, as to whether, in such proceeding in chancery court, the judgment creditor is entitled to a new judgment, based upon the justice’s judgment, against the married woman, over her protest, although she submitted to the judgment before the justice.
    
      FROM SUMNER.
    Appeal from the Chancery Court of Sumner County. —J. W. Stout, Chancellor.
    D. B. Puryear, for Plano Mfg. Co.
    Seay & Seay, for Schell et al.
   Mr. Justice Wilkes

delivered the opinion of the Court.

This cause is before us on bill and demurrer. The chancellor sustained the demurrer, and the complainant has appealed, and assigns his action as error.

The case made by the bill is that complainant obtained judgments before a justice of the peace against Schell and wife aggregating .$134,25, upon which executions issued and were returned nulla bona. Mrs. Schell did not plead her coverture and judgments went against her before the justice by default.

Previous to this time, Mrs. Schell, with her husband, executed a deed of trust upon certain lands, which were her general estate, to secure other debts.

After complainant’s executions were returned nulla bona, he filed a bill in chancery, under the provisions of the statute, to pay off the debts secured thereby, and apply the the surplus or remainder to his judgments. He also prayed for a new judgment in the chancery court, based upon the justice’s judgments.

Tbe demurrer raises two grounds — virtually tbe same — that tbe lands of a married woman cannot be subjected to a judgment against ber by a proceeding of tbis character, and that tbe interest of a married woman in ber general estate cannot be divested out of ber by ,such proceedings, but only by a conveyance witb privy examination.

In argument in tbis court it was further urged that a second judgment against a married woman cannot be rendered against ber over ber own protest, even though she may have submitted to tbe original judgment in tbe court below.

We need not consider tbis question, as it is not raised by tbe demurrer in tbe court below.

It is not denied that executions upon these justices’ judgments might have been levied upon tbe married woman’s land held as ber general estate, if tbe same was not incumbered by tbe deed of trust; but it is said tbe present proceeding is virtually and in law a new suit against which she has a right to interpose tbe defense of coverture.

We think tbis contention not well made.

Tbe chancery proceeding is merely in aid of the execution at law, and its object and purpose is to execute tbe judgment of tbe justice by applying tbe property of tbe married woman to its satisfaction, which might have been done by an ordinary execution, but for the fact tbqre is an incumbrance on tbe land, and tbe legal title is not in tbe married woman, but in tbe trustee. But ber interest in the surplus after paying the trust debts is subject to her debts, and can only be applied in the mode attempted.

As before stated, the right to a new judgment, based upon the original, is not involved, because not raised in the court below by the demurrer.

This question is virtually settled in the bases of Howell v. Hale, 5 Lea, 406, and Yeatman v. Bellmain, 6 Lea, 491, and other cases, more or less directly.

This is not the case of an effort to subject the separate estate of a married woman to a judgment against her, as was the case in Woodfold v. Lyon, 98 Tenn., 274, 39 S. W., 227, in which it was held that the creditor’s remedy against the separate estate of a married woman was not in any way aided by a judgment against her, and that such judgment would have no greater effect than the original debt, but could only be made out of such separate estate if the married woman had charged it on such estate.

Here the effort is to make the judgment out of the general estate of the married woman, and not out of her separate estate.

We are of opinion the court was in error in sustaining the demurrer, and the decree of the court below is reversed, and the cause remanded to be proceeded with to final decree.

Appellees will pay the costs of appeal.  