with diet and lodging; in other words, can be entertained in their journeyings. The necessities of such people oblige them to solicit entertainment at the public or common inn, both for themselves and their beasts, where they travel with such, otherwise they would be without shelter and food. Because of this necessity, and that the host or entertainer is generally unknown to a party resorting to his house or inn, and that such party is compelled to trust himself and his property to his keeping, and that he is charged by the innkeeper for entertainment of himself and his beasts and the custody of his property, the law holds the innkeeper to a strict liability, not from any contract between the parties, but from the duty growing out of his public employment."

"It is said that there are two classes of persons who are entertained by innkeepers for reward, guests and boarders. The distinction between a guest and boarder, which it is difficult to draw, and which is variously stated, is based mainly upon the fact that boarders contract for a definite stay at specific prices." 423 In Lawrence v. Howard, 1 Utah, 142, the court said: "In this country, hotel-keepers act in a double capacity, being both innkeepers and boarding-house keepers. As innkeepers, they entertain travelers and transient persons, those who come without bargain as to time or price and go away at pleasure, paying for only actual entertainment received. As boarding-house keepers, they entertain resident and regular boarders for definite lengths of time, and at specific prices previously agreed upon."

In Shoecraft v. Bailey, 25 Iowa, 553, the distinction between a guest and boarder seems to be this: "The guest comes without any bargain for time, and remains without one, and may go whenever he pleases, paying only for the actual entertainment he receives, and it is not enough to make one a boarder and not a guest that he stayed for a long time in the inn in this way."

The case of Manning v. Wells, 9 Humph. 746, 51 Am. Dec. 688, is to the same effect. In that case it appeared plaintiff was boarding at the house of defendant, who kept a public inn in the city of Memphis, at twelve dollars and fifty cents per month, and lodged in a room that had no lock on the door, and that during the night, while he slept, his coat, worth twelve dollars and fifty cents, was stolen. The trial judge charged the jury that defendant was liable for the coat if lost or stolen from his house, unless it happened by the act of God or the public enemy, but, if the plaintiff had exclusive use and possession of the room, then the defendant would 424 not be liable. The jury found for the plaintiff the

value of the coat, and the defendant appealed to this court. Said Judge Green, viz.: "The doctrine stated by his honor is certainly the true one as applicable to the goods of a guest in an inn, but a guest is a traveler or wayfarer who comes to an inn and is accepted: Story on Bailments, sec. 477. A neighbor or friend who comes to an inn, on the invitation of the innkeeper, is not deemed a guest: Bacon's Abridgment, Inn and Innkeeper; 5 Comyn's Digest, Action on Cases for Negligence, B. 2. Nor is a person a guest, in the sense of the law, who comes upon a special contract to board and sojourn at an inn; he is deemed a boarder, and, if he is robbed, the host is not answerable for it: 5 Bacon's Abridgment, Inn and Innkeeper, 5.

"These principles are settled by the authorities, and founded in sound reason. A passenger or wayfarer may be an entire stranger. He must put up and lodge at the inn to which his day's journey may bring him. It is, therefore, important that he should be protected by the most stringent rules of law, enforcing the liability of the innkeeper. In such case, therefore, the law makes the innkeeper the insurer of the goods of his guest, except as to losses occasioned by the act of God or public enemies. But as a boarder does not need such protection, the law does not afford it. It is sufficient to give him a remedy when he shall prove the innkeeper has been guilty of culpable negligence": 425 See 4 Am. & Eng. Ency. of Law, 2d ed., tit. Board, 592.

These authorities we think conclusive of the question presented by the first assignment of error, for it must be conceded, upon the undisputed facts in the record, that plaintiff and wife were mere boarders in defendant's hotel, and while occupying this relation the proprietors were not insurers of their property, but are only liable for culpable negligence. There being no proof of negligence, or that the articles were purloined by any employé of the defendant, the company is not liable: Pullman Palace Car Co. v. Gavin, 93 Tenn. 53, 42 Am. St. Rep. 902. Affirmed.

INNKEEPERS-LIABILITY TO BOARDERS.-An innkeeper is not liable for the loss of goods or baggage of a boarder unless occasioned by the negligence of himself or servants: Notes to Taylor v. Downey, 53 Am. St. Rep. 476; Fay v. Pacific Imp. Co., 27 Am. St. Rep. 203, and cases therein cited.

INNKEEPERS-GUESTS, WHO ARE.-Where the parties were both residents of the same town, but the plaintiff stopped over night at the defendant's inn there, it was held that the relation of innkeeper and guest existed. But where a family had resided several years in St. Paul, and became inmates of a hotel there for no

stated period, and at no special rates less than transient, and so remained for several months, they were held to be boarders: Note to Hancock v. Rand, 46 Am. Rep. 119, 121. Upon a somewhat similar state of facts in the last cited case, a family were held to be guests. On the question of who are guests and who boarders, see notes to Singer Mfg. Co. v. Miller, 38 Am. St. Rep. 569; McDaniels v. Robinson, 62 Am. Dec. 586-592.

SCHILLING V. Darmody.

[102 TENNESSEE, 439.]

HUSBAND AND WIFE-MARRIAGE, EFFECT OF ON PREVIOUS CONTRACTS-MORTGAGES.-If a man takes a mortgage from a woman, his subsequent marriage to her, in the absence of an express contract, operates of itself as a satisfaction of the mortgage debt and as a discharge and release of the mortgage.

HUSBAND AND WIFE-EFFECT OF MARRIAGE ON PREVIOUS CONTRACTS BETWEEN.-Contracts between husband and wife before marriage become, by their matrimonial union, utterly extinguished in the absence of express contract to the contrary.

MORTGAGES-PAYMENT-REVESTING OF TITLE.-The payment or satisfaction of a debt secured by mortgage operates, ipso facto, to revest the title in the mortgagor without a reconvey.

ance.

HUSBAND AND WIFE-MARRIAGE AS EXTINGUISHMENT OF DEBT-CLOUD ON TITLE.-The heir of a woman who has given a trust deed upon land to secure her debt to a man whom she subsequently marries need not, in order to remove the trust deed as a cloud upon the title to the land, pay the amount which the deed was executed to secure. In such case, the debt and trust

deed are extinguished by such marriage.

APPELLATE PRACTICE. THE SUPREME COURT cannot remand a case without final disposition thereof on the merits, on the ground that full proof of the facts were not made, and to enable the making of such proof in the trial court, when the applicant has had full opportunity to establish such facts, and his failure to do so must be attributed to inability or negligence upon the trial.

H. C. Warinner, for the appellant.

J. H. Malone, R. L. Bartels, and W. B. Glisson, for the appellee.

440 WILKES, J. This is a bill to enjoin the foreclosure of a deed of trust, and have the same set aside as a cloud upon complainant's title upon certain real estate, and to have the debt secured originally by said trust deed declared satisfied and extinguished. The chancellor granted the relief prayed, and defendant has brought the record before us for examination, upon writ of error.

It appears that Henrietta Schilling, while a widow, borrowed from defendant, Darmody, seventeen hundred dollars, for which she executed her note to him. She also executed a deed of trust upon her house and lot, to secure this note, to W. B. Glisson, trustee. This was in April, 1886. Mrs. Schilling was then keeping a boarding-house in Memphis, and defendant 441 and his family were boarding with her. Afterward they intermarried. There was no marriage contract or agreement fixing the property rights of either after marriage. In 1894 Mrs. Darmody (née Schilling) died intestate, leaving complainant as her only heir, and defendant, her late husband, became her administrator. Defendant demanded of complainant payment of the note, which was refused, and he thereupon proceeded to foreclose the deed of trust, when he was enjoined by the bill in this case. The claim made in the bill is, in short, that the marriage of the parties operated by law as an extinguishment and satisfaction of the debt. The defendant by answer denies that such was the legal result of the marriage, and states that the parties continued to treat and regard the note and mortgage as existing obligations after as before the marriage. There was no cross-bill. No proof was taken except an agreement, in lieu of proof, that after the marriage the wife obtained a loan upon this real estate from a building and loan association, and executed to it a deed of trust, in which the property was represented and warranted to be unencumbered, and as the property of the wife. The husband and wife joined in executing this mortgage, and there was a provision that, in case of sale to pay the debt, the surplus should go to Mrs. Darmody. The deed of trust from Mrs. Schilling to her subsequent husband was not registered until after her death.

It is insisted the court erred in holding that the 449 note had been satisfied by the marriage of the parties, and that it should not have directed its cancellation and the satisfaction and setting aside of the trust deed without at the same time requiring the amount due defendant to be repaid him, as evidenced by the note and trust deed.

It is conceded that at common law the marriage of the mortgagor to the mortgagee would operate as a satisfaction of the mortgage debt and discharge and release of the trust. But it is insisted that the rules of common law have, by statute, in Tennessee, been changed in many respects, and, while there is no statute directly bearing on this point, yet the trend of legislation and judicial decision is in the direction of emancipation of mar

ried women and plaeing them upon the basis of femes sole. It may be granted that this is true so far as legislation extends, and it may also be granted that the courts have recognized these innovations upon the common law and enforced them when authorized, but the courts have not gone beyond the legislation and laid down any rules in regard to the property rights of married women not authorized by statute, on the idea that such rules are in accord with the general trend of legislation. The courts have followed the legislation, but have not gone ahead of it, and, unless the rules of the common law have been expressly changed by statute, they are in full force in Tennessee: Joiner v. Franklin, 12 Lea, 422; Cox v. Scott, 9 Baxt. 305.

443 It is highly possible that legislation, in its process of emancipating woman by statute, may succeed in making her the equal of man in every respect, notwithstanding she has always been his superior, but the courts can only follow, and not lead, in this experiment, and these rules in regard to married women apply in courts of equity as well as in courts of law. Courts of equity have, however, always recognized certain rights of married women and enforced them, even where they are not recognized in courts of law, such as the right of the wife to a settlement out of her personal estate as against her husband or his creditors and her marriage contracts with her intended husband and contracts with regard to her separate estate.

Mr. Story, in his work on Equity Jurisprudence, volume 2, section 1370, says: "By the general rules of law the contracts between husband and wife before marriage become, by their matrimonial union, utterly extinguished. Thus, for example, if a man should give a bond to his wife, or a wife to her husband, before marriage, the contract thereby created would, at law, be discharged by the intermarriage. Courts of equity, though they generally follow the same doctrine, will, in special cases, in furtherance of the manifest intentions or objects of the parties, carry into effect such a contract made before marriage between husband and wife, although it would be avoided at law." As, for illustration, "An agreement made between husband and wife before marriage, 444 for a settlement of their separate estates, will be enforced in equity, though void at law, for equity will not suffer the intentions of the parties to be defeated by the very act (marriage) which is designed to give effect to such contract": See Bennett v. Winfield, 4 Heisk. 440; McCampbell v. McCampbell, 2 Lea, 661, 31 Am. Dec. 623; Castellar v. Simmons, 1 Tenn, Cas. 65.