Graham et at. v. Graham et at.
Decided May 1, 1880.
1880 Special Term.
1. A case in which the statute of limitations is held to applv in equity.
(iraham rial. .„ . . , _
T. (see opinion of the Court.)
(iraham et at.
Appeal from and supersedeas to two decrees of the circuit court of the county of Monroe, rendered, one on the 17th day of May, 1879, and the other on the 19th day of May, 1879, in a cause in said court then pending, wherein John Graham and others were plaintiffs, and James Graham and others were defendants, allowed upon the petition of said James Graham.
Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.
Haymond, Judge, furnishes the following statr*toent of the case :
On the 5th day of October, 1859, Lanty Graham, John Newlin and Florence, his wife, and Henry Miller and R. Martha Miller, his wife, brought their suit in chancery in the circuit court of Monroe county against Rebecca Graham, John Graham and Henry J. Kelly, sheriff of Monroe county, and as such administrator of the estate of Joseph Graham, deceased, and John W. Lanius, late sheriff of Monroe county, and as such administrator of the estate of Jane Graham, deceased, with the will annexed. And afterwards at the November rules, 1859, of specl^erm. said circuit court the plaintiffs in that suit filed their bill l^am therein against the defendants, in which it is alleged, Grahameiai. that "on the 28th day of December, 1812, one James Graham made his will in due form of law and soon after departed this life. The said will was afterwards, at the February term of the county court of Monroe county, 1813, duly proved and ordered to be recorded (a copy of which is herewith exhibited as part of this bill marked number one). By one clause of his will the testator gave to his daughter, Rebecca Graham, who was then the wife of Joseph Graham, and her children the plantation where she then lived, known by the name of the Stephenson Cabin. He also gave her and her children his negro girl, Dinah, the land and negroes never to be disposed ot out of the family, nor the increase of the negress, if any she had.''
The bill further alleged, that the said Joseph Graham, the husband of said Rebecca, had recently, within a year or two, died, and that said Henry J. Kelly, sheriff of said county, is his personal representative; that the children of the said Rebecca living at the time of making said will and probate thereof, were said Lauty Graham, John Graham, Florence Newlin and their sister Jane Graham, who departed this life after making a will, which was admitted to probate, leaving plaintiff, R. Martha Miller, her only child and heir at law, and whose estafb had been committed to J. W. Lanins, late sheriff of Monroe county, with administration with the will annexed ; that the tract of land mentioned in the said clause of James Graham's will contained about two hundred and eighty-six acres, and is the same tract that is still in the possession ot the said Rebecca Graham, who is living on and occupying the same in connection with her son John Graham, who is one of the joint owners, thereof, &c.; that the negro woman, Dinah, became the mother of two sons, Ira and Stuart, and she and they are all living. She is old, and still in possession of the said Respeci«5*Term. Decca Graham and her son John. The said sons, Ira and Isiiham tiai. Stuart, are very stout, valuable men, worth eacli about Graham etai. f1,500.00, and have very recently been sold by the said
Rebecca Graham and her son John and carried out ol
the country.
The bill also alleged that by said will the said Rebecca took an interest of one fifth in the slaves and land. Her interest in the slaves passed immediately to her husband, but her interest in the land survives to her. Each of her said four children took a like interest in the land and slaves. The bill also alleges that the said land and slaves were held in possession by the said Joseph Graham as husband of the said Rebecca during his life, which terminated but two or three years since, and that his possession would be construed to be the joint possession of all the joint tenants and owners; that no partition of the land nor division of the slaves was ever made, and now a division of the slaves cannot be made as two of them are sold and gone to parts unknown, &c. But said Rebecca Graham and John Graham can be made to account for the values thereof, and be compelled to pay over to the plaintiffs.
The bill then prays that the land be divided according to quantity and quality ; that the said Rebecca and John Graham may be compelled to pay for the two slaves, Ira and Stuart, whom they converted to their own use bysale ; that the others may be sold and the proceeds divided, &c. •
With this bill an official copy of the will of the said James Graham and the probate thereof was filed as exhibit number one.
The defendant, Rebecca, answered the bill, denying the claim of the plaintiffs to the land or slaves set up in the bill, claiming them as her own, and says: "It is true that she is now in possession of the old negro Dinah, who is the same woman referred to in her father's will. It is also true that the two boys, Ira and Stuart, were children of Dinah; that she held and disposed of these negr<, men since her husband's death. These slaves she sp^i8^,,,. held always as her exclusive property, allowing the claim Graham a^ of no one and never hearing of any until very recently." antume
The court also in the same decree ordered Alfred Phillips, a master commissioner of the court, to take, state and report an account of the slave Dinah and her increase, their values at the time of the institution of the suit, if they remained unsold, their prices, if sold, and by whom sold, and to whom chargeable; also the value of their hires for five years before the suit was instituted, and to whom the same is chargeable, &c. The commissioner who was directed to take such account afterwards made his report to said court, and on the 25th
No comments:
Post a Comment