Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-01-27


Il. NJ Winchester e as. e, J. VI Winchester e. az.
james Winchester died in Es6, having maize prOvi5in,
for his Ue end for the support Of his children. leaving
hands (e1rept those devised 70 his wbioF to eeni lis land
we're ,r vri1s e5unts Of Tee some Of bern 5
Of item out Of the District OF the Cace Court, her
held al Carhase His hers consisted Of two males,
sOueu. children. and grand
celdrou In January, 9 psttion FLED in The Cbance
~ Court Tor the sale Of certain lands deen
This petition signa ~ the adult sons theHsied
AID their husbands Lgeius Winehsser az guar ian for he
children, by Orvlle shelby, Who is stated in i've body
Of the petition friend and fa=r Of said minor grand
Al the term Of court at which petition the Chan.
ceor made ode-, dereeng the sale % the iansni appoint
ing Commissioners for tttpupos This aeree0utaius special
dirtoas as 70 me sale ana the Teper ana te sale
to division Of the lands mt lots deemed eNeaient
The tOmmisso appointed were Lucus Winchester and vi
and made particular report thereof said court II It's july term
petition lying Stewart and Of two tracts in
Weak which has been supposed were notmentonedin
lands which hal been bO0g BY Luciiiu Winchester we're At
said last entoned term ordered 10 e eso t SAD Conns
soners. The county being undivided half Of
VS. as d. 6,er ~ on Of lie tretsn eakley of 100 acres
the other Weak3ey bought by third Tesin sale
Commissioners additional reports showing the sale Of
the acres in Weakey Of the otter lon rer to Be
sold excert the undivided half Of the Stewlt Viii
IS not again mentioned the ord These tao Ieperts ha'eno
July term, 1880 decree male, authorizing the Gem
missioners make titles payment OF the purchase money!
and requiring them to give bond IN the penalty o. SAW 70 ae
fo the proceeds sales This bond wagiyen and copy
Of is in the record At The July term oSi Commissioners
were appointed 20 settle wiki winchester ana tse the Cla
iones Of SALE and ascertain u share OF each Of The es ~
the proceeds TIE OF L.
iheieser and Gage Is enhrnaeI anu "is.e1
The Commissioners appointed to maze statement &C. male
report at january srn ie which was anu l. WIN
chester and cage ordered to over tie proeeeas Of sales 10 ae
the January term Ij petition fled in the o
said heirs Except Lucils winchester then deaud
was represented hy Jo e. Guil4) ssled
by COUNSEL stating the previous proceedings N substance ana
stating Winchester and to have another
person pointed Commissioner in his place The court appiat
Their petition Of similar character stating the ~ -
William Cage and praying that yaerius Wineese one nsht
pii s'nl' Lo2u' ssi "a ih r mn sd And
ary Term 1913 Badritse having declined 70 act Ar
Wynn appointed place. No further proceedings AZ pear
To have bsep ba I'M tbg case There was appeal
IN the summer Of 1855 Mrs Almyra Wynn and Mrs Louisa
RucRer The tao married mentioned, hy their next
friend john " Helen NJ Winchester Sho aegeer
self to have been idiot from Der birth, and Nl was one o the
under the proceeding oil le9 ~ her present guardian,
orge W. Winchester anpy to the Chancellor sitting
age BY petition affidavit, for leave 70 le ihera q rev
the DEGREES Of leg and the record Aforesaid On The
grounds newly discovered proofs IS
matter Of right aeng in the same reeord they n their h
praying have said DEGREES AID record reviewed and the d-s
reversed and aunured.
To this bill Of said Amyra and Louisa male
Defendants as are also the Other heirs sd James Nes'
and also OF the purehasersand snhpurcsrs Of the Lands
The matters assigned ia law in the bill and the argument
taking them their proper order ami not precisely ~ The or
der stated in the bill, are as follows viz: -
lst That the original proceeding being under the act Of l,
chapter q should haze been bill and The suit conducted as
suits in equ thai petition making defendant IS not bl
nor suit and thai the DEGREES therefore vo aud that void
decree is proper subject OF a Bill Of Review
2i That apetition be admissible mode Of proceeding the
but should have appeared by next friend.
81. That Helen NJ whether idiot minor, should not have
been joined with the adult petitioners il petition
permissible mode Of proceeding in some cases, and that TINS was
.rror at best
Adj Thai no proof appears by the decree tohae been made
hat this is required By said he made jurisdiction
jh That the Of January l s not rite the facts
ipon which it founded and thar this is and aeconng
the Of Court Of Cancery before t adoption OF
Chancsry Io30 rev iriug he reel
9th That it was error to se the lands in stewart
ey, the same not being eEbcedin the Peangs previous TO he
st Decree and that this is aided failure except 70 there
BY the subsequent petitions Aed by the original pe
It'll That if Helen NJ was in fact an idiot as we'll as minor at
he passing OF the drte and that the saving ia the act Of
eo chapter O. sec D. she may now sho" THIS ic Md mat as
IN IDIOT she had no guardian made no appearance aud that ms
sth That some Of the lands were not within the Chlncery Dis
c ami that the Court had therefore ursct 70 sell them
Under acto Of l527
g That married not, and that they shopld
10th That tie petition sufficiently den,
18th That vas error to sell the uudy 3 Of acres
land in shelby county, to sell it severed when valid
Eth That petition defective statement Of facts aud
Ices up the requirements Of the statute in showing
partition could not advantage he made, that sale
ias uanifestly fr the advantage Of the parties
18th. That day 10 Court. and
I4h. That the compliments not in effect made parties
en- il petition we're pToP9F F, mg =; Of procedure.
Isl That the interest Of heirs acres land near
lemph instead Of stated in the petition, and that
his has been lately discovered
"a. That after sale Carthage proceeding
void place in the County Court Of Shell county,
division Of the said 1903 acres, that
syeay assigned under this processing the hrrsof james
nceser; that this = assigned sold ~ the Commission
undivided and that this fact only lately
by said eompnants through their counsel aud
nend sho inahes tAe aI'a'lt-
81. That similar proceeding in the County Court Of Shelly
al aAen pace 70 te aS o. a1l ctllel m NE peu
on a. Carthage ~ a;rss yg IL shelby county, that this pro
aeng though before the FIRST decree. void,
heirs Winchester instead Oownng this 252
lty, an unive 49h part Of 5UOOae Mem
ais, and tia t this was only latr discovered, sc.
4h That the lands in Stewart and heaky were sold without
uhorty just discovered The application for
ave to file the B OF eveg as Tor ne" matter and upon new
st term ls5s.
Leave was refused The bill was then fled as for errors appa
the the iecrees upon the WhereuTon
I'M Of Review and Of the original Reeor he lin Of Bey
dismissed his decree refusing permit the filing Of
bill fOrew matter proof and dismisng the bill
led for new errors apparent Sc the eopanants have appeal
to this No objection taken the ruling
upon the ground that his action dismiss
the bill as for apparent &c though it's said would
ave been proper that he should for
bringing the defendants amt motion by them dis
demurrer. This HfOrna ity fit he SUCH need there
ore be however, objected IL Jiqe
the p1rcasersof the lands that under the act Of lstl
lang the practice in Courts Of Chancery chap o. 3D. and
CLAUSE saving the rights Of married women; c Bill Of Re
can lie filed either Tor ne" matter or Tor errors apparent &e
oows.vz "Providsd Bill Of Review shall brought
male therefor, except within from the time q
ronouncng such decree 70 ihI iens covert persons
cJmpOs mts &c arghtto move for bill Of review with
years disability shall have removed.
urged with much force and no little mat though
filing bill Of review for erTors,apparent cwin
t. these under disability for indefinite time
nd this attention is called to Indifference
.
brought motion therefor in the other, Saving to nsnts
&C., right move" insisted that these imply
control the Of the and that 1t might
ell he supposed that the Legislature locking To the intervention
new rights the long lapse Of which myht oc
lr many before moyal Of disability would make
saving complete the disabled his bill had
rour within three years gain is probable consIuc
on that saving review
apparent &C. that by the Of the word move
ginced that it only the Intention to the rights
arty description Of bill If review wherein
u necessary. Approaching the reasoning
EoWever prep9re that the up
the contrary analogy other n
Of infants saved fading CON
Iteration general doctrine t persons saty can
ordinarily aches imputed to them, opinion
lat the right for bill Of are 10 lie
equivalent to the words "a right to for review &c.
esies, think that import intended
taken It would have been clearly
To
right to bill OF apparent after three
according the second construction above
place nisLts etc, upon the footing in this
ere seeming their favor,
instruction demanded the highest public
Dcy second objection taEen % the b Of review in this
that the husbands should Jointly with their and that
the husbands within the saving the bill
pnOt be fled concerned until
removal the disability. 1t is general equity
well as at aW that the husband Join the suit See
tory o. u this rule however many
psiOns is necessary protection
es the court will change the parties making the
complainant defendant according the egency
the In this there would antgousm
tween the the husbands wives husband has
the proceeds Of her land which he his estate
OF reversal Of the under
sold In this the hu and by his riches has
As plac himself he join and
though he has lost bis own rights hers remain in full force
would certainly he pressing the rule requiring the husband
join (Which in and generally for the protection Of the
ie consequence it could be usd for her injury
he case review is analogous that Of suit
joint estate is barred and where neither
In other respects regard 70 the form Of the proceeding there
IL \