Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-04-13

0IFTCLAL.

OFFICIAL.
Decisions of the Supreme Court OF the
state of Tennessee at Nashville, De.
cember Term, 1880.
Mari ct. ais. vs.. Gillian OF. ais
This action of ejectnent was commenced the 25th
Of February 1858, to recover 1881 acres of land
q part of grant No. 3a8 issued to James Galloway
by the State of North Carolina on the 18th of De-
cember 1874. The plaintiffs sue as the deYisees of
of William NJ. MARI. All of them, except Tennes-
see E Venable failed in the action, and she recoY-
cred an undivided eighth Of the tract less one hun
bred in its SOUTHEAST corner in the possession
of Hardin Mayberry, who was not sued. They all
appeal to this Court Their title is denied fol-
lows: Constant Perkins, of Pttsylvanis county. in
the State of Virginia, with said Galloway and others
residing in North Carolina prior to the year $780,
held certain lands in partnership, including the
grant above named, containing i've hundred acres
in Marry county, Tennessee. Perkins, who died in
$780, before the issuance of the grant, BY codicel
to his will devised to the onehak Of his part of said
grant to his brother, John MARI, the one-fourth
thereof to his brotherinaw, Joseph Scales andthe
remaining one-fourth tD Elizabeth Perkins daughter
of his brother, Peter Perkins. s
John MARI afterwards died, and his share In tins
grant came to his children either By devise des-
cent The time of his death is uncertain |; but it
was prior to the year 1870 L ID stated in argunsn.
that be left eight children, but from the record, we
can ascertain but seven, one Of whom was William
H Marr his eldest child, and the apcestor Of the
plaintiffs. The tract OF five thousand acres was,
by q decree of the Court Of Equity Of Rockingham
county State of North Carolina, partitioned among
tbs owners and James E. Galloway the heir at law
Of James Galloway, the grantee, was directed to
convey the 1924 acres to Williein NJ MARI
in trust for the dvisres Of Constant Perkins
that being the share Of said Perkins in the grant
and James E. Galloway did, accordingly under the
decree, on the LIST of May, 1929 make the convey
ance as directed, by rnetes and bounds. William III.
MARI thus became invested withythe legal title in
fee in severslty to the said tract of land holding
thereof for the children of his father himself
inclusive; 18th thereof for the heirs of Joseph
Scales and the residue for the heirs of Elizabeth
Perkins the said Joseph and Elizabeth having also
died. ~
The said William M.lIarr died the 9Th Of Septem-
Der, 1881 and in his WILL after devisng to his wife
life estate in certain portisns Of his property, he
gave the residue of his estate including the remain
der in that given his wife, to his children. she has
since died. he left the following children William
NJ born the 9Th of January 1910; Bethemia A. u.
the I'd of September, 1872; Agatha s.. the 3lst OF
May 1914; Daniel p, the 26th of November, 1915;
John H., the 18th of September, 1878. Elizabeth
s., the 9Th of November 1920; George W., the 10th
of September, 1922; Nicholas L., the I'd of August
1924: Sarah v, the 29th of July, 1926; Mary Z. j.
the 9Th of September 1923 and Tennessee E.. the Sd
| of January, 1881.
BethemiaA. G. married Samuel Ewing, the 2Sth
of January, 1929, and died the It'll of August, 1s43
Agatha S. married Robert S. Inge, the 18th of De
cember, 1882, and he died the Esd Of August, 1850
| she surviving him; Elizabeth S. married John d
| McLemore the 10th of March, 1886, and. died May
| the I7th 1912, Sarah V. married Thomas l.. Carson
the It'll of April, 1847; Mary E. J. Robert b. Mari
in 1885, and Tennessee E. Nathaniel Venabe the 10th
| of December, 1852, and they with their husbands
are yet alive. The said William II. died August tht
| 9TH 1888; John II. tho Esd of October, 1910 ant
| George w. the 4th of April, l849.
The said Agatha s., Daniel P Nicholas L., Saral
w. Mary E. J. and Tennessee E. constitute the
plaintiffs in this action; and it is agreed tina
| at the time it was instituted, they were tht
only heirs of William N. MARI, ST., save th'
| children of Elizabeth s, McLemore, who arr
now living and not parties to this suit. II does no
appear whether Samuel B. Ewing and John ID. Nc
i Lemore are dead or alive nor whether Ars Ewing
have issue though under the agreement we mus
take it that If she had it is dead.
| To resist a recovery, the statute of limitations
and lapse of time relied on. At the institution
of the suit the defendant Tabitha Hardin, the wild
ow of Pleasant G. Hardin, who was in possession
had in cultivation and under fence about tive
hundred acres of the tract; the defendant, Gillian
| about one hundred, and the defendant, Box, sbou
/ ifty The residue of the tract ia Enclosed anC
| chiefly valuable for its cedar timber. At what par
tcular periods these Clearings were made, does no
| appear Previous to the partition under the decree
| and while the five thousand acres were claimed By
the deysees of Constant Perkins and the other own
ers three leases two Of ter acres each, and one o
eighteen acres were taken by Land Fox, John Fox
and Aydlett, respectively. The dates or terms o
these leases do not appear. They were made By
Robert or Henry Scales, two of the children, ant
heirs of Joseph Scales, devisee in the will Of Con
slant Perkins. year or two Afterwards, leas'
of ten acres was taken of the same party by on
Heskitt the term of which Is not shown They al
adioined and are within what is now the possession
of Mrs Hardin When Heskitts leases expired 1t wa
renewed from Parmenas Williams, and!when he died
from one Workman. Both Willioms and Worthan
had become interested in the land by purchase from
part of the devsees of Constant Perkins, and onl,
aaimed undivided interests according to their utie
| After the expiration of the leases, and about tn
year 1929 Pleasant G, Hardin succeeded to the pos
| session but upon what title, whether as lessee o.
purchaser, does not appear but the proosoillty Is
from the proof in the record, That hls possession
was at first merely ss as lessee under the propri
etors On the 9th of July, 1885, @. II. P. Mar
| one of the children and heirs Of John MARI, con
| viewed his undivided interest Of one-seventh in tn
1924 acres to Hardin and his brother, John MARI
| had in like manner on the 2lst Of November, 1906
| conveyed his undivided seventh to Daniel Worth
| am. The defendants Gillian and Box, derive thei
:, title from James D. Freelsnd who, according I
some of the Witnesses took possession. BY the eccu
patton of the place WHARF, Gillian now lives, Il
1928 stating, TO use his own language that he ha
purchased an interest in the tract from ons OF tn
claimants. What claimant this wss, Is not shown
but it is probable that it was either Ihomas worth
| am and Nancy his wife, or Daniel WORKMAN, ~ W
find deeds from them to him Of date the 18th OF De
. | cember 1887, and there is no evidence he mad
other purchases. The deed from Workman an
wife conveys an undivided interest under the wi
| of Parmenas Williams, who had acquired the shar
of Elizabeth Perkins ind the deed Of Daniel Worth
| am embraces the share or oneseventh of John Mari
| which had been conveyed 70 him as aSoTe stateC
In addition to the conveyance from Z. d. :. MAT
Pleasant G. Harding, subsequent to the year 1883
| and his widow and heirs after his death took deed
for other undivided irterests-ohiefy Of the shar
of Joseph Scales and it may be, IN part, or tn
share of Elizabeth Perkins but neither OF defend
ants exhibit any evideace that they or those unde
whom they claim to derive title have purchased an
| share of John MARI, al derived under the will Q
Constant Perkins save the interest of G. II. ?. Mar
and John MARI jr. as herein before stated, and 1t
, probable. though not clear from the proof Ia Tn
record that they did scquirs the entire shares
Joseph Scales and Elizabeth Perkins The deeds
Pleasant G. Harding, that to bis widow and heirl
: and those to the heirs alone, as well as the deed
!, to James D. Freelantl and the intermediate COZ
!. yeyances from him, including those to Gillian
and Box, ALL simply, in general terms, conVe
the undivided interests of the respective granters
4 the /, 1921 acres, and co not convey or assume
convey the entire tract any particular part q u
seuerdtq- of them having been executed viii
in years next before the commencement OF tn
: | suit OF the same character are the other deed
. and title papers read in evidence anterior to tn
| purchases BY Pleasant G. Hardin, and James
Freeland. These deeds and title papers must
regarded as furnishing evidence that Pleasant
Hardin and James P. freeland, and the tenants VI
der them did not set up claim to the entire tract
stated by some of the witnesses, but that it only e.
tended to the shares interests purchased in the
undivided state and which, of course, went to Il
boundaries of the whole tract
A part of the enclosed land above mentioned WI
]. used and cultivated for than 20 years befol
m the suit during all which time the defendants ar
!, those under whom they claim were in possessio
>. beginning with the occupation of James Freelar
y and Pleasant G. HARDIN and during which tin
they cut and RATED timber to the boundaries Of q
tract and, according to some of the Witnesses ha'
claimed the entire tratl as their oe1H There is ey