TRANSCRIPTION OF COURT PAPERS ASSOCIATED WITH JAMES YOUNG
(Transcribed by Cathy Young)
Transcribers Note: I have held to spellings as much as practical and discernible. Some punctuation has been added to aid reading. Bolded notes are added in the text to help interpret the language and highlight sections which are unclear to me. Occasionally, there were blanks, especially dates, in the text or words that were hard to read. I did not add dates, but did make the best attempt to make the text readable by making logical attempts to interpret a word.
What follows is a transcription of court records pertaining to a lawsuit brought by James Young against William Hughes. It followed the loss of another lawsuit in which James Young was evicted from land he bought from Hughes because Hughes was not the legal owner. It is an example of the often-chaotic land dealings in Kentucky during its early days. Courts in both Virginia and Kentucky found landowners to be squatters on land they'd occupied for years, forcing people to start over elsewhere. Some of this was a result of crude surveying techniques, particularly the use of trees, streams, or outcroppings for landmarks which changed over the years. Another reason was the practice of granting large tracts of lands to absentee holders, who in turn sold it to others who bought it without ever seeing the land itself.
The language used in the transcript is sometimes difficult to follow. It represents the format of legal documents of the day in frontier Courts. Undoubtedly, some judges and attorneys were better educated than were others so quality must have varied widely. Court clerks were usually attorneys themselves. We must remember that each copy of Court records had to be reproduced by hand from an original. This transcription is taken from a copy filed with James Young Probate records in the Shelby County Courthouse in Indiana. The original, if it still exists, is in Clark County Courthouse in Kentucky.
State of Kentucky
Montgomery Circuit
Pleas before the Hon. Silas W. Robbins
Judge of the Montgomery Circuit Court
At the Courthouse thereof in the Town
Of Mount Sterling on Thursday the
15th day of September 1836
James Young's Executors Complaint against William Hughes' Debt
Be it remembered that heretofore to wit on the 26th day of June 1827, James Young by his counsel filed in the Clerk's Office of the Clarke Circuit his certain Bill of Complaint against the defendant William Hughes in the words and figures following to wit:
Bill in Chancery
To the Honorable Judge of the Clarke Circuit Court in Chancery sitting, humbly complaining, sheweth unto your Honor, your orator James Young that on or about the 17th day of Jun in the year 1817, William Hughes and James Hughes Jr. sold to your orator a small tract of land in the County of Clarke, containing about thirty-five acres for which your orator paid them the sum of three hundred dollars, that they made to him for said land only a deed of quit claim, and to induce him to take a title of that kind, and to become the purchaser of said land, they falsely and fraudulently represented to your orator, whilst they were negotiating about the purchase of the same that they had had the peaceable and adverse possession of the same for upwards of twenty years, that their title was good and that they had succeeded in holding the same by their possession in action of Ejectment brought in the Clarke Circuit Court by Joseph Kelly. Your orator, being an ignorant old man, and wishing to have said land as it lay adjoining the place he lived on, and believing in the representations made by the said Hughes made the aforesaid purchase. But he avers that said statements were false and fraudulent and made for the purpose of cheating him, that they held no such adverse possession, that no such Ejectment case had been tried as they represented, and in truth and in fact, your orator was evicted from the possession of the same by the said Joseph Kelly who on the _____ day of ______ brought his suit of Ejectment in the Clarke Circuit Court and obtained Judgment for the same, and has ever since held it, and he avers that the only possession which the said Hughes had was a friendly possession, under the claim held by said Kelly. He therefore prays that said contract may be rescinded and he may have a decree for his said purchase money back again. He states that the said James [Hughes] has since died, that he does not know who has administered his estate or who his personal representatives are, but he will make them defendants hereto so soon as he can ascertain who they are; he prays that said William Hughes may be made a defendant hereto as well as said representatives and compelled to answer this Bill in Oath, and he prays what other and further relief his case may require.
Subpoenas
The Commonwealth of Kentucky to the Sheriff of Clarke County, Greetings: We command you to summon William Hughes if he be found in your bailiwick to appear before the Judge of the Clarke Circuit Court at the Courthouse thereof in Winchester on the 12th day of our present June term, to answer a Bill in Chancery filed against __________ in said Court by James Young and that he shall not omit under the legal penalty and have there this writ.
Witness: Samuel M. Taylor, Clerk of said Court this 26th day of June 1827 and in the 36th year of The Commonwealth
Sheriff's Return
Executed on William Hughes 26th June 1827
William C. Sympson, Deputy Sheriff for James McAfee
The orders made in this case by the Clarke Circuit Court are in the words and figures following to wit:
Continuance: At a court continued and held for said Circuit on the 3rd day of Jul 1827, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a court continued and held for said Circuit on the 3rd day of October 1827, ordered that this cause be continued until the next term.
Rule for Security for Cost and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 4th day of April 1828, on the motion of the said defendant a rule is awarded him herein against the said complainant, returnable here on the first day of the next June term of the Court requiring him to give Security for Costs, he, the said complainant, being a non-resident, and in his failure to do so, his Bill will then stand dismissed with costs, and it is further ordered that this cause be continued until the next term.
Rule for Security for Costs and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 3rd day of Jul 1828, this day came the parties aforesaid by their attorneys and in the motion of the said complainant, it is ordered that the rule awarding herein against him at the last term requiring him to give security as a non-resident be extended until the next term and it is further ordered that this cause be continued until the next term.
Rule for Discharge of Rule for Security for Costs and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 2nd day of October 1828, James Brassfield, as the Security for the said complainant, having executed a Bond for costs herein as a non-resident complainant, it is ordered that the Rule for Security for Costs for the said defendants against the said complainant be discharged and it is further ordered that this cause be continued until the next term.
Bond for Costs
Know all men by these present, that we James Young and James Brassfield are held and firmly bound unto William Hughes in the sum of $100, the payment of which well and truly to be made and done. We and each of us bind ourselves and ours and each of our heirs, Executors, and Administrators jointly, severally, and firmly by these present, sealed and dated this 2nd day of October 1828. The continuation of the above obligation is such, that whereas the above bound James Young hath instituted a Sit in Chancery in the Clarke Circuit Court against the above named William Hughes and he, the said James Young being a non-resident, hath been ruled by the said Court to give Security for Costs and he now gives the above bound James Brassfield as Security, who is a resident within this Commonwealth, now of the above bound James Young shall well and truly pay unto the said William Hughes and the officers of the Clarke Circuit Court all such costs as may accrue by reason of instituting said suit, then this obligation to be void, else to remain in full force and virtue in law.
Witness:
George Smith
Signed:
James Brassfield
William Hughes Answers Suit: And afterwards to wit at the Court held for said Circuit on the 23rd day of March 1829, this day came the said defendant by his attorney and produced his answer herein which is filed and is in the following words and figures to wit: The answer of William Hughes to a Bill of Chancery complaint exhibited against him in the Clarke Circuit Court by James Young. This defendant, reserving, etc. for answer thereto states that the James Hughes mentioned in said bill died in Nicholas County and the County Court thereof granted to this defendant and Keturah W. Hughes (the widow of said James) letters of administration on his personal estate (the said James having died without having made or published any last will or testament). This defendant states that the said decedent and he sold to the complainant a tract of land lying in Clarke County at the price of three hundred and forty dollars, that at the time of the making said contract, the complainant executed to them his two bonds for the payment of one hundred and seventy dollars each, payable some time afterwards and at different periods, being for the purchase money aforesaid, and at the same time they executed to the complainant their bond binding them to convey said land to the complainant by a quit claim deed, that when the bond aforesaid for the $170 (the first installment) fell due, on or about the time or shortly afterwards, the complainant paid off and lifted said bonds and they executed to him a quit claim deed for said land and lifted their bond aforesaid for the conveyance, and said deed being duly acknowledged, was admitted to record in the Clarke County Court, and reads in the words and figures following to wit: "This indenture made this 17th day of June 1817 etc., etc." as by reference to an official copy thereof herewith filed and prayed to be taken as a part of this answer will more at large appear. He states that in part of the $170 bond for the installment last falling due, the complainant paid them the sum of forty dollars, making in all the sum of $210, paid by the complainant to them for said land. He states that he does not recollect the precise period when said $40 was paid, but it has been credited on said $170 bond (both as to amount and date of payment) which is not now present, but he will file as a part of the answer said bond, which he prays may be taken as a part thereof, that said conveyance bond when complied with as aforesaid was destroyed, and he believed that it bore even dates with said bonds for the purchase money. He states that said deed was drawn in exact conformity to said bond for conveyance of the said land and strictly pursues the contract of purchase and sale between them and complainant in regard to said land. He denied that they made any representation whatever as to their title to said land to the complainant, but he charged that the complainant was as well acquainted with the nature of their title to said lands as they were themselves, that he had lived within one or two hundred yards of said land for upwards of twenty-five years before and up to the time of the making said contract and knew that their deceased father and those claiming under him had held an ancient possession of said land and that said possession continued in this defendant and his brother James and those claiming under them up to the time of making said contract. He states that his father died possessed of a tract of land in Clarke County containing one hundred acres or thereabouts, including the land so sold to the complainant and after his death, this defendant and his brother James being in possession of said land by their tenant, Edward Atkins. Joseph Kelly instituted on the Common Law side of this court an Action of Ejectment against said Atkins as tenant in possession and said suit such proceedings were had, that at the September term 1814, this defendant and said James Hughes were made defendants in said Ejectment and at the June term 1815 said suit was tried, and Judgment rendered against the defendants therein for all the land in contest except the parcel so sold by this defendant and said James to the Complainant, that the Complainant was present at said trial, attending as a witness therein for the purpose of proving the fact of an adverse twenty years' possession of said land, that is the part so sold to him by the defendant and said James (Hughes), by this defendant and said James and those them when they claimed said land, that he believes the Complainant was regularly summoned as a witness in said suit for the defendants, and was apprised of the purpose aforesaid, for which he was summoned, that in said trial, the defendants insisted upon Plaintiff's right of recovery in said suit, as to said land so sold to the Complainant, a twenty years' adverse possession by the defendants and those under whom they claimed and that they and those under whom they claimed had cleared, cultivated, enclosed, and exclusively possessed and enjoyed by a fence the parcel of land sold as aforesaid to the Complainant and saved to the defendants and excepted out of the recovery of the Plaintiff in said action of Ejectment which facts of clearing, cultivation and adverse enjoyment and possession under fence as aforesaid, the Complainant attended as a witness to prove on behalf of the defendants, and at that time averred that he could and would prove if sworn as a witness, and although he was not sworn as a witness yet, it was because the lesson of the Plaintiff knew or he heard that the Complainant would swear to the above facts, that the fact of such possession was admitted at said trial and the verdict was rendered as aforesaid. He states that there was made out in said suit a connected plat, showing the part of said land, to which the defendants in said suit set up the twenty years adverse possession and he charges that the Complainant attended the survey and pointed out on the ground the boundaries of said parcel, which is the same parcel sold and conveyed by the defendant and his brother James to the Complainant. He prays that the proceedings in said action of Ejectment may be considered a part of this answer. He denies that he and his brother James sold the Complainant any parcel of land for three hundred dollars or that they received from him that sum for the purchase of land as the Complainant has stated after the trial of said Ejectment and at the time of the making of said contract with the Complainant, said Kelly was trying to buy said land from them, that the Complainant knew it and to prevent said Kelly from effecting said purchase the Complainant sent to this defendant and his brother James a message that he would buy said land, that this defendant then lived in Bath County and his brother James lived in Bourbon County, and the defendant went to Clarke County where the Complainant was living near said land and made the contract herein before set forth for himself and by said brother to wit: At the price of $340 by a quit claim deed and without any representation, made either then or before by him or his brother James, in relation to the nature of their title so far as this defendant knows or believes, he knows nothing of the subsequent recovery in Ejectment by said Kelly of said land from the Complainant, except by report as he was not present at the trial nor has he ever seen any record of such recovery and therefore he calls upon the Complainant for such proof of such recovery, its extent and the grounds thereof. This defendant charges that at the time of the commencement of this suit, more than five years had elapsed since the complainant paid to him and his brother James the said two hundred and ten dollars and he insists, when by way of answer as if pleaded in bar, the lapse of time since the payment of said money by the Complainant to the defendant and said decedent James Hughes, and he avers that at the commencement of the suit more than five years had elapsed since such cause of suit or action accrued to the Complainant to recover back from the defendant the aforesaid $210 or any part thereof as he has set forth in his said Bill. He denies that he and his brother James or either of them, whilst they were negotiating with the Complainant said purchase or at any other time, represented to the Complainant that they had had the peaceable and adverse possession said land (so sold) for upwards of twenty years and that their title to said land was good and that they had succeed in holding the same by their said possession in an action of Ejectment brought in this Court, nor did they make any part of said representation to said Complainant and the defendant denies that the Complainant was induced to make said purchase by any representations whatever by the defendant and his brother or either of them, but he charges that the Complainant made the purchase of aforesaid when his knowledge of the facts connected with their title to said land. He states that when said Kelly sued said Atkins in said Ejectment, the defendant believed, and at the time of the making of said contract with the Complainant, still believed that the said Kelly was barred of his right of Entry to the land saved in said Ejectment by the adverse possession of the defendants in said suit, which belief was confirmed by the fact of said land's being saved in said Ejectment as before stated. He states that he is not a lawyer nor is he skilled in law points, and thus he cannot rely on his own judgment as to questions of law. Yet he would state that he yet believes that Kelly's right of Entry to said land (so sold to Complainant) was taken away by an adverse and continued possession thereof in the defendants in said Ejectment ________ to the commencement thereof and he firmly believes that if he and his brother James had not sold to the complainant said land that said Kelly would have purchased their title to the said land. He states that his father David Hughes gave a bond to James Douglas for upwards of a hundred acres of land, including the parcel sold to the Complainant, and this defendant and his brother James. Since their father's death and before they sold to the Complainant, [they] purchased from said Douglas said land. He denies the fraud imputed to him and his brother James Hughes and having answered said Bill, he prays to be hence dismissed with his costs.
Answer for Deposition
Bourbon County, Kentucky
This day William Hughes made oath before me a Justice of the Peace for said County, that the statements contained in the within answer are true to the best of his knowledge and belief. Given under my hand the 18th day of November 1828
Hugh Talbot
Hughes' Deed to James Young
The deed referred to in the proceeding answer is in the following words and figures to wit: "This indenture made this 17th day of June in the year 1817 between William Hughes and James Hughes both of the County of Nicholas and a County unnamed of Kentucky of the one part and James Young of the County of Clark and Commonwealth aforesaid of the other part, witnesseth that for and in consideration of the sum of one dollar in hand paid the receipt they, the said William and James Hughes doth hereby acknowledge have granted, bargained, and sold unto the said James Young a certain tract or parcel of land situated in Clarke County on the waters of the Hancock waters of Stoner Fork of Licking [River], containing thirty-five acres more or less and bounded and followeth to wit: Beginning at a stake thence South 80 ?? eighty (80) poles to a stake, thence North two (2) poles to a stake, thence South 85 East forty-six (46) poles to a stake, thence South thirty-two (32) poles to a stake, thence South eighty-five (85) poles to a stake, thence West forty-seven (47) poles to a stake, thence South 18 East and thirty-seven (37) poles to a stake, thence South 21 West thirty-six (36) poles to a stake, thence North 70 West thirty-six (36) poles to a stake, thence North East thirty-one (31) poles to a stake, thence South 84 West twelve (12) poles to a stake, thence South 17 West sixteen (16) poles to a stake, and thence to the beginning,the same being the tract of land that withheld in the trial on an Ejectment in the Clarke Circuit Court by having twenty years peaceable possession in a suit of James Kelly against us, the said William and James Hughes, together with all and singular right title and interest, property, and claim of the said James Hughes and William Hughes of ____and to the said lands and premises part and parcel thereof until the said James Young to have and to hold the same with the appertainences and thereunto belonging or in any wise appertaining, and said William and James Hughes doth by these present, covenant to and with the said James Young and his heirs to warrant and forever defend the aforesaid thirty-five acres of land more or less against themselves their heirs, but not against the claim or claims title or titles of any other persons whatever claiming the aforesaid tract of land, as the true intent of this contract is that the said William and James Hughes convey by these present, all right and title that they held to said land, before mentioned by a possession of twenty years, and it is well understood that if the land is lost by any means whatever, that the said William and James Hughes, their heirs or assignees, are not to be liable for damages in any case whatever, as they only sell the title they hold to said land, without recourse to them. In witness whereof, we have set our hands and seals this day first written.
Wm. Hughes Jas. Hughes, Jr.
State of Kentucky
Bath County
I, William M. Ludduth, Clerk of the Court of the County aforesaid do certify that this deed of bargain from James and William Hughes to James Young was this day acknowledged before me by the said James and William Hughes to be their act and deed for the purpose therein contained, whereupon I certify the same to the Clerk of the County Court of Clarke, in which last mentioned County, the land lies. In testimony whereof I, the Clerk aforesaid, have hereunto set my hand this 17th day of June 1817.
William M. Ludduth
Clarke County Clerk's Office 23rd June 1817
This deed of bargain and sale from James and William Hughes to James Young was received by Mr. James P. Bullock, Clerk of the Court of the County aforesaid, and which together with the certificate therein endorsed are the committed to record.
James P. Bullock
The orders made in this case by the Clarke Circuit Court are in the words and figures following to wit (cont):
State of Kentucky
Clarke County
I, Thomas Vivian, Deputy for James P. Bullock, Clerk of the Cicuit for the County aforesaid do certify that the foregoing deed is truly transcribed from the record in said County Circuit Clerk's office, given under my hand as Deputy aforesaid this 3rd day of April 1828.
Thomas Vivian
Suit Abatement by death of Complainant, Receipt of Abatement by Executors, Entry of Bill of Revision, and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 2nd day of April 1829 it appearing to the Court that the said Complainant is now deceased and [two lines cut off in photocopy]….John M. Young, Erasmus Powell and Azariah Williams, Executors of said decedent James Young, produced in Court a Bill of Revision herein which is filed and it is ordered that this suit proceed in the name of said Executors. And it is further ordered that the suit be continued until the next term.
Bill of Revision
To the Honorable Judge of the Clarke Circuit Court in Chancery sitting humbly complaining, sheweth unto your Honor, John M. Young, Erasmus Powell, and Azariah Williams, that heretofore to wit on the ____ day of _____ James Young, who is now dead, did in his life time commence a suit in Chancery in this Court against William Hughes and James Hughes, that afterwards to wit during the pending of said suit in Chancery, the Complainant, James Young, having moved to Shelby County and the State of Indiana, then died, having first made and executed his last will and testament by which he appointed the Complainants together with his wife, Polly Young, his Executors, and after his death to wit on the 2nd day of March 1829, probate of said will was made and the complainants qualified as Executors thereto in the County and State aforesaid, being the place where the said testator resided at the time of his death, and the said Polly Young, who was above named in said Will with them, having refused to qualify, a copy of said Will and Letters of Testamentary from the proper office are now here to the Court shown, and prayed to be taken as part of this Bill, your Orators therefore pray that said suit in Chancery may stand revived in their names, that they may carry it on and that it may be considered in the same attitude it was at the time of their said testator's death, that the original Bill and other proceedings may be considered as parts of the Bill. And they would further state by way of amendment thereto, that at the time their testator filed his Bill herein, the said James Hughes had departed this life intestate and that the defendant William Hughes and also Keturah W. Hughes, the Widow of said James Hughes, deceased, have administered in the Estate of said James deceased, they therefore pray that said Keturah W. Hughes may also be made a defendant hereto and be together with the said William Hughes compelled to answer this and said original Bill upon Oath. They also state that at the time the defendant William Hughes and said James Hughes deceased sold said land to the said James Young, their testator, they had no title to the same whatever, that they had been in possession of it some short time, and pretending to have a title to it, they sold the same to the said James Young, at a price that was then the full value of the land, even if their title had been good and valid. They charged that said thirty-five acres were part of a larger tract of land patented in the name of Samuel Shannon, heir at law of William Shannon deceased, that said William Shannon in his life time had employed one Joseph Tomlinson to superintend the locating and carrying into grant a quantity of lands for him in Kentucky, but what the said Shannon was to give to said Tomlinson as a compensation for his trouble in doing so, your Orators do not know, that said Tomlinson employed David Hughes to do it for him or assist him in doing it, that afterwards the said William Hughes and James Hughes under said David Hughes got the possession of said piece of land sold by them to your Orators said testator, claiming to hold it under said Samuel Shannon by virtue of the claim said Tomlinson and David Hughes had thereto as locators, but without any evidence of right known to your Orators, except the claim which locators set up under the custom of the County to part of the land located. And your Orators charge that they had no right to said land either in law or equity as they are informed and believe, notwithstanding which the said William Hughes and James Hughes sold the land to the testator as their own land, made him only a quit claim title, thereto for the purpose of screening themselves in case the land was lost, from a legal recovery against them, when in truth and in fact, they had no title to said land at all, and imposed on the ignorance of their testator who purchased said land from them, believing they had a title to it and believing so from their false and fraudulent statements made to him before he purchased, that said land belonged to them, that it was their land, and that they had a title to the same and under said title had been in possession of it for twenty years adversely to said Shannon's claim, and by said adverse possession held it from said Joseph Kelly, in action of Ejectment brought by him for it, under Shannon's claim, when, as your Orators charge in truth and in fact, said William Hughes and James Hughes had no title to the same, it was not their land, did not belong to them, and the possession they had had of it was not adverse to said Shannon's claim but under it, and friendly with it, and they had never held it from an Ejectment brought against them by Joseph Kelly. In addition to all, which they concealed from the said James Young the way they got into possession of said land and their holding the same under Shannon's claim, of which he was entirely ignorant. They further state that after their testator bought said land, he entered into the possession of it and had it in his possession but a short time before Joseph Kelly brought said action of Ejectment against him and evicted him, having proved in the trial that said Hughes's entered into the possession of said land under said Shannon, and he, the said Kelly shewing a title to the same, in himself regularly derived from the said Samuel Shannon, the patentee. Your Orator's charge that their testator knew nother of the manner in which said William and James Hughes held said land until after said Ejectment suit was brought, when upon the investigation that took place in the trial of it, it appeared that he had bought land to which the vendors had no title, either in law or equity, they therefore pray that the defendants may be compelled to repay to them the purchase money so advanced by their testator to said William and James Hughes for said land so fraudulently sold them with interest thereon from the time it was paid. The started said action of Ejectment in the Clarke Circuit Court by Joseph Kelly referred to by their testator in his original Bill was brought by said Kelly, not against said James Young, but against one Thomas Lafferty who was in possession of said piece of land, holding the same under the said James Young, their testator and when it is alleged that he was evicted, it is thereby meant that he was evicted through the said Lafferty who held the same under him and who was evicted therefore by said Kelly in said action of Ejectment, the record and proceedings in which are here referred to and prayed to be taken as part of this Bill. They charge that the defendants as administrators of the said James Hughes deceased have received into their hands assets belonging to said James Hughes estate to the amount of several thousand dollars, much more indeed than is sufficient after paying all other debts and expenses against the estate to pay the amount demanded by your Orators in this suit. They pray for what other and further relief their case may require and to equity belongs.
Allen T. Simpson for Complainants
In the name of God Amen, I, James Young, Senior, of Shelby County and State of Indiana, farmer, being very sick and weak in body, but of sound mind, memory, and understanding, praised be God for the same, do make and publish this my last Will and testament in manner and form following to wit, principally and first of all, I commend my immortal soul into the hands of God who gave it and by body to the Earth to be buried in a decent and Christian like manner at the discretion of my Executors, hereinafter named, and as to such worldly estate, wherewith it has pleased Almighty God to bless in me in this life, I give and dispose of the same in the following manner to wit: I give and bequeath my beloved wife Polly Young two hundred dollars in cash, also a mare, generally known by the hired man, with a saddle and bridle, one bed and bedding and bedsteads, the cupboard and cupboard furniture and a Negro girl called Mary, also my clock. I give and bequeath to my son John M. Young the some of two hundred dollars. I give and bequeath to my son James Young the sum of one hundred dollars. I give and bequeath to my son Washington Young the sum of two hundred dollars, a Negro boy, now in the State of Kentucky, called George, one bed and bedding and bedstead, the bay mare with a saddle and bridle and the rifle gun, also the farm on which I now live, containing two hundred acres, it being the same I purchased of Baliss Coats and Lewis Van Buskirk. I give and beqeath to my said son Washington, his heirs, and assignees forever, provided however it is to be expressly understood that my son Washington aforesaid shall give his mother a decent maintenance during her natural life out of the proceeds of said farm or in any other manner that may be agreed upon between themselves. I give and bequeath to my daughter Nancy Morris the sum of two hundred dollars. I give and bequeath to my daughter Polly Pigg the sum of two hundred dollars. I give and bequeath to my daughter Patsy Morris the sum of two hundred dollars. I give and bequeath to my daughter Eliza M. McCann the sum of two hundred dollars. I give and bequeath to my daughter Matilda Young the sum of two hundred dollars, also a mare, saddle and bridle, also one bed, bedding and bedstead. I give and bequeath to Maximillian Young and Peggy Young, children of my son Robert Young deceased, the sum of fifty dollars each and as touching all the rest residue and remainder of my estate, real and personal of what kind or nature whatsoever the same may be in the County of Shelby aforesaid or elsewhere, I will and bequeath the same to my wife and children above named the same first to be converted into case by the public vendors at the discretion of my Executors and the amount equally divided between my said wife and children above named, provided however, the within named children of my deceased son Robert shall not be considered as entitled to a share of such property or the proceeds thereof and lastly, I nominate, constitute, and appoint my said wife Polly Young, my said son John M. Young, Azariah Williams and Erasmus Powell to be the Executors of this my last will and testament, hereby revoking all other wills, legacies, and bequests by me heretofore made and declaring this and no other to be my last will and testament. In witness whereof I have hereunto set my hand and seal this fifth day of February in the year of our Lord, one thousand eight hundred and twenty-nine.
James Young (signed with a mark)
Signed, sealed, published, pronounced, and declared by the said testator as his last will and testament in the presence of us who are in his presence and at his request have subscribed as witnesses.
Erasmus Powell Jacob Rice James Morris (his mark)
State of Indiana
Shelby County
Hiram Aldridge, Clerk of the Shelby Circuit Court within and for the County of Shelby aforesaid do hereby certify that the previous is a true copy of the last will and testament of James Young deceased which is now a file in my office. In testimony whereof, I have hereunto set my hand and affixed the seal of our said Court at Shelbyville the 2nd day of March 1829.
Hiram Alldridge
Letters of Testimony
State of Indiana
Shelby County
To all to whom these presence shall come, greetings:
Know ye that at Shelbyville in the County and State aforesaid on the second day of March in the year of our Lord one thousand eight hundred and twenty-nine, before me, Hiram Alldridge, Clerk of the Shelby Circuit Court, the last will and testament of James Young deceased (a copy of which is hereunto annexed) was proven and is now approved and allowed by me, and the said deceased having whilst living, and at the time of his death, goods, chattel, and credits within this State by means whereof the proving and registering said Will and the granting of administration of all and singular, the said goods, chattels, and credits doth appertain unto me in vacation by the statute of the State of Indiana in such case made and provided the administration of all and singular the goods, chattels, and credits of the said deceased and in any way concerning his Will is granted unto John M. Young, Erasmus Powell, and Azariah Williams, Executors of the said last Will and testament, and they the said John M. Young, Erasmus Powell, and Azariah Williams are hereby required to make a true and perfect inventory of the said goods, chattels, and credits and also a just account thereof agreeable to law, and the said John M. Young, Erasmus Powell, and Azariah Williams having entered into bond and security according to law. In testimony whereof I, Hiram Alldridge, Clerk of the Shelby Circuit Court aforesaid have hereunto set my hand and affixed the seal of our said Court at Shelbyville the 2nd day of March A.D. 1829.
Hiram Alldridge
The orders made in this case by the Clarke Circuit Court are in the words and figures following to wit (cont):
Wm. Hughes Answers to Bill of Revision: And afterwards to wit at a Court continued and held for said circuit on the 23rd day of Jun 1829 this day came the said defendants William Hughes and Keturah W. Hughes by their attorney and produced their answers herein which are filed and follow in these words and figures to wit" "The answer of William Hughes to a Bill of _______exhibited against him and Keturah W. Hughes in the Clarke Circuit Court by John M. Young, Erasmus Powell, and Azariah Williams as Executors of James Young deceased, this defendant, etc. answer states that he does not gainsay the death of said James Young or that he made such last Will and testament as is set forth in said Bill, or that the Complainants have duly qualified as his Executors, and having answered the original Bill filed herein by the Complainant testator, he adopts that answer as is answer in part to the allegations of said Bill of Revision. He is willing that the suit on said original Bill shall stand revived as prayed for in said Bill of Revision. He admits that he and his co-defendant have assets in their hands which have fallen to them as the Administrators of said James Hughes deceased sufficient to satisfy the demand of the Complainant as set forth in the Bills. He states that when Joseph Kelly instituted his action of Ejectment against Edward Atkins for the land which the defendant and said James Hughes sold to James Young deceased, the said Atkins was in possession of said land, as well as of more land adjoining and surrounding it as the tenant of said James Hughes and this defendant, and the land so adjoining said parcel together with said parcel contained by computation about one hundred acres and perhaps upwards, that the whole of said land so in possession of said Atkins as their tenant was recovered from them by said Judgment in Ejectment, except the parcel sold by this defendant and said James Hughes to said James Young and that parcel having been cleared more than twenty years and during that time actually occupied by ______________ants and those under whom they claimed it was excepted from the land recovered in said Ejectment as stated by this defendant's former answer.
This defendant denies that he or said James Hughes made any such representation to the said James Young as to the nature of their title to said land so sold by them, or as to the nature of their possession in said land as the Complainants have set forth in their Bill of Revision, nor did they make any such representations to the said James Young as to the manner in which they had saved said land in the Ejectment before mentioned as the Complainants state in their said Bill of Revision, but in fact this defendant and said James Hughes made no representations whatever as to those matters to said James Young, but he alleges that a full and complete history of what took place between them and said Young touching said contract of sale has been given by this defendant in his former answer. As to the Ejectment mentioned in said Bill of Revision by which Kelly recovered from Thomas Lafferty and James Young, or either of them, the land so sold by this defendant and James Hughes to James Young, this defendant has no knowledge of what took place in the trial thereof. He believes that the land was patented to a man of the name of Shannon, but whether Samuel or William Shannon, he does not recollect, and he has always understood and believed that his father David Hughes was entitled to some portion of the whole tract (but what portion he does not recollect, though he thinks it was at least one hundred acres of it) for his services in locating said land and other lands for said Shannon and that David Hughes was employed to locate said lands by Joseph Tomlinson, who professed to have made a contract with said Shannon to locate or cause to be located said land for said Shannon. He sates that he was not present or privy to the making of any contract between the said David Hughes and said Shannon and Tomlinson, or between David Hughes and either of them, in relation to said land, or the title thereto, or the locating thereof; that his father has been deat upwards of twenty-six years and what this defendant believes on the subject, he derived by conversations with his father. He states that his father settled on said land about forty years ago and swapped the tract including said parcel sold as aforesaid to said James Young to one James Douglas for other land and put him into the possession thereof, and after his father's death, this defendant and his brother James Hughes regained the possession of said land from said Douglas and by their tenants continued in said possession until they sold to said James Young a part and as to the residue until evicted by said Kelly on his Judgment in Ejectment brought against said Atkins; and when they regained the possession from said Douglas, they did by the same contract obtain from him an assignment of the bond by which their father bound himself to convey to said Douglas the tract of land which included the parcel sold and conveyed by said James Hughes and this defendant to said James Young. He denies that they defrauded said James Young in the sale of said land and he states that they sold to him by a quit claim deed because he gave them for it a very reduced price, much below the real value of the land. He admits that he had never found a deed from anyone to their father for said land, and he knows that his father always claimed said land to be his own proper land, and when he and his brother James sold to the said James Young, they thought that by virtue of their adverse possession, they could hold said parcel against all the worlds; and having answered said Bill of Revision, he prays to be hence dismissed with his costs.
Answer for Defendant
Bourbon County Circuit
This day William Hughes made oath before me, a Justice of the Peace for said County that the statements contained in the within answer are true to the best of his knowledge and belief, given under my hand this 17th day of May 1829.
H. Timberlake
Answer of Keturah Hughes to Bill of Revision: "The answer of Keturah W. Hughes to a Bill of Complaint and Bill of Revision thereon pending in the Clarke Circuit Court against William Hughes and her as Administrators of James Hughes, deceased, by John M. Young, Erasmus Powell, and Azariah Williams as Executors of James Young Sr., deceased. This defendant, reserving for answer thereto states that true it is the said William Hughes and she obtained from Nicholas County Court letters of Administration on the personal estate of her deceased husband, James Hughes, and she admits that affairs of said decedent in the hands of herself and her co-defendant are more than sufficient to satisfy the claim set up against them in the original Bill filed against her co-defendant by said James Young, deceased, and now sought to be revised against said William Hughes and her by the Complainants as Executors of said Young. She does not deny that the said Young duly made and published a last will and testament and that the complainants qualified as the Executors thereof as stated in the said Bill of Revision. She states that she has no knowledge whatever of any of the allegations in said original Bill and Bill of Revision, further than she has above set forth; but she is willing to abide by the responses contained in the answer filed by her co-defendant to said original Bill and which he may make hereafter to the allegations of said Bill of Revision, and the answers of her co-defendant herein, she hereby adopts as her answer to said original Bill and Bill of Revision, and the answer of her co-defendant herein, she hereby adopts as her answer to said original Bill and Bill of Revision, and she is willin the suit on said original Bill stand revived as prayed for and she prays to be hence dismissed with her costs, etc."
Answer for Defendant
Nicholas County Circuit
This day Keturah W. Hughes made oath before me, a Justice of the Peace for the County aforesaid, that the statements contained in the within answer are true to the best of her knowledge and belief. Given under my hand this 15th day of June 1829.
Robert C. Hale
Justice of the Peace, Nicholas County
Continuance: And afterwards to wit at a Circuit Court continued and held for said Circuit on the 30th day of September 1829, the said defendant William Hughes, by his attorney, this day produced in court his answer to the Complainants' Bill of Revision, filed herein which is filed. And it is ordered that this cause be continued until the next term (the answer referred to above is not filed with the papers) [Though the Clarke County Clerk noted the answer was not filed, the Shelby County copy contains the answer, which is included above]
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 31st day of March 1830, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 6th day of July1830, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 11th day of October 1830, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 29th day of March 1831, ordered that this cause be continued until the next term.
Leave to Retake Deposition and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 27th day of September 1831, on the motion of the said Complainants, by their attorney, leave is given them to retake the deposition of Joseph Kelly herein.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 29th day of September 1831, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 6th day of April 1832, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 9th day of July 1832, ordered that this cause the continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 25th day of September 1832, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 3rd day of April 1833, ordered that this cause be continued until the next term.
Notification of Death of Keturah W. Hughes, Leave to Retake Deposition, and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 7th day of October 1833. This day came the said Complainants by their counsel and suggested the death of Keturah W. Hughes and on the motion of said Complainants, leave is given them to re-take the deposition of Samuel Hanson, and it is ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 4th day of April 1834, ordered that this cause be continued until the next term.
Assignment of Costs to Complainants and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 1st day of July 1834. This day came the parties by their counsel and on the motion of said Complainants, it is ordered that this suit be continued until the next term at the costs of said Complainants.
Leave to Retake Depositions and Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 3rd day of October 1834. This day came the parties aforesaid by their counsel and on the motion of said Defendants leave is given to them to retake the depositions of Joseph Kelly and Samuel Hanson to be read as evidence herein, and on the motion of said Complainants, it is ordered that this cause be continued until the next term at the costs of said Complainants.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 11th day of October 1834, ordered that this cause be continued until the next term.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 6th day of April 1835, continued.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 29th day of Jun 1835, continued.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 9th day of October 1835, continued.
Change of Venue: And afterwards to wit at a Court continued and held for said Circuit on the 6th day of April 1836. On the calling of this cause, the Circuit Judge being of the opinion that he ought not to adjudicate herein, on the motion of said Complainants and with the consent of the Counsel for the Defendant, it is ordered that the venue of this suit be changed to the Montgomery Circuit Court and the Clerk of this Court is directed to transmit the papers in this cause to said Circuit Court according to Law.
Continuance: And afterwards to wit at a Court continued and held for said Circuit on the 28th day of Jun 1836, continued.
A true transcript
Sam M. Taylor
Clerk of Clarke Circuit Court
Suit Abatement by Death of Defendant, Dismissal of Suit for Want of Prosecution, and Assignment of Costs to Complainant: And afterwards to wit at a Circuit Court continued and held for Montgomery County on Thursday, September 15th 1836. This day came the parties by Counsel and on motion of the Complainants, it is ordered that this Suit abate as to the defendant Keturah Hughes per her death. It is therefore ordered that this suit be dismissed for want of prosecution at the Complainants costs without prejudice, to be levied of the assets in their hands unadministered. It is therefore ordered that the Complainants pay to said defendant his costs herein expended.
[The depositions below appear out of order; it is presumed they were the original depositions of James Kelly and Samuel Hanson, not the re-depositions authorized above.]
Deposition read on the part of Complainants: The deposition of Joseph Kelly taken on the 8th day of March 1830 who deposeth and sayeth that he is well acquainted with the tract of land in the suit mentioned sold and conveyed by William Hughes and James Hughes Jr. to James Young in his lifetime, containing about thirty-four or thirty-five acres. He sates that said land lies in the County of Clarke and is covered by the patent in the name of Samuel Shannon, part of the land in the Shannon patent was sold and conveyed to this witness by John Payne, Attorney in fact for said Shannon or in his own right, the said Shannon having conveyed to said Payne; the last deed made to witness by said Payne was for one hundred and twenty-five acres as well as I recollect and covered the land convey by said William and James Hughes to Young. The boundary of said land and of said Shannon's patent was well known to me. The thirty-five acres of land about which this suit is, was first settled by David Hughes. The first time I saw said David Hughes on said land was upwards of thirty-five years ago, the exact length of time I cannot now tell. Hughes seemed to have just settled there, having then but a few panels of fence up, just before the door. I then asked said Hughes whose land that was he was living on; he replied that it was the land of Samuel Shannon. I afterwards frequently saw said David Hughes in his lifetime; he always claimed under said Samuel Shannon and claimed that part of it on which he lived at the aforesaid time, by some claim as locator, whether as a locator himself or through a many by the name of Tomlinson, who had some claim as locator. He never pretended that he had any deed to it from said Shannon, but contended that in equity he was entitled to it for locating it as an account of a locator's claim to it, it perhaps having been located by said David Hughes and some other person jointly. Just a short time before the death of said David Hughes and in his last illness, I heard him converse about said claim. He still then stated that he claimed said land the same way, under the claim of said Shannon by virtue of said locator's claim aforesaid, and about that time, the said Hughes applied to said John Payne, Attorney in fact, for said Samuel Shannon, to have his claim in said tract of land as locator settled and adjusted in some way and requested said Payne to mention the matter to Samuel Shannon and get him to arrange it. He also maintained to me this wish that I should speak to Payne and try and get him to do something for him about it. After the death of said David Hughes, his sons William Hughes and James Hughes still claimed under the said claim. Before said land was sold to said James Young, it was offered to me by said William Hughes. I told him that they had no title to the land, the same had been conveyed to me and I had the legal title, but rather than to go to law about it, I would give them six dollars an acre for their claim to it, but they refused to take it and afterwards sold it to the said James Young. He states that he commenced an action of Ejectment in the Clarke Circuit Court for said land and other land adjoining, that Edward Atkins then lived on said land, claiming under said William and James Hughes, Young having not then bought it. Said suit was determined about the year 1815, and was the only action of Ejectment brought by me for said land during the time it was claimed by said Hughes and before their sale of it to Young. At that trial, I did not contend for said thirty-four or thirty-five acres of land, but had the same platted out, and without any evidence being introduced on the part of the defendants left it out, and merely took a Judgment for the balance. The reason why I did not contend for it at that trial was that I was not then prepared to show under whom said Hughes entered and claimed. Afterwards, I brought a suit of Ejectment against Thomas Lafferty and said James Young in the Clarke Circuit Court for said land, he Lafferty claiming said land under Young, and in said suit, I received said land and took it into possession, and have ever since held it myself and those claiming under me. In said Ejectment case, the defendants made a stubborn defense, proved a possession of the said land for more than twenty years, and relied upon it. But to get around it, I proved in said trial that the possession had been always held under the claim of Samuel Shannon and that it was a friendly and not an adverse possession, and in that way succeeded, notwithstanding the possession.
Question by Complainant: Was not the said James Young an illiterate, ignorant old man, particularly on the subject of land claims?
Answer: I think he was as honest and industrious a man as any in the neighborhood, but he was a very ignorant man and particularly so on the subject of titles or claims to land.
Question by Defendant William Hughes: How long did James Young live adjoining said land before he bought it?
Answer: He lived there upwards of thirty years ago from this time.
Question by Same: Did you not, a short time before Young bought the land, advise him not to buy it, stating that we had no claim?
Answer: No, I did not.
Question by Same: Don't you think that said Young knew all about said land and the title thereto before he bought it?
Answer: Indeed, I do not know. Well knew was an extremely ignorant man on the subject of land and land titles, and I think relied very much on you and your brother, believing that you both understood land titles very well.
Question by Same: What was said land worth at the time Young bought it? Was it not worth more than ten dollars per acre considerably?
Answer: I don't think it was worth more than ten dollars at that time. It might have been worth a little more with a good title, say eleven or twelve or thirteen dollars at the furthest. It had no timber scarcely.
Question by Same: On a credit of one or two years with a good title, what would it have been worth?
Answer: Twelve or thirteen or perhaps fourteen dollars.
Question by Same: Did you not offer Young after he bought it, the same price he gave for it?
Answer: I went to him a few days before I sued and told him that rather than go to the law with him, I would give him ten dollars per acre for it, if he would have it surveyed, that I knew there was not as much in it as he had bought it for, that he had no title, and I knew it, and would be sure to recover it, but rather than go to the law with him about it, I would pay him that much, but he refused to take it.
Question by Same: What did he agree to take for it?
Answer: I think he agreed to take thirteen or fourteen dollars for it per acre, but as to the sum, I would not be positive, but it was more than he gave.
Question by Same: Had not the price of land in the neighborhood risen considerably at that time above what it was when he purchased?
Answer: Yes, land had risen considerably.
Question by Same: Was it not because you were afraid of the twenty years possession that you had said land plotted out in the first trial in Ejectment?
Answer: I don't recollect precisely. I knew that you could prove twenty years possession. I was not ready to show the nature of that possession and wanted the possession of the balance, and concluded to proceed and get Judgment for the balance and bring another suit for the thirty-five acres.
And further he sayeth not.
Joseph Kelly
Deposition read on the part of the Defendants: The deposition of Samuel Hanson, taken on the 1st day of September 1833 who deposeth and sayeth:
I was counsel for Joseph Kelly in his Ejectment against William Hughes and James Hughes, tried in the Clarke Circuit Court, and I was also counsel for said Kelly in his Ejectment against James Young and Thomas Lafferty, tried in the same Court, which suits are mentioned in the pleadings in this cause. I remember that the first Ejectment was brought for the land sued for and recovered in the last Ejectment, but in the trial of the first Ejectment (I mean the one against William Hughes and James Hughes that is), after the Jury were sworn, and before we examined any witnesses on either side, said Kelly agreed in the presence of the Court and with the advise of James Clark, Esq., his other counsel and myself, to waive any recovery as to the piece of land now in contest and which said land, he recovered afterwards in the other Ejectment from said Young and Lafferty. The agreement with Robert Trimble, Esq., the counsel of the Hughes' in said suit (William Hughes was also present and he then had witnesses in attendance) as I then understood from both parties was to prove an adverse possession of twenty years by the defendants in said Ejectment or those under whom they claimed. I think that said Young was one of the witnesses attending to prove said possession; also, one Douglass was attending for the same purpose. Kelly recovered the balance of the land he sued for in said Ejectment against Hughes et al.
Trimble, in the conference, which the parties and their counsels held at the Bar on the subject of said agreement, and which eventuated in the agreement above stated, contended that the possession was adverse though held by bond on Shannon, the Patentee of the land, through whom Kelly claimed, and the said Clark and myself then acquiescing in that legal position, advised Kelly to waive any contest as to that part of the land, which he accordingly did.
The connected plot in the cause shews the piece of land not included in Kelly's Judgment of Eviction and which in the second Ejectment, he recovered from Young and Lafferty, or one of them, though I think both of them were defendants in the last Ejectment. The defendants in the first Ejectment, the Hughes', relied upon twenty years possession to defeat the recovery, as to the whole land sued for, and said Kelly contended that the possession was not adverse as to any part of the land, and particularly beyond the boundary of the land covered by the bond and under an actual enclosure for twenty years. I do not recollect that a witness was sworn or other evidence adduced in said trial, but I think Kelly took Judgment
The orders made in this case by the Clarke Circuit Court are in the words and figures following to wit (concl):
Execution Order: And afterwards to wit on the 27th day of December 1836 by orders of said defendant by his counsel, an Execution was issued from the office of the Clerk of the Montgomery Circuit Court aforesaid upon the Judgment aforesaid for costs which said Execution together with the endorsement therein, is in the words and figures following to wit: "The Commonwealth of Kentucky to the Sheriff of Montgomery County, Greetings: We command you that the Estate of John M. Young, Erasmus Powell and Azariah Williams, Executors of James Young, deceased, …………..to be made the sum of thirteen dollars and seventy-seven cents, which William Hughes lately in our Montgomery Circuit Court recovered against them for costs of Defense to Chancery Suit, also the some of $_____which the said Hughes in the same Court was adjudged for his costs in that suit expended, whereof they are convicted as appears to us of record, and that you have the said sums of money before the Judge of our said Court on the third Monday in February next to satisfy and pay the said William Hughes the costs aforesaid, and have then these writ. Witness: James Howard, Clerk of our said Court at the Court House thereof this 29th day of December 1836 and in the 45th year of the Commonwealth.
James Howard
Clerk of Montgomery Circuit Court
Clerk's Endorsement: Memo. This Execution is to be levied of the appellants in the hands of the Executors of said James Young, deceased, unadministered.
James Howard
Clerk
Sheriff's Return: Which said writ of Execution was returned by our Sheriff on the 24th day of February 1837 with the following words and figures endorsed therein: "I know of no Estate out of which I can take the within named sum or any part thereof on the 18th day of February 1837.
B.F. Berkley, Deputy Sheriff
For J. C. Wells
Sheriff of Montgomery County
State of Kentucky
Montgomery Circuit
I, James Howard, Clerk of the Court for the circuit aforesaid do certify that the preceeding forty pages contain a full and complete transcript of the record and proceedings had in the cause therein, names up to final Judgment, with the Execution issued when said Judgment and the Sheriff's endorsement therein, as will appear from the files and minutes of said Court remaining of record in my office and I further certify that there is no evidence in my office of said Judgment being satisfied or any part thereof. In testimony whereof I have herunto set my name and office seal of said Court at the office in Mount Sterling this 21st day of September 1837.
James Howard
Clerk of Montgomery Circuit Court
State of Kentucky
Montgomery Circuit
I, Kenar Farrow, sole and presiding Judge of the Eleventh Judicial District in the State aforesaid, composed in part of the County of Montgomery, do certify that James Howard whose name is subscribed to the foregoing certificate of attestation was at the time of the signing thereof Clerk of said County and that his said certificated is in due form of Law. Given under my hand the 22nd day of September 1837.
Kenar Farrow
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