- Tottens VS. Totten?s Heirs John Totten, Sr. Estate
Page 23 ? 30, 1835-1843, Vol. 2, Circuit Superior Court of Law & Chancery ?Pleas?, Wythe County, Va.
Virginia: At a Circuit Superior Court of Law and Chancery held in Wythe County at the Courthouse, on Tuesday September 15th 1835.
Before James E. Brown Esquire Judge
Be it represented that heretofore to wit on the 18th day of December 1826 came Samuel Totten, John Totten and Peter Totten by their Counsel and issued out of the Clerk?s Office of the late Superior Court of Chancery helden at Wythe Courthouse a subpoena in Chancery against John Deskin, and others which was returned ?not executed on any of the defendants.?
And at June Rule, 1827, came the plts. By their counsel and filed their Bill which is as follows: To his honor, the Judge of the Superior Court of Chancery holden at Wythe Courthouse. The Bill of Complaint of Samuel Totten, John Totten and Peter Totten of the County of Wythe would respectfully represent that on the fifth day of June in the year 1825, they entered into articles of agreement with their father, John Totten Senior by which the said John Totten Sen. Leased during his own life, and the life of his wife, a certain part of his land called the ridge filed to your Orator Samuel for which your said Orator was to pay one third part of the crops raised on the said land the small grain to be delivered in the barn and the corn in the Crib and at the death of the said John Totten Senior and his wife, the said Samuel was to have the said land called the ridge field, and the tract containing ___ acres of the land called the mountain survey. And he, the said John Totten Sr. by the same instrument, rented the balance of his lands for the like term and on the same conditions to your Orators John and Peter and after the death of the said John Totten Sr. and the death of his wife, your said Orators John and Peter were to have the land so rented to them to be equally divided between them ? all which will more fully appear from the said Article of agree ??? (missed)
Your Orators further represent that the said John Totten Senior, on the same day ?? the said article of agreement was executed duly made and published his last will and testament by which he bequeath and devised to his wife his dwelling house during her life time and all his moveable property absolutely. And the said John Totten Sen. Departed this life on the ___ day of ___ 1826 without having altered or revoked his said will which has been duly proved and admitted to record in the County Court to Drucilla, the widow of the said John Totten Sen. A copy of which will is herein exhibited marked B.
Your Orators further represent that in pursuance of the agreement aforesaid they took possession of the said land and proceeded to cultivate the same and pay the rent, agreeably to said contract, they have also made considerable improvement on the said lands as well before as after executing the said article of agreement.
Your Orators are advised that they said Article of agreement does not convey to them the legal title to the said lands subject to the payment of one third part of the crops raised on the same to Drusilla the widow during her lifetime, and to her peaceable and undisturbed enjoyment of the dwelling house to which she is entitled under the will of the said John Totten Sr. as was the agreement and intention of the parties. They therefore pray that John Deskins and Polly his wife, Nathaniel Bryant & Sally his wife, Henry Koler and Rebecca his wife, John Koler and Nancy his wife, William Davis and Viney his wife, James Light and Charity his wife, Isaac Hennigar & Drucilla his wife, the said females being daughters of the said John Totten Sr. Amos Totten, James Totten, Isaiah Totten and John McCarley who is the heir at law of Rachel McCarley dec?d who was a daughter of the said John Totten Sr. and Drusilla the widow of the said John Totten Sr. dec?d may be made parties defendant to this bill and be required to answer the same on oath as fully and as completely as if the several allegations were again repeated and interrogated that the defendants may be decreed to convey to your Orators the legal title to the said lands subject to the rights of the widow under the agreement and will aforesaid, and that your honor may grand unto your Orators such further and general relief that premises as is equitable may it please your Honor to grant to yours Orators the Courts writ of Spa. directed.
Draper for Complts.
And the motion of the Complts. A new subpoena was awarded them, was accordingly issued but not executed. And at August Rules 1827 until which time this cause was continued, a new subpoena was awarded the complts. Which was issued but does not appear to have been executed.
And at November Rules 1827, until which time this cause continued ? the defendants Henry Moler & Rebecca his wife, Isaiah Totten & John McCarley not having entered their appearance and gave security according to the act of assembly and the Rules of this Court; and appearing from satisfactory evidence that they are not inhabitants of the Commonwealth; on the motion of the plaintiffs by their counsel it is ordered that they said Defendants appear here on the first day of the next and answer the Bill of this Plaintiffs, and that a copy of this order be forth with inserted in some newspaper published in this commonwealth for two months successively, and posted at the front door of the Courthouse in Wythe County.
On copies of the last order are affidavits as follows:
Wythe County to wit:
This day personally appeared before me J.A. Sanders a justice of the Peace for Wythe County, John G. Ustich and made oath that he had published the annexed notice in his paper the Wythe Gazette for two months successively ? Given under my hand this 20th day of May 1828 J.A. Sanders
Wythe to Wit: James E. Brown this day made oath before me a justice of the peace in and for the court aforesaid that he posted a copy of this order at the front door of the courthouse of Wythe on the 18 day of February 1828. Given under my hand this 24 day of May 1828. John Stanger.
And on the motion of the complts. A new subpoena was awarded to them against the defts. Which was issued as follows:
The commonwealth of Virginia, to the Marshall of the Wythe Chancery District Court, Greeting: You are hereby commanded to summon John Deskins & Polly his wife, Nathaniel Bryant and Sally his wife, John Moler and Nancy his wife, William Davis and Viney his wife, Issac Hinnegar and Drucilla his wife, Amos Totten and James Totten to appear before the Judge of our Superior Court of Chancery holden at Wytth Courthouse on the first day of the next term to answer a bill in chancery executed against them and others by Samuel Totten, John Totten and Peter Totten unless they shall answer the said Bill within four months thereafter the Court will take the same for confessed and decree accordingly. And this they shall in no wise omit; under the penalty of L100. And hand them there this writ. Witness James E. Brown, Clerk of our said Court at Wythe Courthouse, the 11th day of January 1828, in the 52nd year of the Commonwealth. J. E. Brown.
Marshalls returns ? Executed on John Deskins and Polly his wife April 16th 1828. Harold Smyth M.W.C. D.C. Executed on John Moler and Nancy his wife, Isaac Hinnegar and Drucilla his wife and Sally Bryant May 13 1828. Jesse McComa D.W. for Harold Smyth M.W.C. D.C.
The defendants William Davis & Vicey his wife and James Totten not having entered their appearance and given security according to the Act of assembly, and the Rules of this Court, and it appearing from satisfactory evidence that they are not inhabitants of this Commonwealth, on the motion of the Plaintiffs by their counsel ? it is ordered that the said defendants appear here on the first day of the next term, and answer the bill of the plts. And that a copy of this order be forthwith inserted in some newspaper published in this commonwealth for two months successively and posted at the front door of the courthouse of Wythe County. On copies of which order we the following affidavits:
This day Harold Smyth one of the editors of the Western Virginia Argus a paper printed at Wythe Courthouse made oath before me a justice of the peace for said County that the annexed order of publication against William Davis and wife and James Totten has been duly published in the said paper for two months successively ? Given under my hand this 28th October 1828. Shepd Brown
Wythe County to Wit:
This day Cornelius Eskridge made oath before me William H. Miller a justice of the peace for the County aforesaid that on the 27th day of August 1828 he posted at the front door of the courthouse of the said County a copy of the within order. Given under my hand this 28th day of October 1828. W. H. Miller
And on motion of the Complts. New subpoenas were awarded them against the Defts. Light and wife and Amos Totten which were issued but not executed.
And at November Rules 1828, June Rules 1829, October Rules 1829 and June and November Rules 1830 ? New subpoenas were awarded the Complts; which were issued but not executed.
And at April Rules 1832 until which time this cause was continued ? Case the Complts. By their counsel and set this cause down for hearing.
And at an intermediate term of the Circuit Superior Court of Law and Chancery aforesaid, held on Wednesday July 24th 1833, until which time this cause was continued. On the motion of the plaintiffs by their counsel a new subpoena is awarded them against the defendant Amos Totten to be directed to the sheriff of Logan County, and also a new subpoena against the defendants James Light and Charity his wife to be directed to the Sheriff of Kanawha County returnable to the next term till which time this cause is continued. The said new subpoenas were issued but are not executed.
And at a Circuit Superior Court of Law and Chancery aforesaid held on Monday April 21st 1834. On motion of the plaintiffs by their counsel a new subpoena is awarded them against the defts. James Light and Charity his wife to be directed to the Sheriff of Fayette County, returnable here at the next term, until which time this cause is continued. The said subpoena was issued as follows:
The commonwealth of Virginia to the Sheriff of Fayette County, Greeting ? You are hereby commanded to summon James Light and Charity his wife to appear before the judge of our Circuit Superior Count of Law and Chancery holden for Wythe County at the Courthouse on the first day of the September term next to answer a bill in chancery exhibited against them and others by Samuel Totten and others and unless they shall answer the said Bill with four month thereafter, the court will the same for confessed and decree accordingly. And this they shall in no wise omit under the penalty of L100. And have them there this writ. Witness John Foster, Clerk of our said court at Wythe Courthouse the 7th day of May 1834 in the 58th year of the commonwealth. John. Foster, C.C.
Sheriffs Return. Executed the 10th day of Jun 1834 by delivering to the within named Charity Light a true copy not finding James Light left with his wife another copy and read and explained the same to her.
Wm Tyree D.S. for William Cainefix, Sheriff.
And at a Circuit Superior Court of Law and Chancery aforesaid held on Thursday 18th September 1834. On the motion of the plaintiffs by their counsel a new subpoena is awarded against the defendants James Light and Charity his wife to be directed to the Sheriff of Fayette County returnable here at the next term.
And at a Circuit Superior Court of Law and Chancery aforesaid held on Friday September 19th 1834. The new subpoena awarded at the last term against James Light and wife directed to the Sheriff of Fayette County having been returned executed. It is ordered that the order entered in this cause on yesterday awarding a new subpoena against the said Light and wife be set aside.
And at a Circuit Superior court of Law and Chancery aforesaid held on Wednesday September 24th, 1834. On the motion of the plaintiffs by their counsel a new subpoena is awarded them against the defendants Drucilla Totten and Amos Totten returnable here at the next term.
The following Subpoenas were issued.
The Commonwealth of Virginia to the Sheriff of Tazewell County Greeting You are hereby commanded to summon Drucilla Totten and Amos Totten to appear before the Judge of our Circuit Superior Court of Law and Chancery holden for Wythe County, at the Courthouse on the first day of the next term to answer a bill in Chancery exhibited against them and others by Samuel Totten, John Totten and Peter Totten and unless they shall answer the said bill within four months thereafter the Court will take the same for confessed, and decree accordingly. And this they shall in no wise omit under the penalty of L100 and have them there this writ ? Witness John Foster Clerk of our said Court at Wythe Courthouse the 13 day of October 1834 in the 59 year of the Commonwealth. Jno Foster C.C.
Return ? Executed by delivering a copy of the within to Drusilla Totten and by sending a copy to Amos Totten by his son who lives with said Totten . W.P Wynn D.S. for Jno Wynn S.T.C
The Commonwealth of Virginia to the Sheriff of Smyth County Greetings. You are hereby commanded to summon Drucilla Totten to appear before the Judge on Circuit Superior Court of Law and Chancery holden for Wythe County at the Courthouse on the first day of the next term to answer a Bill in Chancery exhibited against them and others by Samuel Totten, John Totten, and Peter Totten and unless they shall answer the said Bill with four months thereafter the court will take the same for confessed and decree accordingly. And this they shall in no wise omit under the penalty of L100. And have them there this writ ? Witness John Foster, Clerk of our said Court at Wythe Courthouse, the 13th day of October 1834 in the 59th year of the Commonwealth. Jonn Foster C.C.
And at April Rules 1832 until which time this cause was continued came the complainants by their counsel and set this cause down for hearing.
And at an Intermediate term of the Circuit Superior Court of Law and Chancery aforesaid, held on Wednesday July 24, 1833, until which time this cause was continued. On the motion of the plaintiffs by their counsel a new subpoena is awarded them against the defendant Amos Totten to be directed to the sheriff of Logan County, and also a new subpoena against the Defendants James Light and Charity his wife to be directed to the Sheriff of Kanawha County returnable to the next term till which time this cause is continued. The said new subpoenas were issued but not returned.
And at an intermediate term of the Circuit Superior Court of Law and Chancery aforesaid held on Thursday28th February 1834 until which time this cause was continued. On the motion of the Plaintiffs by their counsel a new subpoena is awarded them against the Defendants James Light and Charity his wife to be directed to the Sheriff of Fayette County and returnable here at the next term. The said new subpoena was issued but not executed.
And at a Circuit Superior Court of Law and Chancery aforesaid held on Monday April 21th, 1834. On motion of the plaintiffs by their counsel a new subpoena is awarded them against the defendants James Light and Charity his wife to be directed to the Sheriff of Fayette County, returnable here at the next term, until which time this cause is continued. The said subpoena was issued as followed:
The Commonwealth of Virginia to the Sheriff of Fayette County, Greeting ? You are hereby commanded to summon James Light and Charity his wife to appear before the judge of our Circuit Superior Court of Law and Chancery holden for Wythe County at the Courthouse on the first day of the September term next to answer a bill in chancery exhibited against them and others by Samuel Totten and others and unless they shall answer the said bill with four months thereafter, the court will the same for confessed and decree accordingly. And this they shall in no wise omit under the penalty of L100. And have them there this writ. Witness John Foster, Cleark of our said court at Wythe Courthouse the 7th day of May 1834 in the 58th year of the Commonwealth. John Foster, CC.
Sheriffs Return. Executed the 10th day of June 1834 by delivering to the within named Charity Light a true copy not finding James Light left with his wife another copy and read and explained the same to her. William Tyree D.S for William Cairefix, Sherriff.
And at a Circuit Superior Court of Law and Chancery aforesaid held on Thursday 18th September 1834. On the motion of the plaintiffs by their counsel a new subpoena is awarded against the defendants James Light and Charity his wife to be directed to the Sheriff of Fayette County returnable here at the next term.
And at a Circuit Superior Court of law and chancery aforesaid held on Friday September 19th, 1834 The new subpoena awarded at the last term against James Light and wife directed to the Sheriff of Fayette County having been returned executed. It is ordered that the order entered in this cause on Yesterday awarding a new subpoena against the said Light and wife be set aside.
And at a Circuit Superior Court of Law and Chancery aforesaid held on Wednesday, September 24th, 1824. On the motion of the plaintiffs by their counsel a new subpoena is awarded them against the defendants Drucilla Totten and Amos Totten returnable here at the next term. The following subpoenas were issued:
The Commonwealth of Virginia to the Sheriff of Tazewell County Greeting. You are hereby commanded to summon Drucilla Totten and Amos Totten to appear before the Judge of our Circuit Superior Court of law and Chancery holden for Wythe County, at the Courthouse on the first day of the next term to answer a bill in Chancery exhibited against them and others by Samuel Totten, John Totten and Peter Totten and unless they shall answer the said bill within four months thereafter the Court will take the same for confessed, decree accordingly. And this they shall in no wise omit under penalty of L100 and have thee there to writ ? Witness John Foster Clerk of our said Court at Wythe Courthouse the 13 day of October 1834 in the year of the Commonwealth. John Foster C.C.
Return ? Executed by delivering a copy of the within to Drucilla Totten and by sending a copy to Amos Totten by his son who lives with said Totten. W.P. Wynn D.S. for John Wynn S.T.C.
The Commonwealth of Virginia to the Sheriff of Smyth County, Greetings, you are hereby commanded to summon Drucilla Totten to appear before the Judge on Circuit Superior Court of Law and Chancery holden Wythe County at the Courthouse on the first day of the next term to answer a bill in chancery exhibited against them and others by Samuel Totten, John Totten and Peter Totten and unless they shall answer the same bill within four months therefore the court will take the same for confessed and decree accordingly this they shall in no wise omit under the penalty of L100. And have them there this writ ? Witness J. Foster, Clerk of our said Court at Wythe Courthouse, the 13th day of October 1834 in the 59 year of the commonwealth, John Foster, CC.
Return executed December 1st 1834 A.H. Atkins D.S for S.W. Davis, S.S.C the following papers are filed ? Wythe County to wit: This day John Totten made oath before me the subscriber a justice of the Peace for the County aforesaid that Henry Moler and Rebecca his wife, John McCarley and Isaiah Totten are not residents of the Commonwealth of Virginia ? Given under my hand this 12th of December 1826. John Stanger. Exhibit A. Articles of Agreement made and entered into this fifth day of June 1825 between John Totten, Sr. of the one part of the County of Wythe and State of Virginia and Samuel Totten, John Totten and Peter Totten all of the County and State aforesaid Witnessed that the said John Totten Sr. hath rented the ridge field to the said Samuel Totten during his and his wife?s natural lifetime and the said Samuel is to give one third of crop he raises on said land the small grain to be delivered in the barn and the corn in the crib and at the decease of the said John Totten Sr. and his wife the said Samuel Totten is to have the ridge field and mountain survey and the said John Totten Sr. hath rented the balance of his lands to John Totten Jr. and Peter Totten during his lifetime and his wife?s and the John and Peter to pay one third of all they raise on said land and deliver the small grain to the barn and the corn in the crib and at the decease of the said John Totten Sr. and his wife the said John Totten Jr. and Peter Totten is to have the land equally divided between them and for the true performance of this agreement we bind ourselves to each other in the sum of one thousand Dollar witness our hands and seals this day and year first above written.
Witness Present:
William Totten
Daniel Daugherty
His mark
John Totten Sr.
Samuel Totten
John Totten
Peter Totten
Exhibit B is not filed: And at a Circuit Superior Court of Law and Chancery aforesaid held on Tuesday September 15th 1835 being the day and year first herein written, and until which time this cause was continued. The defendants Nathaniel Bryant being dead the same is ordered to be suggested on the record and thereupon this cause came on the 15th day of September 1835 to be held upon the bill the exhibits filed the examination of witnesses and was argued by counsel and the subpoena awarded against the defendants having been duly served on John Deskins and Polly his wife, Sally Bryant, John Moler and Nancy his wife, James Light and Charity his wife, Isaac Henninger and Drucilla, his wife, Amos Totten and Drucilla Totten more than four months since and they still failing to appear and answer the plaintiffs bill and the order on publication heretofore awarded against Henry Moler and Rebecca his wife, William Davis and Viney his wife, James Totten, Isaiah Totten and John McCarley having been duly posted and published, and they still failing to appear and answer the plaintiffs bill that same is taken for confessed as to all the aforesaid defendants ? Whereupon it is adjudged and decreed that the said Defendants their heirs and legal representatives of John Totten Sr. dec?d do convey to the plaintiffs, the legal title to the land in the Bill mentioned, subjected to the rights of Drucilla Totten the widow under the agreement in the bill mentioned and filed as an exhibit in this cause ? and that Albert B. Moore who is hereby appointed a commissioner for that purpose do convey the tittle of Henry Moler and wife, William Davis and wife, James Totten, Isaiah Totten and John McCarley who are non residents by Deed with special warranty to the said plaintiffs. And it is further ordered that a complete record be made up in this case and charged to the plaintiffs. The following deposition is filed:
By virtue of a commission to me directed from the Superior Court of Chancery holden at Wythe Courthouse I have the 13th day of August 1827 at said Courthouse of Wythe proceeded to take the deposition of William Totten to be read as evidence on behalf of Samuel Totten and others in a suit depending in said Court wherein said Samuel and others are plaintiffs and John Deskins and wife are defendants. The said William Totten of lawful age being sworn saith ? that the paper marked A filed as an exhibit in this cause and which is now before him was executed by the parties thereto in his presence and that he is a subscribing witness to the same. He further deposit and saith that Samuel Totten, John Totten and Peter Totten have been in possession of the lands mentioned in said paper ever since the execution of thereof. And further this deponent saith not the foregoing deposition was sworn to and subscribed before me on the 13 August 1827. J. Foster ? William Totten.
The Witness claimed one days attendance as a witness - I received 50 cents for taking this deposition. John Foster. A complete record ? Teste, A.B. Moore, D.C.
Wythe County, Virginia Circuit Superior Court Law and Chancery Orders, Vol. 2, 1835-1853, pages 9 and 19
Samuel Totten & al against The heirs of John Totten Dec?d
The Defendant Nathaniel Bryant being dead the same is ordered to be suggested on the record and thereupon this cause came on this 15th day of September 1835, to be heard upon this bill the exhibits filed, the examination of Witnesses and was argued by counsel, and the Subpoena awarded against the defendants having been duly served on John Deskins, and Polly his wife, Sally Bryant, John Moler and Nancy his wife, James Light and Charity his wife, Lsaac Henningar and Drucilla his wife, Amos Totten; and Drucilla Totten more than four months since and they still failing to appear and answer the plaintiffs bill, and the order of publication heretofore awarded against Henry Moler and Rebecca his wife, William Davis and Viney his wife, James Totten, Isaiah Totten and John McCarley having been duly posted and published, and they still failing to appear and answer the plaintiffs. Bill the same is taken for confessed as to all the aforesaid defts. Whereupon it is adjudged and decreed that the said defts. The heirs legal representatives of John Totten Sr., dec?d do convey to the plfts. That legal title to the land in the bill mentioned, subject to the right of Drusilla Totten the widow under the agreement in the bill mentioned., and filed as an exhibit in the cause, and that Albert B. Moore who is hereby appointed a commissioner and on that purpose do convey the title of Henry Moler and wife, William Davis and wife, James Totten, Isaiah Totten and John McCarley who are nonresidents by deed with special warranty to the said plfts. And it is further ordered that a complete record be made up in this cause and charged to the plaintiffs.
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