Heath vs Heath, 1882
Transcribed and contributed by:
Lonne Heath, Dec. 3, 2002
State of North
Carolina
Greene County
Superior Court
30th December,
1882
Complaint in Proceeding for Partition sale
John E. Heath,
William Heath and Kate Carraway wife of Thomas Carraway, of full age, and Andrew
Heath, Virginia Heath, Mollie Heath and Bettie Heath, infants by their next
friend the said Thomas Carraway, heirs at law of John Heath dec'd, and Mary
Heath widow of the said John Heath __ Plffs.
Against
Robert Heath,
Richard Heath, John Grimsley and Julia Ann his wife, Betsy Heath, Haywood Heath
& Kinchen Heath __ Defts.
The plaintiffs complaining of the
defendants, allege:
I. That on the ___ day of ____ 18__, Margaret Heath
died intestate seized in fee simple of a tract of land situate in Greene County
and described as follows, to wit: Adjoining the lands of the late Samuel R.
Pridgen & others; beginning at a beach gum, Lucretia Edward's corner, in
Apple Tree, and runs thence 4 1/4 East 195 poles to a stake, Lucretia Edward's
corner; thence South 60 1/2 East 97 poles to a black jack, the said S. R.
Pridgen's corner; thence North 47 East 50 poles to a stake in the path; thence
South 11 1/2 East to the edge of high water mark in Apple-Tree; thence up Apple
Tree to the beginning - containing 200 acres more or less - being the land
conveyed by W. R. Edwards to Margaret Heath on or about the 22nd day of
December, 1858.
II. That the following named were the children and
heirs-at-law of the said Margaret Heath, whom she, at her death, left her
surviving, to wit: John Heath and the defendants Robert Heath, Richard Heath,
Julia Ann wife of John Grimsley, Betsy Heath, Haywood Heath and Kinchen Heath,
upon all of whom the tract of land aforesaid described, between them equally to
be divided, as tenants in common; each of the said heirs at law being entitled
to one seventh (1/7) part thereof.
III. That thereafter, to wit, on the
day of ____ 1882, the said John Heath died, intestate, leaving him surviving his
widow Mary Heath, and John E. Heath, William Heath, Kate Carraway wife of Thomas
Carraway, who are of full age and Jesse Heath, Andrew Heath, Virginia Heath,
Mollie Heath, and Bettie Heath, who are infants under the age of twenty one
years, his children and heirs at law, all of which said children represent their
said deceased farther, John Heath, and are entitled to the share of said real
estate which so descended to him as aforesaid, subject however to the dower
interest of his said widow Mary Heath - and are tenants in common, with the
defendants ______ of the land aforesaid.
IV. That accordingly each of the
said children of the said John Heath, deceased (and who are plaintiffs herein)
is entitled to one eight part of the said one-seventh part which so descended to
the said John Heath, deceased, subject to such right as the said widow Mary
Heath has therein by virtue of her said dower interest; and that by virtue of
the statute in such case made and provided (Chapter 122, Laws of 1868 &
1869), should a sale for partition, as is herein after prayers for, be adjudged,
the said Mary Heath, widow, as aforesaid, is entitled to the annual interest of
one third of the proceeds of such sale, or in lieu thereof the value of an
annuity of six per cent on such third during her probable life.
V. That
owing to the size of the said tract of land, the number of the parties
interested, the nature and quality of the soil, and other causes, it is
impossible that actual partition thereof can be made without serious injury to
the parties interested.
Wherefore, the plaintiffs ask that it be
ordered, adjudged, and decreed as follows, to wit:
1. That said land be
sold on such terms as to size of lots, place and manner of sale, time of credit
and security for payment of purchase money as in the opinion of the Court may be
most advantageous to the parties interested ; and that the proceeds of the sale
may be divided among the parties to this proceeding according to their
respective shares and interests in the said land, and may be paid to or secured
for them according to law and the course of this Honorable Court.
2. That the
plaintiffs recover of the defendants their costs herein.
_____
Galloway
Attorney for Plaintiffs
John E. Heath, one of the plaintiff,
above named being duly sworn, says that the foregoing complaint is true of his
own knowledge, except as to matters therein stated on information and belief,
and that as to these matters, he believes it to be true.
Sworn &
subscribed before me this 6th day of January 1888
D. W. Patrick,
CSC
John E. Heath X his
mark
***************************************************
Greene
County Superior Court
John E. Heath and Others,
Plaintiff
Against
Robert Heath and Others, Defendants
Evidence in
the above entitled action taken by J. Q. Jackson as referee May the 27th
1884.
The Plaintiff offered as evidence on proceedings heretofore held in the
Superior Court of Greene County, herein filed and marked "A" & "B" first as
an (illegible) on the part of the Defendants, Second, being in the nature of
admission on their part that actual partition of the land cannot be made without
injury to some or all of the individuals. (The defendants accept said
evidence).
R. A. EDWARDS Being sworn says:
"I am acquainted with the
land. It is been good for corn and cotton. It is about an average for land in
the neighborhood as to its fertility. About a three horse farm of it is cleared
land. Thirty acres are called a horse farm. The land is not used for any other
purpose except agriculture. I can't say whether actual partition could be made
without injury to some or all of the dividends or not. Richard, Haywood, W. H.,
Robert and Betsy have been living on the land since the death of Margaret Heath.
John Heath has never lived on the land. Don't know if his widow nor the heirs of
John Heath occupied the land since she was. I cannot form an estimate as to the
value of the annual rental of the land. About two bales of cotton to the horse
farm is the usual rent. I don't know whether one seventh (1/7) could be taken
off or not, but on the road I think a seventh could be. Richard, Haywood, and
Kinchen Heath have made very great improvements on the place. The place is not
worth double since the death of Margaret Heath. They are improving it every
year."
"They keep three horses upon the land. They cultivate a horse farm
on another tract every other year. I don't think one seventh of the land could
be allotted to the heirs of John Heath. I don't think that one seventh of the
land, if allotted, would be worth much for agricultural purposes. I have lived
within a mile or a mile and a half of the land for thirty years. Margaret Heath
has been dead three or four years. These young men and their sister have made
improvements on the land since Mrs. Heath's death. John Heath has never lived on
the land since she bought it. They let some of the land lie out every year.
Don't think they ever rent out any of the land. People generally get about 1000
lbs. cotton rent for a horse farm but don't think they could get over 800 lbs
for a horse farm. I think 2000 lbs would be a fair annual rental for the land. I
don't think they have made any improvements on the land since Mrs. Heath's
death. I suppose 8 or 10 dollars an acre would be a fair price for the land. I
don't know anything about adding a piazza and covering the house nor weather
boarding the same. They may have patched it up. I don't go there once a
year."
By the Defendant:
"Manuring? is a permanent improvement to
land. These boys (meaning the Defendants) cleared and canaled the Swamp
land."
W. A. DARDEN Says:
"I have known nothing of the land for the
last twenty years. I surveyed the land when Mrs. Heath bought it. There was some
cleared on it. Don't know how much. I ran round the outside boundaries. I don't
think one seventh (1/7) could be taken off without impairing the value of the
land. I think one seventh of the money would be worth more that one seventh of
the land. I do not see how it could be divided without leaving the shares (one
seventh) of but little value. I think one seventh would not be worth
much."
By the Defendant:
"Manuring is a permanent improvement to
land."
By Plaintiff:
"It is usual to manure land that are
cultivated."
Dr. John Harvey says:
"I know where the land lies, don't
know any thing of the particulars. Generally speaking one seventh could not be
allotted without injury to some of the parts. I should prefer one seventh of the
money to one seventh of the land. I have never seen the swamp lands. The land
has been very much improved since they purchased it. I think the piazza and been
built or added to the house since Mrs. Heath's death.
The
Defendant:
"The place has been very much improved since the death of Margaret
Heath. I think the place has almost doubled in value by the improvements made on
it."
Objection sustained. (From what I have heard Margaret Heath say it never
was right John Heath was to leave any interest in the land) excepted to by the
plaintiffs). All the improvements made on the house were put there by these boys
(the Defendants)."
Evidence of the Defendants
R. H. DAWSON
says:
"I have known the land as long as I have known any land. I have been
over it often. They keep three horses. They cultivate the land and another piece
adjoining it. These boys have made great permanent improvements upon the place,
worth from $1,000 to $1,200. The improvements consists of clearing, ditching and
manuring the land. There was not much cleared when they went there. They could
not have made a living on it as it was when they bought it. It will cost thirty
dollars per acre to clear and put the swamp land in a state of cultivating. I
consider the manuring a permanent improvement to land. One seventh (1/7) could
be allotted off, but don't know whether it would be an injury or not. Twenty
acres can be laid off without reaching the improved part of the land. The
permanent improvements made since Margaret Heath's death are worth about
$300.00."
By Plaintiff:
"One seventh of the land taken off would not
be worth us much as one seventh of the money, but would be worth as much as the
seventh before the improvements were made on it. The 144 acre tract is worth $10
per acres or more. Some five acres of the Swamp land have been cleared since
Margaret Heath's death. All the improvements since her death are worth $300.00.
The Swamp land before it was cleared was not worth anything."
LEMUEL
DAWSON JR says:
"I have been acquainted with the land all my life. I go over
it three or four times a year. These boys have made very great improvements upon
the land since the old lady's death. These improvements are worth $300.00 or
$400.00. They consist mostly in clearing, canaling, and manuring the land. I
think to put such land (Swamp) in a state for cultivation is worth $30 to $35
per acre. I think one seventh of the land could be allotted off without any
difficulty."
By the Plaintiff:
"I had rather have one seventh of the
money than the land. Ten dollars per acre is a fair cash value for the land.
They added to the house a room and piazza and built a buggy house. The house
would cost $150. The room and the piazza would cost $75.00. The swamp lands
after being cleared are worth $40 to $50 per acre. Mrs. Heath died Feb. 13th,
1878."
By the Defendant:
"I would not liked to have promised anything
as rent for the land before the improvements were put upon it. One hundred
dollars a horse farm would be fair rental for it at the time of Mrs. Heath's
death. The usual rent is 1/5 of the corn and 1/4 of the cotton."
RICHARD
HEATH one of the Defendants:
"John Heath was married in 1853 and went off to
himself and was furnished from our house (by mother). The first year 600 lbs
meat worth $6 per hundred, ten or twelve barrels corn worth $3 per Bbl, about
2000 lbs. fodder worth 75 cents or 100 cents per hundred. The second after he
was married some one broke into his smoke house and took all his meat. He then
got meat from our smoke house don't know how much he got, he would get 30 or 40
lbs at a time. He did not pay for these provisions. My mother left no will. I
administered on her estate. Sold her personal estate. It brought fifty dollars,
not enough to pay the expenses. The cleared land was very poor. It was worth
twice as much at mother's death as it was when she bought it. The most of the
improvements were done since her death. Two good horses would tend all the
cleared land on the 144 acre tract, but we had three horses. Twenty acres could
be taken off and it would bring about as much as if sold all together. It is
worth $30 per acre to clear the swamp land."
By Plaintiff:
"This tract
would bring about $10 per acre sold as a cash sale."
Defendant offered
two notes and a deed as evidence which are herein filed and marked "B" &
"C".
(That part relating to advancements objected to Plaintiff) Objection
Sustained.
J. Q.
Jackson
Referee
**************************************************
ORDER
OF SALE FOR PARTITION
JOHN E. HEATH & OTHERS VS ROBERT HEATH &
OTHERS
North Carolina
Greene County
Superior Court
John E.
Heath,
William Heath, Jesse Heath,
Thomas Caraway and his wife Kate
Caraway,
Benjamin Bell and his wife Virginia Bell,
and Mollie minor,
Bettie Heath (minor) and Andrew Heath (minor) by
their next friend Thomas
Caraway
Heirs at law of John Heath dec'd, and
Mary Heath widow of said
John Heath.
Plaintiffs
Against
Robert Heath, Richard Heath,
John Grimsley and Julia Ann his wife
Betsy Heath, Haywood Heath
and
Kinchen Heath.
Defendants
Proceeding for Partition of land by
Sale.
In the above entitled proceeding, J. Q. Jackson Esquire having been
appointed by order of the court made at Spring Term 1883, referee render the
code of Civil Procedure to pass upon all issues and questions of law and fact
therein, and having filed his report as such referee, finding and concluding
among other things: That the plaintiffs and defendants are tenants in common of
the land described which complains that the plaintiffs are entitled to one
seventh thereof as the heirs at law of John Heath; That actual portion of the
lands could not be made nor one seventh allotted to the plaintiffs without
injury to their entirety; That the rents of the land and the improvements made
thereon since the death of Margaret Heath were equal in value one to the other
and that nothing should be completed either way; That the said land should be
sold and the m oney divided among said tenants in common according to their
respective interest. And there being no exception to said report of the referee
the said report was by the order and judgment of the Court at the Special Term
A. D. 1884, confirmed now on motion of Nixon & Galloway Attorneys for the
plaintiffs, it is ordered and adjudged by the court here upon the allegations of
the complaint and answers and the admissions therein and upon the matter
contained in the record as follows:
That the plaintiffs John E. Heath,
William Heath, Jesse Heath, Kate Caraway wife of plaintiff Thomas Caraway,
Virginia Bell wife of plaintiff Benjamin Bell, Mollie Heath Andrew, & Bettie
children and heirs at law of John Heath are together and equally entitled to one
seventh equal part of the land described in the complaint; That the plaintiff
Mary Heath widow of said John Heath is entitled to a life estate in one third
part of said seventh part as and for her dower herein as the widow of said John
Heath; That the value of said dower interest should be assessed to her in said
seventh. That the defendants Richard Heath, Haywood Heath and Kinchen or William
K. Heath are each entitled to an equal undivided two sevenths of said land; That
the lands herein and in the complaint described be sold by John C. Dixon,
Esquire, who is hereby appointed a commissioner of the Court for that purpose
after making the notice and advertisement of said sale according to law in the
following terms:
One hundred & fifty dollars cash, the remainder of the
purchase money on a credit of nine months, the deferred payment to be secured by
bond with approved security and withholding title until the whole of the
purchase money is paid.
That the said commissioner report his acts and doings
in the premises according to law to the Court.
The following is a
description of the lands herein ordered to be sold: "Situate in Greene County
adjoining the lands of Samuel R. Pridgen and others beginning at a black gum,
Lucretia Edwards corner in Appletree, and runs thence 4 1/4 East 195 poles to a
stake, Lucretia Edwards corner, thense South 60 1/2 East 97 poles to a
blackjack, the said S. R. Pridgen's corner, thence North 47 East 50 poles to a
stake in the path; thence South 11 1/2 East to the edge of highwater mark in
Appletree, thence up Appletree to the beginning containing two hundred acres
(200) more or less - being the land conveyed by W. r. Edwards to Margaret Heath
on or about the 22 of December 1858".
This cause is reserved for further
directions.
April 4th 1885
D. W. Patrick
Clerk of Greene Superior
Court.
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