Lenoir County, NC - Walter Dunn Jr., Division of Lands, 1887

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From the estate papers of William Walter Dunn at the Archives in 
Raleigh, NC

North Carolina
Lenoir County

Superior Court
August Term 1887

W W Dunn & wife Susan Dunn  Plfts
            VS
G K Bagby, Walter Bagby, Gertrude Bagby & Charlie Bagby  Defts

The plaintiffs complaining of the defendants allege:

1. That on the 26th day of Dec 1850 one Walter Dunn Sen of Lenoir 
County, NC, the father of the plaintiff, W W Dunn, and the grand 
father of the defendants, Walter Bagby, Gertrude Bagby & Charlie 
Bagby, children of the defendant G K Bagby, by his wife, Hellen M 
Bagby, decd, daughter of the said Walter Dunn Senr departed this 
life in said county leaving a last will & testament which was 
duly and legally admitted to probate at the January Term 1851 of 
the Court of Pleas and Quarter Sessions of said county by one 
John M McKinney the executor therein named in accordance with the 
law in such cases made and provided

2. That said Will & testament was duly & legally recorded and 
filed among the proper records of said county.

3. That subsequently, ie. sometime during the years of 1878 & 
1880 the records of the said county, among which were the records 
and original of this will & testament, were destroyed by fire and 
there is no copy of the said will & testament in existence so far 
as these plaintiffs are aware except probably a copy now in the 
possession of the defendant, G K Bagby.

4. That the said Walter Dunn Senr, decd, at the time of his 
death, and for a long time prior thereto, was seized and 
possessed, in his own right, in fee simple, of the two following 
tracts of land known by the name of the home place together with 
the Lewis C Desmond and Elizabeth Desmond land, bounded as 
follows:

Beginning at a black oak, Henry Tull's corner of the William 
Lovick land, also a corner of the Henry Blackland and runs North 
60 East to the Wooten's Branch, then down the various courses of 
the same, to Jericho swamp, then down the meanders of the said 
swamp to the Daniel Desmond land, then with the line of that land 
South 28 East to the poplar branch, then up the various courses 
of the said branch to the William Croom land then with the Croom 
line South 79 West to a lightwood knol, a corner of the Croom 
land and home tract, then South 5 West to Henry Tull's corner of 
the lands bought of W B Rhem & wife, then a small branch, then 
down the meanders of the same to Rudy branch, then down Rudy 
branch to an oak, Shadrack Loftin's corner, then with Loftins 
line to John C Washington's corner in a small branch, then down 
the courses of said small branch to Jericho, then up the meanders 
of Jericho to Henry Tull's corner of the Lovick land, then with 
his line to the beginning; containing by estimation seven hundred 
acres, more or less.

5. That no part of said lands were required to pay off the debts 
of the said Walter Dunn Sen, decd, he having died perfectly 
solvent. 

6. That the said Walter Dunn, Sen, decd, by his said last will & 
testament devised the said tracts of lands mentioned in allyation 
4 of this complaint to one Cynthia Dunn, his widow, who survived 
him for about 37 years, for her life and after her death the said 
lands were by the said will & testament to be equally divided in 
fee simple between his, the said Walter Dunn's, Sen, decd, six 
youngest children  also the children of his said widow said 
Cynthia Dunn  to wit; Martha J Dunn, now the wife of one S H 
Rountree, the plaintiff, W W Dunn, Cynthia A Dunn now dead, 
afterwards the wife of one John Tull, Theresa F Dunn, afterwards 
the wife of one E H Chadwick, now dead, R A Dunn, now dead, 
afterwards the wife of one L B Cox and Hellen M Dunn, now dead, 
afterwards the wife of the defendant, G K Bagby and the mother of 
the other defendants.

7. That on, or about, the 15th day of March 1858 the said Martha J 
Rountree and her husband, said S H Rountree, conveyed, by deed, 
their one individual sixth interest in said lands to the 
plaintiff, W W Dunn, in fee, which deed was duly probated and 
recorded according to law.

8. Than on, or about the 15th day of March 1858 the said Cynthia A 
Tull and her husband, said John Tull conveyed by deed their one 
individual sixth interest in said lands to the plaintiff, W W 
Dunn, in fee, which deed was duly probated and recorded according 
to law.

9. That by virtue of these said deeds of conveyances and the said 
will & testament of the said Walter Dunn, Sen, decd, the 
plaintiff, W W Dunn, became the owner in fee of one half 
individual interest in said lands after the death of his mother, 
the said Cynthia Dunn, said widow of the said Walter Dunn, Sen, 
decd.

10. That the plaintiff inter-married in the State of North 
Carolina on the 13th day of September, 1860.

11. That on the (blank) day of (blank) 18 (blank) this one half 
undivided interest of the plantiff, W W Dunn, in said lands, were 
legally conveyed, by deed to the said Cynthia Dunn, widow of said 
Walter Dunn, Sen, decd, and by the said Cynthia Dunn afterwards 
conveyed, by deed, to the plaintiff, Susan Dunn, who is now the 
owner, by virtue of these conveyances, of the same in fee simple.

12. That on the (blank) day of (blank) 18 (blank) said L B Cox, 
husband of the said R A (Rachel Almira Dunn) Cox, decd, having 
the fee simple by descent from his daughter, Gertrude Cox, in one 
sixth undivided interest in said lands conveyed the same by deed 
in fee to said Hellen M Bagby this one sixth interest was 
the interest of the said R A Cox which descended to her said 
daughter, said Gertrude Cox, on the death of the said R A Cox.

13. That on the (blank) day of (blank) 18 (blank) the said 
Theresa F Chadwick, widow of the said E H Chadwick, decd, 
conveyed, by deed, in fee, her one undivided sixth interest in 
said lands to her sister, said Hellen M Bagby, wife of the 
defendant, G K Bagby, and the mother of the other defendants.

14. That by virtue of the said conveyances and the said will and 
testament of the said Walter Dunn, Sen, decd, the father of the 
said Hellen M Bagby, the said Hellen M Bagby became the owner in 
fee simple, after the death of her mother, said Cynthia Dunn of 
one half undivided interest in said lands.

15. That the said Hellen M Bagby died in the county of Lenoir NC 
on 19 Apr 1881 leaving her surviving the defendants, and owning 
the said interest in said lands, and leaving her last will and 
testament, which has been duly probated and recorded in said county 
of Lenoir, in which she devised her interest in said lands to her 
three children and defendants, said Walter Bagby, Gertrude Bagby & 
Charlie Bagby also the children of the defendant, C K Bagby.

16. That on the 13th day of Sept, 1875, during the life of the 
said Cynthia Dunn, widow of the said Walter Dunn, Sen, decd, who 
at that time had a life estate unexpired in said lands under said 
will and testament of the said Walter Dunn, Sen, decd, as afore 
said G K Bagby & wife, Hellen M. Bagby, officiously, prematurely 
and without authority of law so to do filed a petition for 
partition of said lands against the plaintiffs in the office of 
the clerk of the Superior Court of Lenoir County asking for a 
division of the said lands between his wife, said Hellen M Bagby 
and the plaintiff, Susan Dunn, wife of the plaintiff, W W Dunn.

17. That these plaintiffs are informed & believe that a decree, 
or judgement, was rendered in the said pretended partition 
proceedings for the division of said lands above described 
between the parties as aforesaid, and in accordance with said 
decree, or judgment, the said lands were divided by commissioners 
named in said decree, or judgment, and the report of the said 
commissioners was returned to said office of said clerk and 
confirmed all of which was done during the life of the said 
Cynthia Dunn and the existence of her life estate in said lands 
as above described.

18. That the process in the said partitions proceedings necessary 
to make these plaintiffs parties thereto was not served upon 
these plaintiffs, and the court did not in fact, or law, acquire 
thereby jurisdiction of these plaintiffs although such appeared 
to be the case on the record as these plaintiffs are informed and 
believe; and these plaintiffs did not appear and litigate their 
rights in the said proceeding, either personally, or by attorney 
and said decree or judgment is null and void.

19. That all the records of the said pretended proceedings for 
partition were destroyed in the fires of 1878 or 1880 when so 
many of the other official records of Lenoir County were 
destroyed and these plaintiffs are informed and believe, and so 
allege the fact to be, that there is no copy of the said records 
in existence.

20. That the said Cynthia Dunn in whom was a life estate in said 
lands as aforesaid continued to rent out said lands and received 
the rents therefor up to the time of her death.

21. That the said Cynthia Dunn, widow of the said Walter Dunn, 
Sen, decd, to whom the said lands were devised for her life by 
the said will & testament of the said Walter Dunn, Sen, decd, 
died in the county of Lenoir on the (blank) day of (blank) 1887 
never having disposed of her interest in said lands and these 
plaintiffs with all due diligence, and as soon after the 
termination of the life estate of the said Cynthia Dunn as they 
were enabled to ascertain the facts wrote to the defendants, G K 
Bagby, the father of the other defendants, for a friendly 
partition of the aforesaid lands, which was declined by the 
aforesaid G K Bagby who alleged the existence and validity of the 
former proceedings and therefore the plaintiffs brought this 
action to have the said decree, or judgment in the said former 
proceedings set aside and annulled.

22. That the defendants, Walter Bagby, Gertrude Bagby and Charlie 
Bagby, are all minors, living in Newbern, Craven Co, NC with 
their father and defendant, G K Bagby that all of the said 
minors are above the age of 14 years except probably Charlie 
Bagby, and none of them any general, or testamentry guardian in 
the State of North Carolina.

Wherefore the plaintiff demands judgment:

1st That the said decree, or judgment, in the former pretended 
partition proceedings be set aside and annulled, and all of the 
proceedings therein be avoided and abrogated:

2nd That the plaintiffs have such further and other relief, in 
this action, as the court, in its judgment, may adjudge them to 
be entitled.

3rd That the plaintiffs recover of the defendants their costs.

Loftin & Rountree
Attorneys for plaintiffs

I, W W Dunn, one of the plaintiffs in this action being duly 
sworn, says: That I have read the foregoing complaint and know 
the contents thereof; the same is true of my own knowledge, 
except to matters therein stated on information and belief, and 
as to those matters, I believe it to be true.

Sworn to and subscribed
before me this 26th day 
of September, 1887

W W Dunn

E W Bizzell, CSC

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This file was contributed for use in the USGenWeb Archives by
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