JACKSON COUNTY, TN - COURT - ELIJAH WHEELER VS WILLIAM H. BOTTS ET AL. 1868
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ELIJAH WHEELER VS WILLIAM H. BOTTS ET AL. CHANCERY COURT 1868
(Jackson Co. Roll 124, Chancery/Circuit Loose Records Washburn-Whitaker,
J. 1839-1915)
To the chancellor assigned by law to hold the chancery court of Jackson
County Tennessee presiding at Gainesboro.
The Bill of complaint of Elijah Wheeler a citizen of Jackson County
Tennessee against W. H. Botts a citizen of the state of Kentucky, Leroy
Wheeler a citizen of the State of Illinois, James E. Wheeler, Thomas
Williamson and Robert A. Cox citizens of Jackson County Tennessee
defendants.
Complaining your orator would respectfully state to your honor that
defendant W. H. Botts then clerk & master of the chancery Court of
Jackson County on the 14th day of February 1861 in the Chancery Court of
Jackson County recovered a Judgment against one Martha Goodall principal
and one James Draper and defendant James E. Wheeler his securities for
the sum of sixteen hundred and seventeen dollars and forty since and
cost of suit or motion $ (blank) upon a note by them executed to said
Botts as clerk & master of the chancery court of Jackson County
as the purchase price of Negroes purchased by said Martha Goodall at the
sale of Negroes belonging to the estate of her father and sold by said
Botts under order of said court upon this Judgment no execution was
issued after its rendition until the 9th day of April 1866 at which time
an execution issued and went into the hands of Jefferson Roberts then a
county sheriff of Jackson County. On the 15th day of April 1866 and was
by him returned nulla bona on the 30th day of July 1866, on the 8th of
August 1868 an alias execution was issued on said Judgment and if not on
the same day it was issued shortly thereafter went into the hands of J.
W. Smallwood Sheriff of Jackson County and was by him levied upon a
tract of land herein described as the property of defendant James E.
Wheeler. On the 8th day of August 1867 defendant Thomas Williamson
received a Judgment of decree in the chancery court of Jackson County
against defendant James E. Wheeler for cost of suit $20.15 dollars upon
which execution issued on the 8th of August 1868 and on same day it
issued or shortly thereafter went into the hands of said Smallwood
Sheriff as aforesaid which was by him also levied on the same tract of
land as the property of defendant James E. Wheeler said land will be
sold by sheriff under and by virtue of said executive levies on the
first Monday (5th) of October next unless prevented by your honor's writ
of injunction to restrain the sale. These executions your orator
supposes were regularly issued by defendant Robert A. Cox now clerk &
master of the Chancery Court of Jackson County. Your orator states that
said land so levied upon by said executions lies in district No. (Blank)
of Jackson County on Flynn's Creek and is not the property of James E.
Wheeler nor was it his property at the time of the issuance and levy of
said executions nor was it his nor is it now the property of said James
E. Wheeler or subject to the payment of his debts. Said land is the
property of your orator and was his at the date of the issuance and levy
of said executions upon it and is fully described in a deed for said
land made to him by James E. Wheeler on the 19th day of November 1865
which is on file as an exhibit in the suit of James Draper against James
E. Wheeler and your orator and Robert A. Cox finding in the chancery
court of Jackson County and is now in the office of the clerk & master
of said county but will be produced on the hearing of this cause if
required a certified copy of said deed is herein filed marked Exhibit B
as part of this Bill.
Several years ago your orator had given said land to his son the
defendant Leroy Wheeler but had never executed to him a title deed to
it.
Defendant Leroy Wheeler on or about the 18th of December 1845 sold said
land to defendant James E. Wheeler and made his notes payable in four
annual installments for the purchase money for said land first note
payable the 1st of June 1849, second note payable 1st of June 1850,
third note payable 1st of June 1851, and fourth note payable 1st of June
1852. Before these notes were paid defendant Leroy Wheeler determined
to leave Tennessee and your orator purchased them of defendant Leroy
Wheeler and afterwards executed to James E. Wheeler a deed for said
land. Your orator held said notes against James E. Wheeler until 19th
of November 1865 he having up to that time never paid said notes or any
part of them either principle or interest and at that time being unable
to pay off said notes except by sale of said land James E. Wheeler then
on the 19th day of November 1865 sold said land to your orator in
payment of the notes which he had given to defendant Leroy Wheeler as
the purchase price of said land and which notes your orater had
purchased from said Leroy Wheeler as herein above shown and on that day
your orator gave up said notes to James E. Wheeler for said land and
took his deed conveying said land to your orator of which deed Exhibit B
is a true copy of said land as your orator believes was not at the time
worth more than the principle of the notes and interest which had
accrued, the consideration or amount mentioned in the deed eight hundred
dollars and your orator believes that is a fair and full consideration
for the land at the time he purchased of James E. Wheeler 19th of
November 1865, said deed was duly probated and registered in the
Register's office of Jackson County on the 20th day of November 1865.
Your orator is informed and so charges that defendant Robert A. Cox is
now setting up some sort of claim to the judgment of $1617.46 Dollars
received by the Chancery Court in name of W. H. Botts c&m against said
Martha Goodall, James Draper, and defendant James E. Wheeler and has as
clerk & master issued said execution on said Judgment as herein before
shown and caused the same to be levied on said land of your orator and
is now seeking to have said land sold by said execution. Your orator
states that the Lien created on said land while it was the land of James
E. Wheeler was lost by lapse of time before execution was ever issued
upon said judgment. The same was issued the 14th Feby 1861. No
execution ever issued thereon nor was any steps ever taken to collect
the same until 9th of April 1866, more than five years had elapsed after
the rendition of said Judgment before any steps were taken to enforce
the collection of the same, the Lien created by the Judgment having been
lost by the laches of the parties interested and the land being
unencumbered your orator purchased it as having above been shown in
order to collect the purchase money due him from James E. Wheeler for
the land he held the notes against James E. Wheeler for the purchase
money for the land he had intended to give the land to his son Leroy
Wheeler paid him cash for the notes when he left the state executed to
defendant James E. Wheeler a deed for said land, and in order to secure
payment of the same when the land had been thus disencumbered as above
shown he purchased it, defendant R. A. Cox pretends to claim the benefit
of said judgment how he became beneficiary therein or how much he paid
therefore our orator is not advised nor can he state, he can state
however that if defendant R. A. Cox has any ficuary interest in said
Judgment he acquired the same after your orator had become the owner of
said land by purchase as above shown and after his deed for the land was
duly registered and your orator charges that said Cox never acquired any
interest in said Judgment until after said deed was filed in his office
as an Exhibit in the suit of Draper vs James E. Wheeler your orator and
said Cox and was by him marked filed as clerk and master in said suit,
He had both actual and constructive notice of your orator's title to
said land before he purchased said judgment or any interest therein and
he well knew that said judgment was no lien or incumbrances on said land
at the time of his purchase of the judgment and he knew your orater was
the owner of and had title to said land at the date of his purchase.
Yet he is seeking to have said land sold for the satisfaction of said
judgment.
The judgment of Williamson for cost as herein shown against James E.
Wheeler was long after the purchase of said land by your orator yet his
executions is levied on the same land and the land will sell under it as
stated unless prevented by the interposition of your honor.
The premises considered your orator prays that those named as such in
the Caption be made defendents to this Bill, that Copy and proper
process issue, and that publication be made as to non resident
defendants, that defendants be required to answer this Bill fully and
truly on oath. Let defendant R. A. Cox in his answer show fully how he
became the owner of said Judgment from whom he purchased it, how much he
paid for it, to whom he paid it, when and the precise date of his
purchase and to what extent he is the beneficiary in said Judgment,
whether or not he caused the issuance and levy of said execution on
said land as the property of defendant James E. Wheeler, your orator
prays that defendants Cox, Botts, Williamson be enjoined from selling
said land under said execution or causing the same to be done or either
of them that, Sheriff James W. Smallwood may also be enjoined from
selling said land under said executions or either of them, that a writ
of injunction issue, that your orater's title to said land be declared
and defended by decree of your honor's Court and the cloud of the same
by these unjust levys be removed, and the sale of said land for any debt
of defendant James E. Wheeler be perpetually enjoined and for all the
relief the case of your orator may regain in a Court of Equity and he
will ever pray, this is the first application for injunction writs in
this Cause.
Benton Washburn, Sols
State of Tennesse
Jackson County
Came before Elijah Wheeler who made oath in due form of law that the
matters and facts stated in the within and foregoing Bill as stated of
his own knowledge are true and these stated from information he believes
to be true and subscribed this affidavet before me this 26th day of
September 1868.
Elijah Wheeler
subscribed and sworn to before me the date above
W. W. McCue JP
for Jackson County
The clerk & master of the Chancery Court of Jackson County at Gainesboro
will issue writs of injunction as prayed in this Bill upon complainants
giving bond and security in the sum of five hundred dollars conditions
as the court directs.
September 29th 1868
W. W. Goodpasture ?
Judge
Elijah Wheeler
vs Judgment on notes of rent on the land on which James E. Wheeler now lives
R A. Cox & others
By consent of complainant Elijah Wheeler the clerk & master R. A. Cox in
whose said Judgments are taken as Receiver. Said clerk & master on the
part of Elijah Wheeler is Directed to call in and hold up the executions
issued on said Judgments until further order in the premises and permit
them to be Returned not satisfied for the present. R. A. Cox who
manages the accts for defendants except J. E. Wheeler consents to the
above arrangements -- and J. E. Wheeler also consents to the same and
agrees to pay H. N. Loftis D Shff his cost on said executions.
July 3rd 1874 Elijah Wheeler
James E. Wheeler
By B. B. Washburn
W. H. Botts for R. A. Cox
To H. N. Loftis D Shff upon Jas E. Wheeler paying your charges for your
trouble, you may return the papers in your hands against him and others
not Satisfied & Retired by consent of parties and Return this agreement
therewith. July 3rd 1874.
R. A. Cox, C&M
SCHEDULE A: CREDITORS WHOSE CLAIMS ARE UNSECURED
Reference Names of Creditors, When and Where Contracted Amount Nature and Consideration
to Ledger their Residences and Occupation of theDebt, and Whether any
or Voucher Judgment, Bond, Bill of Exchange,
Promissory Note, etc. whether
contracted as co-partner or joint
contractor; if so, with whom
Acct Neil Carver, Jackson Co., Farmer Jackson Co. 1866 17.00 For corn
" Elijah Wheeler, Jackson Co., Farmer Jackson Co. Nov 3/67 106.00 Not Known
" Elijah Wheeler, Jackson Co., Farmer Jackson Co. July 1/60 34.00
" Elijah Wheeler, Jackson Co., Farmer Jackson Co. Sept 28/65 16.05
" Wm McCue, Gainesboro, Farmer Jackson Co. Not known 25.00 For Leather
" Joel W. Settle, Nashville, Farmer Gainesboro Not known 45.00 Merchandise
" Wm P. Stone, Jackson Co., Farmer Gainesboro Not known 12.00
" W. H. Botts, Glasgow, Ky Gainesboro Not known 15.00 Lawyer Fee
" James Draper, Gainesboro, Tenn Gainesboro 1863 6.50 For Calf
" Charles Anderson, Jackson Co., Tenn Gainesboro 1867 83.94 Merchandise
" Thomas W. King Jackson Co., 1865 9.00 Leather
" W. H. Botts, Glasgow, KY Jackson Co. 1867 30.00 Surety for Isac Hines Law fee
Judgt Thomas Hufhines, Jackson Co., Tenn Jackson Co. Sept. 9/67 64.20
" Martha J. Kirby, Jackson Co., Tenn Jackson Co. Sept. 22/67 74.13
" Ben Cox, State of Texas Jackson Co. Sept. 22/67 18.11
" Willis Cornwell, Jackson Co., Tenn Jackson Co. Not Known 7.00
" R. C. Kirkpatrick, Nashville, Tenn Jackson Co. Not Known 15.00
" S. Slaughter Adm of J. Young, Jackson Co., Tenn Jackson Co. July 12/67 163.19 U. T. Brown & C. W. Anderson Jointly xxx
" Polly Donovan, Jackson Co., Tenn Jackson Co. Oct 2/67 9.00
" Ben Fox, Jackson Co., Tenn Jackson Co. 8.95 Bill of cost in Circuit Court Jackson Co. for case between myself & Ben Fox
" W. E. Jones, Jackson Co., Tenn Jackson Co. 15.90 Bill of cost in Circuit Court Jackson Co. for case between myself & W. E. Jones, in which James Draper's my surety
Acct Robert Goolsby, Jackson Co., Tenn Jackson Co. 1865 5.00 For Corn
" Alex Ferguson, Jackson Co., Tenn Jackson Co. 10.00 Dr. Bill
" Elijah Wheeler, Jackson Co., Tenn Jackson Co. 1867 30.00 Provisions
" W. H. Botts, Glasgow, KY Jackson Co. 13.00 Lawyer fee
" J. Y. Beck, near Gainesboro, TN Jackson Co. 1861 16.50 For Wheat
" Richard Woodall, Jackson Co., Tenn Jackson Co. 1866 10.00 Services on farm
" Elijah Wheeler, Jr., Jackson Co., Tenn Jackson Co. 1867 25.00 Services on farm
" Thaxton Carter, Jackson Co., Tenn Jackson Co. 1865 10.00
" W. M. Ragland Jackson Co. 1865 15.00 Borrowed money
In the District Court of the United States for the Middle District of Tennessee
In the matter of
James E. Wheeler In Bankruptcy
Bankrupt
To J. W. Johnson Esq Register in Bankruptcy for the District aforesaid.
Sig: I Robert A. Cox Clerk & Master of the Chancery Court of Jackson
County Tennessee at Gainesboro, a Crediter of the Estate of James E.
Wheeler by a Judgment rendered in the Chancery Court aforesaid at the
Febry Session of said court 1861 in favor of W. H. Botts then Clerk &
Master of said Court for Sixteen Hundred and Seventeen dollars and 46
cents, which Judgment I as Clerk & Master aforesaid have the right to
Collect and in my duty to Collect the same to be paid out under the
orders of Said Court and a beneficial interest in Said Judgment has been
transferred to me, And having received notice of his petition for a
discharge from his Debts hereby oppose the granting of said discharge
and for grounds of Such opposition file the following Specifications to
wit:
First, Said Bankrupt was at the date of filing his petition in
Bankruptcy, the legal owner of a valuable tract of land containing 160
acres being the same whereon he then and now lives lying in Jackson
County in District No. 11 on Flynn's Creek adjoining the lands of
Elizabeth Wheeler and others supposed to be worth Fifteen Hundred
Dollars, which tract of land he fraudently failed to render in his
Schedule with the fraudulent design of defrauding his Crediters.
Second, Some time before filing his petition said Bankrupt fraudulently
attempted to convey his tract of land above described to his father
Elijah Wheeler for the payment of a fictitious debt of about $800.00
which he falsely and fraudulently pretended that he owed his father
which was the only consideration of Said attempted Conveyance. Your
Petitioner further Charges that said Bankrupt made said fraudulent
pretended Conveyance to his father in the Spring 1865, a copy of which
will be filed herewith if required from which it will be seen that said
Deed of Conveyance was not duly Stamped and Cancelled as required by law
and the Certificate of probate of said Deed is defective, the
Considerations price expressed in the face of the Deed to wit $800.00 if
real and bona fide is not more than half of the value of Said tract of
land. I further charge that said deed of Conveyance was made with the
fraudulent intent of defrauding, hindering, and delaying them in the
Collections of just debts. And therefore said pretended attempted
Conveyance was and is void as to Crediters.
An Execution has issued from the Judgment in the Chancery Court
aforesaid and has been levied on Said tract of land. I further charge
that said Bankrupt has been in the possession of said tract of land ever
since said fraudulent attempted Conveyance enjoying the use, occupation,
rents, and profits of said land and now lives on said land and enjoys
the rents and profits of the same. I further charge that by reason of
the fact that said deed of Conveyance was not properly Stamped and
Cancelled and the probate thereof being insufficient void and defective
and said deed being voluntary and fraudulent Communicates no title to
the Conveyer Elijah Wheeler and therefore said tract of land is a part
of the Bankrupt Estate.
Third, I further charge that said Bankrupt in view of filing his
petitions as aforesaid and within less than four months as I am informed
and believe, before filing the same fraudulently pretended one of his
Crediters to wit. Peter Polk Admin of the Estate of Wm Vitetoe and paid
him a Considerable debt of five hundred Dollars more or less in stock
such as horses, cattle & hogs, which payment was made and the stock
delivered preparatory to taking the benefit of the Bankrupt law and with
the express design of giving said Peter Polk Adm a preference over his
just Crediters.
Fourth, I charge that said Bankrupt a short time before filing his
petitions in Bankruptcy and preparatory to filing the same with the
express design of defrauding his Crediters sold to his father Elijah
Wheeler, a considerable amount of property such as Stock and produce and
in payment thereof, received from his father a note (as Judgment) on W.
H. Jones of the State of Texas which note was at the time wholly
worthless the Collection of the same being barred by the Statutes of the
State of Texas, and by means of said fraudulent Conveyance and Sale of
his property aforesaid the said James E. Wheeler before filing his
petition had fraudulently disposed of all or nearly all of his property
and effects except what was exempt property under the laws of the State
of Tennessee, and the United States, all of which was done since the
passage of the Bankrupt Act of March 2, 1867 except the attempted
fraudulent Conveyance of his land as aforesaid.
Dated at Gainesboro this 16 day of Apr 1868.
R. A. Cox Crediter
Personally appeared before [me] R. A. Cox who upon his solemn oath doth
depose and say that the facts set forth in the above statement are
correct and true in substance and in fact to the best of his
information, Knowledge and belief.
R. A. Cox
J. W. Johnston, R in B [Register in Bankruptcy]
On the 25 day of Jan 1869 a Demurrer to said Specification was filed
which is as follows:
In the District Court of the United States for the Middle District of
Tennessee.
In the matter of
James E. Wheeler In Bankruptcy
Bankrupt
The said Bankrupt James E. Wheeler by protestation not confessing all or
any of the things in the petition and Specifications filed by Robert A.
Cox to contest his application in Bankruptcy to be true in such manner
and form as the same are therein set forth and alleged and demurs to the
same and for cause of DemurRancy shown.
1st It does not appear in said petitions & Specifications that the said
Robert A. Cox is a Crediter of said Bankrupt. The charge that Wm H.
Botts former Clerk & Master took Judgment as Clerk & Special
Commissioner against said Bankrupt and as his successor in office he had
a right to control the same, is erroneous. As his successer in Office
he took no Control of said Judgment.
2nd The averment in the petition as to the conveyance of the land is on
its face insufficient and does not state facts that would preclude said
Bankrupt from his final discharge.
3rd The other averments are not sufficient or lasting to preclude said
Bankrupt from final discharge.
4th Said Petition is not addressed to any one who by law is authorized
to adjudicate the questions and the same. It should have been addressed
to the Honorable Connally F. Trigg District Judge, who presides in the
Middle District of Tennessee.
Wherefore and for divers other causes appearing on the face of said
petition and Specifications the said Bankrupt prays that said petition
and Specifications be dismissed and that he be released from making
further defense thereto and that his final discharge be granted him, and
that the said Robert A. Cox pay all costs incident to filing said
pretended petitions.
Jno P. Murray and
B. B. Washburn, Attorneys for
J. E. Wheeler, Bankrupt
United States of America
Middle District of Tennessee, SS
Came before me James E. Wheeler and made oath in our firm of law that
the within and foregoing demurrer to the petitions and Specifications is
not interposed for delay and that he is informed and believes the same
is well founded in law.
James E. Wheeler
subscribed & sworn to before me this 25 day January 1869,
E. H. Stone, US Cen___
I, Geo H. Morgan Counseller at law do certify that I am a Counseller at
law and that I have examined the petitions and Specifications of Robert
A. Cox to Contest the application of James E. Wheeler Bankrupt and in my
opinion the foregoing demurrer to the same is well taken, in point of
law and should be sustained. The Certificate given at Gainesboro
January 1869.
Geo H. Morgan
On the (blank) day of January 1869 a motion to dismiss said
Specifications was filed which is as follows:
In the District Court of the United States for the Middle District of Tennessee
In the matter of }
James E. Wheeler } In Bankruptcy
Bankrupt }
The Bankrupt James E. Wheeler moves the Court by attorney to dismiss the
petitions & Specifications filed by Robert A. Cox with the Register J.
W. Johnston.
1st Because not addressed to the proper officer, said petitions should
have been addressed to the Honorable Connally F. Trigg, Judge of the
District Court of the United States for the Middle District of
Tennessee.
2nd Because upon the face of said petition it is shown that the said
Robert A. Cox is not a Crediter of the said Bankrupt James E. Wheeler
and has no interest or power to Control the Judgment mentioned in said
petitions it being solely under the Control and at the disposal of Wm H.
Botts Special Commissioner in whose favor said Judgment was rendered and
because the facts in the petitions and Specifications shows the land was
conveyed long prior to the passage of the Bankrupt law and was not and
could not have been made on news of Bankruptcy, and was not a portion of
his Estate at the time of filing his petitions in Bankruptcy.
Because the other facts are not sufficient to successfully contest said
James E. Wheeler's Bankruptcy.
Said Bankrupt prays that said petitions and specifications be dismissed
and that his final discharge be granted here under the rules of the
court.
Jno P Murray and
B. B. Washburn, attorneys for
James E. Wheeler, Bankrupt
On the 10 day of February 1869 an order was made by the court upon the
petition & specifications and demurrer and motion to dismiss the same
which is as follows:
On considerations of the within petitions specifications and the
demurrer thereto and motions to dismiss the same, the court is of
opinion that the objections of the petitioner Cox cannot be entertained.
First, Because not having proved the debt against the Bankrupt he is not
in a condition to make objection to his discharge and second because the
alleged fraud in relation to the sale of the land mentioned having
occurred long prior to the passage of the Bankrupt Act, must be and
remain the subject of judicient investigations between the parties in
another forum, the said Cox having caused an execution to issue upon the
judgment claimed by him and to be levied upon the land mentioned enter
an order for Discharge.
Connally F. Trigg
U.S. District Judge
Certificate of Bankrupt Conformity to Requirements of Law
In the District Court of the United States
For the Middle District of Tennessee
In the matter of }
James E. Wheeler } In Bankruptcy
Bankrupt }
At Office in Gainesboro in said District on the 16 day of November 1868
I, J. W. Johnston one of the Registers of said Court in Bankruptcy do
hereby Certify that in accordance with the order heretofore made in said
Cause of which due notice was given I sat at Chambers on the return
thereof at said time and place and received the report of the assignee
and there being no oppositions I passed the last examinations of said
Bankrupt and I do further Certify that there was no oppositions to said
Bankrupt discharge and that it appears to me from said examinations and
report that said Bankrupt has in all things conformed to his duty under
the Bankruptcy Act all to all the requirements thereof as appears by the
papers herewith returned.
J. W. Johnston
Register in Bankruptcy
Filed 10 AM March 4, 1869
E. R. Campbell, Clerk