Transcript of Proceedings, circa 18 March 1844 [Russell v. JS et al.]

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Document Transcript

Proceedings in Chancery before the Court of Common Pleas within and for the County of Lake and State of at a Term thereof begun and held at the Court House in the Town of in said County on the twelfth day of March in the year of our Lord one thousand eight Hundred and forty four.
vs.
Joseph Smith Jr. et. al
Be it Remembered that heretofore to wit on the twentieth day of June in the year of our Lord one thousand Eight Hundred and forty three filed in the s Office of said Court the following Bill in Chancery which is in the words and figures as follows. to wit,
Bill
To the Honorable the Court of Common Pleas within and for the County of Lake and State of as a Court of Chancery now sitting—
Humbly complaining sheweth unto your Honors your Orator of in said County of Lake that on tenth day of October A D 1836 he was seized and in possession of the following lands and tenements to wit situate in said being Township No nine (9) in the ninth (9) Range of Townships of the in the State of and which was then in the County of but now in said County of Lake and known as Lot thirteen (13) and parts of twelve (12) & [p. 105]
fourteen (14) in tract No two and is bounded as follows to wit, beginning at the South west corner of land then owned & occupied by Ebenezer Jennings, thence East on said Jennings line to lands owned by Mr Hyde— thence South on said Hydes line to Lot No thirteen— thence East & South by said Hyde to the public highway— thence South westerly & westerly along said Highway to the meeting House Lot— thence Northerly to the line of Lot No thirteen— thence to the South west corner of said Lot thirteen— thence along the public highway— leading from to to the place of beginning containing one Hundred and thirty two acres & four hundredths of an acre, that Joseph Smith Jr then of said but now of Illinois and of said applied to your to sell the same to them upon credit and the purchase money thereof to be secured by a mortgage upon said premises, that your on the day and year aforesaid sold and conveyed the same to said Smith & and thereupon on the day and year aforesaid they the said Smith & for the purchase price thereof made and delivered to your their six joint & several notes of that date as follows to wit five for one thousand each payable in AD 1837. AD 1838. AD 1839 AD 1840 & AD 1841 and one note for six thousand nine Hundred & four Dollars payable in AD 1842 all on annual interest & said notes each becoming due on the first day of June in each year and the said Smith & thereupon on the same day with their respective wives to wit, wife of said Joseph, Thirza [Stiles] Cahoon wife of said & Abigail [Pettingill] Bump wife of said conveyed to your the aforesaid lands as above described and with the further description as being the same lands that day as aforesaid conveyed by your to said Joseph, and by their deed of that date duly executed & delivered in fee simple, but subject nevertheless to a condition of defeasance on the payment of the aforesaid notes as they respectively became due, as by a copy of said mortgage hereto attached marked “A” and made part of this Bill and by the Record thereof by your caused to be made on the thirteenth day of October AD 1836 in the Geauga County Records of Deeds Book V pages 367 & 368 & by said original mortgage now ready in Court to be shewn will fully appear, your further represents that no part of said notes or of either of them was at the times respectively limited in that behalf by means whereof the legal Estate in said premises became vested in your redeemable nevertheless in equity on the payment of the amount due and to become due on said notes and mortgage, that said notes being due and unpaid your has repeatedly applied to them and requested them to pay the same which they have hitherto wholly neglected and refused. Your further represents that one of said claims as your is informed & believes some interest in said premises derived from said mortgages <​mortgagors​> or some one of them. since said mortgage was as aforesaid duly executed & Recorded. Your further represent that the follow [p. 106]
ing persons claim to have recovered judgments against one or more of said mortgagors since said mortgage was executed & recorded which said judgments they claim are liens upon said premises subject to your s said Mortgage to wit. of the City of in the State of . Winthrop Eaton Hezekiah Kelley. . . Jonathan Leavitt, Charles A Lord. William Robinson, Wright T. Conger of said City of . of , New York Thomas Underwood, Robert Bald, Asa Spencer & Samuel Hufty of in the State of . Samuel D Rounds of of the State of of in said County of Lake— Christopher Quinn Jr. & said of said — The Cuyahoga Steam Furnace Company. Richard Hilliard of in the County of Cuyahoga and William Branch of Madison in said County, and said as Administrator of Claudius Stannard Jr & that said judgment in favor of said Underwood Bald, Spencer & Hufty has been assigned to one of said — your therefore prays that all the above named persons be made Defendants to this Bill— that the writ of Subpoena may be issued against them, that they may each answer the premises— that an account may be taken of what is due your on said notes & mortgage & that on the final hearing of this cause said mortgaged premises may by a decree of this Court be ordered to be sold and the proceeds thereof be applied in satisfaction of the amount found due your as aforesaid and for such other & further relief in the premises as equity and good conscience may require, and your will every pray &c.
P & R Hitchcock & Wilder for
Copy of Mortgage
To all people to whom these presents shall come. Greeting— Know ye, that we Joseph Smith Jr. & of Geauga County & State of Ohio and wife of said Joseph Jr Abigail [Pettingill] Bump wife of said and Thirza [Stiles] Cahoon wife of said for the consideration of twelve thousand nine Hundred and four Dollars received to our full satisfaction of of the County & State aforesaid do give grant bargain sell and confirm unto him the said the following described tract or Lot of land situate in the Township of being number nine in the ninth range of Townships in the in the State of and which is also in the County of , and is known by Lot thirteen and parts of twelve and fourteen in tract number two, and is bounded as follows, beginning at the south west corner of land owned and occupied by Ebenezer Jenning[s]. thence East on said Jennings line to lands owned by— Heyde thence South on said Hydes line to Lot number thirteen, thence East & South by said Heyde to the public Highway thence South westerly and westerly along said Highway to the meeting House Lot, thence northerly to the line of lot thirteen, thence to the South west corner of said lot thirteen thence along the public Highway leading from to to the place of beginning containing one Hundred and thirty two acres [p. 107]
and four hundreths of an acre being the same land deeded by said to said Smith, , and be the same more or less but subject to all legal Highways, to have and to hold the above granted and bargained premises with the appurttances [appurtenances] thereof unto him the said his heirs and assigns forever to him and his own proper use and behoof and we the said Joseph Smith Jr. and do for ourselves and our heirs executors and administrators covenant with the said his heirs and assigns that at and until the ensealing of these presents we are well seized of the premises as a good and indefeasible estate in fee simple and have good right to bargain and sell the same in manner and form as above written and that the same be free all incumbrances whatsoever, and furthermore we the said Joseph Smith Jr and do by these presents bind ourselves and our heirs forever to warrant and defend the above granted and bargained premises to him the said his heirs and assigns against all lawful claims and demands whatsoever and we the said , Abigail Bump and Thirza Cahoon do hereby remise release and forever quit claim unto the said his heirs and assigns all our right and title of dower in the above described premises. the condition of this deed is such that whereas the said Joseph Smith Jr. and have executed and delivered to the said their six joint and several notes of hand bearing even date with these presents, five of which notes are for the sum of one thousand Dollars each and one for six thousand nine Hundred and four Dollars and all with interest to be paid annually and the principal to be paid one thousand 1837 one thousand 1838, one thousand 1839, one thousand 1840 one thousand 1841 and six thousand nine Hundred and four Dollars in 1842 and all on the first day of sixth month in Each year with the interest annually on all Now if the said Joseph Smith Jr & their heirs assigns executors or administrators shall well and truly pay the aforesaid several notes of hand according to the tenor thereof to the said his heirs or assigns then the above deed shall be void otherwise to remain in full force and virtue. Witness whereof we have hereunto set our hands and the tenth day of tenth month, in the year of our Lord one thousand eight Hundred and thirty six.
Joseph Smith Jr seal
seal
Abigail Bump seal
Thirza Cahoon
Signed sealed and delivered in presence of
The State of Ohio)
ss. [scilicet])
October 10, 1836
Personally appeared Joseph Smith Jr. and who acknowledged that they did sign and seal the within instrument and that the same is their free act and I further certify that I did examine the said [p. 108]
, Abigail Bump & Thirza Cahoon separate and apart from her said husband and did then and there make known to her the contents of the foregoing instrument, and upon that examination she declared that she did voluntarily sign seal and acknowledge the same and that she was still satisfied therewith. Before me,
Justice of Peace
Recd 13th at 4 Oclock PM. and Recorded 14th October AD 1836 in Geauga County Records. Book V. pages 367. 368.
Recorder
And thereupon the following Subpoena was issued by the of said Court which is in the words and figures as follows. to wit.
Subpoena
The State of Ohio
Lake County ss. [scilicet]
seal
To the Sheriff of said County— Greeting We command you that you summon Joseph Smith Jr , . Thirza [Stiles] Cahoon , . , Winthrop Eaton. Hezekiah Kelley, , , Jonathan Leavitt, Charles A Lord, Wm Robinson, Wright T Conger, — Thomas Underwood, Robert Bald, Asa Spencer, Samuel Hufty, Samuel D Rounds, and , to appear before the Judges of our Court of Common Pleas at the Court House in forthwith to answer a petition in Chancery Exhibited against them & others by and this they shall in no wise omit under the penalty of one thousand Dollars and have you then there this writ
Witness Clerk of our said Court at the twentieth day of June Anno Domini one thousand eight Hundred and forty three.
Clerk
By. C[harles] D. Adams, Deputy.
Said writ was returned by said Sheriff indorsed as follows, to wit.
The State of Ohio
Lake County ss.
Service & Return $4.75
Travel 10
$4.85
I have executed the command of this writ by due and diligent search for the within named Defendants and finding none of them within my bailiwick. June 21. 1843.
L[uther] P. Bates Sheriff
And also the following Subpoena was issued by said which is in the words and figures, as follows, to wit.
Subpoena
The State of Ohio
Lake County, ss. [scilicet]
seal
To the Sheriff of our said County. Greeting. We command you that you summon Abigail [Pettingill] Bump, Christopher Quinn Jr William Branch, Administrator of Claudius Stannard Deceased to appear before the Judges of our Court of Common Pleas at the Court House in forthwith to answer a petition in Chancery exhibited against them and others by and this they shall in no wise omit under the penalty of one thousand Dollars and have you then there this writ.
Witness Clerk of our said Court at the 20th day of June Anno Domini one thousand eight Hundred and forty three.
Clerk
By. C[harles] D. Adams, Deputy.
Said writ was returned by said Sheriff indorsed as follows. to wit [p. 109]
The State of Ohio
Lake County ss.
service & Return $1.15
4 Copies 1.00
Travel 75
$2.90
I handed , Abigail Bump, & Christopher Quinn Jr a certified copy thereof. June 23d. 1843.
L[uther] P Bates Sheriff—
and also the following other return to wit—
The State of Ohio
Lake County ss.
Copy 25
Service 20
Travel 75
$1.20
I handed William Branch a true copy of this writ June 24, 1843.
L P Bates Shff
J[abez] A Tracy, Deputy.
And the following Subpoena to the Sheriff of Cuyahoga County was issued by the of said Court which is in the words and figures as follows, to wit,
Subpoena to Cuyahoga Co
The State of Ohio
Lake County, ss. [scilicet]
seal
To the Sheriff of Cuyahoga County, Greeting We command you that you summon Cuyahoga Steam Furnace Company, & Richard Hilliardto appear forthwith before the Judges of our Court of Common Pleas now sitting at the Court-House in to answer a petition in Chancery exhibited against them & others by and this they shall in no wise omit, under the penalty of one thousand Dollars and have you then there this writ.
Witness Clerk of our said Court at the 20th day of June Anno Domini one thousand eight Hundred and forty three.
Clerk
By. C[harles] D. Adams, Deputy.
Said writ was returned by said Sheriff indorsed as follows. to wit.
The State of Ohio
Cuyahoga Co ss.
service &c 75
Mileage 1.24
3 Copies 75
writing ret[urn] 10
$2.84
Served this writ June 20. 1843 on Richard Hilliard by delivering him a true copy of this writ, and also served on the Cuyahoga Steam Furnace Co. by delivering Elisha T Sterling Secretary of said Co a true copy of this writ and by leaving a copy of the same at the Office of said Co for Daniel Cushing the said Companys agent who was absent from Cuyahoga County.
M Miller Shff
By Wm Richards Dep
notice to be published & contd
And thereupon at the June Term of said Court in the year of our Lord one thousand eight Hundred and forty three On motion to the Court it is ordered that notice of the pendency of this suit and of the substance of the Bill and prayer thereof be published for six consecutive weeks in the Painesville Telegraph previous to the next Term of this Court, to which time this cause is continued.
notice proved & Cont
And afterwards to wit at the October Term of said Court in the year of our Lord one thousand eight Hundred and forty three, this day came the complainant and proved publication of notice and this cause is continued.
And now at this Term of said Court that is to say at the Term thereof first aforesaid this cause came on to be heard upon the [p. 110]
Decree
Bill of said the Exhibits & Testimony and the Respondents still failing to appear plead answer or demur to said Bill it is ordered that the same as to them be taken as confessed and the Court being fully advised in the premises do find the law and equity of the case with said — that said Joseph Smith Jr and did make execute and deliver to said their six notes and that to secure the payment thereof they the said Joseph Smith Jr & his wife, & Thirza [Stiles] Cahoon his wife and & Abigail [Pettingill] Bump his wife did make execute and deliver to said their mortgage of said premises as is in said Bill stated and that there is due to said on said notes and mortgage on the first day of this Term the sum of sixteen thousand four Hundred nine Dollars and sixty-one cents ($1640961) the Court do therefore order adjudge & decree that said Joseph Smith Jr and within thirty days from the rising of this Court at its present Term pay to said said sum of sixteen thousand four Hundred nine Dollars and sixty one cents— ($16409.61) with interest thereon from the first day of this Term together with the costs of this suit, and in default of such payments that the of said County proceed & cause said mortgaged premises to be appraised advertised and sold as upon judgments at law, and that from the proceeds thereof he pay first the costs of this suit, second, said sum of sixteen thousand four Hundred nine Dollars and sixty one cents ($1640961) with interest thereon from the first day of this Term to said and that the balance he bring into Court. s costs taxed at twenty seven Dollars and fifty seven cents. Respondents costs taxed at six Dollars and nine cents. [p. 111]

Footnotes

  1. 1

    TEXT: Instances of “seal” are enclosed in hand-drawn representations of seals.  

  2. 2

    TEXT: “seal” enclosed in a hand-drawn representation of a seal.  

  3. 3

    TEXT: “seal” enclosed in a hand-drawn representation of a seal.  

  4. 4

    TEXT: “seal” enclosed in a hand-drawn representation of a seal.