Submitted by michael_95073
Noted added Fri Dec 19 03:09:32 2008
See http://ancestraldata.com/ahnentafel/256/StewartCoTN.html for more information.
Submitted by michael_95073
Noted added Sat Jan 10 13:49:07 2009
From Google Books:
Tennessee Reports
By William Frierson Cooper, John Overton, William Wilcox Cooke, John Haywood...
http://books.google.com/books?id=yXcLAAAAYAAJ&pg=PA463&dq=%22valentine+v+cooley%22+cooper+overton
p463
Nashville. December Term, 1838.
VALENTINE v. COOLEY.
[613]
INFANCY. Appearance by attorney. Where a sci. fa. is prosecuted
against heirs, some of whom are infants, to subject lands descended to the
satisfaction of the ancestor's d"bt, a general appearance thereto, and
demurrer by counsel for the defendants, cannot be regarded as an appearance
for the infants; more especially if the mandate be to make it known to the
guardians. [Ace. Winchester v. Beardin, 10 H. 252, citing this case. And see
Seawell v. Williams, 2 Tenn. 273, and 1 Y. 83.]
SAME. Process void as to infants only irregular as to adults joined
therein. Though a sci. fa. be void as to infants for want of personal
service, it will, on that account, only be irregular as to the adults joined
therein with them; and a judgment and sale under it will stand till reversed
as to the adults, and pass the title of their interest in the land.
WITNESS. Competency of sheriff to prove want of notice of sale. The
sheriff is competent, but not bound, to give evidence of his own failure to
give notice of the time and place of snle as required by the Act of 1799, c.
14, ? 1.
STATUTE OF LIMITATIONS. Effect of possession by Verbal purchase. A
possession of land taken in consequence of a verbal sale is the possession
of the vendor and under his title; but if a conveyance be made to the verbal
vendee, he may couple his possession before and after the deed together, so
as to gain the protection of the statute. [See Napier v. Simpson, 1 Tenn.
448, and cases there cited.]
----
Ejectment for 345 acres of land on Dyer's Creek in Stewart county, commenced
on the 21st of June, 1836, Stewart Circuit Court, on the demise of Richard,
Jonathan, George, and William G. Cooley, William H. Haggard and Rebecca his
wife, Joseph Webster and Elizabeth his wife, and Isaac Piles and Ann his
wife, heirs-at-law of William M. Cooley, deceased, against Solomon R.
Valentine.
The State of North Carolina granted the premises by patent No. 1159, dated
the 26th of November, 1789, to Richard Fenner, assignee of Joshua English, a
private in her continental line. The grantee, by deed dated the 15th of
October, 1798, conveyed this tract among others to Robert Fenner, who, by
his deed dated the 1st of August, 1802, conveyed 308 acres thereof to
William M. Cooley, ancestor of the lessors of the plaintiff. About the 25th
of January, 1819, William M. Cooley, William Pryor, and Young Thornton
executed their joint bond in the sum of $2000 to Thomas Clinton, chairman of
the County Court of Stewart, and afterwards, in the year 1823, Cooley died
intestate.
Upon said bond his administrators, Jonathan Cooley and Richard Cooley, were
sued in Stewart County Court, on the 30th of December, 1823. They pleaded:
1. Conditions performed; 2. Fully administered; 3. Judgments recovered [614]
against them; to wit, one in favor of Joseph Webster and wife for $703, and
one in favor of Ann Cooley for $703 ; 4. A retainer for their own demands
ngainst the intestate for money due them from the estate of Joel Cooley,
deceased, $1406 ; 5. And, lastly, a judgment in favor of the governor for
$591. To all which pleas there were replications filed, and issues thereupon
joined.
These issues were submitted to a jury, who found the first against the
defendants, and assessed the plaintiffs' damages to $474.42. But they found
the plea of fully administered in favor of the administrators, and the Court
thereupon gave judgment against the administrators for the amount of the
damages, and awarded the plaintiffs a scire facias against the heirs, in
which the sheriff was commanded to make it known to the guardians of the
infant heirs.
That writ was issued on the 28th of May, 1825, directed to the sheriff of
Stewart, and was returned, " executed on Jonathan Cooley, Richard Cooley,
28th May, 1825; on Ann Cooley, guardian of her daughter Ann, the 17th July,
1825." A counterpart directed to the sheriff of Henry was returned, " Came
to hand 3d December, 1825, and made known to Joseph Webster and wife on the
21st December, 1825."
The next entry on the record is a statement of the case at May term, 1826,
against all the seven heirs of W. M. Cooley, though there is no return of
the service of the sci. fa. except what is here stated; and the entry
proceeds to state that the parties came "by attorneys " and the defendants'
demurrer to the sci.fa. is overruled, and Judgment rendered that the
plaintiff have execution.
Then there was a fi. fa. issued May 26, 1826, to the sheriff of Stewart,
commanding him to make the money out of the lands and tenements of the
defendant " which belonged to William M. Cooley in his lifetime," and render
it to the Court at the court-house in Dover, " the first Monday in August
next."
This writ was returned with the following indorsements : " Came to hand the
10th day of June, 1826; levied on 345 acres of land on the 15th of June,
1826 ; advertised for sale on the eighth day of August;" and [615] " Levied
on the 10th of June, 1826, on 345 acres of laud lying on Dyer's Creek in
Stewart county, the place whereon William M. Cooley resided in his lifetime,
and where Mrs. Cooley now resides; and after having advertised the land
according to law, exposed the above tract of land to public sale at the
court-house in Dover, the eighth day of August, 1826, and sold the same to
William Bailey, the county trustee, for the use and benefit of Stewart
county, for the sum of 8499.38^, the principal, interest, and cost of the
above debt, which satisfies this execution, 8th August, 1826."
Besides the widow of the deceased, William G. Cooley, one of his heirs and a
lessor of the plaintiff, was in possession of the premises at the date of
the sale.
On the 8th of February, 1827, the sheriff conveyed the land by deed to
Bailey, the purchaser; and on the 12th of July, 1832, Bailey conveyed it to
Christopher C. Clements, who had previously taken possession under a verbal
contract, and who by his deed of the 26th of July, 1832, conveyed to the
defendant, who immediately took possession, which he continued till the
commencement of the suit.
Ann Cooley, the wife of Piles, came of age in 1832.
On the trial, the lessors of plaintiff made title by reading the grant and
deeds, including that to their ancestor; and they offered the deposition of
Ward, the sheriff of Stewart, taken by the defendant, to prove that he gave
no notice, to the tenants in possession of the land, of the time and place
of sale as required by the Act of 1799, c. 14 ? 1. The Court refused to
permit it to be read, and the plaintiff excepted to this opinion. It was
proved that the lessors'!of the plaintiff are the heirs-at-law of William M.
Cooley, who died seised and possessed of the premises; that the plaintiff
was in possession thereof at the commencement of the suit, and that they are
covered by the grant and the deeds under which they claim.
The defendant relied upon the proceedings against William M. Cooley's
administrators and heirs, under which the premises had been brought to sale
for his debt, and the sheriff's and the other deeds founded thereupon above
recited.
The Court charged the jury, in substance, that the writ of scire facias
should have been served on the minors in [616] person; that though the cause
appeared to be stated as if the infants were parties, yet the demurrer to
the sci.fa. was to be regarded in law as the demurrer of the guardians only;
and that the judgment, if void as to the infants, was void as to all.
The jury found a verdict for the plaintiff. The defendant moved for a new
trial, which was refused, and he appealed in error.
Boyd and Cook, for the plaintiff in error, said, the first question is as to
he validity of the judgment.
Supposing it to be the law that the sci. fa. must be served on the infant as
well as the guardian, yet that law only applies to the process, and advan-.
tage of that defect can only be taken by the infant when there is no
appearance entered or plea pleaded.
The object of the writ is to give notice, and is only deemed material for
that purpose. Where an appearance is entered and plea pleaded you cannot
look to any irregularity in the writ, or allege for error that there was no
writ at all.
In this case the attorneys, Martin and Fitzgerald, appear and plead for all
the defendants. The record states the case against all the defendants, and
that the parties appeared by their attorneys, and judgment was given against
the defendants.
The guardian has the right to enter the appearance for the infant and to
plead for him. He can employ counsel and it is his duty to do so. It is not
necessary for the guardian or husband to wait for service on the infant or
wife, but they can enter their appearance and plead for them, and they are
bound by the proceeding ; and, if the authority is improperly exercised,
they must look to the guardian for indemnity. 1 Dev. Eq. 500; 2 Johns. Ch.
139; 1 Paige, 44; 9 Ves. 488; 1 Harrison Ch. P. 207; Wyatt's Pr.
30 465
Register, 402, 403; Gilbert's Fon,m Romanum, 378; Ves. 141; 2 Atk. 70; 2
Com. Dig. 216; 1 Newl. Ch. Pr. 63.
When an attorney undertakes to appear and plead for a party, adult or
infant, the proceeding is regular; the Court cannot look farther, and if the
attorney has appeared without authority, he is alone responsible. Denton v.
Noyes, 6 Johns. 296, 342; Keble, 89 ; 1 Salk. 86; Com. Dig. tit. Alt . [617]
B. 7 ; Cro. Jac. 695 ; Allisley v. Colley, 1 Strange, 693; 1 Binney, 214,
M'Cullock v. Gruffner; 1 Binn. 469; Hopkins v. Waterhouse at Sparta, 1823 or
1825.
The judgment if void as to one for the want of service, is not void as to
those who are parties to the record by service and plea. The rule is that
all parties before the Court are bound by the judgment, however irregular it
may be, until reversed. One defendant cannot allege that the other is not
bound. This is matter of plea in abatement, or, if not in abatement, of
demurrer. It is a matter for the adjudication of the Court, and when decided
can never be controverted collaterally. 8 Mass. 423, 424, note; 5 Burr. 2,
611, Rice v. Shute.
In this case, Clements held under Bailey; his possession then was the
possession of Bailey until he sold to Clements. It is not necessary that
there should be a writing in order to constitute a tenancy; that never has
been required. Was not Clements Bailey's tenant ? Did he not receive the
possession from him, and did he not hold under him ? Could he resist the
recovery of Bailey ? Did he not claim and hold under him ?
It is not necessary to inquire whether there was such a contract as under
the statute of frauds would bind Bailey. Bailey has never denied the
contract, but has expressly recognized it in writing, and would be bound;
but whether he was or not so far as the possession was concerned, that was
transferred, and could be transferred without writing. It is not usual to
make written leases for a year, that not being in the statute. If the
tenancy is good for one year, the tenant will still be the tenant of the
landlord as long as he holds under him, and will then be a tenant at will,
or quasi tenant at will. A parol purchase under the statute of frauds is
good for one year, and constitutes a tenancy at will afterwards.
Turner, F. B. Fogg, and Meigs, for the defendants in error, insisted that
the sale under the scire facias judgment was void, because there was no
service of process upon the infant heirs. Crutchfield v. Stewart's Lessee,
10 Yerg. 237; Combs v. Young, 4 Yerg. 218.
2. That the sheriff's sale was void because one of the [618] defendants and
the guardian of the other was in possession, and no written notice of the
time and place of sale was given. Trott v. M'Gavock's Lessee, 1 Yerg. 469;
Carney v. Carney, 10 Yerg. 491.
3. That the sale was void, because made after the first Monday in August,
the return day of the executiou. It was made on the 8th day of August, which
could not by possibility be before or on the first Monday. Overton v.
Perkins, 10 Yerg. 328. Devereux and Battles Reports.
4. That if Clements was in possession of the land in 1829, there is nothing
to show he had any deed, bond, or agreement with Bailey before 1832, and the
possession was vacant for some time in 1830.
5. And they further insisted that the sale was void because it is stated in
the writ that the infants appeared by attorney, which they cannot do. 2
Pelersdorff's Ab. tit. Attorney V. A. 577, where the cases are collected.
Green, J., delivered the opinion of the Court. -- 1. The general appearance
to a sci. fa., and demurrer for the defendants by counsel, cannot be
regarded as an appearance for the infants, who were not served with process.
In this case, especially, it cannot be so regarded, because the sci. fa.
commands the sheriff to make it known to the guardians of the infants, and
not to them personally; therefore when the record shows that the defendants
by their counsel demurred, it cannot be intended that the infants, against
whom no process had been issued, appeared by counsel.
2. But the Court told the jury that if the process had not been served on
the infants, it was void as to them, and if void as to the infants, it was
void as to the adult defendants, notwithstanding they appeared and put in a
demurrer. Although the first branch of this proposition be true, we do not
think the latter follows as a consequence.
The infants were not before the Court, by the service of the sci. fa. on
them personally, and therefore as to them the judgment is void. 10 Yerg.
237. And as all the parties were not before the Court, the judgment against
the adults was irregular, and could have been reversed in [619] toto, by
writ of error. 2 Petersdoff, 578, pi. 5. But although erroneous, it was not
void, as to those defendants who were properly before the Court. Therefore,
we do not think that, for this reason, the sale was void; but, on the
contrary, that the title to the land of the adult heirs might pass to the
purchaser at such sale.
3. The Court erred also in rejecting the deposition of the sheriff, which
was taken to prove that one of the defendants in the execution was in
possession of the land at the time of the sale, and that he had not given
the twenty days' notice required by the Act of 1799, c. 14, ? 1.
It has always been holden that, although the sheriff who sold the land was
not bound to give evidence that he had failed to discharge his duty, yet, if
he voluntarily chose to do so, he was a competent witness.
4. The Court erred in telling the jury that the possession of C. C.
Clements, by virtue of a verbal contract of purchase from Bailey, could not
be coupled with his possession, after he had received a deed, so as to
protect him by the statute of limitation.
If Clements went into possession by virtue^ of a verbal contract of purchase
from Bailey, he thereby became tenant at will of Bailey, and his possession
was a possession under the deed of Bailey, which might be coupled with the
possession under his own deed, after he had obtained one, so as to protect
him by the statute of limitations, if the evidence showed seven years of
continuous adverse possession. Jackson, ex dem. Young et als. v. Ellis and
White, 18 Johns. 118.
Let the judgment be reversed, and the cause remanded for another trial.
Note. -- See the language in the last paragraph noticed in James v.
Patterson's Lessee, 1 Sw. 811, and Fair v. Henderick, 4 Cold. 335. -- Ed.
Submitted by michael_95073
Noted added Sat Jan 10 20:09:40 2009
A lot of the odd spelling, above, has to do with the way Google's software
interprets the digitalized images. I'll correct much of it in
time.
Submitted by michael_95073
Noted added Sat Jan 10 21:58:38 2009
Joseph and Elizabeth (Cooley?) Webster mentioned in the 1838 suit. She was
born c1812 in TN.
1860 > TENNESSEE > WHITE > RIVER HILL P O
Series: M653 Roll: 1279 Page: 25
Submitted by michael_95073
Noted added Sat Jan 10 22:18:57 2009
This appears to be the same couple. Elizabeth states that both parents were
born in TN. If true, she'd likely not have been a daughter of William but a
grand daughter. William's son, Richard, has a daughter Elizabeth attributed
to him (m Francis Langford). It makes since that Joel's children (since he
had died) would have been listed in the suit, along with William's children.
1880 > TENNESSEE > WHITE > 3-DIST
Series: T9 Roll: 1285 Page: 425
If my thinking is correct, then five of the seven heirs could be...
(Wm M Cooley, d 1823)
..Richard Cooley
..Jonathan Cooley
..(Joel Cooley, d 1812)
....William G Cooley
....Elizabeth Cooley (c1812-) m Joseph Webster
..Ann Cooley (c1811-) m Isaac Piles
Submitted by michael_95073
Noted added Sun Jan 11 13:52:27 2009
In respect to the above, it's unlikely that Joel would have been in TN as
his father didn't arrive there until sometime after 1800. Joel was more
likely to have been born in KY or even NC.
Submitted by michael_95073
Noted added Sun Jan 11 13:58:38 2009
Could this be the George Cooley mentioned in the suit? He was born c1798 in
KY. His wife is listed as Nancy, b c1803 TN. This may be the same couple
married (Nancy Hubbard) 1 Apr 1819 in Stewart Co., TN.
1860 > TENNESSEE > WEAKLEY > DRESDEN & PILLOWVILLE P O
Series: M653 Roll: 1278 Page: 432
Submitted by michael_95073
Note added Sun May 16 18:28:05 2010
http://www.genforum.familytreemaker.com/teter/messages/638.html
Kentucky longknife musters against the shawnee
Posted by: jan lala (ID *****7442)
Date: July 29, 2007 at 21:48:48 of 934
Captain James Downing Company of Militia in Lincoln County, Kentucky
24 October to 24 November 1782
Against Shawnees - under General George Rogers Clark
James Downing
capt
Benjamin Cooper
lieut
William Hogan
ensign
Samuel Shelton
sergt
Charles Rice
sergt
Joseph Mosby
sergt
Christopher Smith
Morgan Linvill
William Mitchell
John Wilson
Mical Woods
William McClure
Thomas Gass
Samuel Grant
Joseph Turner
Elisha Allen
John Myrpha
Samuel Lamb
Townsand Fuegate
James Grey
William Jones
James Turner
Daniel Barton
Sameul Teater
Samuel Brown
Jacob March
William Adams
Barnet Stobald
John Boyles
William Smith
William Grant
David Findley
Asal Davis
George Scott
James Hogan
John Downey
Jessee Coker
William Cooley
Margery Heberling Harding, comp. George Rogers Clark and His Men Military Records. (Frankfort, KY: Kentucky Historical Society, n.d.)
Submitted by michael_95073
Note added Sun Mar 17 00:55:04 2013
William Cooley attested to the Rev War service of Squire Baker...
Squire Baker
- Born about 1725
- Enlisted for 8 months prior to the battle of Bunker Hill, and fought in the battle under Genl. Gates
- Enlisted as a Private in the Massachusetts Continental Line for 3 years
- Served under General Wolfe when Quebec was taken
- After the war, moved to Kentucky
- Moved to Stewart County about 1810, residing near Dover
- Received a Pension (S39168) from the West Tennessee pension office commencing 28 September 1818, aged 81
- Pension application was supported by William M. Cooley, who had known him in Kentucky and Tennessee for 27 years
- Last pension payment 4th quarter 1818, from the Nashville office
- Dropped from pension rolls under the act of 1 May 1820
Submitted by michael_95073
Note added Sun Mar 17 00:57:59 2013
http://genforum.genealogy.com/followell/messages/174.html
State of Tennessee to wit
This day personally appeared before me Thomas Stuart one of the Judges of the Circuit Court for the State of Tennessee WILLIAM M. COOLEY and made oath that he has been acquainted with the above Petitioners Squire Baker in Kentucky & Tennessee for 27 years (SINCE 1791); that he believes him to be a man of truth - that he was generally esteemed so - he understood he was from the state of Massachusetts and that he was a revolutionary soldier - that he is a very old man is in very reduced circumstances and stands in need of the aid of his country for his support - Sworn to and subscribed before me this 29 Day of September 1818.
/s/ Wm. M. Cooley
