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This has been an interesting case. In brief, Thomas Johns married Elizabeth Graham and came to the marriage without property. She had inherited half of Judge John Graham's farm. It was in her name alone. They decided to sell that farm and buy the David Morgan farm when the Morgan's moved to Illinois in 1852. By 1859, Thomas became insane, heavily in debt, and mortgaged Elizabeth's farm to George R. Burgess. Burgess tried to foreclose on the farm. Elizabeth sues Thomas, her husband, because he had no right to mortgage her property. She wins in 1869. Things to note are the players. George R. Burgess vs. Thomas P. Johns, 1859-1869 Pleas before James W. Moore Judge, Floyd Circuit Court on the 5th day of May 1859 George R. Burgess Plaintiff against Thomas P. Johns Defendant, In Equity Be it remembered that heretofore to wit: on the 2nd day of September 1858 the plaintiff and his attorney produced and filed in the Floyd Circuit Court his petition which is in the words & figures, VIZ: Floyd Circuit Court. Petition Geo. R. Burgess, Plff, against Petition in Equity Thos. P. Johns, Deft. Pa 1st. The plaintiff Geo. R. Burgess states that on the 21st day of November AD 1856 the defendant Thos. P. Johns executed a deed of mortgage conveying to the plaintiff the farm on which he did (then the 21st of Nov) live including all the land conveyed by David Morgan, wife, and by the Commissioner for David Morgan’s children to Thos. P. Johns and all the appurtenances thereunto belonging which land is situate in the County of Floyd & State of Kentucky as security for the payment of a debt evidenced by a note held by the plaintiff on the defendant for One thousand and fifty dollars bearing ___? Date with said deed of mortgage (to wit) dated the 21st of November AD 1856 and payable on or before the 1st day of March 1857. The mortgage & note are herewith filed and made a part of this petition note marked A. Mortgage. Pa 2nd. The plaintiff further states that the defendant Thos. P. Johns by his promissory note bearing date Dec. 6th 1855 agreed to pay Jas. L. Kendall on order One hundred and sixty dollars one day thereafter and is in record & figures as follows: Promise to pay James L. Kendall order One hundred and sixty dollars for balance & record Dec. 6th, /s. Thos. P. Johns. Said note is herewith filed and made part hereof marked C. and was assigned to this plaintiff for a valuable consideration on the 31st of August 1858 see back of note as follows B. for value received, I Assign the within note to Geo. R. Burgess this 31st of August 1858. Signed J.L. Kendall. Said note so entitled to a credit on the 16th April 1857 of $14.00 &c. further states that no payment has been made on the note & mortgage mentioned in Pa. 1st. Wherefore he prays Judgment for the foreclosure of the mortgage for the sale of the lands mentioned in the mortgage to pay his debt and for judgment vs. the defendant for the bal’e due on the note mentioned in Pa. 2nd for costs of suit and all other proper relief. The note mentioned in paragraph 2nd has all the credits to which it is entitled. /s/ Moore & Gallup for Plff. Exhibit “Deed or Mortgage from Johns to Burgess” The follows is a copy of the mortgage referred to in the petition, which is in the Words and figures Viz: Where I have this day executed my note to George H. sic. Burgess of Lawrence County Kentucky for the sum of one thousand fifty dollars due the first day of March next in consideration of the said Burgess having paid for me the following debts upon which judgments have been obtained in the Floyd Circuit court. One debt due Alexander Lackey with interest and costs amounting to $572.33. One debt due Greenville Lackey with interest amounting to $157.87. One debt due Martins & Witten amounting to $36.39 costs. Two debts due James M. Lackey, one for $105.54 from the Quarterly Court & the other for $33.87 to the Floyd Circuit Court. Also a debt I am owing said Burgess with interest amounting to the sum of $124.00 with interest on the above amounts till first of March next. Amounts to the sum of $1050.00 aforesaid . Now in consideration of the above indebtedness of one thousand Y fifty dollars aforesaid I have and do by these presents give bargain sell convey unto the said George R. Burgess in mortgage the farm and land on which I now live including all the land conveyed to me by David Morgan & wife & by the Commissioner for David Morgan & Children with its appurtenances to secure to the said Geo. R. Burgess the payment of said note aforesaid. Now should I pay the aforesaid debt, this is to be void, otherwise to remain in full force. Nov. 21, 1836 /s/ Thos. P. Johns State of Kentucky, Floyd County I James Trimble Clerk of the County Court for the County aforesaid, Certify that this deed of mortgage from Thomas P. Johns to George R. Burgess was this day produced to me by the said grantor & acknowledged by him to be his act and deed. Whereinhow the said deed of mortgage together with the foregoing certificate hath been duly admitted to record in my office given under my hand this 21 day of November 1856. /s/ James Trimble, Clk. Summons Executed Summons against Thomas P. Johns returned by the Sheriff of Floyd County executed on the 8th day of September 1858 on the said Thomas P. Johns. Order Noting Answer At a circuit court continued and held for Floyd Circuit at the Courthouse in Prestonsburg on Saturday the 6th day of November 1858. The defendant produced and filed by answer to the plaintiff petition herein. Here follows a copy of the Answer above referred to which is in the words & figures Viz The Defendant Thomas P. Johns says that he executed the note & mortgage declared on by the plaintiff in this action, but he says the plaintiff ____? Not to have or recover any judgement thereon now, because he says by a substantive and independent agreement & contract made by & between him & plaintiff the time of payment was extended after the note fell due, until the first day of April next and in the event that plaintiff did not by the said first day of April purchase a Negro, he agreed that this defendant might have the further time until fall & in further consideration of the forbearance so agreed upon this Deft executed his note to sd. Plff for $84. Wherefore Defendant prays that this action be abated or held in obeyance & calls on plff. To answer whether this is or not true & therefore makes it a cross petition. /s/ Apperson for Deft. Order Submitted on Demurer At a Circuit Court continued and held for Floyd Circuit at the Courthouse in Prestonsburg on Saturday the 6th Day of November 1858. Ordered that this cause be submitted on Demur to the defents. Answer herein. The plff. Demers to the answer of the defendant. 1st. Because he does not state that there was any consideration for the contract as set out in his answer. 2nd. Because the defendants answer is not responsive to the 2d paragraph of plffs petition At a Circuit Court continued and held for Floyd Circuit at the Courthouse in Prestonsburg on Monday morning November…last line missing…Ordered that Demurer to Defts answer herein be overruled & this cause is submitted to which ruling of the court the defendant objected. The plaintiff produced his reply herein which ordered to be filed. Reply to Cross Petition Here follows a copy of the reply above referred to which appended to demurer and is in the words & figures Viz: The Plaintiff for reply. Because he says there was no consideration to uphold the supposed contract for extension therefore he prays judgment. Judgment for $160 At a Circuit Court continued and held for Floyd Circuit at the Courthouse in Prestonsburg on Tuesday the 9th day of November 1858. The parties appeared by their attorneys and it appearing from the defendants answer that he does not controvert the $160 note claimed in the plaintiffs petition. It is adjudged that the plaintiff recover of the defendant the sum of one hundred and sixty dollars with interest thereon from the 7th day of December 1855 till paid subject to a credit of $14 pd. 16 April 1857 together with the cost of entering this judgment. Petition of Mrs. Johns At a Circuit Court continued and held for Floyd Circuit at the Courthouse in the town of Prestonsburg on Wednesday the 21st day of May 1859. The parties appeared Elizabeth Johns wife of Deft. By her attorney produced her petition praying to be made a party to this action. The plaintiff objected to the filing of the same. The objection being heard is overruled and said petition is ordered to be filed & the action submitted on the motion of said Elizabeth to be made a party. The plff excepts to ruling of the court overruling objection. Here follows a copy of the (bottom line missing) which is in the words & figures. Your petition Elizabeth Johns says that she is the wife of the defendant Thomas P. Johns and has been so for about 21 years. That she inherited from her father a large and valuable tract of land in said county on which she once resided with her said husband. That the tract was quite out of the way and inaccessible in consequence of which she and her said husband concluded that it would be better to exchange or sell it and get another farm more accessible and convenient. That in pursuance of this intention the tract on which they now reside being for sale she and her husband concluded to sell her said tract of land and invest the greater part of the money thus realized in the purchase of the tract now occupied by them which lies directly on the main leading road which trapes up and down Big Sandy river, whereas her inherited farm was in a bend of the river and remote from and not on any road at all. Accordingly her old homestead farm was sold and conveyed by her husband and herself and in accordance with their predetermination a large portion towit $3500 of the purchase money for which her said land was sold was used in paying for the land on which they now live, her own farm having sold for $5,000. That the said purchased farm was to have been held as the sold one had been as hers but her said husband in taking the deed had it made to himself alone and not to her without her knowledge or consent. She is advised that under the circumstances of the case, the title to their present farm is held by operation of law in (last line missing) her rights – her title – her interest on the farm purchased are the same as in the one sold. She would further state that her said husband she understands has mortgaged the farm on which they live to George R. Burgess his brother in law, who knew all about the said sale & purchase. She understands that the action now pending in your honorable court is exhibited and prosecuted for the purpose of foreclosing said mortgage by said Burgess and that he is seeking to sell the land on which she resides with her family of little children under said mortgage and should he succeed your petitioner will be greatly injured and her patrimony lost to her. She prays and insists that this petition may be taken & treated as her answer to the plaintiffs petition and that the court will order and compel the said plaintiff to make her a defendant on pain of having his suit dismissed, so that she can have her rights protected. She prays for all such relief as she is entitled to in equity. Apperson for Deft. Demurer to Petition of Mrs. Johns Filed At a circuit court continued and held for Floyd Circuit at the courthouse in Prestonsburg on Thursday the 5th day of May 1859. The plff filed his Demurer the petition of Mrs. Johns. Here follows a copy of the demurer above referred to which is in the word & figures, Viz. Geo. R. Burgess vs. T. P. Johns. The plff says the petition and answer filed by Mrs. Johns is not sufficient in law or equity for her to maintain the same. It is not made a cross petition as it should be. Nesbitt for Burgess. Judgment At a Circuit Court continued and held for Floyd Circuit at the courthouse in Prestonsburg on Thursday the 5th day of May 1859. The (last line missing) to be heard and the Court being advised renders the following judgment. It is adjudged that the plaintiffs objection to the filing of the petition of Mrs. Johns be overruled. It is further adjudged that the plaintiff make Mrs. Johns a defendant to his suit. The Court overrules said Demurer to said petition of the female defendant. It is further adjudged that the plaintiff recover of the Deft. Thos. P. Johns the sum of One thousand and fifty dollars with interest after the rate of six per centum per annum from the 2nd day of March 1857 for which he may have execution. The Court will not render any judgment upon the plff lien under his mortgage at this time but reserves that question until the cause is in condition to settle the rights of Mrs. Johns on her petition. The plff excepts to the judgment of the court overruling his objection to the filing of Mrs. Johns petition and overruling his Demurer thereto. The Deft. Thos. P. Johns excepts to this judgment &c. for as it is against him. Bill of Exceptions Entered At a Circuit Court continued and held for Floyd Circuit at the courthouse in Prestonsburg on Thursday the 5th day of May 1859. The defendant produced in court his Bill of Exceptions herein which is signed sealed and made part of the record. Here follows a copy of the Bill of Exceptions above referred to, which is in the words and figures viz: Be it remembered that on the calling of this cause the plaintiff moved to exhibit the cause and the defendant by his attorney objected and provided by the plaintiff that it was agreed between him and the defendant (last line missing) Counsel of the parties should settle the matters between them – that he so informed the defendants counsel & went for his attorney and could not find him until sometime after dark, when he went in search of the defendant and was informed that he had gone home. He did not speak to the defendants counsel afterward about it. The court then offered that R. Apperson Jr., Atty for Deft & J.M. Nesbitt, atty for the plaintiff who it was stated was to settle the case should take the papers and settle the matters between the parties & they both refused to act in open court pending the motion to submit, but after the court had indicated that the grounds for a continuance were not sufficient, the wife of the Defendant presented her petition to be made a party and asked to file it & moved the court to compel the plff to make her a party; the court then took the case on submission for the purpose of acting on her motion to be made a party, and for the purpose of determining whether the plff was entitled to a judgment. The court on the state of evidence ordered the submission of the cause to which defendant by his attorney excepted & state excepts & here tenders this Bill of exceptions & prays that it be signed sealed & made a part of the record which is done. J.W. Moore, signed and sealed. Clerk Court I James Trimble Clerk of the Circuit Court for the County aforesaid certify that the proceeding seventeen and a half pages contain a true and complete transcript of the record and proceedings in the action therein named up to & including the above Bill of exceptions, as taken from the record & proceedings under my hand as Clerk aforesaid this 1st day of July 1859. Jas. Trimble, Clk. Amended Reply of George Burgess, 8 June 1860 Floyd Circuit Court, Geo. R. Burgess, Plff. Against Thos. P. Johns & Wife, Defts. The plaintiff by way of amendment to his original reply to Deft. E. Johns petition & answer and her amended answer & cross petition and other plea do states that he at the time of the execution of the mortgage had no personal knowledge of any of the money or property of Mrs. E. Johns being used in the purchase of the land mortgaged by Deft Thomas P. Johns by him nor had he at the time of this any knowledge execution of the mortgage & note or information __ssoss which to form a belief that such was the fact wherefore he denies the same. He denies that as against him she has any right or equity in the mortgaged land other than his potential right of Demur. Plaintiff also states that he knew nothing of his own knowledge or from information desired from others of the agreement or promise on the part of Thos. P. Johns to his said wife that the deed for the land mentioned in the mortgage filed should be made to her had he any such knowledge or information that there was any arrangement between Johns & wife about the two tracts of land as alleged in Mrs. Johns petition & other pleading filed herein wherefore he denies that there was any such agreement – and promise on the part of Johns or that there was any such arrangement between Johns & his wife. He prays as in his original petition for a foreclosure of the mortgage & sale of the lands and application of the proceeds to the payment of the mortgage debt. Tenito(?) & Lacy & Martin (?) & Worsham for Burgess State of Kentucky, Floyd County. Geo. R. Burgess says he believes the statements made in the foregoing amended reply to be true. /s/ George R. Burgess Sworn to before me, Geo. R. Burgess this the 8th June 1860. /s/ Jas. Trimble, Clk. Amended and Cross Petition of Mrs. Johns 14 June 1866 The Defendant Elizabeth Johns by (next line missing) herein, states that she was the daughter of Judge John Graham and Rebecca Graham. That her father died many years ago domiciled in Floyd County having made and published his last will and testament which was duly admitted to probate by the Court of appropriate jurisdiction by the provisions of which will she was entitled as devisee to the one half of the home farm of his said estate father or to what was regarded by him at as one half on value. That she afterwards intermarried with the Defendant Thomas P. Johns by whom she has had 8 children now living, the youngest now about (blank) years of age. That after her said intermarriage with her said husband her mother Rebecca Graham died in said County having made and published her last will and testament which was properly admitted to probate by which there was devised to her on equal sixth part of the remaining one (next two lines lost to a fold in the old paper) said Rebecca. Copies of said wills are made part hereof. She states further that after she had thus taken the said above described property under the devises and whilst she and her husband and family were in possession of the same her husband purchased the remaining individual five sixth of Mrs. Rebecca Grahams part of the home farm and her said husband afterwards sold the whole of said farm as stated in her former answer and cross petition herein. She says that her estate thus disposed of was worth at least $35oo and the same amount was invested in the farm on which she with her family, now resides. The deed of conveyance to Tho. P. Johns alone was recorded without her knowledge, assent, concurrence or consent. The above named property was all that she received from her father or mother except one Negro and the farm on which she now resided and this Negro constitute her whole estate. No provision has ever been made for her by her husband and if she is robbed of her patrimony by her husband’s creditors she and her family of young children will be forced to destitution. She desires to save a home out of her father’s and her mother’s bounty to shelter those who are so dependent as her little children. She has learned that her husband’s fortunes are diminished if not totally wrecked – his circumstances are certainly not affluent and his creditors are now so importunate that she is confident he is not able to make any suitable or proper provision for the future and pressing wants and necessities of support and education of their children or the maintenance of herself Wherefore she asks that her husband be made a Defendant to this cross petition and that the deed executed to him be vacated and the title vested in her or that her said husband be compelled to convey the same to some one in trust for her and her issue or that a settlement be made on him for herself and family and for all the relief to which she is entitled on equity. /s/ Elliott (?) V. Bumo Apperson (?) Elizabeth Johns says that she believes the forgoing amended answer & cross petition as true. /s/ Elizabeth Johns Sworn to before me by Elizabeth Johns, March 3rd 1866. John G. Johns, CHCC Deposition of Pharmer Leslie, 2 June 1866 The deposition of Pharmer Leslie hath at his house that is at the house of Pharmer Leslie on Johns Creek in Pike County Ky to be read into evidence in the suit pending in the Floyd Circuit between Geo. R. Burgess plaintiff and Thomas P. Johns and Elizabeth Johns Defendants & be read in behalf of ____? & being duly sworn and of lawful age states as follows to the following interrogations. Mr. Leslie, can you give me ___? Of your purchase of inc. Graham tract of land in Floyd County of Thos. P. Johns and wife. Ans. I can by referring to a deed which I have before me that was the 30th day of October 1852. The pir__ing were __________ was give Thousand dollars the NOTE: This deposition is just about unreadable. K Exceptions by Burgess Trying to Prevent the Depositions, 28 Sept 1866 The plaintiff excepts to the deposition of James C. Layne,
John Hackwith t____ ___ (can’t read) at the Court House in the Town of Louisa
on the 28 & 29 Sept 1866. Depositions of James C. Layne, John
Hackworth & Greenville Lackey The Deposition of James C. Layne, John Hackworth & Greenville Lackey taken on the 28th Day of September 1866 at the courthouse in the town of Louisa Lawrence County to be read as evidence on behalf of the Defendants in a matter of controversy pending in the Floyd Circuit Court wherein George R. Burgess is Plaintiff & Thomas P. Johns & wife are Defendants. Deposition of James C. Layne James C. Layne of Lawful age was introduced & sworn states as follows to wit: States that he is about 31 years old & that he resided in the county of Lawrence Kentucky in the Town of Louisa & has resided in said town since November 1861 & previous to that time he resided in Floyd County Ky that he is acquainted with the Plaintiff & Defendants in this cause. Adjourned till tomorrow morning, 8 o’clock Greenville Lackey, Examiner September 29th 1866. We met pursuant to adjournment. The Deposition of James C. Layne reopened states the (line missing) that he understands that Judge Graham left his daughter Mrs. Johns one of the Deft in this case a part of his home farm that some time after her part of the farm was exchanged for the David Morgan farm where said Johns & wife now living but of this he only knows from repost & not of his own knowledge. Thos. Johns & George R. Burgess are Brother’s in law. That he does not know that Mrs. Johns has any thing outside of the farm on which to support her family. Thos. Johns for some years past has been said to be not in his proper mind or at least a good part of the time that he does not know the no. of children that Thos. Johns & wife has and further the deponent sayeth not. /s/ James C. Layne Deposition of John F. Hackworth John F. Hackworth was introduced & sworn states that he resided in Louisa Ky for the last two years & upwards & previous to that time he lived in Prestonsburg Ky that he is 35 years old. That he is acquainted with the Plaintiff & Defendants in this cause. That he has some acquaintance with the farm left to Mrs. Johns by her father Judge Graham but does not know its value it was a good tract of land that Johns sold the farm of his wife as he understood & with the proceeds purchased the David Morgan farm where he now lives. His impression is that Mrs. Has five children & perhaps more. He knows of nothing which Mrs. Johns has to support her family outside of the farm that the Plaintiff Burgess & the Defendant Johns are Brothers in law that he thinks Johns has for the last several years been most of the time out of his proper mind and further this Deponent sayeth not. /S/ J. F. Hackworth The further taking Depositions in this cause is adjourned till Monday 1st Oct. I Greenville Lackey Examiner of Lawrence County Ky certify that the foregoing Depositions of James C. Layne & John F. Hackworth taken before me on the 28th & 29th days of September 1866 at 6he courthouse in Louisa Lawrence County to be read as evidence on behalf of the Defendants in an action pending in the Floyd Circuit Court wherein George R. Burgess is Plaintiff and Thomas P. Johns & wife are Defendants. The Deponents being of lawful age & first duly sworn by me that the evidence they should give in the case mentioned in the caption should be the truth the whole truth & nothing but the truth testified as shown in the foregoing deposition by them subscribed in my presents the statements of the witnesses being reduced to writing by me in their presence & read to them by me before they subscribed their names thereto the attorney for the Defendants alone was present at the examination. Given under my hand this 1st day of October 1866. Greenville Lackey Examiner. I Greenville Lackey Examiner as aforesaid further certify that the deposition of James C. Layne was commenced on the 28th of September 1866 about sun down & finished the next morning about nine o’clock & that the deposition of John F. Hackworth was commenced about sundown the 29th of September 1866. Given under my hand this 1st day of October 1866. Examiners fee $2.00 Att Greenville Lackey Examiner Deposition of Greenville Lackey The deposition of Greenville Lackey taken at the clerks office of the Lawrence Circuit court on the 1st day of October 1866 to be read as evidence on behalf of the defendant in a suit pending in the Floyd Circuit court – wherein George R. Burgess is Plaintiff and Thomas P. Johns & wife are defendants. The Deponent being of lawful age and first duly sworn deposeth as follows. States that he is fifty seven years old that he lives in Lawrence county Kentucky & has lived in said county for about sixteen years last past that previous to that time he lived in Floyd County Ky that he is acquainted with the plaintiff & defendants in this cause and that he is well acquainted with the tract of land given to Mrs. Elizabeth Johns by her father Judge Graham it being a part of the old Graham farm where her father resided, that he has been several times on the farm after Johns took possession of his part of the land & built a dwelling house on it and was shown the dividing line by Johns between his wifes part of the land & the Widow Grahams part, he also thinks that he has seen Judge Grahams Will giving that part of the land to Mrs. Johns. He thinks the land given to Mrs. Johns by her Father is worth from three to four thousand dollars. He (last line missing) Johns part of the Graham Farm for the David Morgan Farm except from the rumor of the country which rumour as he understands it is that Mrs. Johns land was sold & the Morgan Farm bought with the proceeds the truth of which he knows nothing about. The plaintiff Burgess & the Defendant Johns are related by marriage Burgess’s wife being Johns sister. The Defendant Johns for four or five years past has been a part of the time out of his proper mind that he saw him at one time when he seemed entirely deranged that the last time he saw him which is something over one year he seemed to be in his proper mind & was working the farm. He does not know the condition of his mind at this time nor does he know anything about his or his wife’s means to support their family outside of the Morgan Farm where they now live and further this deponent sayeth not. /s/ Greenville Lackey Paragraph by George F. Johnson, examiner, stating the usual about the correctness of the deposition. Depositions of John Harkins, James
Herrill, William Goble, The deposition of John Harkins taken on the 9th day of November 1866 at the office of Johns Harkins in the town of Prestonsburg to be read as evidence in an action between George Burgess Plaintiff and Thomas P. Johns and Elizabeth Johns Defendants pending in the Floyd Circuit Court. Deposition of John Harkins The deposition of John Harkins of lawful age & first duly sworn. I have no knowledge of the matters in controversy in this action or by form heresay & for this deponent saith not. /s/ John Harkins. Deposition of James Harrill The deposition of James Harrill of legal age & first duly sworn States that he is fifty seven years old. I live on Cow Creek in Floyd County about 1¼ miles of the farm formerly owned by Judge John Graham, have lived where I now live some 18 or 20 years. Pervious to moving where I now live I lived on the Graham Farm. I lived there for about 8 years. I have been acquainted with Mrs. Johns & have been I would say 30 years. She is a daughter of John Graham. I can’t say within first I suppose herein not in the great farm was worth twenty five hundred dollars; Mr. Johns when he was married bought & then lived with the Widow Graham when they was first married, after that they built & moved on the farm to themselves. When Mrs. Johns was first married her mother gave her one section (?) of property of one son & another. Mr. Johns has been at times for the last 4 or 5 years crazy at time or it seemed so to me. Mrs. Johns has some 5 children at home. I think mostly girls, she has no other means of support for herself and children except the products of the farm, where she now lives that I know of. I think from present mental condition of Mr. Johns he want be incapable of making a support for his family if Mrs. Johns was deprived of the farm where she lives. I give this as an opinion and further this deponent saieth not. /s/ James Herrill, his mark Deposition of William Goble The deposition of Wm. Goble of lawful age and duly sworn states that he is 47 years of age, that for the last fifteen years he has lived on Cow Creek about 1 ¼ miles of the farm known as the Judge John Graham farm; I could not tell presizly what that farm is worth but I would say it was worth three thousand dollars. Mrs. Johns is the ____ daughter of John Graham. Mrs. Johns …rest of line missing… Johns land Johns bought the Morgan farm where they now live. I don’t think Mrs. Johns has any means of support for herself & family except the proceeds of the farm where they now live and further this deponent saieth not. /s/ Wm. Goble, his mark Deposition of James R. Harris The deposition of James R. Harris being of lawful age and duly sworn states that his age is 58 years, lives in Floyd County. He was for several years surveyor of Floyd County. States that he knows the Judge John Graham farm; Mrs. Johns is the youngest daughter of John Graham. I know the extent of her interest of the farm. I think her interest in the farm at the time it was sold to Lasley was worth thirty five hundred dollars. Mrs. Johns interest in the Graham farm was sold to Lasley. Part of the proceeds of her land paid for the Morgan farm. Just below the mouth of Beaver where they now live. Mrs. Johns has no means of support except the products fo the farm, now I remember the marriage of Mrs. And Mr. Johns, and I know of no property that Mr. Johns brought with him or the ____ except …line missing… adjourned to meet at the same place &c on Saturday the 10th Nov. 1866 at 9 o’clock, this 9th Nov. 1866. /s/ J.T. Ford, Examiner for Floyd Deposition of John G. Johns The deposition of John G. Johns of lawful age & duly sworn, he states he is twenty seven years of age and is Clerk of the Floyd Circuit and County Courts, & that he is the Nephew of the Plaintiff in this action, and a son of the defendants. I heard a conversation between Plaintiff & defendants before the mortgage was executed by Johns to Burgess & Burgess wanted my mother to sign the mortgage and she refused to do so & told Burgess that the land was hers, that it had been bought with her money. Burgess insisted upon her doing it & they had some disputing about her signing it, but she refused. The Plff Burgess married a sister of my father. My mother has now living with her five children, four daughters on a son, the oldest a daughter about 18 years of age. My mother has no other means of support except the products of the farm where she now lives. My Father has been partially deranged for the …next line missing…totally destitute of mind. I don’t think he is capable of supporting of the family on at least I don’t think he is, the conversation above referred to took place at my Father’s far and further this deponent saieth not. /s/ John G. Johns Next paragraph by Ford states that all were sworn, etc. Summons to Thomas P. Johns, 22 February 1867 To the Sheriff of Floyd County: You are commanded to summon Thomas P. Johns to answer in twenty days after the service of the summons on him a cross petition filed against him in the Floyd Circuit Court by Elizabeth Johns and warn him that upon his failure to answer the cross petition will be taken for confessed, or he will be proceeded against for contempt, and you will make due return of this summons, on the first day of next June term of said Court. Witness, John G. Johns, Clerk of the Foyd Circuit Court, this 22nd day of February, 1867. Executed April 10th 1867 by J. Davidson, Clk. Summons to Thomas P. & Elizabeth Johns, November 21, 1867 Thomas P. Johns and Elizabeth Johns, his wife, will take notice that the Plaintiff will at the Examiners office in Louisa Ky on the 29 day of Nov. 1867 take depositions to be read as evidence on the trials of the above named cause & continue from day to day until completed. /s/ George R. Burgess, Nov 21 day, 1867 Executed on Thos P. Johns and Elizabeth Johns by deliverer a true copy of the within notice this Nov. 21st 1867. A.W. Cecil, DS for J.M. Davidson.
The Depositions of David Morgan and Eleanor Morgan taken on the 29 June 1867 at the house of Jonathan Mayo in Paris Illinois to be read at Evidence in an action between George R. Burgess Plaintiff & Thomas P. Johns & Elizabeth Johns, defendants Pending in the Floyd Circuit Court for Kentucky. David Morgan being duly sworn deposes 7 says: That he is acquainted with Elizabeth Johns, wife of Thomas p. Johns, that she is the daughter of John Graham Deceased. That said Elizabeth was the owner of one half of the Graham farm in the year 1852 and her half of said farm at that time was worth I suppose $3,000.00 and which was sold to Farmer Lesley, who paid a receipt on Jonathan Mayo, for notes left in his hand to collect, to $1,500 in part pay for said land, and Johns paid said Rec’t in part pay for the Morgan farm from which receipt said Morgan only realized $1,433 & 00 cents. Said Mayo having paid Lesley all to that amount leaving due to affiant the sum of $66 and some cents with Interest thereon from Nov. 1852. The deed to Thomas P. Johns for the Morgan farm was made in the absence of Elizabeth Johns, that the purpose of selling the Graham farm was to reinvest the money for Mrs. Johns in the Morgan farm and that the proceeds of the Johns interest in the Graham farm did pay for the David Morgan farm. /s/ David Morgan Eleanor Morgan being duly sworn deposes and says: That she is acquainted with Elizabeth Johns wife of Thomas P. Johns. That she is the daughter of John Graham dec—That said Elizabeth was the owner of one half of the Graham Farm in the year 1852 and her half of said farm at that time was worth I suppose $3000.00 and which was sold to Farmer Lesley who paid a receipt on Jonathan Mayo for notes left in his hand for collection for $1500.00 in part pay for said land and Johns paid said receipt in part pay for the Morgan farm from which receipts said Morgan only recived $1433 & 00 cents. Said Mayo having paid said Lesley all to that amount leaving due to David Morgan the sum of $66 & some cents with Interest thereon from Nov. 1852. The Deed to Thomas P. Johns for the Morgan farm was made in the absence of Elizabeth Johns. That the purposes of the selling the Graham farm was to reinvest the money for Mrs. Johns in the Morgan farm and that the proceeds of Mrs. Johns interest in the Graham farm did pay for the David Morgan farm. /s/ Eleanor Morgan State of Illinois, Edgar County I Geo. W. Rives, a Notary Public in and for the County aforesaid, do certify that the foregoing depositions of David Morgan, and Eleanor, Morgan was taken before me and was read and subscribed by them in my presence at the time and place & in the caption mentioned in the Captions the said David Morgan & Eleanor Morgan having been first sworn by me that the evidence they should give in the action should be the truth the whole truth & nothing but the truth and their statements recorded to writing by me in their presence, neither party in person or by attorney being present at the Examination given under by hand and official seal this 29 day of June 1867. Judgment on Cross Petition of Elizabeth Johns, 21 May 1869 This cause being heard it is the cross petition of Elizabeth Johns that deed of conveyance title to the farm on which Defts. Live and fully describe in the deed of David Morgan & others to Thomas P. Johns is hereby said Thomas P. Johns in Trust for Elizabeth Johns is now further adjudged that John Harkins as this Court’s Commissioner execute a deed with covenant spe(?) warranty against Thomas P. Johns to Elizabeth Johns John Harkins (?) Commissioner having produced and acknowledged his deed in open Court and having acknowledged the same before the Clerk of Floyd County Court and said deed being examined appeared (?) and so endorsed is ordered to be certified to the Clerk of the Floyd County Court for record. John G. Johns, to whom the claim of the Plaintiff was transferred conse…(?) open Court to this judgment and the part—(part of word missing) are here _desnified. Deed, David Morgan to Thos. P. Johns, 1 November 1852 This Indenture made and entered into this
first day of November one thousand eight hundred and fifty two by and between
David Morgan and Eleanor Morgan his wife, Joseph A. Gearhart and Susan Gearhart
his wife, Thomas G. Morgan, Rebecca Morgan, Lewis P. Mayo and Anne Mayo his
wife, and Lewis P. Mayo as trustee for Eleanor Morgan and her infant children,
Eleanor Morgan the younger, David Morgan the younger, William Morgan, Dorothy T.
Morgan, James K. P. Morgan, John Graham Morgan & Temperance Morgan all of
the county of Floyd and state of Kentucky of the first part and Thomas P. Johns
of said county and state of the second part, Witnesseth: That the said
parties of the first part for and in consideration of the sum of three thousand
five hundred dollars to them in hand paid or secured to be paid at and before
the ensealing and delivery of these presents the receipt whereof is hereby
acknowledged have granted bargained and sold and by these presents do grant
bargain sell and convey alien and confirm with the said Thomas P. Johns his
heirs and assigns forever the farm and premises upon which the said David Morgan
and family now reside in said County and state upon the waters of Big Sandy
river and Bull Creek supposed to contain 900 acres be the same more or less and
consisting of several different tracts or surveys. The first of said
tracts is supposed to contain 150 acres and is the same conveyed by John Graham
to David Morgan in the year 1827 or thereabouts and reference is had to said
deed of record in the Floyd County Court Clerks office for the courses and
distances and boundaries thereof. The second of said tracts contained one
hundred acres and was patented to said David Morgan on the nineteenth day of
April 1836 the beginning corner of which is on a sweet gum a corner of John
Preston's 2000 acre survey below the forks of the upper Wiley branch for the
boundaries of which said 100 acres reference is had to said patent. The
third acre of said tracts containing fifty acres was patented to said David
Morgan on the 9th day of March 1829 the beginning corner of which is on three
birches standing on the bank of the river at the lower end of Morgan's bottom a
corner of John Preston's 2000 acre survey for the boundaries of which said 50
acres reference is had to the said patent. The fourth one of said tracts
containing fifty acres was patented to said David Morgan on the 31st July 1834
the beginning corner of which is a beech on Bull Creek dividing line between
John Franklin and said Morgan and for the course and distances of which
reference is had to said patent. The fifth one of said tracts contains 50
acres and was patented to Susan Morgan, Ann Morgan, Thomas Morgan, Rebecca
Morgan, Eleanor Morgan and David Morgan Jr. on the 6th day of June 1838 the
beginning corner of which is on a large lynn (?) on the south side of the
nowhere branch corner of a survey made in the name of David Morgan and for the
courses and distances of which reference is had to said patent. The sixth
and last one of said tracts contains three hundred acres and was patented to
Susan Morgan, Ann Morgan, Thomas Morgan, Rebecca Morgan, Eleanor Morgan and
David Morgan Jr. on the 6th day of June 1838 the beginning corner of which is
four hickories and a white oak on the point of a ridge in sight of said Morgan's
house and for the courses and distances of which reference is had to said
patent. To have and to hold the said several tracts or parcels of land to
the said Thomas P. Johns his heirs and assigns forever against us and our heirs
against David Morgan and his heirs and against Eleanor Morgan the younger, David
Morgan the younger, William Morgan, Dorothy T. Morgan, James K. P. Morgan, John
Graham Morgan and Temperance Morgan and all persons claiming by through or under
us or them that against no other person title or claim whatsoever. |