Burnham v. Codner

6 Rec. Co. Ch. (S.C.) 231

• Court: Court of Chancery of South Carolina
• Decided: September 15, 1717
• Status: Published

Opinion

To the Honourable Robert Johnson Esq. Governor etc. and to the rest of the True and Absolute Lords and Proprietors Deputies now Sitting in Chancery.

Humbly Complaining Sheweth unto your Honours Your Orator Charles Burnham of Berkley County in the Province of South Carolina Planter That Robert Daniel Esq. being Seized in Fee of and in a certain plantation or Tract of Land containing one Hundred and Eighty Acres Scituate lying and being on the Island comonly called St. Thomases Island in Berkley County aforesaid Your Orator Sometime about the Fourth Day of February in the Year of our Lord one Thousand Seven Hundred and Fourteen Agreed with the Said Robert Daniel for the purchase of the said premisses for Two Hundred and Fifty pounds And for Securing the payment Thereof Your Orator in and by Two Several Bonds or Obligations under his Hand and Seal bearing date respectively the said Fourth Day of February in the Year aforesaid became held and firmly bound unto the said Robert Daniel in the Several Sumes of Two Hundred and Fifty pounds each with Conditions thereunder written for the payment of one Hundred and Twenty Five pounds each unto the said Robert Daniel his Executors Administrators or Assignes on or before the first Day of March then next ensueing the date of the said Bonds respectively and which, said Bonds have been Since Accordingly paid off and discharged by your orator as in and by the Said Bonds now remaining in Your Orators Custody and delivered up and Cancelled relation thereunto being had may more fully and at large Appear And your Orator further Sheweth unto your Hon-ours That there being Some Misunderstandings between him and his Wife Mary Burnham ⁶⁶ great part whereof were occasioned by Richard Codner And your Orator having had then Two Natural Children by One Elizabeth Steward Your Orator was Minded that the Said Richard Codner Should take a Conveyance from the said Robert Daniel in his the said Codners own name and Settle the same upon his said Children by the said Elizabeth Steward And Accordingly the Said Robert Daniel at his your Orators request Somtime about the Month of February in the Year of our Lord one Thousand Seven Hundred and Fourteen by Some good and Sufficient Conveyance and Assurance in the Law did Grant and Convey unto the said Richard Codner his Heirs and Assignes All that the Tract of One Hundred and Eighty Acres of Land aforesaid But now So it is may it please Your Honours That your Orator having alte’d his resolutions Some time about the Month of October One Thousand Seven Hundred and Sixteen Your Orator Acquainted the said Codner therewith and Applyed himselfe to the Said Richard Codner to deliver unto your Orator the writings relating to the said Tract of one Hundred and Eighty Acres of Land But the said Richard Codner put your Orator of with Some Trifling Excuse for that time and told him he Should have ’em But your Orator afterwards vizt about the Month of June or beginning of July last being bound off this Country for New England earnestly pressed the said Codner to deliver up the Said Writeings the said Codner peremptorily refused the same Alleadging he expected your Orator would Settle the said Tract of One Hundred and Eighty Acres of Land on his said Children by the said Elizabeth Steward To which your Orator reply ed his mind was Altered And that Your Orator Should Act therein as your Orator Should See fitt but the said Codner Still refuses to deliver unto your Orator the said Writings and has Since contrary to your Orators Orders gon and made Som Conveyances thereof in Trust for Said Children unto one Singletarry who Intermarryed with a Sister of the said Elizabeth Steward as your Orator is Advised All which Act-ings and doeings of the said Richard Codner are contrary to all Equity and Good Conscience inasmuch as the Said Richard Codner well knows that the Said Tract was purchased by and with Your Orators own proper Monyes and his the said Codners Name only Made Use of in Trust for your orator And that all Such Deeds and Conveyances or Settlements on Illegitimate Children of any Lands or Tenements Goods or Chattells exceeding the Value of One Hundred pounds are by an Act of Assembly of this Province Entituled An Act Against Bastardy declared to be Null and void to all intents and purposes whatsoever In tender Consideration whereof and forasmuch as matters of Trust and of this Nature are properly releivable and to be discovered before your Honours in this Honourable Court. To the End therefore that the said Richard Codner may upon his Corporal Oath to be taken on the holy Evangelists Sett forth and discover the truth of all and Singular the premisses as if the Same were herein over particularly repeated and Interrogated and more particularly whether Your Orator did not Agree with the said Robert Daniel for the purchase of the said Tract of One Hundred and Eighty Acres of Land and whether the said Tract was not purchased by your Orator of the said Robert Daniel by and with your Orators own proper Monyes And whether the Same Tract was not Accordingly Conveyed by the said Governor Daniel to the said Richard Codner and on what Account or for what Intent and whether Your Orator did not apply himselfe to the said Richard Codner to deliver up the said Title Deeds relating to the Same Tract and how long agoe Since he first Applyed himselfe to the said Richard Codner and told him he had altered his resolutions and would not Settle the said Tract on his Said Illegitimate Children and when and how often hath the said Charles Burnham Applyed himselfe to the said Richard Codner to deliver up said writings by Letter Messages or Words of Mouth And how long agoe is it Since the said Charles Burnham last applyed himselfe to the said Richard Codner for that purpose And whether the said Richard Codner had made any Settlement or Conveyance of the said Tract to Mr. [blank] Singleterry or to whom else in trust for the Said Children when do Such Deed or Deeds bear date and on what Day of the Month and Year were Such Deed or Deeds of Settlement bona fide Executed by the said Richard Codner and Sealed and delivered as his Act and Deed was it not after the said Charles Burnham had demanded the said purchase Deeds and Conveyance from the Said Richard Codner to be delivered up And that the Said Richard Codner and other the Confederates when discovered may be compelled to deliver up unto your Orator or his Attorny all the title Grants or deeds relating to the said Tract of One Hundred and Eighty acres of Land and Grant and Convey the same unto your 0-[torn] And that all Such Settlements to Uses of the [torn] Children may be declared and Deemed to [torn] all and Singular the premisses According [torn] please your Honours to Grant unto [torn] directed to the said Richard Codner and other the Conf-[torn] thereby requiring and Comanding them at a certain Day and [torn] therein to be limited personally to be and Appear before your [torn] Court then and there true and perfect plain and distinct Answer to Make to All and Singular the premisses As also the writt of Duces Tecum requiring the said Richard Codner and other the Confederates when discovered to bring in and Deposite in this Hon-ourable Court all the Original Grants and Title Deeds of the said Tract of One Hundred and Eighty Acres of Land And further to Stand to And Abide Such Order and Decree As to your Honours Shall Seem fitt.

And your Orator will ever pray etc.

Rich: Allein

[Endorsed:] 1 ith December 1717 Read Dismist with Costs.

The Answer of Richard Codner Gentleman to the Bill of Complaint of Charles Burnham Gentleman Complainant

The said Defendant saveing and reserveing to himselfe now and all times hereafter all and all manner of Advantage and benefitt of Exception to the Manifold Incertainties insufficiences and Imperfections in the Complainants Bill of Complaint sett forth for Answer thereunto or to such Parts thereof as materially concerns this Defendant to answer unto He answereth and saith that true it is that Robert Daniel Esq. in the. Bill named was seized in Fee of and in a certaine Plantation containing One hundred and seaventy two Acres of Land Scituate lyeing and being on the Island commonly called St. Thomas’s Island in Berkley County aforesaid as in the said Bill is sett forth But this Defendant says that He is ignorant what time the said Charles Burnham the Complainnant might treat about or agree with the said Robert Daniel for the said Plantation in the Bill named But this Defendant saith that the said Robert Daniel did not Convey the said Plantation unto him this Defendant till the twenty eighth day of March Anno Domini One Thousand seaven hundred and Fifteen and this Defendant further Answering saith that He beleives that true it is that the said Charles Burnham might enter into such Bonds beareing such Tenor and date and conditioned for payment of such Sumes [torn]-d Complainants Bill of Complaint is sett forth and [torn] Bonds may be since Can-celled as the Complainant aledges But this Defendant denyes that ever he fomented or occasioned any Difference or Misunderstanding between the said Charles Burnham and the said Mary his Wife as in the said Bill of Complaint is most untruely alledged and sett forth But sayes he was a Considerable Instrument in Composeing their Quarrells and tho it lay in the Power of this Defendant and Sabina his Wife to have made the said Charles Burnham Ten-nant for Life of the Plantation whereon he now lives It being the Intention of Doc-[torn] Charles Burnham deceased the said Complainnants’ Father who then was Possessed of the said Plantation to Debarr the heires of the said Complainant begotten on the Body of the said Mary his now Wife He haveing marryed the said Mary against his Fathers Consent till he was disswaded from it by the said Defendant and his said Wife Sabina And [torn] saith That some shorte time before the Execution of the Conveyance in the Bill named The [torn] Charles Burnam Applyed himselfe to this Defendant and told him that whereas he had two Naturall Children by the said Elizabeth Steward in the Bill named and that whereas he had purchased the before mantioned Plantation of the said Robert Daniel and that he had a mind to Settle the same on his said naturall Children He .advised with this Defendant after what Manner he had best doe it asking this Defendant whether it was not proper to make an absolute Conveyance thereof in Fee Symple to the said Elizabeth Steward But this Defendant at the same time advised him to the contrary telling him that when She the said Elizabeth was Possessed of the said Plantation She might possibly marry and his Children might never reap the Benefitt from the said Estate of which advice the said Complainant very well approved and after mature Deliberation earnestly Intreated the Defendant to accept an absolute Conveyance of the said Plantation and Premisses From the said Robert Daniel Saying he was the [torn] in whome he could best Confide Which this Defendant after Some pause being willing to do the said Complainant Service accordingly did accept in such manner and Forme as in the said Bill is Sett forth And this Defendant humbly beg leave to observe to your Honours that the said Elizabeth Steward at the time of the Execution of the before mentioned Conveyance was [torn] of another Boy begotten by the said Complainant and was accordingly delivered on or about the Month of March in the Yeare of our Lord one Thousand seaven hundred and Fifteen All which said Naturall Children are now alive and this Defendant further answering saith that he doth not remember that the Complainant made such demand as is in the Bill sett forth on or about the Month of October Anno Domini One thousand seaven hundred and Sixteen But remembers that about the Fall in the said Yeare one [torn] hundred [torn] said Charles Burnham being adjusting some accounts with the said Elizabeth Steward in this Defendants presence This Defendant asked when he would in a more Effectuall Manner secure the said Plantation to the aforesaid Naturall Children And the said Elizabeth Steward at the same time declared She beleived that the said Plantation was never designed for her said Children Upon which Discourses the said Complainant did with solemn Vows and Protestations Averr that he had always designed it for the Children aforesaid and that he would not concerne himselfe with it But that he would leave it entirely to this Defendant and that he might make such Conveyances and Assurances to the said Natural Children as he should think most fitt and convenient And this Defendant Says that in the [year] One Thousand seaven hundred and Fifteen at the latter end of the Summer The [torn] (It being in the Heat [torn] varr) to [torn] Rhoad Island and Purchase there a Tract of Land for the said Children And then sell the Plantation which he had purchased of the said Robert Daniel and this Defendant Answered that in Case he would goe to Rhoad Island and purchase there a Tract of Land and give him sufficient security that he had made a valid Tytle of the said Lands soe to be purchased as aforesaid to the said Children Then this Defendant would deliver him the aforementioned Conveyance of the Plantation aforesaid But this Defendant doth not remember any material Answer That the Complainant made and this Defendant further answering Saith that he doth not remember that ever the said Complainant made a positive Demand [torn] the said Conveyance untill the Month of July last past when this Defendant happened to aske the said Complainant (He the said Complainant then designe-ing shortely to depart from this Province as he accordingly did very soon after And this Defendant being at the same time very Sick and weake) for the Sume of two hundred and Fifty pounds being then due to this Defendant from the Complainant as part of his Wife’s Portion with which Demand the said Complainant said he would Comply And then departed from this Defendants House some short space with a very angry Countenance (as this Defendant perceived) and Immediately returned in a violent passion required the aforesaid [torn] To which this Defendant Answered that he would not be a Toole or Stop ga-[torn] Man He this Defendant being taken dangerously ill about the beginning of July [torn] and something dispareing of his Life and being desirous to settle his Worldly affaires perticularly the Matters in Question He sent to one Mr. Rowland now deceased to Ingrose a Deed of Trust from this Defendant to the said Children and accordingly Executed the Same the nineteenth day of July last past as this Defendant beleiveth and as in and by the said Declaration of Trust when produced to this Honourable Court more fully and at large shall Appeare And this Defendant says that he was not induced to Execute the aforesaid [line or more missing] Complainant But by reason of his dangerous Illness and pursuant to the former Orders and instructions of the Complainant And this Defendant humbly insists that the said Naturall Children are not debarred from all or any parte of the herein before mentioned Plantation and Premisses for that the Same was Sold for no more than Two hundred and Fifty pounds And there being three Children when there is a Dividend made the same will not amount to the value of One hundred pounds apeice Without that any other matter or thing in the Complainants said Bill of Complaint contained materiall or effectuall [torn] for this Defendant to make Answer unto and not herein and hereby sufficiently and [torn] unto confessed or avoided traversed or denyed is true. All which [torn] maintain and prove as [torn] and prays to be hence dismist [torn] most wrongfully had and sustained.

Whitaker Pro defendant.

Sworn to before me this 27th day of September 1717

Char: Hart magister Cancell.

66 Mary Burnham (1687-1766), daughter of Nicholas Morecock and his wife Mary Burnham of Boston, was evidently a cousin of her husband, Charles Burnham; after his death in 1729, she married Joseph,Townsend; and after his death in 1736, William Frost (SCHGM, XVI, 35, note).