Fuller v. Dean

6 Rec. Co. Ch. (S.C.) 144

• Court: Court of Chancery of South Carolina
• Decided: September 5, 1716
• Status: Published

Opinion

To the Honourable Robert Daniel⁴⁷ Esq. Deputy Governor and To the rest of the true and absolute Lords and proprietors Deputyes now Sitting in Chancery.

Humbly complaining sheweth unto Your Honours Your Orator William Fuller of Berkley County in the Province of South Carolina Planter That Arthur Laugharne late of the province aforesaid merchant deceased was in his life time and at the time of his Death seized in Fee simple of and in a certain Plantation or Tract of Five hundred and Ten acres of Land scituate lyeing and being in Berkley County aforesaid and Butting and Bounding to the southward on the Lands now or late of Isaac Bodict To the Eastward on Wappetaw Creek To the Westward on Lands now or late of John Miles and to the Northward on the Lands now or late of Samuel Jones and Thomas Rose with the appurtenances And your orator further sheweth unto your honours That by Indenture bearing date the seventh Day of March in the year of our Lord one Thousand Seven hundred and Twelve and made between the said Arthur Laugharne of the one part and Francis Holmes of Charles Town in the County and Province aforesaid Merchant of the other part Reciting That whereas the said Arthur Laugharne by his certain Bond or obligation bearing even date with the said recited Indenture became bound unto the said Francis Holmes in the penal Sume of Six Hundred and Sixty pounds current mony Conditioned for the payment of the Sume of Three Hundred and Thirty pounds like current mony on the seventh Day of March which should be in the Year of our Lord one Thousand Seven Hundred and Thirteen It is Witnessed That for the better secureing the payment of the said Sume of Three Hundred and Thirty pounds according To the Condition of the said recited obligation and for and in consideration of the Sume of Five shillings current mony To the said Arthur Laugharne by the said Francis Holmes at or before the sealing and delivery of the said recited Indenture well and truely paid he the said Arthur Laugharne Did Grant Demise Lease and To Farme Lett unto the said Francis Holmes his Heirs Executors Administrators and assignes all That the said Plantation or Tract of Five Hundred and Ten acres of Land Scituate lyeing and being in Berkley County aforesaid and Butting and Bounding as herein before is expressed Together with all the Houses Outhouses Messuages Tenements Buildings and appurtenances whatsoever To the same belonging or in any wise appertaining To hold The said Plantation and premisses herein before mentioned To be thereby Granted and every part and parcel thereof with the appurtenances unto the said Francis Holmes his Executors Administrators and Assignes from the day next before the date of the said recited Indenture for and dureing and unto the full End and Terme of one Thousand Years from thence next ensueing and fully To be Compleated and ended without Impeachment of or for any manner of Wast In which said recited Indenture there is a Provisoe contained That if the said Arthur Laugharne his Heirs Executors Administrators or Assignes did well and truely pay or cause To be paid unto the said Francis Holmes his Heirs Executors Administrators or As-signes the Sume of Three Hundred and Thirty Pounds current mony of Carolina aforesaid according To the true intent and meaning of the before recited Obligation or Condition That then and from thenceforth the said recited Indenture and the Terme and Estate thereby Granted should cease determine and be utterly void or else the same should stand and remain in full force and virtue as in and by the said Indenture of Mortgage and Bond and Condition herein before recited now in your Orators Custody ready to be produced to this Honourable Court may More fully and at large Appear And your Orator further Sheweth unto your Honours That the said Arthur Laugharne in or about the Month of August One Thousand Seven Hundred and Fourteen departed this life without having paid the said Sume of Three Hundred and Thirty Pounds or the Interest Thereon According to the True intent and meaning of the aforesaid Provisoe and the Condition of the said Bond herein before recited whereby the Estate and Interest of the said Francis Holmes in the said premisses became absolute And your Orator further Sheweth That the said Francis Holmes being very uneasy for want of his mony sometime on or about the month of February last at a Court of Common Pleas Then held before Nicholas Trott Esq. Cheif Justice brought his Ejectment for Recovery of the premisses and obtained a Judgement against the Casual Ejector for Recovery of the Same as in and by the said Judgement remaining of Record in the said Court of Common Pleas relation thereunto being had may likewise more fully and at large appear And your orator further sheweth unto Your Honours That the said Francis Holmes by his Deed Poll Indorsed on the said recited Indenture of Mortgage bearing date the Fifth Day of May Anno Dom-ini one Thousand Seven Hundred and Sixteen for and in consideration of the Sume of Three Hundred and Seventy one pounds to him in hand paid by your Orator at or before the sealing and delivery Thereof being so much then due from the said Arthur Laugharne or his Executors To the said Francis Holmes for principal and Interest on the said recited Indenture of Mortgage Did Bargain Sell Assign and sett over unto your Orator his Executors administrators and assignes all that the said Plantation or Tract of Five Hundred and Ten acres in the said recited Indenture of Mortgage mentioned with the Appurtenances And also all the Estate Right Title and Interest of him the said Francis Holmes of in and to the Same Together with the Said recited Indenture of Mortgage as also the said Bond of Three hundred and Thirty pounds for securing whereof the said Mortgage was given as aforesaid To hold the said Plantation . . . And your Orator hath accordingly entred on the said premisses and Taken possession thereof as he lawfully might by Virtue of the aforesaid Assignment And your Orator Further Sheweth unto your Honours That the said Arthur Laugharne departed this Life on or about the Month of August one Thousand Seven Hundred and Fourtéen leaving Rebecca Laugharne — an Infant of about the age of Four Years his only Daughter and heir and was in his life time and at the time of his death seized and possessed of a considerable Real and personal Estate and before his Death duely made and Published his last will and Testament in Writeing in the presence of Three Credible Witnesses and Constituted and Appointed Rebecca Laugharne his late Wife and Samuel Dean of Charles Town aforesaid Merchant Executors of his said last Will and the said Samuel Dean hath taken upon himselfe the Sole Burthen and Execution of the same the said Rebecca Laughharne The Widow being gon for England But Now so it is may it please Your Honours That the said Samuel Dean being Applyed To to pay off the said Mortgage doth alleadge That the said Arthur Laugharne died Considerably in Debt and that he hath not received Effects of the Said Arthur Laugharne deceased Sufficient to Satisfye and pay the Debts due from the said Arthur Laugharne and that besides there are now brought and depending in the Court of Common Pleas several Actions on Bonds To the Value of Fifteen Hundred Pounds against him the Said Samuel Dean as Executor To the said Arthur Laugharne which he cannot satisfy for want of Assetts and that your Orator must stay for his mony till the said Rebecca the Daughter and heir of the said Arthur Laugharne who is now about Four or Five years old shall Attain her age of 21 Years— And your Orator in the mean time tho in Possession of the premisses is noe better than a Bailliff or Receiver and your orator be Oblidged to account for the rents and Profits to the Minor when she attains her said age of Twenty one And your Orator further sheweth unto your Honours That seeing The said Samuel Dean Hath declared that he hath not assetts of the said Testators To pay off the said mortgage and hath absolutely refused To pay off the same Your orator hath made a very fair proposal unto the said Samuel Dean To witt That inasmuch the said mortgaged premisses are worth Considerably more than the said Sume of Three Hundred and Seventy one pounds due and oweing To your Orator To witt the Sume of Eight or Nine Hundred Pounds or Thereabouts Your orator Hath offered To pay unto the said Samuel Dean the Sume 'of one Thousand pounds in case he will make your Orator an absolute Title To the said mortgaged premisses which is One Hundred pounds at least more than the same are worth and more than any body else would give for the same and that he the said Samuel Dean will be thereby enabled to pay off and Discharge Several of the Bond Debts due and oweing by the said Arthur Laugharne deceased which said Bond Debts the said Rebecca the Heir of the said Arthur is and will be oblidged and Compelled to pay off and discharge when she Attains her age of Twenty one in case she has assetts by descent from her said Father and that in soe doeing the Heir of the said Arthur would receive a Considerable benefit for that the Sume of Six Hundred pounds or Thereabouts now proposed To be advanced by Your Orator being Applyed Towards the discharge of those bonds the Heir of the Said Arthur will be disunburthened from paying the accrewing Interest for the same which otherwise before She Attains her said Age of Twenty one will amount to the sume of Twelve Hundred pounds with which said Fair offer and proposal the said Samuel Dean would seem willing to comply but alledgeth that being only an Executor and the Heir of the said Arthur an Infant— He nor the said Minor cannot make and Execute unto your Orator any good and Sufficient Conveyance of the said Mortgaged premisses In Tender consideration whereof and for that your Orator is Remediless by the Strict Rules of the Common Law nor can your orator dispose of the Said premisses soe long as the Same are Subject to an Equity of Redemption and forasmuch as the said Samuel Dean hath not nor is there any probability of his having any Assetts to pay your Orator his said Mortgage money and Interest May it please Your Honours That on payment of the Sume of Six Hundred and Twenty Nine pounds which Including the Sume of Three Hundred and Seaventy One pounds due to your Orator on his said Mortgage make together the Sume of One Thousand Pounds and which is one Hundred pounds More than any Body else would give for the absolute purchase of the said Mortgaged premisses The said Rebecca Laugharne the Daughter and Heir of the said Arthur Laugharne and all other the Heirs Executors and Administrators of the said Arthur and all and every other person and persons claiming or to claim by and from or under him them or any of them may Stand and be Absolutely Foreclosed of all Equity of Redemption or Claim in and to the said Mortgaged premisses and to Release their claim benefit and Equity of Redemption in and to the Same unto Your orator . . . And that the said Samuel Dean may be compelled to deliver up unto your orator all Deeds Evidences and Writeings Touching or concerning the said premisses and your orator Releived according to Equity and Good Conscience May it please Your Hon-ours to Grant unto your Orator the writt Subpoena to be directed to the said Samuel Dean requireing him at a certain Day and under a certain pain therein to be limitted personally to be and Appear before Your Honours in this Hon-ourable Court [torn] and perfect answer on his Corporal Oath to be taken on the holy Evangelists to make to all and Singular the premisses as if the Same were herein over again particularly repeated and Interrogated and that your Honours will please to appoint the said Samuel Dean Guardian to the said Rebecca Laugharne the Minor in Order to make the said Minor a party in Court to Appear by her said Guardian to answer the premisses And further to Stand To and abide such Order and Decree as to your Honours shall Seem most Meet.

[Filed the fifth of September 1716/]

And your Orator will ever pray etca.

Allein

The Answer of Rebecca Laugharne a minor only Daughter and Heir at Law of Arthur Laugharne late of Charles Town in the province of South Carolina Merchant deceased by Samuel Dean Merchant her Guardian And also the Answer of the said Samuel Dean as one of the Executors of the said Arthur Laugharne deceased Defendants To the Bill of Complaint of William Fuller of Berkley County in the Province aforesaid Complainant This Defendant as well on the behalf of himself as alsoe for and on the behalf and as Guardian to Rebecca Laugharne only Daughter and Heir of Arthur Laugharne late of Charles Town in the Province of South Carolina Merchant deceased Saving and reserving to himself all and all Manner of Advantage and benefitt of Exceptions which may be had or taken to the Complainants said Bill of Complaint For answer thereto or To So much thereof as this Defendant is Advised Materially concernes this Defendant to Answer unto this Defendant as well on the behalf of himself as of the said Minor Rebecca Laugharne Answereth and Saith That True it is The said Arthur Laugharne deceased was in his lifetime and at the time of his Death Seized in fee Simple of and in the plantation or Tract of Five hundred and Ten Acres of Land in the said Complainants Bill mentioned And that the Said Arthur Laugharne as this Defendant is informed and beleives entred into such Bond unto the said Francis Holmes bearing date the Seventh of March one Thousand Seven Hundred and Twelve of the penalty of Six Hundred and Sixty Pounds with Condition thereunder written for the payment of Three hundred and Thirty Pounds within one Year then next ensueing as by the Bill is Sett forth And that by Indenture bearing date the Seventh day of March One Thousand Seven Hundred and Twelve made between the said Arthur Laugharne of thé one part and Francis Holmes in the Bill named of the other part reciteing as therein is mentioned for better Securing the payment thereof According to the Condition of Said Bond He the said Arthur Laugharne Did Grant Demise Lease and to Farme Lett unto the Said Francis Holmes his Heirs Executors Administrators and Assignes All That the said Plantation or Tract of five Hundred and Ten acres of Land with the Appurtenances in the Bill mentioned To hold the said Plantation and premisses with the Appurtenances unto the said Francis Holmes his Executors Administrators and Assignes for the Terme of One Thousand Years without Impeachment of or for any manner of Wast under a Provisoe in the said Indenture contained That if the said Arthur Laugharne his Heirs Executors Administrators or Assignes did well and Truely pay or cause to be paid unto the said Francis Holmes his Executors Administrators or Assignes The Sume •of Three Hundred and Thirty Pounds current Mony of Carolina According to the Condition of said Bond That then and from thenceforth the Said Indenture and the Terme and Estate thereby Granted Should cease determine and be utterly Void or else the Same Should Stand and remain in full force as in and by the said Complainants said Bill of Complaint is Sett forth And this Defendant doth Admitt That the said Arthur Laugharne died about the Time in the Bill mentioned without haveing paid the Said Sume of Three hundred and Thirty pounds and Interest According to the Condition of the said Bond whereby the Estate and Interest of the said Francis Holmes in the premisses became Absolute And beleives that the Said Francis Holmes brought Such Ejectment for Recovery of the premisses in the Court of Common pleas of this province at the time in the Bill mentioned and Obtained a Judgment to recover possession of the premisses as by the Bill is Alleadged And this Defendant doth Acknowledge it to be true That the said Francis Holmes by his Deed poll Indorsed on the Said recited Indenture of Mortgage bearing date the fifth day of May One Thousand Seven Hundred and Sixteen for the Consideration of the Sume of Three Hundred and Seventy One Pounds To him in hand paid by the Complainant William Fuller being Soe much then due from the said Arthur Laugharne and his Executors to the said Francis Holmes for principal and Interest on the Said recited Indenture of Mortgage Did Bargain Sell Assign and Sett over unto the Complainant Fuller his Executors Administrators and Assignes All that the said plantation or Tract of Five Hundred and Ten acres of Land in the Said recited Indenture of Mortgage mentioned with the appurtenances And also all the Estate Right Title and Interest of him the said Francis Holmes of in and to the same together with the Said recited Indenture of Mortgage as also the Said Bond of Three Hundred and Thirty Pounds for Securing whereof the said Mortgage was given To hold unto the said Francis Holmes his Executors Administrators and Assignes for and dureing all the rest and residue of the said Terme of one Thousand Years Yet to come and unexpired as by the said Complainants said Bill of Complaint is Sett forth Ad-mitts also That the said Arthur Laugharne dyed about the time in the Bill Seized and possessed of a Considerable Real and personal Estate leaving the said Rebecca Laugharne his Daughter and Heir a Minor of about the Age of Four or Five Years and before his Death duely made and published his last Will and Testament and thereof Constituted and Appointed this Defendant and the said Rebecca his Wife Executors and that the said Rebecca the Mother and Rebecca the Daughter are both gon for England And that this Defendant by the Consent of the said Rebecca the Mother hath taken upon himselfe the Sole Burthen and Excution of the Said Will But Sayes That true it is That the Said Arthur Laugharne as this Defendant beleives did not leave Sufficient As-setts to pay off his bond Debts including his real Estate And that Such Actions have been commenced against this Defendant as by the Complainants Bill is Alleadged And That this Defendant hath not Assetts Sufficient to Satisfy the Same or to pay off the said Mortgage Admitts That the Said Fuller hath Made a fair proposal to this Defendant in offering the Sume of one Thousand Pounds including the said Three Hundred and Seventy one Pounds due to him on his said Mortgage and beleives that said Fuller has Offered the full value of the said mortgaged premisses and beleives the Same will be a Benefitt to the Minor Rebecca Laugharne for the reasons in the Bill settforth and therefore hopes this Honourable Court will agree thereto and so order and Decree That on payment of the Said Sume of Six hundred and twenty nine pounds by the said Complainant to this Defendant to Enable this Defendant to pay off and discharge Several Bond Debts due and oweing by the said Arthur Laugharne at the time of his Decease The said Minor and all other the Heirs Executors and Administrators of the said Arthur and all and every other person and Persons claiming or to claim by from or under him them or any of them may Stand and be Absolutely foreclosed of all Equity of Redemption or Claim in and to the said Mortgaged premisses for and dureing all the rest and Residue and Remainder of the said Terme of one Thousand Years in the said recited Indenture of Mortgage mentioned Yett to come and unexpired according to the prayer of the Complainants said Bill of Complaint Without That that any other matter or Thing in the Complainants said Bill of Complaint contained material or Effectual in the Law for this Defendant to make answer unto And not herein and hereby well and Sufficiently Answered unto Confessed or Avoided Traversed or denyed is true all which matters and Things this Defendant is ready to aver Justify Maintain and prove As this Honourable Court Shall award And therefore humbly prayes to be hence dismist with his reasonable Costs and Charges in this behalfe had and Sustained.

Geo Rodd pro Defendants

Sworne the fifth day of September 1716 coram me Char: Hart Magisr Can-cell.

47 Col. Robert Daniel (1646-1718), soldier and sea captain, “a brave man who had long served King William in his Wars both by Land and Sea;” came from Barbados to Carolina, where in 1677 he had a warrant for 500 acres. He served in Commons and on the Council, and helped to revise and brought to Carolina the fundamental constitutions of 1698. Deputy governor of North Carolina 1706, of South Carolina 1715, he served as governor 1716-1717, after Craven’s departure. His patent as landgrave 1698, entitled him to 48,000 acres, and he sold his Winyah Barony in 1711 to Landgrave Thomas Smith. He died on his plantation Daniel’s Island, in sight of Charleston. (SCHGM, XIII, 3-5; XXXI, 88; Commissions and Instructions 1685 — iji5, p. 260.)