Kineard v. Beard

6 Rec. Co. Ch. (S.C.) 120

• Court: Court of Chancery of South Carolina
• Decided: October 12, 1715
• Status: Published

Opinion

To the Right Honourable Charles Craven Esq. 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 John Kineiard of the Parish of Goose Creek in Berkley County planter That James Beard late of Goose Creek aforesaid deceased on or about the Month of December or January one thousand Seaven hundred and fourteen Devised Granted and to farme Lett unto your Orator all that his the said James Beards lower plantation containing about one Thousand Acres more or less — scituate in Goose Creek Parish aforesaid and butting and bounding to the East on Lands called Thorowgoods plantation now belonging to one Mr. Hawett in Jamaica West on Lands of Mr. Fisherow South on Lands of Mr. Gibbs and North on Lands of Mr. Kenlaugh together with the Dwelling house and all other the Messuages Outhouses Buildings Barns Stables Orchards Gardens and Appointments whatsoever to the said [torn] or in any wise appertaining together also with Eleven Negroes and one Indian slave (vizt) Jack. Jacko. Quaminash. Boson. Tony. Prince. Cudjo. Pussaugh. Moll. Doll. Hannah and Guy an Indian Twelve working Oxen and a Cart and plow Irons Four Cows two sows and ten shotes To hold Unto your Orator his Executors Administrators and Assigns from the last Day of February then next comeing for and during and unto the full and whole end and terme of two whole Years from thence next ensueing and fully to be compleat and ended at and under the Yearly Rent of one hundred and Thirty pounds current mony of this province aforesaid The first payment to be made on the last Day of February then next come Twelve Months and the last payment to be made on the last day of February then next following and your orator then likewise covenanted with the said James Beard to find and allow one weeks work with the Negroes so demised unto your Orator towards making of Bricks for the Building a Meeting House at or near Goose Creek aforesaid of which agreement minits were then taken by Mr. James Lawson in order to be reduced into writeing more fully and in forme as soon as conveniently might be with proper Covenants to be inserted as usual between Landlord and Tenant and possession of the said Negroes and Indian Slave as also of the said Oxen and other the premisses was then given unto your orator And your orator was then desired by this said James Beard to take the same into his Custody and possession which your orator did accordingly And the said James Lawson then undertook to draw Leases of the said plantation and premisses from the said James Beard unto your orator pursuant to the said Minits then reduced into Writing Tho not signed by your orator or the said Beard because the said James Lawson promised to gett the said Leases ready to be Executed by the said James Beard and your orator in a very short space of time after And your Orator further sheweth unto your honours That on or about the said Month of December or January your orator by virtue of the said parole Lease then intended to be reduced in writing as aforesaid entred upon and took possession of the said Plantation Negroes Oxen and premisses and continued to use and employ the said Negroes in Fencing Howing and planting of Come Rice pease and other Grains in and upon the said premisses and such other buissness as he had accasion to be done without any Lett hindrance or Molestation by the said James Beard or any other person whatsoever untill about a month before the filing of this your orators Bill And your Orator further shews unto your honours That the Indian warr breaking out in this province in some few Months after your Orator took possession of the said premisses The said James Beard was unfortunately killd in Barkers fight before the said Lawson had prepared the said Leases or Writeings And the said James Lawson much about the same time as near as your orator can remember and has been Informed departed this Province without haveing sett up his Name in the Secretaryes Office So that your Orator had no timely notice of his Departure to gett the said Minits out of his hands and the said Lawson instead of preparing the said Leases and delivering the same to be Executed by the said Beard and your orator took the said Minits away with him To Virginia so that the said Leases were never Executed between the said James Beard and your orator And your Orator further Sheweth unto your Honours That the rent reserved to the said James Beard on the said demised premisses is more than two thirds of the full Improved value thereof For that the said plantation and premisses were sometime before your Orator entred thereon Demised by the said James Beard to one Samuel Rescue ³⁷ for One hundred and twenty pounds per Annum which is ten pounds less than what your Orator was to give for the same tho the said Rescue had Eight Yoke of working Oxen allowed him and your Orator but Six And the said Rescue not apprehending the same to be any extraordinary bargain seemed willing to quitt the premisses And your Orator for the said Rescue’s good will agreed That said Rescue should make a Tarr kiln Eight foot high and Thirty foot wide for him the said R-[torn] And to Assist him with three or four hands to bank it and run it off Whereupon [torn] the consent and leave of the said James Beard relinquished his Interest in the pre-[torn] the said Beard came to such Agreement with your Orator as herein before is Sett forth And [torn] hath quietly held and enjoyed the said premisses ever since untill about a few Weeks past But now may it please your Honours That Mathew Beard brother of the said James Beard deceased finding Your Orator has made a good Cropp on the premisses now pretends as heir at law to his said Brother to enter upon the said plantation Soe demised to your Orator and dayly threatens that he will come and take away the said negroes And that he will himself cut down take and carry away the Crop now growing upon the demised premisses and dispose thereof as he thinks fitt to the utter ruin and undoeing of your Orator For that said Mathew Beard now pretends he knowes nothing of the agreement or parole Lease made to your Orator by the Said Brother or how your Orator came into the possesion of the premisses Tho Your Orator expressly Chargeth That the said Mathew Beard as alsoe One Franciscus a Portuguese his Brother in Law were present when the said Minitts of the said Agreement were read over by the said Lawson to the said James Beard and your Orator and the said Lawson then saying, he would draw the same more fully and put them into forme The said Mathew Beard himself replyed That the Minits were sufficient to bind any honest men but the said Lawson insisting the same Minitts were not soe fully expres’t as they ought to be took the same away with him in order to prepare leases as aforesaid And the said Mathew Beard taking Advantage of his Brothers death and of the said Lawson’s going away to Virginia and of the Minits not being signed by his said Brother —now sayes truely he has forgot the whole matter and can’t remember anything about it And therefore he will not Suffer your Orator to hold and enjoy the said premisses any longer tho Your Orator is advised and humbly Insists That admitting the Said Agreement or Lease had never been executed Yet the same is a Parole Lease and according to the Statute of Frauds and perjuries is a good and valid Lease in the Law to all Intents and purposes whatsoever And Your Orator further Sheweth That Several Negroes belonging to the said Mathew Beard have come upon the plantation Soe demised to your Orator and turned their Masters’ horses’ into Your Orators Corne and done Your Orator a great deal of damage And when Your Orator Saw the Said Negroes he complain’d to ’em thereof But the said Negroes reply’d what need he, your Orator trouble his head about it if their Masters Horses eat their Masters’ Corne For that the Corne was their Masters and not your Orators whereupon your Orator threatened to break their heads And they replyed If he Your Orator attempted any such thing they would break your Orators head again and gave your Orator other bold and threatening language And your Orator has good ground and reason to believe That the said Negroes would not have trespassd’ upon and insulted your Orator after that manner unless they had been Sett on soe to doe by the said Mathew Beard to give Your Orator all the Uneasiness he can and disturb him in the possession of the premisses All which actings and doeings of the said Mathew Beard are contrary to all Equity and good conscience And for as much as matters of this’ nature are properly re-leivable in a Court of Equity before your Honours Your Orators Witnesses to witt the said Lawson and others being either gon off the Country killd in the Indian Warrs or gon into the Army and Soe dispers’d that your Orator cannot have the benefit of their Testimony at any Tryal to be had at Common Law Therefore That the said Mathew Beard may upon his Corporal Oath to be taken upon the holy Evangelists Sett forth and discover the Truth of all and singular the premisses as if the same were herein over again repeated and Interrogated and more particularly That he may Sett forth and declare whether the said James Beard did not demise unto your Orator on or about the month of December or January One thousand Seven hundred and fourteen or when else as he knows of has heard been inform’d or believes All that his Lower plantation in Goose Creek aforesaid containing about One thousand Acres together with the said Eleven Negroes one Indian Six yoke of Working Oxen four Cowes and ten Shotes for such time and under such Rent and payable at such dayes as herein before is Sett forth And were not Minits of such Agreement then or at what other time taken in writing by the said Lawson Did he never see the said Minits or did not he hear the same read by said Lawson and was he not present when the Said Lawson said he would draw the same more fully and did not he the said Mathew Beard then say the said Minits were full enough to bind honest [line missing] Mathew Beard upon that Ocasión And did not your Orator then or [torn] the said plantation and take possession of said Negroes and premisses and [torn] thereon And hath he not quietly held and enjoy’d the same ever since untill [torn] disturbed by the said Mathew Beard And did not the said Lawson carry away with [torn] as he has heard or believes the Minits of the said Agreement If not what is becom [torn] has the said Mathew Beard seen the said Minits since the said Lawson went [torn] if Soe in whose custody were such Minits when he last saw the same or who [torn] the custody of such Minits as he knows has heard or believes Is not the Rent [torn] paid by Your Orator for the said premisses the full value of the Improved Rent and [torn] the said plantation and premisses as he knows has heard or been informed lett [torn] James Beard to the said Samuel Rescue for one hundred and twenty pounds per [torn] what does the said Mathew Beard know or has heard of any consideration given by [torn] said Rescue for his good will of the said premisses And did not he the said Mathew [torn] sometime about the month of December or January when els [torn] to take his said Brother’s plantation And that his Brother should turne out [torn] Ro-[torn] was then in the possession thereof And did not your Orator then say he had a mind to [tom] Jamaica And did not the said Mathew Beard dissuade Your Orator therefrom saying Your Orator should have his brothers’ plantation and that his brother the said James Beard should turn off Rescue And did not your Orator reply he thought it to be very unjust to turne off said Rescue against his will But That your Orator if Rescue had a mind to relinquish it would give him sound consideration And was not such discourse between your Orator and the said Mathew Beard at Mr. Richard Cartwrights house up the broad path and was not Mr. Richard Cartwright precent at such discourse And has not he the said Mathew Beard frequently threatened your Orator to his face and to divers others and to whom that he will take the negroes soe demised to your Orator by his Brother the said James Beard And that he will Enter and cut down the Crop and dispose thereof as he thinks fitt And why does he take such unjust Measures when he knows That tho the said Lease be but a parole Lease yet the same is good and valid in the law for the terme Your Orator has therein were your Orators Witnesses at hand to prove the same To the End therefore That the said Mathew Beard may be decreed by Your Honours to Execute unto your Orator a good and sufficient lease of the premisses in Writing according to the Agreement herein before Sett forth made between your Orator and the said James Beard deceased to avoid all Cavils and disputes that may arise for the future during your Orators terme therein And That your Orator may peaceably hold and unjoy the said Plantation Negroes Oxen and premisses during the said space of two years for which time the same was soe lett to your Orator as aforesaid May It please your Honours to Grant unto Your Orator his Majesties writt of Injunction to quiett your Orator in the possion of all and singular the said premisses and also his Majesties writt of Subpoena to be directed to the said Mathew Beard and other the Confederates when discovered thereby requiring and commanding them at a certain day and under a certain paine therein to be limited personally to be and appear before your Honours in this honourable Court then and there true plain distinct and perfect answer to make to all and singular the premisses And further to stand to and abide such Order and Decree as to Your Honours shall seem meet. And Your Orator will ever Pray.

[In Chancery filed the 12th Day of October 1715] Rich: Allein for the Plaintiff

The Answer of Matthew Beard Defendant to the Bill of Complaint of John Kineaird of this Province Complainant.

The said Defendant saving and reserving to himself now and at all times hereafter all and all manner of Benefit and Advantage of Exceptions unto the manifold Incertaintyes Imperfections and Insufficiencies in the Complainants said Bill of Complaint contained for a full plain perfect and Direct Answer thereunto and to all and every the Matters Allegations and things which are in the said Bill of Complaint contained or to soe much thereof as this Defendant is advised is in any Sort or wise Materiall or Effectuall in the Law for this Defendant to Answer unto Answereth and Saith That he beleives [torn] Defendants Brother died about the time mentioned in the Bill and that he this Defendant was at his said Brothers house when there were some memorandums or Minutes put in Writeing by Mr. Lawson in the said Bill mentioned but the Contents thereof and on what Account this Defendant cannot relate he this Defendant takeing no notice thereof being Neither party nor Privy to the Same in any respect whatsoever Or as being by Or Witness or being informed or hearing or any wise being made Acquainted therewith by his said Brother or any otherwise at that time or any time after before or since his said Brothers Death relateing to such pretended Agreement for a Lease as is in the said Bill mentioned except What he heard or was related to him this Defendant By the said Complainant he this Defendant is altogether a mear Strainger to And Whether the Same might be Some Memorandum or an Agreement for the said Complainant to be (this Defendants Brothers overseer or how otherwise or Some intended Agreement Concerning any Lease this Defendant Cannot in any wise discover or Set forth any thing relateing thereto And this Defendant further Saith that Some Short time after such Minutes were taken this Defendant was by and present at a further discourse had by the said Complainant and this Defendants Brother at his house but did not nor Could not then apprehend by their discourses of any Bargain or Contract made between them or that Such Lease was to be drawn between them as is in the said Bill set forth which this Defendant verily beleives is untruely Suggested for that there was a dispute between the said Complainant and this Defendants Brother about Cleaning of Rice and the time when and Some other discourses concerning the Same to which neither of them agreed to each other but seemed in the Conclusion totally to disagree and break off [line lost] thereof then otherwise he should have done nothing being agreed on or Concluded at that time nor any time after as this Defendant verily beleives the which this Defendant is the rather induced to beleive by reason the said Lawson stayed long enough in this Province and a great deal longer then was necessary for the Compleating such pretended Agreement or Lease if there had really and Bona fide been any such, or that the said parties had Come to the Conclusion of any such pretended Lease And this Defendant further saith that he does not know nor ever heard how or after what manner the Complainant Entered on the premisses this Defendant being Absent and not at all informed Thereof But this Defendant further Saith that some short time after this Defendants Brothers death who was killed by the Indians along with Mr. Barker and others this Defendant comeing to take possession of the premisses found the Complainant there in the Nature of an Overseer as this Defendant apprehended for that at the Same time this Defendant took peaceable and quiet possession thereof and put thereon thirteen hands of his own to look after and manure the said preim-isses with the hands and Negroes of the said deceased brothers which at that time belonged to the premisses In all which transactions the said Complainant never in the least mentioned or intimated to this Defendant at that time that he had come to any Agreement with this Defendants Brother or did intend to hold or Continue on the said premisses pursuant to any Such pretended lease or Agreement But this Defendant further Saith that [line missing] Occasion to leave the said Complainant on the said premisses And in which said Service he this Defendant was wounded and has been sick all this Summer and soe ill that he has not’till of Late been able to look after any manner of business And this Defendant further Saith in particular That as Concerning the said Minutes he this Defendant did make all the Enquiry he Could about them endeav-ouring to find them out and to learn the truth of the Complainants assertions Concerning the Same And has lately been informed that they were left or by some means or other came into David Websters wifes’ hands near Goose Creek but not as any thing or Writeing materiall to be kept as this Defendant was informed on such inquiry but as a loose insignificant paper amongst others and that the same is since mislaid or by Casualty lost soe that this Defendant never could or did Read See or was any otherwise informed of the Contents or purport thereof And this Defendant humbly submitts to the Judgment of this Honourable Court that if the same had been any reall Agreement That from the month of December One thousand seven hundred and fourteen being the very time Charged in the said Bill of the said Minuites being taken And the Indian Warr breaking out but the Middle of Aprill last and this Defendants Brother living some months after nor the said Lawson removing till a Considerable time after which it is reasonable to beleive that if there had been any reall Agreement or Conclusion that the same might not have been perfected and Leases drawn in all that time neither did the said Complainant till lately having a prospect of a good Crop Insist of any such pretended Lease or Agreement. And as to the full Vallue of the improved rent this Defendant knowes not whether it may be or not nor Can this Defendant set forth any thing or Discover any Agreement or what in particular was transacted between the said Ruscoe in the said Bill named and this Defendants Brother or what rent he had or how otherwise or of any Consideration given by the said Ruscoe [torn] good will or any other transactions relateing thereto. But this Defendant acknowledges it to be true that about the time in the Bill for that purpose Charged The Defendant and the said Complainant did by accident meet at Cartwrights house and amongst other Various Discourses might say that he beleived that Rescoe would never hold it meaning the premises in Question but as perswadeing him to take it or diswading him from goeing to Jamaica or that his this Defendants Brother should turn off Ruscoo or any such like discourses as is in the Bill Charged he this Defendant utterly denys But this Defendant Remembers that Cartwright was at home and in the house at such Accidental meeting which was before the time of the Said Minutes taken as in the said Bill Charged and herein before answered unto and not after And this Defendant further Saith that he did and does still with humble submission to this Honourable Court Insist to have the said Plantation Negroes and Crop as his Just due and to Dispose thereof as he thinks fitt not acknowledging or beleive-ing that the said Complainant has therewith to doe in any respect but as an Overseer or a person that is to have Some Recompence for his Care Labour and pains in looking after the said premises for the which this Defendant is and was allways ready and willing to Comply with any Just and Reasonable demand of the said Complaints and for that purpose this Defendant offered to referr the same to Arbitration and now lately Arthur Midleton and Robert How Esquires were appointed and Agreed on by the said Complainant and this Defendant for that purpose but when Bonds of Arbitration were tendred and offerred the said Complainant to be Executed he utterly refused the same but instead thereof and soon after his refusall served this Defendant with the Usuall process of this Court to Appear and Answer and (to this Defendants great Surprize) And this Defendant utterly denys all and all manner of Confederacy and Combination Whatsoever to or with any person or persons or that he has or does Conceale or has burnt distroyed or any other manner of ways whatsoever or howsoever deprived the said Complainant of the said Minutes or any other Matter or thing relateing to the premises in Question in any respect whatsoever Without that that any other Matter Cause or thing in the said Complainants said Bill of Complaint Contained Materiall to Charge this Defendant withall or Effectuall by time to be answered unto and not hereby sufficiently Answered unto Confessed or Avoided Traversed or denied is true in such Sort Manner and Form as herein is before Expressed all which this Defendant doth and Will be ready to averr Maintain and prove as this Honourable Court shall think fit to Order and Direct And Humbly prays to be hence Dismissed with his Reasonable Costs and Charges in this behalf most wrongfully had and sustained etca.

Geo: Rodd Attorney pro Defendente Mathew Baird Geo. Rodd pro Defendant

Jurat Coram me n./die Octobris Annoqr. Dm 1715 Char. Hart Magistr Cancell.

[Carolina Cur Cancel]

Interrogatories Exhibited And to be Administred to such Witness as shall be produced Sworne and Examined on the part and behalfe of Matthew Beard Defendant to the Petition or bill of Complaint of John Kineard Complainant.

[Imprimis] Do you know the parties plaintif or defendant or either or which of them And did you know James Beard the said Defendant Matthew Beards late brother deceased, if yea

[2d Interrogatory] Did know of any agreement or were you by and present or heard any verball or other discourses at any time and when betweene James Beard deceased and the Complainant James Kineard concerning the seting letting or disposeing of the said James Beards Plantation to the said Complainant James Kineard declare the whole text thereof.

[3d Interrogatory] Do you know of any disagreement or disput afterwards and at any time and when that arose betweene the said James Beard and the said Complainant Kineard and on what account was the same, did or did not the said James Beard acquaint the said Complainant that he should or should not hold the said Plantation declare; as also what sayings and Expressions on either side relateing to the said Plantation and the premisses in Question were used betweene the said parties set forth and discover the same.

[4th Interrogatory] If you know of any other matter cause or thing that can make appeare and discover that the said Complainant hath no pretentions to hold the premisses in Question Or can make manifest the said Defendant Matthew Beards intrest thereto or can make for the Advantage of the said Defendant declare and set forth the same.

37 Probably Samuel Rusco, who had a warrant for 500 acres in Berkeley County in 1710 (Warrants for Lands, lé^z-ifu, p. 229).