Transcript:Cornelius Maxwell vs. Walter Alley (1845)

Transcribed by James M. Maxwell from the records of the Tennessee Supreme Court held by the Tennessee State Library and Archives, copies of which were provided to transcriber by Mary Rose Bond; January 2012.

Excerpted to focus on passages of genealogical significance.

Parties: Cornelius Maxwell & Nancy his wife, William Pucket and jane his wife, Alfred Johnson and Celia his wife, Elizabeth Peak, Polly Peak and George Peak infant children of James Peak by their next friend Cornelius Maxwell Vs. Walter Alley, John A. Humble, and Mariah his wife

The plaintiffs are the children of Elizabeth Alley and James Peek. Walter Alley is their grandfather, Elizabeth's father. Mariah Humble is the daughter of Elizabeth by her first husband Aaron Rawlings.

Cornelius Maxwell et al. vs. Walter Alley, et al (1845)

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State of Tennessee

Exemplification of the Record of the Suit tried and determined in the Chancery Court at Livingston, at its September term 1845, in which Cornelius Maxwell & others, are complainants and Walter Alley & others are defendants.

Be it remembered that heretofore, towit; on the 23rd day of July 1844, a Bill of complaint was filed in the Chancy Court at Livingston, which is in the words and figures following, towit:

To the Honorable chancellor of the Chancery Court at Livingston Tennessee

The Bill of complaint of by their next friend Cornelius Maxwell, against Walter Alley, John A. Humble and Mariah his wife, defendants, all of the County of Overton, Tennessee.

Humbly complaining your orator and oratrixes show that sometime in the year 1809, your orators mother, who was afterwards married to their father James Peak, was married to Aaron Rawlings. They show that by that marriage the mother had one child, now defendant Mariah, who has intermarried with defendant Humble. Rawlings departed this life and she again married to David McKinsey from who she was divorced, and she was married to their father James Peak. They show that upon the marriage of their mother their Grandfather, the defendant Alley sent with her a negro girl, then small, named Mary. That Mary continued in the family until within two years, when she was privily seduced from your orator by said Alley, who refuses to deliver them up. Your orators show, that in the year of 1833, the said negro girl had two children, Delpha and Easter, their said Grandfather Walter Alley, agreed to give them to the said defendants Humble and wife Mariah and to your orators, &c, and in order that a division thereof might be made, it was agreed that the said three negroes should be sold at public auction and the proceeds divided accordingly. Your orators show that the said Humble sold his interest in said negroes to Jefferson Williams, and that the said negroes were accordingly sold and bid off by A. Gardenhire for their father James Peak, who thereupon paid the said Williams two hundred and six dollars, one half of the purchase money, and gave the negroes to your orators as their own property, they being his children, one

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Half thereof being given to them by their said Grandfather Alley and their father purchasing the other half and vesting in them the whole of said negroes. Your orators still lived with their father. Their mother died, and as they married they took with them said negroes, not as a gift at the time, but under the title jointly accruing to them in 1833, under the gift and sale, above stated. Your orators show that soon after their intermarriage with daughters of said Peak, said negroes were delivered up—said Peak acting a manly and honest part towards them. That they have had peaceable and adverse possession of said negroes ever since the gift in 1833, and that said Delpha one of the girls, has had a child, holding them as their own for more than three years. Your orators pray for the benefit of the Statue of Limitation. They have raised the said negroes from children, clothed and fed them, and continued to keep them as their own until they were seduced from them by their Grandfather, who holds them from their possession. Your orators show that their Grandfather the defendant Alley, well knew that their father Peak had paid for Humble and his wife’s share of said negroes and well knew that the who interest vested in your orators by the gift and Statute of Limitation. That the expense of raising said negroes has been bourne by your orators father Peak, and that it was upon the condition of the gift, and in consideration thereof that he paid said $206 to Humble’s part and in pursuance of the agreement that they should be divided between your complainant s and Humble and his wife. And it would be a fraud in Alley now to attempt to defeat the title of complainants. But they state that he has clandestinely and fraudulently seduced them to leave their homes and owners, and holds them with a strong hand, after standing by while the father paid his money and at his own expense for your orators as his children, raised them for your complainants.

In tender consideration whereof, your orators pray that said defendants make true answer to this Bill. Let them answer whether Alley did not consent to the sale and division and whether since that time they have not been in your orators possession at the house of their father where they lived? Let Alley answer where he got them, whether by night or day, and where they are now? Let him have them forth coming to deliver up. And they pray that your Honor decree that said Alley deliver up said negroes to your orators, as they would regret to part with them

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Having owned and been with them from children; and such other further relief as may seem Equitable, and  ? and ? issues, as they will ever pray. Turney, solicitor

Answer of Walter Alley

The separate Answer of Walter Alley to a Bill of complaint filed against his and John A. Humble and Mariah Humble in the Chancy Court at Livingston Tennessee by Cornelius Maxwell and other , or so much thereof as he is advised is material for him to answer. This Respondent reserving to himself the benefit of the many errors and false statements in said bill answers and says, that it is true that respondents daughter, the mother of complainants intermarried with Aaron Rawlings, and about the time charged, and that Mariah Humble wife of John A. Humble, was their only child. It is also true that after the death of said Rawlings his said wife married David McKinsey by whom she three children, towit; Adeline who afterwards intermarried with Jefferson Williams, Sally who has since intermarried with William Hardy, and Pamelia who has since intermarried with William Nichols, and has since died leaving two children. It is also true, as respondent believes, that said McKinsey left the County and his wife was divorced from him and was afterwards married to James Peak by who she—the complainants in said bill; and has since herself departed this life. Respondent further answering says that it is true that when his said daughter first intermarried with said Rawlings, he let the negro Mary mentioned in complainants Bill, then a small girl, go and live with them; but positively denies any gift, or any thing of that sort, but to stay at the will and pleasure of respondent. And respondent here states that sometime in the year 1834, after the intermarriage of said Peak and respondents said daughter, the said John A. Humble & wife filed a Bill in Chancery Court at Monroe against respondent and said James Peak and his wife Elizabeth, amongst other things for these same negroes, or for Mary the mother &c. And respondent here refers to his answer filed in said Suit, and a copy of which is here filed with this answer, and fully adopts the same as part of his answer to this bill. And to be more explicit respondent state the said Rawlings requested respondent before his death to make him a title to said negro Mary, which respondent refusing to do, said Rawlings sent said negro home to respondent

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where she remained until after the death of said Rawlings—when respondent again permitted said negro girl to stay and remain with his said daughter Elizabeth, not as a gift or advancement, but as before to remain during will and pleasure of respondent; and she remained with is daughter after her intermarriage with said Peak; but respondent wholly denies that ever said McKinsey, said Peak or his said Daughter Elizabeth ever during all this time set up any claim to said Mary or her children or any portion of them; but to the contrary, always and at all times recognized the title of respondent: and respondent here again fully adopts his answer to said bill filed by Humble and wife against himself and Peak and wife and refers the Honorable Court to the Answer of Peak and his wife to said bill to show more fully the character in which they hold said negroes; the same being therein truly set forth. Respondent here admits Mary has had two children, towit; Delpha and Easter, and that Delpha has a child nearly a year old. Respondent further answering says that he most positively denies, if there was any sale of said negroes in 1833, that it was made with the knowledge and consent or respondent; and if respondent ever said any thing about giving said negroes to his said grandchildren it was a mere intention to give; but again repeats that he never authorized that they should be sold, nor he never made a gift of the same to his said grandchildren, or to any other person at any time; and if said Peak had them sold it was a mere contrivance of his unknown to respondent. Said negroes may have been sold and bid off by said Gardenhire, but respondent repeats, it was without his knowledge or consent, and respondent repeats that if ever said Peak , his wife or his said children put up any claim to said negroes before or after said pretended sale, said claim never came to the knowledge of respondent and respondent would again refer the Honorable Court to the said Answer of Peak and his wife to said Bill filed by Humble and wife, which Bill and answer was filed after said pretended sale; and which answer respondent repeats truly set forth the character in which they held said negroes, and respondent repeats, if they or any of them ever claimed to hold in any other character than as set out is said answer, respondent never knew any thing of it until a short time before respondent got the possession of the same, respondent thinks sometime about twelve (12) months

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before respondent took possession of said negroes, respondent hears for the first time that said Complainant Cornelius Maxwell was setting up some claim to some of said negroes. Respondent cannot say exactly how long it has been since he first heard that Maxwell was setting up some claims to said negroes, but thinks it was about twelve months before respondent got the possession of the same. But respondent is positively certain it was less than two years before they came to the possession of respondent. Respondent knows nothing of said Peak’s making any payment to said Williams, and calls for proof: and if he made any such payment it was with the knowledge and consent of respondent. Respondent further answering admits he has the possession of said negroes and has had respondent believes for two years since last Christmas; but respondent denies he got said possession clandestinely but the truth is they came to home to respondent when respondent was from home and respondent honestly believing they were his own property he has kept them as such.

Respondent further answering says, that said complainant Cornelius Maxwell brought suit against respondent for two said negroes towit; Mary and Easter in the Circuit Court of Overton County, which was determined at the last term of said Court in favor of respondent, after a full , fair and thorough investigation of the title to said negroes, and upon the merits of said Suit; and respondent insists, said trial being on the merits and fairly investigating the title to the said property is conclusive of the rights of said parties, and sets up the same in bar of this action. This Respondent fully answered asks to be hence dismissed with his reasonable costs.

Minnis Sol. For deft.

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(The Record containing the Answer of Peak & wife, referred to in Alley’s Answer)

State of Tennessee Overton County}

To the Honorable Judge of the Chancery Court of the Eastern Division in Chancery sitting at Monroe.

The Bill of complaint of John A. Humble and Mariah his wife formerly Mariah Rawlings of Jackson County State of Tennessee complainants against James Peak, Elizabeth Peak and Walter Alley of Overton County State of Tennessee defendants.

Your orator and oratrix, John A. Humble and Mariah Humble would beg leave to state that Aaron Rawlings departed this life in the County of Overton in the year 1808, first making and publishing his last Will and Testament, which has been duly proven and recorded here exhibited letter A, as part of this bill. The defendant Elizabeth Peak, Abel Rawlings and John Rawlings were in said will appointed Executrix and Executors, who came into the County Court of Overton County, had the Will proven and took the oath of their appointment. ...Your oratrix Mariah Humble states that she is the only child and heir at law of the said Aaron Rawlings; and at his death she was not more than three months old. That your orator and oratrix were married in January 1831. That the said Elizabeth intermarried with the said Aaron Rawlings in the year 1804... ... Bille filed 19 June 1834. E. N. Cullom Clk & M

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( Exhibit Letter A.) (Will of Aaron Rawlings)

In the name of God amen. April 19. 1808. I Aaron Rawlings of the County of Overton and State of Tennessee, being weak and low in health, but in perfect mind and memory. Thanks be to the Almighty God for his mercies,; and calling to mind the mortality of mankind, and knowing that they are appointed once to die, do publish and pronounce this my last Will and Testament, and as for my property, I dispose of it in the following manner and form towit: I give and bequeath to my dearly beloved wife 100 acres of land including the plantation where I now live to be laid off with the back line and with the fence next my fathers present residence and for quantity in the jumping cain and over, ten my sorrel mare and stud colt and brown horse, three cows and calves , and one three year old steer, and all my house hold furniture, all my hogs and all my family utensils, and all the whisky that is on hand and

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She is to pay my debts as soon as possible. I give and bequeath to my daughter Mariah 100 acres of land, being part of a three hundred acre entry that Asabel and John Rawlings now lives; and the balance of my other two entry thats over what J. Gilliland my wife and sister takes—also my black mare and colt, one cow and calf, 2 heifers, 2 steers and a bull.

Also give and bequeath to my sister Betsy 100 acres of land where my father now lives at the death of my parents joining my wife and daughter. I give and bequeath to my nephew Daniel Rawlings 100 acres of land where John Rawlings now lives, also my saddle.

I give my niece Polly Rawlings one cow and calf at Jacob ?s one 3 year old steer at matnys?, the other cow and calf to be sold for cash. My father and John Rawlings is to have the two thirds of the grain & truck raised on my plantation this season and they are to put wifes part complete for her; and the next year my father is to have half and my wife half if she finds a hand to help raise the crop. I also give and bequeath to my father surveying and plotting instruments. I also give and bequeath to my brother Asabel all land bought at sheriffs sale save a two hundred acre warrant for myself and 200 to be sold for horses to pay Huddleston. 280 for F. Deck, all the rest of the land and warrants to be converted to his own use. I desire it done as soon as possible. Also give my father five acres of my cleared land not where he now lives till his death. I also give and bequeath to my nephew Daniel Rawlings my wagon and gun, and his father is to do all my wifes hauling. I also give to my brother Asabel Rawlings all my law books. I also bequeath unto my sister Betsy you and wea? And one you lamb to sally Rawlings and the rest of my sheep to my beloved wife. I do ordain and constitute and appoint my true and trusty friend Asabel Rawlings, John Rawlings, Elizabeth Rawlings Executor and Executrix of this my last Will and Testament. In witness whereof I have hereunto set my hand and seal the day and year within written. Signed, sealed, published and declared in the presence of us.

Aaron Rawlings (seal) James X Gilliland James Martindale Daniel Martindale State of Tennessee May Session A. D. 1808 Overton County} Thus was the Execution of the within

10 Will duly proven in open Court by the oaths of James Gilliland, James Martindale, and Daniel Martindale subscribing witnesses thereto ordered to be recorded . B. Totten ...

14 (Answer of Elizabeth Peak.) [In the 1834 case]

... That true it is her first husband Aaron Rawlings departed this life about the time stated in the bill, having made a Will, which may be as set forth in Exhibit A. in said bill, and she supposes she qualified as Executrix of said Will jointly with Asabel Rawlings and John Rawlings who were also named Executors of said Will. This respondent admits that Complainant Mariah was her only child by said Rawlings. Said Mariah was born in 1807. Said Mariah intermarried with complainant about the time stated in the bill. This respondent never sold any of the property of said Aaron Rawlings, nor did she do any act as Executrix, except perhaps to go to Sparta once to see about a tract of land, when she was about nineteen years of age. This respondent was not twenty one years of age when she qualified as Executrix, nor did she act as such after that age. ...

16 (Answer of James Peek) [In the 1834 case]

... He is willing to admit that Aaron Rawlings in said bill mentioned departed this life about the time mentioned in the bill, and it may be true he made a Will, and that Exhibit A is a copy thereof. He is willing to admit that Elizabeth Rawlings in said will mentioned, now the wife of this respondent, was Executrix of said Will and perhaps qualified as such, and that Exhibit B. in said bill may be a true copy of said Record of her qualification as such. This respondent admits that complainant Mariah was the only child of said Aaron Rawlings and his wife co-defendant Elizabeth Peek, and that said Mariah was perhaps near the age represented in the bill at the death said Aaron Rawlings, and that she intermarried with complainant John A. Humble about the time stated in the bill. This respondent has been informed and believes it to be true, that said Aaron Rawlings and his co defendant and wife Elizabeth Peek were married about a little over two years before the death of said Aaron. ...

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...This respondent has been informed and believes it to be true that after the death of said Rawlings, said Elizabeth Peek intermarried with a certain Daniel McKinsey and lived with him about seven years and had three children by him he then went away and said Elizabeth got a divorce, and in the Winter of 1818, as respondent believes, he intermarried with said Elizabeth and has lived with her ever since. ...

18 ... Respondent relies on the infancy of his wife Elizabeth as a defense to this bill in the same way as if formally pleaded thereto, she being an infant not much over fifteen years old as he is informed and believes when she took the oath of Executrix of said Aaron Rawlings.

A.P. Lane Counsel for defendant ...Sworn to and subscribed before me this 5th day of November 1834 Thos C. Webb JP Justice of the peace

20 (Depositions) [In the 1845 case]

James Peek witness for the complts. Being first sworn sayth—I married the daughter of Walter Alley about the year 1817 or ’18 , and when we left or moved from his house, my wife claimed the negro girl Mary mentioned in the pleadings. This negro girl was sent on with us. In a conversation which I had with Mr. Alley previous to my marriage, I understood from him that said negro girl belonged to my wife, or to her and the children she had by a former husband. The negro remained in my possession for the space of 16 or 17 years; and during that time, as the children aforesaid married off, I paid them and took their receipts for their interest in said negro girl Mary and her increase, being the two negro-children mentioned in the pleadings, with the exception of one of the heirs, towit; Mariah Humble. John A. Humble, who intermarried with said Mariah, threatened to bring a law suit against me and said Alley for the interest of said Mariah in the negroes above mentioned....

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...(Cross-Examined)—Question by defts solicitor. Which of the children did you pay for their interest in negro Mary, and how much did you pay each and when did you pay each? Answer.—I paid three when they married. I don’t know when they married. I paid Wm. Hardy who married Sally McKinsey—Jefferson Williams who married Adeline McKinsey, Wm Nichols who married Permelia McKinsey. I paid them or let them have my interest in six negroes....

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Question by same. What disposition of the negro Mary and her two children, Delpha & Easter did you make of each of them at any time prior to the time Alley obtained possession of them, and at what time? Answer. I give to Cornelius Maxwell Mary & Easter, and to William Pucket the girl Delpha. Maxwell took possession of Easter a year upwards before Alley got possession; and Pucket first took possession of Delpha probably a year or not quite so much before Alley got the negroes in possession; and I suppose and have understood & believe, that these negroes have remained, and still remain, in Alley’s possession. Prior to the time Alley obtained possession of the negroes, Mary was hired out, and I received her hire, one year of the hire was paid to Maxwell and the minor heirs. After I let Maxwell have the negroes, I paid over to Maxwell a part of one years hire; and the balance I paid to the minor heirs....

[Peek's deposition is followed by depositions from George Christian, William Turner, Elijah C. Webb, G.W Christian, William P. Goodbar, William Hayter, Logan A. Lynch, D.H. Capps, Spencer McHenry, John S. Daughterty, and Edward Cullom, given for the express purpose of stating that they do not believe that James Peek should be trusted. For example, "You say you have heard a great deal said about him, Was it not in reference to some State prosecution got up against him for forgery and counterfeiting? Answer. I suppose that they made the strongest impression upon me, more than any thing that I now have knowledge of." (Turner). Several pages later, are the depositions in his favor, from D.H. Morgan, Job Morgan, John Richardson, John Bell, James Wasson, Loyd Morgan, Wiley Lawson, Evin Bartlett, Thomas Phillips, Josiah Marchbanks, Jesse Phillips, Mark Phillips, Nathan Dodd, John W. Carlton, Joseph Terry, Robert Nealy, Daniel Conly, John Langford, Jeremiah England, Lewis Barnes, Henry West, John Roberts, Jacob Rotan, Alfred Lynn, Benton Harp, Joseph Murphee, John Johnson, Samuel R. Patterson, Joel Lynn, James M. Harp and Alfred Stockton]

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...William Hardy a witness on the part of the defendants, being first sworn sayth. Question by defts. Sol. Were you acquainted with Elizabeth Peek, if so, tell and say whose daughter was she, and if she was married with whom did she marry? Answer—I was acquainted with Elizabeth Peek. She was the daughter of Walter Alley a deft. in this suit. She married three times I understand. She first married Aaron Rawlings, by whom she had an only child, viz; Mariah (now wife of John A. Humble) as I understand. She next married David McKinsey by whom she had three children, viz; Sally who is my wife—Adeline who intermarried with Jefferson Williams; and Permelia who intermarried with Wm. Nicholas. And she Elizabeth lastly intermarried with James Peek, by whom she had six children living and one dead. Elizabeth is now dead. ...

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James Wasson being first sworn sayth—Question by complts. Sol. Are you acquainted with the general character of James Peak, if so would you think him entitled to full faith and credit upon his oath in a court of Justice? Tell all you know about it. Answer—I have been acquainted with James Peak about 8 years. I live about 3 miles from him. I think I am acquainted with his general character. I would take his oath in a court of Justice. Cross-examined—Question by deft. If Noah Lane the Justice before whom this depositon is taking is related to Cornelius Maxwell the complainant in the suit mentioned and to James Peek, say how they are related? Answer—Cornelius Maxwell married a Daughter of James Peek, and James Peek married a sister of Noah Lane the Justice. Maxwell’s wife is a daughter of Peek’s first wife and Noah Lane’s sister is Peeks second wife. And further this deponent sayth not...

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...Cross-examined-_Question by deft. Did or not your son marry Mr. Peak’s daughter—Answer—He did; and further this deponent sayth not. John Johnson...