Pike-Crenshaw-Lowndes County AlArchives Court.....Kelly, Tyre (et Al) 1844 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/al/alfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Alice Folmar Kelley http://www.genrecords.net/emailregistry/vols/00033.html#0008183 March 28, 2017, 6:22 pm Source: Alabama Department Of Archives And History Written: 1844 TYRE KELLY’S DEATH 1840-41; 1841 SALE OF LAND; 1844 COURT SUIT; APPEAL IN SUPREME COURT 1845; VERDICT 1846 (COURT TRANSCRIPTS INCLUDED HERE AT END) For two to three years, I researched Tyre Kelly and his children and found the year 1846 was generally used by researchers as being the time of Tyre’s death. This was based on the time at which his son Seaborn was appointed administrator of his estate. However, in late 2016 just prior to my completing the book, THE LINEAGE OF TYRE KELLY, PIONEER AND PLANTER, I discovered court documents at Alabama Department of Archives and History which show that Tyre died several years earlier than previously thought -- and several years before an administrator was appointed. He died 1840-41. FOLLOWING IS AN EXCERPT FROM "THE LINEAGE OF TYRE KELLY ...": “Tyre died between 6-1-1840 and 10-30-1841. We know this because son Hiram, who died before Tyre did, was living at the time of the 1840 U.S. Census, which enumerated residents as of 6-1-1840. Further, we know Tyre died prior to 10-30-1841, when his children sold some of his land. Therefore, Tyre and Hiram died within that same time period, Hiram first. “Tyre left no will. On 10-30-1841, some of his land was sold at public outcry to David Bird, the highest bidder. The sale was accomplished for some of Tyre’s children by James Daniel, who acted as a selling agent and accepted eight promissory notes for the land. Tyre’s son-in-law Samuel M. Adams, husband of Sarah (Kelly) Adams, must have initiated the sale with Daniel, as he signed promissory notes along with Bird, so that together they promised – “we or either of us” – to pay the notes by their due dates. It appears that Adams’ signature was intended to be surety to Daniel that he would be paid. Three notes for $45 each were due by 12-1-1842; and four for $45 and one for $25 were due by 12-1-1843; total $340. “By early 1844 (or ’45 – year begun unclear), when none of the notes had been paid, James Daniel sued in Lowndes County Circuit Court – “James Daniel vs Bird and Adams” – claiming “Trespass on the Case” with damages of $800. Even though David Bird had taken possession of the land in 1841 and still retained that land, he argued against paying for it on the grounds that there was no clear title – no administrator had been appointed for Tyre’s estate and there were minor heirs who could not legally make a sale. Bird and Adams were summoned to appear in court for Spring Term, but it appears that Adams was not served the summons in time so that the matter was continued during Fall Term, at which time the notes – except for one unavailable – were read in court. The judge instructed the jury that, even if they believed the facts the defense presented, those facts did not legally excuse Bird from owing the amount of the notes. The jury found for Daniel in the amount of $405 plus cost of court. “Bird appealed the case – in “Bird vs Daniel” – to the Alabama Supreme Court, which issued a Writ of Error on 10-28-1845 to the Lowndes County Circuit Court to forward to the Court the case proceedings in advance of its January Term 1846. A seven-page transcription was forwarded, and “any sheriff” was ordered to summon Daniel and his attorney Nathan Cook to appear at the upcoming Court session. On that January Court date, the Supreme Court upheld judgment of the lower court, stating that Daniel should recover the amount awarded plus interest and his costs in both courts … also that Daniel was not entitled to keep the proceeds of the notes when collected but that he might bring a suit to recover his damages. “A report printed in 1846 on cases determined by the Alabama Supreme Court that year includes a summary of this case with the following statement: ‘This is nothing more than the common case of the vendee of land attempting to resist an action at law, for defects in the title, without having rescinded the contract and renounced the possession.’ The summary also states that although Bird’s defense could not be remedied by not paying the notes, he could seek redress in “Chancery” – court of equity. “On 12-7-1846, Tyre’s son Seaborn Riley Kelly was appointed administrator of Tyre’s estate and petitioned in Lowndes County Orphan’s Court that month to be allowed to sell the remaining land in the estate and divide the proceeds among the heirs. …” [END QUOTE FROM BOOK] MY TRANSCRIPTION OF CIRCUIT COURT AND SUPREME COURT RECORDS RE: 1841 SALE OF SOME OF TYRE KELLY'S LAND BY HIS CHILDREN AFTER HIS DEATH SUIT BROUGHT BY JAMES DANIEL RE LAND SALE OF 1841 – LOWNDES COUNTY CIRCUIT COURT The State of Alabama To any Shff of the State of Alabama – Greeting, you are hereby commanded to take David Bird and Samuel Adams if to be found in your County, and them safely keep, so that you have their bodies before the Honorable the Judge of the Circuit Court, at a Court to be holden for Lowndes County at the Court House thereof on the third Monday after the 4th Monday in March inst [instant – the current month], then and there to answer James Daniel in a plea of Trespass on the Case to the damage of the said plff of Eight Hundred Dollars: and have you then and there this writ, with your endorsement thereon. Witness J. McMichael, Clerk of said Court, at Office, this 11th day of March AD 1844 rc Issued 11th day of March 1844 Josiah McMichael Clerk This action is on Seven Forty Five dollar notes and one Twenty Five Dollar note given by defts to plff dated 30th Oct 1841 Three of the larger notes are 1st Decr. 1843, N. Cook plffs atty Recd 11th March 1844 - B Harrison Shff, Executed on David Bird April 4th 1844. B Harrison Shff By W H Ringgold D.S. [Deputy Sheriff] The State of Alabama Lowndes County Circuit Court Spring Term 184__ [last digit not recorded] James Daniel by atty complains of David Bird and Samuel L Adams [Samuel M shown elsewhere] and prays a discontinuance as to said Adams not served with the writ in this cause in custody rc in a plea of Trespass on the Case rc For that whereas the said defts heretofore to wit, on the 30th of Octr. A.D. 1841 at to wit, in the County afsd, made eight certain promissory notes in writing bearing date the day and year afsd, and thereby then and there promised to pay the said plff by those of said notes the sums of Forty Five Dollars each being $135, in all, on the first day Decr 1842 By four of said notes the sums of Forty Five dollars each bringing in all the latter four one hundred and eighty dollars on the First day of Decr 1843 and by the other of said notes the sum of Five [should be Twenty Five] Dollars on the sale First day of December 1843 all for value recd. By means whereof and by force of the statute in such case made and promised, then and there became liable to pay the said plff the said sum of money in the said several notes specified according to the tenor and effect thereof: and being so liable he the said deft in consideration thereof, afterwards to wit on the day and year last aptd at the Court aptd undertook, and then and there faithfully promised the said sums of money in the said several notes specified according to the tenor and effect thereof. Yet the said plffs, although often requested the said sums of money in the said several notes specified, hath not paid to the said plff nor any part thereof, but so to do hath hitherto wholly neglected and refused and still does neglect and refuse to the damage of the said plff of Eight Hundred 1/100 [or 0/100] Dollars – and therefore he brings suit re Cook, plffs atty. James Daniel vs Bird & Adams, Continued by consent James Daniel vs Bird & Adams Continued the State of Alabama Lowndes County Circuit Court Fall Term 1845 James Daniel vs David Bird Be it remembered that on the Trial of this cause at the present Term of this court, the plff offered to introduce as evidence eight promissory notes in the words and figures following to wit – $45 on or before the first day of Decr. 1843 and or either of us do promise to pay James Daniel or bearer the sum of Forty Five Dollars for value recd this 30th day of Oct. 1841 David Bird Saml Adams $45 on or before the first of December 1843 we or either of us do promise to pay James Daniel or bearer the sum of Forty Five Dollars for value recd this 30 Decr. [Oct.] 1841 (Signed) David Bird Saml Adams By the first day of Decr. 1842 we or either of us promise to pay James Daniel or bearer Forty Five Dollars for value recd Oct. 30, 1841 (Signed) David Bird Saml Adams 45 – By the first day of Decr 1842 we or either of us promise to James Daniel or bearer Forty Five Dollars for value recd Oct. 30th, 1841 (Sigma) David Bird Saml M. Adams On or before the first day of December 1843, we or either of us do promise to pay James Daniel or bearer the sum of Forty Five dollars for value recd 30th Oct. 1841 (Sigma) David Bird Saml M. Adams. On the first day of December 1843, we or either of us promise to pay James Daniel or bearer the sum of Fifty Five dollars for value recd 30th Oct. 1841. (Sigma) David Bird Saml M. Adams On the first of December 1843, we or either of us promise to James Daniel or bearer the sum of Twenty Five Dollars for value recd 30th Oct. 1841 (Sigma) David Bird Saml M. Adams [Even though eight notes were mentioned, only seven were read, as it is said elsewhere that one was not available.] To the introduction of these notes as evidence the defts counsel objected, on the grounds of an insufficient description of the same in the declaration, which objection was overruled by the Court and the plff was permitted to read said notes in evidence, to which defts excepted. The defts also objected to the introduction of each note severally, on the grounds of a variance, and between the same and the description contained in the declaration which was overruled by the Court, and each note permitted to be read to the Jury – to which deft also excepts, on the trial of said cause it was proved by the deft that each and all of said notes were executed and delivered by deft to plff for the purchase of a tract of land by deft, under the following circumstances to wit. The land belonging to and the title of the same was in, one Tyre Kelly, in his lifetime – Tyre Kelly died in possession of said land, leaving several heirs, among whom were some minors. After the death of said Kelly, some of the said heirs agreed to put up said land for sale at public outcry – no letters of administration had been granted on the estate of said Kelly – The plff was not an heir of said estate and had no interest in the same, and it was proved on that trial they had no interest whatever in the promises of said notes, and that plff had acknowledged to same, and said he wishes to be out of the business, and merely acted as the agent and for the accommodation of said heirs in selling said land at public outcry and there was no proof that he was to be remunerated for his services in and taking the notes. Said Kelly died in Lowndes County Alabama. It was further proved that the deft went into the possession of the land on the said purchase and continues in possession from thence hitherto, under this proof that deft asked the Court to charge the Jury, that if they believed the facts stated above they could not find for the plff, which charge the Court refused to give – but charged the Jury that said facts if established, would be no defense to said notes in an action at Law – To the refusal to charge as requested and to the charges given, deft excepts, and tenders this his Bill of Exceptions, which is signed and sealed by the presiding judge Oct. 25th, 1945 _____ Pickens (Seal) James Daniel vs David Bird This day came the parties by their attys and the demurrer [argument] of the deft to the declaration being heard and understood by the Court the same is overruled and thereupon came a Jury to wit, George N. Gilman [? Giliman/Gilmer] and eleven others who being impounded and sworn well and truly to try the issue joined between the parties upon their oaths so say we find for the plff and assess his damages at Four Hundred and Five Dollars. It is therefore considered by the Court that the plff recover of the deft the damages so specified by the Jury aptd together with costs in his behalf expended the State of Alabama Lowndes County. I Josiah McMichael Clerk of the Circuit Court of the County afs do hereby certify that the foregoing pages from one to seven inclusive do contain a full true and perfect transcription of the record and all the proceedings had in the case of James Daniel vs David Bird Given under my hand and private seal (having no seal of office at office this 28th day of Oct. 1845) rc Josiah McMichael Clerk APPEAL BY DAVID BIRD – ALABAMA SUPREME COURT WRIT OF ERROR TO CIRCUIT COURT OF LOWNDES COUNTY To the Clerk of the Circuit Court of Lowndes County: Because in the record of proceedings, and also in giving Judgment in a Suit in our Circuit Court for the County afsd [aforesaid], at the Fall Term thereof, AD 1845, in a Plea of Trespass on the Case between James Daniel plff [plaintiff] and David Bird deft [defendant] as it is said, manifest error hath intervened to the great damage of the said David Bird as by his complaint we are informed: we being willing that the error, if any there be, should in due manner be corrected, and fall and pray Justice done to the parties afsd, in this behalf, do command you, that if Judgment be thereupon given, then you distinctly and fully send to us, under your Seal, the record and proceedings, with all things concerning the same, together with this writ, so that we may have them at the next Term of the Supreme Court, to be holden at Tuscaloosa, that the record and proceedings, being inspected, we may further cause to be done thereupon what of right, according to the Laws of the State, ought to be done for correcting that error. Witness J. McMichael, Clerk of Said Court, at office, this 28th day of Oct. A.D. 1845 rc Josiah McMichael Clerk Issued 28th day of Oct. 1845 The State of Alabama Lowndes County To any shff [sheriff] of the State of Alabama Greeting, You are hereby commanded to summon James Daniel or Nathan Cook his atty at Law, to appear at the Supreme Court, on the First Monday in January next, to defend and answer to a Writ of Error, which David Bird has this day said out, returnable to said Term, to reverse said Judgment, which the said James Daniel recovered against him in the Circuit Court afsd at the Fall Term A.D. 1845. Herein fail not, and have you then and there this writ, with your endorsement thereon. Witness Josiah McMichael Clerk of Said Court, at Office this 28th day of Oct. A.D. 1845 rc Josiah McMichael Clerk Issued 28 day of Oct 1845 David Bird vs James Daniel Supreme Court Janry Term AD 1845 [1846] And the said deff in error by atty comes and assigns for error 1st that the Court erred in overruling the Demurrer to the declaration 2nd in not excluding the notes sued on from the Jury, as is shown by the Bill of Exceptions 3rd In refusing to charge the Jury as requested, and in the charge given, as is shown by the Bill of Exceptions. [Signed] Judge Atty for Plff in Error January Term 1846 David Bird 1356 vs James Daniel This day came said parties by their attys, and thereupon the record in the cause and matters assigned for error therein being argued and examined, it seems to the Court that in the records and proceedings of said Circuit Court there is no error – It is therefore considered that the Judgment of said Circuit Court be affirmed – and the defendant in error recover of the plaintiff the amount of the Judgment of said Circuit Court and interest and costs of this Court, and of said Circuit Court. [END OF TRANSCRIPT - APPEALED CASE] Additional Comments: David Bird, Samuel M. Adams, James Daniel File at: http://files.usgwarchives.net/al/pike/court/kelly373gwl.txt This file has been created by a form at http://www.genrecords.org/alfiles/ File size: 16.4 Kb