Franklin County NcArchives Court.....Samuel Williams, James & Attilia Whitted V. 1819
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 11, 2009, 9:38 pm

Source: Nc Reports
Written: 1819

Den on Demise of James Whitted and Attilia his wife v. Samuel Williams

From Franklin

May Term 1819

A. devised his lands to his son Henry, his daughter Peggy, and the child his 
wife was then ensient with, as tenants in common; and declared that on the 
coming of age of his son Henry, it should be at his option to have the land 
sold or not; if sold, the money arising therefrom was to be equally divided 
between him and the other two children; and the executor was authorized to 
sell the lands, if Henry should wish it, and divide the money.

A. died in 1793, and his wife soon afterwards was delivered of a daughter, who 
shortly thereafter died. The widow married, and had issue, a daughter named 
Attilia. Peggy died in May, 1796, and Attilia was born in September following. 
Henry, on arriving at age in 1807, sold the land; Attilia now claimed one-
fourth part of the lands, and brought an ejectment against Henry's alienee. 
Pending the suit, the executor executed a conveyance to Henry's alienee.

Attilia is not entitled to recover any part of the lands, whatever right she 
may have to a share of the money for which they were sold; nor can the Court 
in this action take any notice of her claim for a share of the rents which 
accrued before the sale.

The Court here would direct the Defendant to pay the costs of this suit, if a 
question upon that point had been submitted; but, as it is not submitted by 
the case sent up, no decision here can be made on it.

This was an action of ejectment brought to try the title which the lessors of 
the Plaintiff claimed to one undivided fourth part of a tract of land situate 
in Franklin County. John Kinchen, being seized of the land, made and published 
in writing his last will duly executed to pass his real estates, and therein 
devised the land in question "to his son Henry Martin Kinchen, his daughter 
Peggy Kinchen, and the child of his wife was then ensient with, as tenant's in 
common; and declared that on the coming of age of his son Henry Martin, it 
should be at his option to have the land sold or not; if sold, the money 
arising therefrom was to be equally divided between him and the other two 
children; and the executors were empowered to sell the land, if Henry Martin 
should wish it, and to divide the money."

John Kinchen died in December, 1793, and shortly after his death his widow was 
delivered a child, who was named Lucretia, and who soon thereafter died. The 
widow then intermarried with William Nash, by whom she had issue, Attilia, 
wife of the lessor of the Plaintiff. Peggy Kinchen died on 9 May 1796, and 
Attilia Nash was born in September following. The third of the land to which 
Lucretia was entitled under the demise, having upon her death become vested in 
Henry Martin and Peggy, James Whitted now claimed upon the death of Peggy one-
fourth part of the land, in right of his wife Attilia, and one of the heirs at 
law of Peggy Kinchen; and also claimed one-fourth part of the rents which had 
accrued since Peggy's death.

Henry Martin Kinchen, on arriving at age, conveyed the land to the defendant 
on 29 August, 1807, and the executor of John Kinchen executed a conveyance to 
the Defendant after the bringing of this suit. It was submitted to the Court 
to decide whether the lessors of the Plaintiff be entitled to recover.

Hall, Judge: In this action the Court cannot decide the claim which the 
lessors of the Plaintiff set up for a share of the rents; and as to the claim 
which they set up for one-fourth part of the land, the Court must five 
judgment for the Defendant. The testator directed his executor to sell his 
land, if his son Henry Martin, on his arrival at age, should wish it. The 
acting executor has conveyed the land to the Defendant, in conformity with the 
wishes of Henry Martin after his arrival at age. The Defendant, therefore, 
holds the lands under the will of John Kinchen, the devisor, who was the 
rightful owner of them, and the Plaintiffs cannot recover them, nor any part 
of them. Whether they be entitled to any part of the money for which the land 
was sold, will be decided when the question shall be properly submitted to the 
Court. It cannot be decided in this action of ejectment. It is said, in the 
argument, that as the deed was made to the Defendant since the institution of 
this suit, the Plaintiff is entitled to damages for the trespass, although he 
cannot recover the land. This Court would, no doubt, so decide, were that 
point submitted; but, as it is not submitted, we cannot undertake to decide it.


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